Terms and Conditions
Software-as-a-Service Terms and Conditions
These Software-as-a-Service Terms and Conditions (“SaaS Terms”) govern the access to CERTUS™ provided by SICPA SA and/or its Affiliate (“SICPA”) to Authorized User. These SaaS Terms may be supplemented by addenda, exhibits, schedules, and other attachments referenced in or attached to these SaaS Terms or the applicable Quotation, if any (collectively, the “Agreement”). In the event of any inconsistency between these SaaS Terms and the terms of the Quotation, the terms of the Quotation shall prevail.
1.1 “Affiliate” means in relation to an entity, any entity Controlled by, Controlling, or under common Control with, such entity. “Control” or “Controlling” or “Controlled” means, in respect of an entity, direct or indirect beneficial ownership of more than fifty (50) per cent. of the voting or income interest in such entity or otherwise having the power to govern the financial and the operating policies or to appoint the management of such entity.
1.2 “Authorized User” means any Subscriber-appointed end user that has been assigned (either by Subscriber, by a Subscriber-appointed representative, or by SICPA) a username and password (or any other applicable access or authentication mechanism) which permits such representative to access and use the Services.
1.3 “Business Day” means a day which is not Saturday, Sunday or a declared public holiday in the place where a thing is to be done or occur under the Agreement.
1.4 “Data Subject” means a person who is the subject of PII stored, transmitted or processed by a Services.
1.5 “De-identified Data” means data, including Subscriber Data, that has been de-identified and/or anonymized by Subscriber, SICPA, or a third party to remove Identifiers and PII, however provided and designated, marked or labelled. “Identifiers” means data that identifies, or for which there is a reasonable basis to believe could be used to identify a specific person.
1.6 “Documentation” means the Implementation Plan, and any technical documentation, user guides and training materials provided from time to time by SICPA with respect to the Services.
1.7 “Export Controls” means the import and export control laws, regulations, licenses and government or regulatory orders that apply to a Service and related technologies, including under the laws and regulations of the United States, the European Union and Switzerland.
1.8 “Loss” means any loss, cost, expense or damage, including judgements, settlements, awards, fines and reasonable attorney’s fees and expenses or any other liability.
1.9 “Personally Identifiable Information” or “PII” means any information relating to an identified or identifiable natural person (Data Subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.10 “Product Schedule” means a schedule specific to a type of Services, which is attached to or referenced in a Quotation and which further describes the nature of, and any additional terms and conditions applicable to, such Subscription Service.
1.11 “Proprietary Materials” means, collectively the Software, the Documentation, any other code, documentation, technology, works, inventions and know-how relating to Services (whether or not customized or otherwise developed in connection with the Agreement), and any suggestions and feedback provided by or on behalf of the Subscriber relating to any of the above.
1.12 “Quotation” means the applicable SICPA quotation, order form, or other ordering document (including all attachments thereto and other terms referenced therein) for Services that is: (a) executed by the parties, and (b) references these SaaS Terms.
1.13 “Services” means, collectively, the CERTUS Software which SICPA makes available to Subscriber over the Internet (or some other mutually-agreed data transmission network) and related updates, the Implementation and Customization Services, and the Technical Support Services.
1.14 “Software” means CERTUS’ source code, applications and other technology used by SICPA to provide the Services to Subscriber, including all associated user interfaces and knowledge bases, all as may be further described in the Quotation.
1.15 “Subscriber” means you, the Authorized User or the legal entity described in the Quotation (if any) as the “Customer” or “Subscriber”.
1.16 “Subscriber Data” means data or other information of any type which is provided or made available by or on behalf of Subscriber to SICPA, or is otherwise accessible by SICPA, in connection with the Services, including information or data which Subscriber inputs, provides, makes available or is otherwise accessible to SICPA through the Services.
1.17 “Third Party” means a person other than SICPA, SICPA’s Affiliates, Subscriber and Subscriber’s Affiliates.
