Clickwrap Agreement
Effective as of September 15, 2023
Welcome to thymia. The terms of this Agreement (as defined below) govern your access to and use of the Services. Please read these terms and conditions carefully before proceeding with your purchase of the Services. By proceeding with the purchase of the Services, you acknowledge that you have read, understood and agree to be bound by the terms and conditions outlined in this Agreement. If you do not agree with any part of this Agreement, you should refrain from using the Services.
Please note that if you are entering into this Agreement on behalf of the Customer (as defined below) or any other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not have the necessary authority, you must not proceed with the purchase and/or use the Services.
If you have any questions or require any clarification on any aspect of this Agreement, please contact support@thymia.ai.
This Agreement was last updated 15th September 2023.
1
Definitions
1.1
“Agreement” means: (i) these terms and conditions between thymia and the Customer which govern the Customer’s access to and use of the Services; (ii) if required the DPA (as defined in 5.1.3 below) which relates to the sharing and international transfer of personal data; and (iii) any other supporting contractual documents which all together form one agreement (i.e., clickwrap terms
1.2
“Affiliate(s)” means all entities which are controlling, controlled by or under common control with a party. For the purposes of this Agreement, "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise.
1.3
“Applicable Law” means any: (i) statute, statutory instrument, bye-law, order, directive, treaty, decree or law (including any common law, judgement, demand, order or decision of any court, regulator or tribunal); (ii) any legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or (iii) legally binding industry code of conduct or guideline, which relates to this Agreement, the Services or the Platform.
1.4
“API” means the proprietary application programming interface(s), through which thymia processes voice recordings using its proprietary artificial intelligence (AI) models. Such processing shall lead to output which is communicated to the Customer for its own display.
1.5
“Activation Key” means a unique alphanumeric code or token for authentication and authorisation of access to thymia’s API.
1.6
“Authorised User” means the natural persons (employees and/or contractors) of the Customer who are authorised by the Customer to access and use the Services for the purposes defined in this Agreement.
1.7
“Authorised Payment Method” means a current and valid payment method accepted by thymia for the Services, as updated from time to time.
1.8
“Business Day” means a day that is not a Saturday, Sunday or a public or bank holiday in England, United Kingdom.
1.9
“Customer” means a customer that has purchased access to and use of the Services.
1.10
“Customer’s Equipment” means the Customer’s hardware and information technology equipment used to access the Services.
1.11
“Customer’s Marks” means any trademarks, business names, service marks, logos, or identifying slogans and symbols provided by the Customer to thymia under or in connection with this Agreement.
1.12
“Effective Date” means the date on which the Customer accesses the Platform and/or the Services.
1.13
“Fees” means the fees payable for the supply of the Services, where applicable and as set out in the checkout at www.thymia.ai.
1.14
“Force Majeure Event” means any event or occurrence not within thymia’s reasonable control, including, without limitation, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, collapse of buildings, fire, explosion or accident, loss of electrical power, loss of telephone, internet or wide area network, as well as other similar infrastructure and/or material shortages.
1.15
“Intellectual Property Rights” means: (i) patents, registered trademarks, registered designs, applications and rights to apply for any of those rights; (ii) unregistered trademarks, copyright, topography rights, database rights, moral rights, Know-How, rights in designs and inventions, discovery or process, and applications for and rights to apply for any of the foregoing; (iii) trade, business and company names, domain names and e-mail addresses; (iv) rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise); (v) the goodwill attaching to any of the aforementioned rights; and (vi) any forms of protection of a similar nature and having equivalent or similar effect to any of them; in all the above cases, throughout the world, including countries which currently exist or are recognised in the future.
1.16
“Know-How” means formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions.
1.17
“Platform” means the proprietary thymia platform, through which the Services are provided to the Customer and its Authorised Users.
1.18
“Services” means the use of artificial intelligence models to assess voice, movement and behavioural data to identify conditions and symptoms of mental health and wellbeing through a successfully completed Wellness Check.
1.19
“Technical Prerequisites" means the list of characteristics of the equipment (hardware, operating system, internet connection with sufficient bandwidth), necessary for the access to and use of the Services from the Effective Date, as described in Clause 4.
1.20
“Terms of Use” means the click wrap terms of use that apply to the Authorised User’s access to and use of the Services.
