Terms & Conditions

PLEASE READ CAREFULLY BEFORE ACCESSING OR DOWNLOADING ANY SOFTWARE FROM OUR PLATFORM:

These terms and conditions form a legal agreement (“agreement”) between you (“Customer” or “you”) and New Wave Biotech Ltd, a company incorporated and registered in England with company number 14555913 whose registered office is at International House, 61 Mosley Street, Manchester, England, M2 3HZ (“NWB”, “us” or “we”).

This agreement is in relation to:

NWB’s artificial intelligence systems designed for the performance of virtual laboratory experiments and the use of NWB’s optimiser to identify the best potential product for your manufacturing (“AI System”);
New Wave Biotech Bioprocess Foresight Software, which is powered by the AI system, and any other online software applications provided by NWB to you, including, without limitation, the data supplied with the software, and the associated media (“Software”); and
Any document made available to you by NWB online via the Platform or such other web address notified by NWB to you from time to time which sets out a description of the Services and the user instructions for the Services (“Documentation”).

This agreement relates to subscription services, pursuant to which you can access the Software, the AI System (the “Services”) and the Documentation. If you elect to go ahead with the Services, these terms and conditions will form a binding agreement between you and NWB.

We provide the Services to you under this agreement through our platform accessible via https://www.platform.newwavebiotech.com or such other web address notified by NWB to you from time to time (“Platform”), as more particularly described in the Documentation.

To contact us, email us at support@newwavebiotech.com. How to give us formal notice of any matter under this agreement is set out in clause 24.

This agreement applies to you (the Customer) and those employees, agents and independent contractors who are authorised by you to use the Services, as further described in clause 3.2(d) (“Authorised Users”).

IMPORTANT NOTICE TO ALL USERS:

BY ACCEPTING, YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR AUTHORISED USERS. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 13.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR STREAM OR ACCESS THE SOFTWARE, THE AI SYSTEM OR DOCUMENTATION.
IF YOU ARE ACCESSING OUR PLATFORM FROM OUTSIDE OF THE UK, YOU MUST ENSURE IT IS LEGAL TO DO SO IN YOUR JURISDICTION.

We recommend that you save a copy of this agreement for future reference, but it is your responsibility to ensure that you have the latest version.

We may amend this agreement from time to time without notice. If our amendment will materially affect the nature or quality of the Services, we will notify you in advance of such amendment and will allow you 14 calendar days to terminate this agreement in accordance with clause 14.3(b). Your ongoing use of the Services indicates your acceptance of the amended terms of this agreement.

New Wave Biotech Downstream Optimisation Software

Subscription Terms and Conditions

1. Placing the order and its acceptance

1.1 The Customer is invited to follow the onscreen prompts to place an order for the subscription (“Order”). The Customer may only submit an order using the method set out on the website www.newwavebiotech.com (“Website”). Each order is an offer by the Customer to buy the Services subject to this agreement.

1.2 NWB’s order process allows the Customer to check and amend any errors before submitting the Order to NWB. The Customer must check the Order carefully before confirming it. The Customer is responsible for ensuring that the Order and any specification submitted by the Customer is complete and accurate.

1.3 After the Customer places the Order, the Customer will receive an email from NWB acknowledging that NWB has received it, but this does not mean that the Order has been accepted. NWB’s acceptance of the Order will take place as described in clause 1.4.

1.4 NWB’s acceptance of the Order takes place when NWB sends an email to the Customer to accept it (“Order Confirmation”), at which point and on which date (“Effective Date”) the agreement between the Customer and NWB will come into existence. The agreement will relate only to those Services confirmed in the Order Confirmation.

1.5 If NWB is unable to supply the Customer with the Services for any reason, NWB will inform the Customer of this by email and NWB will not process the Order. If the Customer has already paid for the Services, NWB will refund the Customer the full amount.

2. Cancelling the order and obtaining a refund

2.1 The Customer may cancel the Order and receive a refund, if the Customer notifies NWB as set out in clause 24 within 14 days of receipt of the Order Confirmation (“Cancellation Period”). The Customer cannot cancel the Order once it has accessed the Platform, even if the Cancellation Period is still running. For the avoidance of doubt, cancellation of the Order within the Cancellation Period terminates the agreement with immediate effect, in accordance with clause 14.3(a).

2.2 To cancel the Order, the Customer may email NWB at support@newwavebiotech.com. The Customer must include details of the Order when requesting cancellation by email. NWB will email the Customer to confirm it has received the cancellation;

2.3 If the Customer cancels the Order in accordance with clause 2.1, NWB shall refund the Customer in full for the price it paid for the Services, by the method it used for payment.

3. User subscriptions

3.1 Subject to the Customer purchasing the user subscriptions which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement (“User Subscriptions”) in accordance with clause 4.3 and clause 11.1, the restrictions set out in this clause 3 and the other terms and conditions of this agreement, NWB hereby grants to the Customer a non-exclusive, non-transferable worldwide licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term (as defined in clause 14.1) solely for the Customer's internal business operations.

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

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

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

(c)each Authorised User shall keep a secure password for their use of the Services and Documentation, and that each Authorised User shall keep their password confidential;

(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to NWB within five Business Days (as defined in clause 5.4) of NWB's written request at any time or times;

(e) it shall permit NWB or NWB's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at NWB's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

(f) if any of the audits referred to in clause 3.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to NWB's other rights, the Customer shall promptly disable such passwords and NWB shall not issue any new passwords to any such individual; and

(if any of the audits referred to in clause 3.2(e) reveal that the Customer has underpaid Subscription Fees (as set out in Schedule 1) to NWB, then without prejudice to NWB's other rights, the Customer shall pay to NWB an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 within 10 Business Days of the date of the relevant audit.