1.18 “Third Party Supplier” means any Third Party who supplies a software application or other service that is included as part of the Services.
2.1 For each Services SICPA shall:
2.1.1 grant the Authorized User a personal, limited, non-transferrable, non-exclusive right to access and use such Services during the Term;
2.1.2 provide technical support for such Services in accordance with the terms set out in the relevant Quotation, if any (the “Technical Support Service”).
3.1.1 each Authorized User shall keep a secure password or other applicable access or authentication mechanism for his or her use of the Services and the Documentation and each Authorized User shall keep his or her password or other applicable access or authentication mechanism confidential; and
3.1.2 it shall ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of the SaaS Terms and shall be responsible for any Authorized User’s breach of the SaaS Terms. The Subscriber shall use best efforts to prevent any unauthorized access to, or use of, the Services and/or Documentation and, in the event of any such unauthorized access or use, promptly notify SICPA in writing.
3.2 The Subscriber, and/or Authorized User as applicable, shall not, except to the extent expressly permitted under the Agreement:
3.2.1 copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation (as applicable) in any form or media or by any means; or
3.2.2 reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Software;
3.2.3 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services;
3.2.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any Third Party except the Authorized Users;
3.2.5 attempt to obtain, or assist Third Parties in obtaining, access to the Services and/or Documentation, other than as provided under the Agreement;
3.2.6 access, nor permit its Affiliates or Authorized Users’ to access, the Services from any country other than the Territory set forth in the Quotation, if any;
3.2.7 use the Services in violation of applicable laws; or
3.2.8 use the Services and/or Documentation in a manner other than as contemplated by the Agreement.
3.3 The Subscriber represents and warrants that it has the right and authority, and it has obtained all consents of Data Subjects that may be required, to store, transmit or process Subscriber Data using the Services and to provide Subscriber Data to SICPA and/or the Third Party Suppliers for use as contemplated by the Agreement without geographic restriction. If in doubt the Subscriber shall disclose to SICPA and/or the Third Party Supplier(s) only such Subscriber Data as the Subscriber is authorized to disclose. The Subscriber shall:
3.3.1 provide SICPA and/or the Third Party Supplier(s) only such Subscriber Data as the Subscriber is authorized to do so; and
3.3.2 comply with all applicable laws and regulations with respect to its activities under the Agreement, including data privacy laws and regulations.
4. Subscriber’s Obligations
4.1 The Subscriber shall provide SICPA with:
4.1.1 all necessary co-operation in relation to the Agreement; and
4.1.2 all necessary access to such information as may be required by SICPA to provide the Services, including Subscriber Data and security access information;
4.2 It is the Subscriber’s, and/or Authorized User as applicable, obligation to:
4.2.1 obtain and maintain any software, hardware, internet connectivity, and other technology necessary to access the Services (“Access Technology”) and ensure that the Access Technology meets each of SICPA’s and each Third Party Supplier’s technical requirements as notified to the Subscriber, and/or Authorized User as applicable, in writing from time to time; and
4.2.2 to procure and maintain its network connections and telecommunications links from its systems to SICPA’s and the Third Party Suppliers’ data centers. SICPA will not be liable for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Subscriber’s, and/or Authorized User as applicable, network connections or telecommunications links or caused by the internet.
4.3 SICPA shall have the right to audit the Subscriber’s use of the Services, including to verify Authorized Users, at any time in accordance with this Section 4.3. To the extent such an audit requires SICPA to seek the cooperation of Subscriber (whether remotely or on Subscriber’s premises), SICPA (or its representative) shall:
4.3.1 conduct such audit no more than once per quarter, at SICPA’s expense; and
4.3.2 to the extent such an audit requires SICPA (or its representative) to visit Subscriber’s premises, SICPA shall provide Subscriber with reasonable prior notice and use reasonable efforts not to substantially interfere with the Subscriber’s normal conduct of business while performing any such audit.