1.21
“Termination Date” means the date on which this Agreement expires or terminates for whatever reason.
1.22
“thymia” means THYMIA LIMITED, a company incorporated in England and Wales, having its registered office address at 64 Nile Street, London, England, N1 7SR, with company number 12609104.
1.23
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity or availability of software. The term “Vulnerabilities” shall be construed accordingly.
1.24
“Virus” means any thing or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); and (iii) adversely affect the user experience, including worms, trojan horses, viruses or other similar things or devices.
1.26
“Wellness Check” means the collection of data from an Authorised User to provide an output. A Wellness Check shall be deemed successfully completed where sufficient data is collected from an Authorised User to provide a complete set out of outputs.
1.27
“Whitelabelling” means the use of the Customer’s Marks to rebrand an activity plugin as a Customer branded activity plugin, and the term “Whitelabelled” shall be construed accordingly.
2
purpose of this agreement
2.1
The purpose of this Agreement is to define the terms and conditions under which thymia provides the Customer with the Services, during the Subscription Term, in consideration of full payment of the relevant Fees. Please read this Agreement carefully before concluding a purchase to access and use the Services.
2.2
The Services are provided to the Customer on a non-exclusive basis. Accordingly, the Customer will be entitled to obtain services in the nature of the Services from persons other than thymia, and thymia will be entitled to provide the Services and similar services to other customers.
3
Subscription term
This Agreement shall be effective from and including the Effective Date and shall remain in full force and effect during the Customer’s access to the Platform and/or the Services (the “Subscription Term”).
4
Prerequisites
4.1
The Customer represents, understands and accepts the Technical Prerequisites as a condition of accessing the Platform, the Services and/or the API and the Customer is solely responsible for ensuring the technical, maintenance and security related equipment of its internet connection and Customer Equipment. The Customer shall bear its own costs in relation to the Customer’s Equipment, internet access, anti-virus software and systems.
4.2
For the avoidance of doubt, thymia may upgrade and/or change the Technical Prerequisites throughout the Subscription Term, notably due to the evolution of the Platform and/or the APIs. In such an event, thymia will inform the Customer of such changes in advance if there is an anticipated material impact on the Customer’s access to the Platform and/or API.
4.3
The Customer acknowledges the technical risks inherent to the internet, the interruptions in access that may result and the importance of the quality of the internet access provider and its adequacy with the needs of use of the Platform and/or the API. The transmission of the Services via the internet is not guaranteed and in light of the foregoing, thymia is not responsible for any unavailability, decline and/or difficulties in accessing the Platform and/or APIs caused by a failure or insufficiency, whatever the cause, including that of the Customer’s internet connection.
5
Representations and warranties
5.1
Each party represents and warrants to the other that:
5.1.1
it has the requisite right, power and authority, and has taken or will take all action necessary to execute, deliver and exercise its rights, and perform its obligations, under this Agreement;
5.1.2
the Services and the Customer’s use of the Services in accordance with the terms of this Agreement is not in breach of any Applicable Laws or regulations, the Intellectual Property Rights of any third parties, contractual agreements or duties that thymia has with or owes to any other party; and
5.1.3
if required for compliance with data protection law it has entered into or shall enter into a Data Privacy Addendum governing the sharing and international transfer of personal data related to this Agreement (the “DPA”).
5.2
The Customer represents and warrants to thymia that:
5.2.1
it will not share Authorised User data to any third party that is aggregated to less than three (3) Authorised Users;
5.2.2
it will make known to its Authorised Users the provisions of this Agreement;
5.2.3
its Authorised Users will only access and use the Platform and the Services after acceptance of the Terms of Use;
5.2.4
it will not share any personal data of an Authorised User that may be available to it by virtue of the Platform with any other third party unless it obtains the prior written consent of such Authorised User or in otherwise in compliance with applicable law;
5.2.5
it will not (i) oblige (ii) force (iii) command or (iv) secure any consent or purported consent that is not freely given, specific, informed and unambiguous from any Authorised User in relation to sharing its personal data with any other third party;
5.2.6
it has any necessary and sufficient data security measures in place to handle the process and storage of sensitive personal data; and
5.2.7
it has the consent of its Authorised Users to process their data or another lawful basis in line with applicable law under or in connection with this Agreement.
