Subscription agreement

Welcome, and thank you for your interest in Enian Ltd. (“ENIAN,” “we,” or “us”) and our website at www.enian.co, along with our related websites, networks, applications, mobile applications, APIs and other services provided by us (collectively, the “Service”). This Subscription Agreement (“Agreement”) is a legally binding contract between you (“You”) and ENIAN regarding your use of the Service. You and ENIAN may be singularly or collectively referred to in this Agreement as the “Party” or the “Parties”, respectively.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKINGI ACCEPT,” SUBMITTING AN ORDER, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ENIAN’S PRIVACY POLICY (TOGETHER, THIS “AGREEMENT”). If you are not eligible, or do not agree to thIS AGREEMENT, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND ENIAN’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ENIAN AND BY YOU TO BE BOUND BY THIS AGREEMENT.

BACKGROUND

  1. ENIAN has developed and offers an energy data platform on a hosted software-as-a-service (SaaS) basis.
  2. You wish to utilize ENIAN’s services in order to accelerate pipeline development, enhance decision-making and manage renewable energy projects.

AGREEMENT

  1. Definitions.
    1. “Customer” means the Customer identified in the applicable Order with ENIAN for provision of the Services pursuant to this Agreement.
    2. “Data” means information, content, data, and materials imported or input by You into the Service.
    3. “Effective Date” means the date specified in an Order if You are a Customer, otherwise the date You agree to this Agreement.
    4. “Guest” means an entity or user unaffiliated with Customer, but invited to use the Service by a Customer.
    5. “Order” means the initial Order Form and any subsequent Orders, agreed in writing between the Parties from time to time and made a part of this Agreement, specifying, among other things, the applicable Services, fees, term, and other applicable subscription limits.
    6. “Service Data” means information, content, data, and materials generated by ENIAN or obtained directly by ENIAN from third party sources, and used in connection with providing the Service. Service Data includes, without limitation, aggregate usage data collected or obtained in connection with the use of the Service hereunder.
    7. “User” means individual users of the service, whether employed and/or acting on behalf of Customer (“Customer Users”) or Guest (“Guest Users”).
  2. Access and Use of the Service.
    1. Orders. The Service to be provided, applicable fees, and the initial term during which Customer is authorized to use such Service (the “Initial Term”) shall be set forth in the Order. An Order may include an initial evaluation period prior to the date on which Fees are chargeable (“Evaluation Period”), in which case, the Initial Term commences upon the execution of the Order, and, if the Order is not terminated prior to the end of the Evaluation Period, the Initial Term will be extended in the amount of the Evaluation Period (such that it continues following the end of the Evaluation Period for the full Initial Term specified in the Order). Unless otherwise provided in the applicable Order, upon expiration of the Initial Term, the Order shall automatically renew for subsequent terms of the same length as the Initial Term, unless a Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then current term (the Initial Term and any renewal terms, collectively, the “Subscription Term”). The Parties may, from time to time upon mutual written agreement, enter into additional Orders for additional Service, which, upon execution, will become a part of and subject to the terms and conditions of this Agreement.
    2. Right to Access and Use. Subject to Customer’s full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable fees, ENIAN grants Customer a non-exclusive, non-transferable, non-sublicensable right, during the applicable Subscription Term, to access and use the Service as expressly identified and described in each mutually executed Order for Customer’s internal business purposes. Customer may invite Guests to access and use features of the Service, though Customer remains primarily liable for all activity occurring under Customer’s account, whether by Customer Users or Guest Users.
    3. Support. For so long as Customer is current with its payment of the Fees (defined below), ENIAN will provide Customer, during the Subscription Term, its standard remote email and telephone support during ENIAN’s business hours, and will use commercially reasonable efforts to assist Customer to resolve questions concerning the Service (“Support”). Such Support does not include any on-site support, and is Customer’s sole remedy and ENIAN’s sole obligation with respect to any errors, malfunctions, noncompliance, outages, or other issues experienced with the Service. To obtain such Support, Customer shall (i) provide supervision, control and management of the use of the Service; (ii) document and promptly report all errors or malfunctions; and (iii) take all steps reasonably necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from ENIAN.
    4. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s accounts, including all Users’ access and activities taking place under Customer’s account or through a Guest invitation. Customer shall: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensure that its equipment meets the minimum system guidelines set forth in the applicable documentation; and (ii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Data provided to ENIAN hereunder, and for ensuring that all necessary rights, notices, and permissions have been obtained the provision of such Data to ENIAN for the uses provided herein.