5. Term and Termination
5.1 The Agreement shall come into force on the effective date and shall continue until the expiration or termination as provided below, and/or in any Quotation if applicable (“Term”)..
5.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
5.2.1 the other party commits a material breach of any other term of the Agreement and fails to remedy that breach within a period of one (1) week after being notified in writing of such breach; or
5.2.2 the other party:
a. becomes insolvent;
b. files a petition for bankruptcy or if a proceeding or other action is filed against such party under bankruptcy or similar laws (unless such petition or proceeding is dismissed within two (2) months;
c. makes an assignment for the benefit of creditors.
5.3 Without penalty to either party and subject to Section 8.6, if SICPA loses the rights to any component of a Services for any reason (including rights to any Software), SICPA may, at its own discretion:
5.3.1 substitute a substantially comparable component for such affected Services;
5.3.2 terminate the Agreement in part as it relates to the affected Services (which termination shall not affect any other Services to which the Quotation applies) or terminate any Quotation in whole relating to such Services.
5.4 SICPA may at any time, at its own discretion, cease making a Services available to all subscribers generally. In such circumstances and without penalty to either party and subject to Section 8.6, SICPA may terminate access to the Services by giving the Subscriber prior written notice.
5.5 On termination of the Agreement or expiry of the Term (“Termination”):
5.5.1 all licenses granted for, and the Subscriber’s, and/or Authorized User as applicable, right to access and use, the related Services shall immediately terminate;
5.5.2 the Subscriber shall return to SICPA any Proprietary Materials in its possession;
5.5.3 the Subscriber shall pay SICPA all sums then due and owing under the applicable Quotation;
5.5.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of Termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of Termination shall not be affected or prejudiced;
5.5.5 any digital seal issued using the Services during the Term shall remain valid and accessible by the Subscriber and/or Authorized User as applicable.
5.6 Upon Termination, SICPA may destroy or otherwise dispose of any of the Subscriber Data in its possession unless SICPA receives, no later than ten (10) Business Days after the effective date of the Termination, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. SICPA shall use commercially reasonable efforts to deliver such back-up to the Subscriber; provided, that the Subscriber has at that time paid all fees and charges outstanding at and resulting from Termination and the Subscriber shall pay all reasonable expenses incurred by SICPA in returning or disposing of Subscriber Data. SICPA may destroy or otherwise dispose any of Subscriber Data upon such delivery.
6. Warranties and Disclaimers
6.1 The Services shall be performed:
6.1.1 with reasonable care and skill and, where a Product Schedule specifies service levels for a particular Service, in accordance with such service levels; and
6.1.2 substantially in accordance with the SaaS Terms; provided, however, that this warranty shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to SICPA’s instructions, or modification or alteration of the Services by any party other than SICPA, SICPA’s duly authorized contractors or agents or any Third Party Supplier.
6.2 If the Services do not conform with the warranty in this Section 6, SICPA shall, at its own expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Subscriber with an alternative means of accomplishing the desired performance. Such re-performance, correction or substitution constitutes the Subscriber’s sole and exclusive remedy for any breach of the warranties set out in this Section 6.
6.3 SICPA does not make any warranty about the results that may be obtained using the Services or the Software. In particular, the Services and the Software are not intended to be a substitute for the Subscriber’s diligence and the Subscriber remains solely responsible for verifying the accuracy of all Subscriber Data obtained and for obtaining any information needed to supplement such Subscriber Data. SICPA accepts no liability for Loss relating to decisions involving the use of a Services with unverified Subscriber Data.
6.4 Except for the express warranties set out in this Section 6, the Services are provided on an “as is” basis, and SICPA disclaims all other warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, informational content, system integration, enjoyment and non-infringement.