5.3
For the avoidance of any doubt, thymia:
5.3.1
makes no warranty as to the compatibility, fitness or performance of the Customer’s Equipment with the Platform or the API; and
5.3.2
makes no warranty, express or implied, as to the results to be attained by the Customer and/or any Authorised User from the use of the Services, the Platform or the API, and/or as to their merchantability or fitness for a particular purpose or use. The Services are provided “as is” and cannot, in any circumstances, be relied upon by the Customer or tis Authorised Users. The Customer must, at all times, use its own judgement when viewing or basing decisions upon the Services.
5.4
The Services provided by the Platform are for wellness monitoring and mood assessment and do not constitute any form of advice, including but not limited to medical, clinical, pharmaceutical or other forms of health advice, nor does the Platform constitute a medical device. The Services and any content provided on the Platform are for informational purposes only and should not be supplied to a health care professional directly for interpretation as a recommendation or for providing guidance for making health or lifestyle decisions, nor should they be interpreted by an individual, licenced or otherwise, in the diagnosis, prevention, monitoring, treatment or alleviation of disease. The Services made available to the Customer are not a substitute for medical advice from a licensed healthcare professional nor should they be used in the event of a medical emergency. Any decisions made or based on the Services are the sole responsibility of Authorised User or the Customer and thymia will not be held liable for any losses or damages arising from the decisions taken from the Services.
5.5
All warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are expressly excluded from this Agreement.
6
fees
6.1
The Fees for the Subscription Term will remain fixed unless the Customer:
6.1.1
exceeds any applicable limit or plan while using the Services;
6.1.2
subscribes to additional features, checks or products; or
6.1.3
upgrades or downgrades a package.
6.2
The Customer may exceed the number of Wellness Checks granted in a particular package. Usage above such an agreed limit in such circumstances shall result in the over usage being billed at the end of the Customer’s applicable billing cycle. For the avoidance of doubt, systematic over usage by the Customer of Wellness Checks may result in an automatic upgrade to a larger package of Wellness Checks.
6.3
Where the Customer exceeds a package of Wellness Checks, the Customer may upgrade and purchase a new package of Wellness Checks. Such an upgrade shall come into effect at the start of the Customer’s next billing cycle. Notwithstanding the foregoing, the Customer may purchase an additional, one-time upgraded package of Wellness Checks. In such circumstances, the provisions of this Clause 6 shall apply.
6.4
All Fees payable under this Agreement are exclusive of value added tax (“VAT”) and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority, which will be payable by the Customer in addition to the Fees in the manner and at the rate prescribed by law from time to time. All Fees will be due on the date that the Customer purchases the Services and will be paid in full without any deduction, withholding or set-off.
6.5
The Customer acknowledges and agrees that during the Subscription Term, thymia may increase the fees payable for the Services. If the Customer refuses the increase of the Fees, the Customer may terminate their access to and use of the Services at the end of any applicable billing period before such increase commences.
6.6
Except as expressly provided in this Agreement, no refunds shall be made, including on termination of this Agreement, unless terminated for thymia’s material breach. If terminated for thymia’s material breach, any Fees paid in advance for Services not yet provided at the date of termination shall be refunded.
6.7
Where applicable, the Customer authorises thymia to charge its relevant Authorised Payment Method for all Fees payable for access to and use of the Services. Where thymia fails to charge the Customer’s Authorised Payment Method (for example, where the Customer’s Authorised Payment Method has expired or is no longer valid), thymia reserves the right to re-bill the Customer’s Authorised Payment method. Where, following such re-billing, thymia is unable to successfully bill the Customer’s Authorised Payment Method, thymia reserves the right, at its sole discretion, to suspend or terminate the Customer’s account on the Platform until payment of all Fees are made in full.
6.8
The Customer acknowledges and agrees that it will keep all of Customer’s relevant business information and Authorised Payment Method accurate, up-to-date and complete.
7
intellectual property rights
7.1
Subject to the Customer’s payment of the Fees in full, thymia grants to the Customer a non-exclusive, personal, non-transferable, non-sublicensable licence to use the Platform during the Subscription Term, solely and exclusively for the purpose of accessing and using the Services for the Customer’s own internal purposes and in accordance with the provisions of this Agreement.