      Service Guidelines. Customer shall use the Service solely as contemplated by this Agreement and shall not, and shall not encourage or permit Users to: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (ii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iii) attempt to gain or permit unauthorized access or access to a third party (excluding Users invited to use the Service by Customer) to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so save where expressly permitted by applicable law; (v) “frame”, “mirror”, or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Data) in any Customer or third party system or service; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
    5. Service Guidelines. Customer shall use the Service solely as contemplated by this Agreement and shall not, and shall not encourage or permit Users to: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (ii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iii) attempt to gain or permit unauthorized access or access to a third party (excluding Users invited to use the Service by Customer) to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so save where expressly permitted by applicable law; (v) “frame”, “mirror”, or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Data) in any Customer or third party system or service; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
  3. Fees and Billing.
    1. Fees. Customer shall pay all applicable fees for the Service (collectively, the “Fees”), all in the amounts and as specified in the Order and in any mutually executed additional Orders.
    2. Billing and Payment Terms; Late Payment. Customer will provide ENIAN with valid and updated payment instrument information (such as credit card), and Customer authorizes ENIAN to charge such payment instrument for all Services in the applicable Order during the Subscription Term. ENIAN will charge Customer’s payment instrument for the Fees monthly in advance starting on the first day of the Subscription Term and subsequently on that day every month, or in accordance with any different billing frequency stated in the applicable Order. To the extent an Order provides that Fees will be invoiced, payments shall be made within thirty (30) days after the date of invoice. All Fees are quoted in, and all payments must be made in, British Pounds. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, and may result in suspension or termination of the Service. If any amount under this or any other agreement between ENIAN and Customer is thirty (30) or more days overdue, ENIAN may, without limiting ENIAN’s other rights or remedies, in its sole discretion, accelerate Customer’s unpaid fee obligations under such agreements, so that all such fees become immediately due and payable, and suspend provision of the Service to Customer (and Guests using the Service pursuant to an invite from Customer) until all amounts are paid in full.
    3. Taxes. ENIAN’s fees are not inclusive of any sales, value-added, use, or other taxes and obligations which will be payable by Customer in addition to the sum in question at the rate and in the manner prevailing at the relevant tax point and in the manner prescribed by law.
  4. Guest Users
    1. Right to Access and Use. If You are a Guest User, You acknowledge and agree that You have a right to bind the Guest to these terms, and You agree on behalf of Yourself and the Guest on whose behalf you are using the Service to comply with all the terms of this Agreement, except that, unless you have a separate subscription with ENIAN to use the Service, Customer remains primarily responsible for the payment of applicable Fees.
    2. Your Responsibilities. Without limiting the generality of the foregoing, Guests shall: (i) comply with the terms and conditions of this Agreement (other than with respect to payment of Fees) arising in connection with use of the Service by Guest Users, (ii) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensure that its equipment meets the minimum system guidelines set forth in the applicable documentation; and (ii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Data Guest Users provide to ENIAN hereunder, and for ensuring that all necessary rights, notices, and permissions have been obtained for the provision of such Data to ENIAN for the uses provided herein.
    3. Service Guidelines. You shall use the Service solely as contemplated by this Agreement and shall not: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (ii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iii) attempt to gain or permit unauthorized access or access to a third party to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so save where expressly permitted by applicable law; (v) “frame”, “mirror”, or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Data) in Your or any third party system or service; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
  5. Proprietary Rights.
    1. Reservation of Rights. You acknowledge that in providing the Service, ENIAN utilizes (i) the ENIAN name, the ENIAN logo, ENIAN’s websites and related domain names, the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and any other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Technology”). As between You and ENIAN, ENIAN reserves all rights, title and interest, including all intellectual property rights in and to, the Technology and the Service and any associated Service Data, any and all modifications, customizations or improvements to any of the foregoing (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to You.
    2. Data. ENIAN acknowledges that, as between ENIAN and You, You are the sole and exclusive owner of the Data. In order to enable ENIAN to provide the Service, You hereby grant to ENIAN and its successors, a worldwide, non-exclusive right and license to use and store any Data imported, obtained through ENIAN’s APIs or integrated with the Service in connection with the provision of the Service to You, and to use (including after termination or expiry of this Agreement) the know-how and analytical results resulting therefrom (including any and all machine learning, trained models, and other similar materials) in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including ENIAN’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Data to any third party in raw or disaggregated form (except as set forth below), or to identify You as the source of any such Data or analytical results. If You elect to share Data with other users (including Guest Users) through the Service, You hereby grant ENIAN and its successors, a worldwide, non-exclusive right and license to share Data as instructed by You, and You agree and acknowledge that ENIAN is not responsible for what such users do with Your Data once they have obtained Data as a result of Your sharing.
    3. Feedback. Any ideas, suggestions, guidance or other information provided by You to ENIAN related to the Service and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback”. You agree to grant and hereby grants to ENIAN a nonexclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.