6.5 Notwithstanding anything to the contrary set forth herein, any Third Party product identified as such in a Product Schedule (“Third Party Product”) shall be supplied on that Third Party’s terms and conditions of use. The Subscriber shall comply with such terms unless it negotiates otherwise with the supplier of the Third Party Product. SICPA makes no representation or warranty and SICPA has no liability with respect to a Third Party Product or for failure of a Third Party to perform on its warranties. The Subscriber shall seek any remedy with respect to a Third Party Product solely from the Third Party.
7. Limitation of Liability
7.1 SICPA’s aggregate liability shall not exceed an amount equal to the fees for services paid by Subscriber under the Agreement in the twelve (12) months immediately prior to the date on which the claim first accrued.
7.2 SICPA shall not be liable for any indirect or consequential damages such as but not limited to loss of profits, loss of business, depletion of goodwill, nor shall SICPA be liable for any loss or corruption of data (including Subscriber Data) or information, loss of or damage to software or hardware, for computer viruses or in connection with or arising out of the Agreement or the furnishing, performance or use of the Services or Software.
7.3 Nothing in the Agreement excludes the liability of either party for gross negligence or any wrongful intentional acts or omissions.
8.1 SICPA shall defend, indemnify and hold harmless the Subscriber against Claims brought by a Third Party (“Third Party Claims”) and related Losses arising out of or in connection with an allegation that the Services (excluding Third Party Products) infringes intellectual property rights of a Third Party. Such indemnity shall not apply to the extent that a Third Party Claim is based on:
8.1.1 use of the Services and/or Software in a modified state not authorized by SICPA;
8.1.2 use of the Services and/or Software in a manner other than as specified in the Documentation; or
8.1.3 use of the Services and/or Software in combination, operation or use with any product other than SICPA products or those Third Party Products set out in a Product Schedule.
8.2 The Subscriber shall defend, indemnify and hold harmless SICPA, its Affiliates, and their respective officers, directors, employees, agents, representatives, suppliers, successors and assigns against any Third Party Claims and related Losses arising out of or in connection with:
8.2.1 the Subscriber’s, or an Authorized User’s, use of any Services, including any such use not in accordance with the Agreement; and
8.2.2 the Subscriber Data, including Subscriber’s breach of Section 3.3 or any assertion that Subscriber Data or other data or content provided to SICPA or a Third Party Supplier infringes, misappropriates, or otherwise violates any law, breach of confidentiality, intellectual property rights or privacy rights of a Third Party.
8.3 A party seeking indemnity under the Agreement (the “Indemnitee”) shall give the other party (the “Indemnitor”) written notice of the Third Party Claim promptly (and in any event within two (2) weeks after service of the Third Party Claim). Failure to give timely notice shall not affect rights to indemnity, except to the extent that the Indemnitor demonstrates actual damage caused by such failure. The Indemnitor may elect to direct the defence or settlement of any Third Party Claim by giving the Indemnitee written notice. Such an election shall be effective immediately on receipt of the notice by the Indemnitee. The Indemnitor shall have the right to employ counsel to defend the Claim, or to compromise, settle or otherwise dispose of the Claim, if the Indemnitor considers it advisable to do so. Any defence or settlement shall be at the expense of the Indemnitor. The Indemnitor shall not settle, or consent to any entry of judgment in, any Third Party Claim without obtaining either:
8.3.1 an unconditional release of the Indemnitee (and all of its other Indemnified Parties or Subscriber Indemnified Parties, as applicable) from all liability with respect to all Claims underlying the Third Party Claim; or
8.3.2 the prior written consent of the Indemnitee which shall not be unreasonably withheld.
8.4 The parties shall fully cooperate with each other in any such Third Party Claim and shall make available to each other any books or records useful or necessary for the defence of any such Third Party Claim.
8.5 If a Services (or any part thereof) becomes, or in SICPA’s reasonable opinion is likely to become, the subject of any infringement claim, then SICPA may, at its sole option and expense:
8.5.1 obtain the right for the Subscriber, and/or Authorized User as applicable, to continue using the Services; or
8.5.2 replace or modify the Services so that it is non-infringing.