7.2
Except to the extent expressly permitted in this Agreement, the Customer shall not, and shall not allow, procure or induce any Authorised User or any other person to:
7.2.1
reproduce, alter, adapt, modify, arrange, extract, reutilise, exploit, translate, recompile, decompile, disassemble, reverse engineer, distribute, co-mingle with any other data, or share any other form of, or create any derivative work from all or part of the Platform and/or the API;
7.2.2
share, (re)distribute, sell, sublicence, rent, lease, lend, store or otherwise make available (including free of charge), by any means whatsoever, for any purposes (including in read-only, editable or downloadable formats) any part of the Platform or the Services to any person or third party (including affiliates);
7.2.3
use the Services, in particular the Platform and/or the API, or any part of them, for any development purposes or to develop any applications, software or other technology that could in any way interact or interfere with the performance of the Platform and/or the Services or any portion thereof, or in general distort or interfere with the integrity or implementation of the Services;
7.2.4
cache, store or use any portion of the Platform, and generally access the Services, with a view to creating and/or marketing a product or service similar to the Services, which may compete with the Services, or which copies or reproduces any feature, function or graphic attributes of the Services;
7.2.5
carry out and/or disclose the results of tests or performance tests of the Services without the prior written consent of thymia;
7.2.6
do, or fail to do, anything which may damage or prevent damage to the reputation of thymia, the Services, the Platform or any part thereof;
7.2.7
access the Services through any medium or equipment which thymia has not authorised in writing, or seek to obtain such unauthorised access;
7.2.8
introduce or attempt to introduce any Viruses or Vulnerabilities into the Platform;
7.2.9
use the Services or any part thereof, the Platform and/or the API to record or transmit malicious code and/or unlawful, defamatory or otherwise unlawful materials, or generally use the Services for any illegal purpose or in any manner inconsistent with the terms of this Agreement; and
7.2.10
share, move, modify, interface, copy, broadcast, reproduce, port or otherwise route the Services or any portion thereof with or to any other equipment, network or software without thymia’s prior written consent.
7.3
Under the terms of this Clause 7.3, thymia will defend at its own expense any claim against the Customer brought by a third party to the extent that the claim alleges that the Customer’s authorised use of the Services in full compliance with this Agreement directly infringes that third party’s Intellectual Property Rights, and thymia will pay those costs and damages finally awarded against the Customer and effectively borne by the Customer that are solely and directly attributable to such claim or those costs and damages agreed to in a monetary settlement of such claim.
7.4
Such indemnification in Clause 7.3 is only due by thymia if the Customer: (i) has promptly informed thymia in writing of the existence of such claim; (ii) has allowed thymia to have the sole discretion of the defence and any negotiations for a settlement; and (iii) actively collaborates in good faith with thymia, at its request, for the defence or amicable settlement of the dispute.
7.5
If a claim or potential claim is to be brought against the Customer as a result of using the Services or if thymia believes that may be the case, the Customer agrees that thymia may, at its sole option and expense: (i) procure for the Customer the right to continue to use the Services; (ii) replace or modify the elements in question, so as to remove the ground of such claim(s); or (iii) terminate this Agreement and give Customer a prorated refund of any prepaid Fees for the remaining Subscription Term.
7.6
Notwithstanding the foregoing, thymia will have no obligation or liability under this Clause 7 or otherwise with respect to any indemnification, cost, claim or proceeding to the extent that:
7.6.1
it would not have been incurred or suffered but for any breach of this Agreement, unauthorised act, omission or misuse of the Services (including but not limited to the Customer not complying with the provisions of this Agreement and/or the Technical Prerequisites) and in particular the Platform, by the Customer; or
7.6.2
it would not have been incurred or suffered but for any use of the Services which is made after the commencement of the claim or proceeding or, if earlier, the Customer becoming aware of the alleged infringement.
7.7
Clauses 7.3 to 7.6 state thymia’s entire liability and the Customer’s sole remedy as to the infringement of any third party’ Intellectual Property Rights and/or any other proprietary right arising from this Agreement, which the Customer expressly acknowledges and accepts.
8
liability
8.1
The Customer is responsible for the acts and omissions of all Authorised Users of the Services.