  6. Confidentiality.
    1. Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”), which if disclosed to the other Party (“Receiving Party”): (i) in tangible form, is designated in writing as being confidential at the time of disclosure, (ii) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure, (iii) and would otherwise reasonably be considered confidential due to the circumstances of disclosure or the nature of the information itself. The Confidential Information of ENIAN shall include, without limitation, the terms and conditions of this Agreement, the Technology, the Derivatives, and the Service. Your Confidential Information shall include, without limitation, the Data. Notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
    2. Confidentiality. The Receiving Party shall not (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement, or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s personnel (including employees, contractors and consultants) who need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, or as required by law.
    3. Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
    4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
  7. Representations and Warranties.
    1. By ENIAN. ENIAN represents and warrants to You that (i) it will provide the Service in a professional manner consistent with applicable industry standards; (ii) it has all necessary right, power, and authority to enter into this Agreement and provide the Service to You in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party; and (iii) Your use of the Service as provided and in accordance with this Agreement does not and will not infringe the intellectual property rights of any third party, provided that Your sole and exclusive remedy for any breach of the foregoing representation is indemnification pursuant to Section 9.1, if applicable.
    2. By You. You represent and warrant to ENIAN that: (i) You have the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service, (ii) You shall not transfer any personal data, personal information or personally identifiable information to ENIAN without the consent of the individual(s) to whom such information relates and (iii) You are in compliance with, and shall not violate any applicable law, including without limitation privacy and data protection laws and regulations, or Your internal privacy policies, in connection with the collection, use or processing of personal data, personal information or personally identifiable information, Data, and any other materials used in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, ENIAN will have the right to immediately, in ENIAN’s sole discretion, suspend any related Service if deemed reasonably necessary by ENIAN to prevent any liability accruing to it.
    3. THE FOREGOING REPRESENTATIONS AND WARRANTIES SHALL BE THE PARTIES’ EXCLUSIVE REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENIAN HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES SHALL BE ERROR-FREE OR UNINTERRUPTED.
  8. Limitations of Liability.
    1. LIABILITY NOT EXCLUDED. NEITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FOR FRAUDULENT MISREPRESENTATION OR FOR ANY OTHER LIABILITY WHICH MAY NOT, BY LAW, BE EXCLUDED OR LIMITED, IS EXCLUDED OR LIMITED UNDER THIS AGREEMENT, EVEN IF ANY OTHER TERM OF THIS AGREEMENT WOULD OTHERWISE SUGGEST THAT THIS MIGHT BE THE CASE.
    2. EXCLUSIONS. SUBJECT TO CLAUSE 8.1 AND EXCEPT WITH RESPECT TO ANY MATERIAL BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER OR NOT SUCH LOSSES OR DAMAGE WERE FORESEEN, DIRECT, FORESEEABLE, KNOWN OR OTHERWISE) FOR ANY LOST PROFITS, LOSS OF ANTICIPATED SAVINGS, WASTED MANAGEMENT TIME, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES HOWEVER CAUSED AND, IN EACH CASE WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. MAXIMUM LIABILITY. SUBJECT TO CLAUSES 8.1 AND 8.2 AND EXCEPT FOR YOUR INDEMNITY OBLIGATIONS SET FORTH IN SECTION 9.2, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY) IN RESPECT OF ANY 12-MONTH PERIOD (THE FIRST OF WHICH PERIODS SHALL START ON THE EFFECTIVE DATE), EXCEED TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO ENIAN FOR THE SERVICES UNDER THIS AGREEMENT DURING THE RELEVANT 12 MONTH PERIOD. FOR THE PURPOSES OF THIS SECTION 8.3 IF MORE THAN ONE CLAIM ARISES FROM THE SAME EVENT OR SERIES OF CONNECTED EVENTS, THEN ALL SUCH CLAIMS SHALL BE TREATED AS HAVING ARISEN ON THE DATE ON WHICH THE FIRST RELEVANT CLAIM AROSE.
    4. Basis of the Bargain; Failure of Essential Purpose. You acknowledge that ENIAN has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
  9. Indemnification.
    1. By ENIAN.
      1. ENIAN shall, at its own expense, defend or at its option settle any third-party claim (“Claim”) brought against Customer to the extent it alleges that Customer’s use of the Service in accordance with this Agreement infringes any third party’s intellectual property rights; provided that Customer provides ENIAN with (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) all available information and assistance reasonably requested by ENIAN, at ENIAN’s expense, to settle and/or defend any such Claim; provided, however, that the failure to give such notice shall not relieve the ENIAN of its obligations hereunder except to the extent the ENIAN was actually prejudiced by such failure.
      2. In the event any such Claim is brought or threatened, ENIAN may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if ENIAN determines that the foregoing are not feasible on commercially reasonable terms, terminate this Agreement or an Order in whole or in part, and refund to Customer a prorated portion of any Fees paid in advance for any Service not provided as a result of such termination.