8.6 This Section 8 states SICPA’s entire liability for any Third Party Claim based on or related to any alleged infringement of any patent or other intellectual property rights.
9. Intellectual Property Rights
9.1 As between SICPA and the Third Party Suppliers, on the one hand, and the Subscriber, and/or Authorized User as applicable, on the other hand, the Subscriber owns all right, title and interest (including intellectual property rights) in and to Subscriber Data.
Neither SICPA nor the Third Party Suppliers have any ownership interest in Subscriber Data, and their rights to Subscriber Data are limited to the license granted in the Agreement.
9.2 The Subscriber grants SICPA and Third Party Suppliers a non-exclusive, fully-paid up, worldwide, transferable license to access, use and create derivative works of Subscriber Data in connection with:
9.2.1 processing, providing, distributing, monitoring, displaying, managing, administrating, modifying, performing, supporting and enhancing the Services,
9.2.2 creating De-Identified Data, or
9.2.3 carrying out legal responsibilities of SICPA and Third Party Suppliers.
9.3 This license includes the right of SICPA and Third Party Suppliers to permit their subcontractors to exercise any right granted under the license. Subscriber agrees that SICPA will retain all right, title, and interest to transactional and performance data (exclusive of Subscriber Data) related to use of the Services and that SICPA is permitted to use such data for its business purposes (including use optimization and product marketing); provided, that such use does not reveal the identity of Subscriber, any Subscriber employee, supplier or patient, or specific use characteristics that may be identified to Subscriber. Subscriber hereby grants to SICPA and Third Party Suppliers a nonexclusive, worldwide, irrevocable, sub-licensable, transferable, perpetual, royalty-free right and license to access, copy, store, transmit, modify, make, have made, create derivative works from, display, aggregate with other de-identified and/or anonymized data, share with third parties, and/or otherwise use De- Identified Data to enhance current or future products, software or services of SICPA and Third Party Suppliers, or for any other commercial and business purposes.
9.4 As between SICPA and the Third Party Suppliers and the Subscriber, SICPA and/or the Third Party Suppliers own all right, title and interest (including intellectual property rights) in and to Proprietary Materials, as applicable. Except as expressly stated herein, the Agreement does not grant the Subscriber, and/or Authorized User as applicable, any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Proprietary Materials. To the extent that ownership of any right, title or interest to the Proprietary Materials does not automatically vest in SICPA and/or the Third Party Suppliers, the Subscriber, and/or Authorized User as applicable, irrevocably assigns (and shall cause its personnel and contractors to assign) to SICPA and/or the Third Party Suppliers all such right, title and interest, and agrees to execute (and to cause its Personnel and contractors to execute) such further assignments and other documents as SICPA and/or the Third Party Suppliers may reasonably request to further evidence such assignment or to facilitate protection of intellectual property rights.
10. Confidential Information
10.1 “Confidential Information” means:
10.1.1 in the case of SICPA and the Third Party Suppliers: the Proprietary Materials, all pricing and Fees relating to the Services, as well as any other non-public information or material regarding SICPA’s, the Third Party Suppliers’ and their respective Affiliates and suppliers’ legal or business affairs, finances, customers, properties or data; and
10.1.2 in the case of the Subscriber, and/or Authorized User as applicable,: any non-public information or material regarding the Subscriber’s legal or business affairs, finances, customers or properties. Notwithstanding the foregoing, the meaning of “Confidential Information” excludes information which is:
a. or becomes public knowledge without any action by, or involvement of, the party to which the information is disclosed (the “Receiving Party”);
b. documented as being known to the Receiving Party before its disclosure by the other Party (the “Disclosing Party”);
c. independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party and is so documented;
d. anonymized and/or de-identified; or
e. obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party’s knowledge, did not receive it, directly or indirectly, from the Disclosing Party.