8.2
For the avoidance of doubt, thymia will have no liability to the Customer, in each case whether direct, indirect, foreseeable or consequential, for any:
8.2.1
loss of profit;
8.2.2
loss of revenue, loss of production or loss of business;
8.2.3
loss of goodwill, loss of reputation or loss of opportunity;
8.2.4
loss of anticipated savings or loss of margin;
8.2.5
loss of bargain;
8.2.6
liability of the Customer to third parties (save as set out under this Agreement);
8.2.7
loss of use or value of any data or software;
8.2.8
wasted management, operational or other time;
8.2.9
loss or damage or injury (as the case may be) caused by use of the Services or by delays or interruptions of the Services for whatever cause;
8.2.10
liability, contingent or otherwise, for any damage, whether caused by negligence of thymia or any of its employees, agents, sub-contractors or otherwise, arising in connection with the Services provided under this Agreement or the use of the Platform and/or the API, where appropriate;
8.2.11
costs relating to the acquisition or subscription to a third party substitute service or solution which is suffered by the Customer; or
8.2.12
actions from an Authorised User and/or any third party, even if thymia has been notified of any above mentioned damages.
8.3
Nothing in this Agreement shall limit or exclude the liability of either party, as applicable, for:
8.3.1
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.3.2
fraud or fraudulent misrepresentation; and
8.3.3
any matter in respect of which it would be unlawful to exclude or restrict liability.
8.4
Subject to Clauses 8.2 and 8.3 and excluding Clause 7.3, thymia’s total aggregate liability to the Customer for all claims, losses or damages arising out of or in connection with this Agreement, whether under contract (including indemnities), tort, negligence, breach of statutory duty or otherwise will not exceed a sum equivalent to one hundred percent (100%) of the Fees paid by the Customer to thymia in the applicable year in which the claim(s) arise(s).
8.5
Notwithstanding any other term of this Agreement, thymia will not be in breach of this Agreement to the extent its failure to perform or delay or defect in performance of its obligations under this Agreement arises as a result of:
8.5.1
any breach by the Customer of its obligations contained in this Agreement, or non-compliance with thymia’s written recommendations and/or instructions;
8.5.2
unauthorised and/or fraudulent access to the Platform and/or generally, the Services;
8.5.3
thymia relying on any incomplete or inaccurate information or data provided by the Customer or by a third party; or
8.5.4
thymia complying with any instruction or request by the Customer or one of its employees.
9
media API
9.1
The Customer will purchase access to the Services via thymia’s media API. Upon the purchase of access to thymia’s media API, thymia shall provide the Customer with an Activation Key.
9.2
The Customer acknowledges and accepts that it is solely responsible for maintaining the security and confidentiality of the Activation Key. The Customer shall not transfer, share or otherwise disclose the Activation Key to any third party without thymia’s prior written consent. In the event of any unauthorised use or suspected security breach relating to the Activation key, the Customer shall immediately notify thymia in writing and comply with thymia’s reasonable instructions regarding the same.
9.3
The Fees associated with API access shall be determined by the number of Wellness Checks selected by the Customer. Such pricing with respect to the API is detailed on www.thymia.ai or as otherwise communicated to the Customer.
10
Activity Plugin
10.1
The Customer will purchase access to the Services via thymia’s activity plugin which may be Whitelabelled or non-Whitelabelled.
10.2
Upon the purchase of access to thymia’s activity plugin, thymia shall provide the Customer with an Activation Key.
10.3
Where the Customer purchases a Whitelabelled activity plugin package, the Customer hereby grants to thymia a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable right and licenc e for the Subscription Term to use the Customer’s Marks in accordance with the terms of this Agreement for the purposes of Whitelabelling. All use by the Customer of the Customer’s Marks shall be in accordance with any written guidelines issued to thymia from the Customer from time to time.
11
Feedback
In the event that the Customer or any Authorised User provides thymia with any suggestions, comments, ideas, materials, data, improvements or any other type of feedback (“Feedback”) with respect to any aspect of the Services, the Platform and/or the API, the Customer hereby assigns, and shall, if requested in the future to assign, all rights, title and interest to such Feedback to thymia, without any compensation or other duty owed to the Customer, and the Customer automatically waives any moral rights in such Feedback.
12
service levels and maintenance
Thymia will use commercially reasonable endeavours to ensure that the Services and the API have an uptime of ninety-eight percent (98%), except for instances of scheduled maintenance (the “Uptime”). Where such maintenance takes place, thymia shall notify the Customer with at least five (5) calendar days’ notice through email. Any downtime resulting from a Force Majeure Event shall be excluded from such Uptime.