      3. ENIAN shall have no obligation to Customer under Section 9.1 to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) the Data; (iii) the combination of the Service with any of Customer’s products, services, data, hardware, or business process; or (iv) implementation of any of Customer’s specifications or requirements.
      4. SUBJECT TO CLAUSE 8.1 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING PROVISIONS OF SECTION 9.1 STATE THE ENTIRE LIABILITY OF ENIAN, AND THE SOLE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
    2. By Customer. Customer shall, at its own expense, indemnify and hold harmless ENIAN against all losses, costs and expenses arising out of a Claim against ENIAN to the extent caused by Data, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 7.2; provided that ENIAN provides Customer: (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) proper and full information and assistance, at ENIAN’s expense, to settle and/or defend any such Claim. Customer shall have no obligation to ENIAN under this Section 9.2 to the extent such Claims arise from ENIAN’s breach of this Agreement.
  10. Term and Termination.
    1. Term. This Agreement shall commence on the Effective Date and shall remain in force until all the Subscription Terms for Services purchased under all Orders expire or are terminated in accordance with this Agreement (the “Term”). With respect to Guests and Guest Users, Customer may terminate your access prior to the end of the Term, in which case your right to access and use the Service (and the Term, with respect to You, as a Guest or Guest User) shall end at such time the Customer revokes your access.
    2. Termination.
      1. Customer may terminate any applicable Orders for any or no reason prior to the end of any applicable Evaluation Period by providing written notice to ENIAN and ceasing use of the Service (which may include such account cancellation procedures as may be specified in the user documentation).
      2. Either Party will have the right to terminate this Agreement, or the applicable Order, upon written notice, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. The foregoing cure period shall not apply in the case of failure to pay fees.
      3. Either Party may terminate this Agreement if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
      4. ENIAN may, in addition to any rights it may have at law or at equity, suspend Your access to the Service in the event that ENIAN determines that Your use of the Service violates this Agreement or any applicable law or regulation, or would otherwise reasonably be expected to result in any harm or liability to ENIAN or any third party.
    3. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) ENIAN will immediately cease providing the Service hereunder; (b) any and all payment obligations of You under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each Party shall return the tangible embodiments of the other Party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
    4. Survival. The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of the Agreement: Sections 2.4 (Your Responsibilities), 2.5 (Service Guidelines), 3.2 (Billing and Payment Terms; Late Payment), 3.3 (Taxes), 5 (Proprietary Rights), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Limitations of Liability), 9 (Indemnification), 10.3 (Effect of Termination), 11 (Miscellaneous Provisions).
  11. Miscellaneous Provisions.
    1. Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
    2. Construction. The Parties acknowledge and agree that they have had the opportunity to discuss this Agreement with and obtain advice from their legal counsel, have had sufficient time to, and have carefully read and fully understand all the provisions of this Agreement, and are knowingly and voluntarily entering into this Agreement. Therefore, the Parties waive the application of any rule of construction providing that ambiguities in an agreement will be construed against the Party drafting such agreement.
    3. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, labor shortage or dispute, governmental act or failure or degradation of the Internet or telecommunications. The delayed Party shall give the other Party prompt notice of such cause, and shall use its reasonable commercial efforts to correct promptly such failure or delay in performance.
    4. Marketing. ENIAN will have an opportunity to refer to You as a customer in ENIAN’s marketing materials and on its website, and the Parties shall discuss in good faith the appropriate timing thereof.
    5. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the England and Wales. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but the ENIAN is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
    6. Assignment. You shall not have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of ENIAN, except that Customer may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets related to this Agreement, provided that Fees payable hereunder may be modified in the event that any such occurrence results in any expansion of usage of the Service (whether by number of Users, volume, or otherwise). Any attempted assignment or delegation in violation of the foregoing will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
    7. Notices. Any payment, demand, invoice, notice or declaration of any kind which must be delivered to the other party, shall be in writing and served: (i) personally; (ii) by a recognized overnight courier providing a written confirmation of delivery; or (iii) by first-class mail (postage prepaid), addressed to the party at its address set forth in the Order or at such address as either party may advise the other in writing from time-to-time. Notices given hereunder shall be deemed to have been given on: (iv) the date of personal delivery; (v) the date of delivery as documented by the overnight courier; or (vi) on the third business day after the date of mailing.
    8. Independent Contractors; Subcontractors.
      1. ENIAN and You are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between ENIAN and You. Neither ENIAN nor You will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
      2. Subject to Section 5, ENIAN shall have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement.
    9. Entire Agreement. The terms and conditions of any Order, and any exhibits, schedules and other documents referenced herein or therein are incorporated into the terms and conditions of this Agreement, and constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on any representation, statement or assumption not expressly set out in this Agreement. In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be (i) this Subscription Agreement; (ii) Order; and (iii) any other schedules, exhibits and other documents referenced and incorporated herein and therein.