10.2 A Receiving Party shall, with respect to any Confidential Information disclosed by the Disclosing Party:
10.2.1 use the Confidential Information only in connection with the Receiving Party’s performance of the Agreement;
10.2.2 subject to Section 10.4, restrict disclosure of the Confidential Information within the Receiving Party’s organization to personnel and consultants who need to know that Confidential Information in connection with the Receiving Party’s performance of the Agreement; and
10.2.3 not disclose Confidential Information to any Third Party (other than its consultants) unless authorized in writing by the Disclosing Party to do so.
10.3 The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own Confidential Information (but no less than a reasonable degree of care).
10.4 The Receiving Party shall, before providing any personnel or consultant with access to Confidential Information of the Disclosing Party, inform them of the confidential nature of the Confidential Information and require them to comply with the Receiving Party’s obligations under the Agreement in relation to that Confidential Information.
10.5 If a party is requested to disclose any of another party’s Confidential Information pursuant to any judicial or governmental order, that party shall not disclose the Confidential Information without first giving the other party written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
11. Force Majeure
SICPA shall have no liability to the Subscriber, and/or Authorized User as applicable, under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of SICPA or any other party), failure of a utility service or transport or telecommunications network or internet connection, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, cyber security incidents (including denial-of-service attacks and third-party security breaches), fire, flood, storm or default of suppliers or sub-contractors; provided, that the Subscriber is notified of such an event and its expected duration.
12. Governing Law and Arbitration
12.1 This Agreement will be governed by the laws of Switzerland without reference to conflict of laws principles, and will not be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods.
12.2 Any dispute, controversy, or claim arising out of, or in relation to, this Agreement, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the WIPO Arbitration Rules in force on the date on which the Notice of Arbitration is submitted. The number of arbitrators shall be 1. The seat of the arbitration shall be Geneva, Switzerland. The arbitral proceedings shall be conducted in English language.
13. Export Controls
13.1 The Subscriber shall comply with Export Controls and ensure that the Services and any related technology are not used, accessed, sold, transferred or diverted:
13.1.1 to any United States or European Union sanctioned or embargoed country unless authorized by the locally appropriate export license regulation;
13.1.2 to any person or firm on the United States Department of Commerce denied persons list or entity list, the United States Department of Treasury’s Specially Designated Nationals List, the US Department of State’s Debarred Parties List or any European Union or local country listing of sanctioned persons;
13.1.3 to any nuclear weapons, nuclear power, nuclear research, chemical or biological weapons, or missile or rocket technology end- user or use; or
13.1.4 in violation of any other applicable Export Controls.
The Subscriber shall,promptly notify SICPA in writing of any known or suspected contravention of this Section 13.
14. Injunctive Relief
The Subscriber, and/or Authorized User as applicable, acknowledges that a breach or threatened breach of any of any term relating to Confidential Information, data or intellectual property rights would cause SICPA irreparable harm not compensable in monetary damages and, accordingly, SICPA is, in addition to all other remedies available under the Agreement, at law or in equity, entitled to immediate injunctive relief in any court of competent jurisdiction without the necessity of posting any form of security and the Subscriber agrees to not object to such an application.
Any notices required or permitted to be given pursuant to the Agreement will be in writing and will be delivered in person, by courier or by certified mail, return receipt requested. All such notices shall be addressed to:
SICPA at Legal Department SICPA SA 41 avenue de Florissant, 1008 Prilly, Switzerland.
The Subscriber, and/or Authorized User as applicable, grants SICPA the right to use the Subscriber’s name, logo, trademarks or trade names in press releases, product brochures and financial reports indicating that the Subscriber is a customer of SICPA with respect to the Services. All other public statements or releases shall require the mutual consent of the parties.
17.1 Subscriber may not assign or otherwise transfer any of its rights or obligations under the Agreement without the prior, written consent of SICPA.
17.2 SICPA reserves the right to amended the SaaS Terms from time at its discretion. The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties.
17.3 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.5 No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.6 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).