13
termination
13.1
The Customer may terminate its access to the Services at any time. Where the Customer wishes to cancel its purchase of the Services, the Customer shall e-mail support@thymia.ai. Such cancellation will take effect at the end of the Customer’s applicable billing period.
13.2
Thymia may suspend or terminate, at its sole discretion, the Customer’s access to and use of the Platform and/or the Services if the Customer or any of its Authorised Users commits a material or persistent breach of the terms of this Agreement.
14
Consequences of termination
14.1
Upon the Termination Date:
14.1.1
the Customer shall cease to use the Platform and shall ensure that all Authorised Users cease to use the Services;
14.1.2
all Services and where applicable, the API, shall terminate;
14.1.3
any provision which expressly or impliedly continues to have effect after expiry or termination of this Agreement will continue in force; and
14.1.4
all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the Termination Date.
14.2
The following Clauses shall survive the Termination Date: 1, 3, 7, 8, 9, 12, 14, 15, 19, 20, 21, 22, 23, 24, 25 and 26.
15
changes to this agreement
15.1
We may update the terms of this Agreement at any time upon notice to you in accordance with Clause 23. The Customer’s continued use of the Services following deemed receipt of this notice will constitute acceptance of the terms of this Agreement, as varied.
15.2
If the Customer does not wish to accept the terms of this Agreement, as varied, it acknowledges and accepts that it will immediately cease use and access of the Services on deemed receipt of the notice provided under Clause 15.1.
16
Force Majeure
16.1
If a Force Majeure Event occurs, thymia will:
16.1.1
as soon as reasonably practicable after becoming aware of the Force Majeure Event, give the Customer notice of the occurrence, anticipated term and impact of the Force Majeure Event;
16.1.2
use commercially reasonable endeavours, without being required to incur additional expenditure, to mitigate the effects of the Force Majeure Event, and to ensure that the Force Majeure Event comes to an end; and
16.1.3
continue to perform all of its obligations under this Agreement, the performance of which are not affected by the Force Majeure Event.
16.2
Subject to Clause 16.1, thymia will not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances, thymia shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for one (1) month, the Customer may terminate this Agreement by cancelling its purchase of the Services.
17
Sub-contracting
For the avoidance of doubt, thymia may subcontract its obligations hereunder, without prior formality, provided that the appointment of any sub-contractor shall not relieve thymia from any obligation or liability under this Agreement.
18
independent Contractors
Each party agrees that it is an independent contractor. Nothing in this Agreement and no action taken by the parties in connection with it will create a partnership, a joint venture, a relationship of employer and employee between the parties, give either party the authority to act as the agent of or in the name of or on behalf of the other party, or to bind the other party or to hold itself out as being entitled to do so.
19
assignment
19.1
Each party will only be entitled to assign or transfer this Agreement or its rights and obligations under this Agreement or deal in any other manner with any of its rights under this Agreement if it has obtained the prior written consent of the other party to do so. Any attempted assignment or transfer in violation of this Clause 19.1 will be null and void.
19.2
Notwithstanding Clause 19.1, thymia may assign this Agreement to a related entity or any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation, or otherwise, subject to written notice given to Customer, at which point, thymia will be released from its obligations under the Agreement. Under no circumstances shall thymia be held jointly and severally liable for the performance of the Agreement by the assignee.
20
no waiver
20.1
A delay in exercising or failure to exercise a right or remedy under or in connection with this Agreement will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy.
29.2
A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
21
severability
If any provision of this Agreement is or becomes unenforceable, it shall be deemed deleted, but that shall not affect the enforceability of the rest of this Agreement.
22
rights of third parties
If any provision of this Agreement is or becomes unenforceable, it shall be deemed deleted, but that shall not affect the enforceability of the rest of this Agreement.
23
Notices
Any notice or communication required or permitted under this Agreement shall be sent by e-mail, where, in the event of thymia, to support@thymia.ai, and in the event of the Customer, to the e-mail used to purchase access to and use of the Services.
24
governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be exclusively governed by, and construed in accordance with English law, without regard to conflicts of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
25
jurisdiction
The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or their subject matter or formation.