3.3 The Customer shall not access, store, distribute or transmit any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices (“Virus” or “Viruses”), or any material during the course of its use of the Services that:

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

(b) facilitates illegal activity;

(d) promotes unlawful violence;

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

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

and NWB reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

3. 4 The Customer shall not:

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

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

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or

(b) access all or any part of the Services and/or the Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(d) subject to clause 21.1, 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 Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or

(f) introduce or permit the introduction of, any Virus or Vulnerability into the Platform, the Software, the AI System or any of NWB's network and information systems. For the purposes of this agreement, “Vulnerability” shall mean 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, and the term “Vulnerabilities” shall be interpreted accordingly.

3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify NWB.

3.6 The rights provided under this clause 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

4. Additional user subscriptions

4.1 Subject to clauses 4.2 and 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in Schedule 1 and NWB shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.

4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify NWB in writing (which includes email). NWB shall evaluate such requests for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where NWB approves the request, NWB shall activate the additional User Subscriptions within 10 Business Days of its approval of the Customer's request.
4.3 If NWB approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of NWB's invoice, pay to NWB the relevant fees for such additional User Subscriptions as set out in Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term (as set out in Schedule 1) or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by NWB for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

5. Services

5.1 NWB shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
5.2 NWB shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time or another maintenance window notified by NWB to the Customer from time to time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that NWB has used reasonable endeavours to give the Customer as much notice in advance as possible.

5.3 NWB shall, as part of the Services and in consideration of the support fees set out in Schedule 1, provide the Customer with NWB's standard customer support services during the Normal Business Hours. The Customer may purchase enhanced support services separately at NWB's then current rates.

5.4 For the purposes of this agreement, “Normal Business Hours” shall mean 8.00 am to 6.00 pm local UK time, each day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business (“Business Day”).

6. Data protection

6.1 NWB shall collect and process the Customer’s pseudonymous or anonymous information, within the meaning of Article 4(5) and Recital 26 retained UK General Data Protection Regulation (“UK GDPR”) and General Data Protection Regulation ((EU) 2016/679) (“EU GDPR”). In relation to personal data, NWB does not use AI System for the purposes of automated decision making and profiling, within the meaning of Article 4(4) and Article 22(1) UK GDPR and EU GDPR.

6.2 In circumstances, where personal data is necessary for the provision of the Services, both parties shall comply with all applicable requirements of applicable data protection laws. This clause 6 is in addition to, and does not relieve, remove, or replace, a party's obligations or rights under applicable data protection laws.

6.3 For the purposes of this clause 6, the terms “controller”, “processor”, “data subject”, “personal data”, and “processing” shall have the meaning given to them in the UK GDPR.

6.4 The parties have determined that, for the purposes of applicable data protection laws NWB shall act as a processor and the Customer shall act as a controller in respect of all relevant personal data and processing activities that may arise under this agreement. Should this determination change, then the parties shall work together in good faith to make any changes which are necessary to clause 6 of this agreement.
6.5 By entering into this agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives, and agents, in respect of) all actions taken by NWB in connection with the processing of any personal data which NWB processes in connection with this agreement, in the capacity of a processor on behalf of the Customer (“Customer Personal Data”), provided these are in compliance with the then-current version of NWB's privacy policy available at newwavebiotech.com/copy-of-cookie-policy (“Privacy Policy”). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy shall take precedence.
6.6 The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to NWB or lawful collection of the same by NWB for the duration and purposes of this agreement.
6.7 In relation to the Customer Personal Data, Schedule 2 sets out the scope, nature, and purpose of processing by NWB, the duration of the processing and the types of personal data and categories of data subject.
6.8 Either party may, at any time on not less than 30 days' notice, revise clause 6 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms”). Such Amended Terms shall apply when replaced by attachment to this agreement, but only in respect of such matters which are within the scope of the Amended Terms.

7. Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. NWB makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into, and any transaction completed via any third-party website is between the Customer and the relevant third party, and not NWB. NWB recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. NWB does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

8. NWB's obligations

8.1 NWB shall perform the Services substantially in accordance with any Documentation and with reasonable skill and care.
8.2 NWB's obligations at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to NWB's instructions, or modification or alteration of the Services by any party other than NWB or NWB's duly authorised contractors or agents. If the Services do not conform with the terms of clause 8.1, NWB shall, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
8.3 NWB:

(a) does not warrant that:

(i) the Customer's use of the Services will be uninterrupted or error-free;

(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;

(iii) the Software, the AI System, or the Documentation will be free from Vulnerabilities or Viruses; or

(iv) the Software, the AI System, the Documentation will comply with any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not NWB) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time,

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

8.4 This agreement shall not prevent NWB from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this agreement.

8.5 NWB warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

8.6 In the event of any loss or damage to the data inputted by the Customer, Authorised Users, or NWB on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services (the “Customer Data”), the Customer's sole and exclusive remedy against NWB shall be for NWB to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by NWB in accordance with NWB’s archiving procedure. NWB shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.

9. Customer's obligations

9.1 The Customer shall:

(a) provide NWB with:

(i) all necessary co-operation in relation to this agreement; and

(ii) all necessary access to such information as may be required by NWB;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

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

(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, NWB may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for NWB, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by NWB from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining, and securing its network connections and telecommunications links from its systems to NWB's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

10. Intellectual Property

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

10.2 The Intellectual Property Rights in the Software, the AI System and Documentation are, and shall remain, the exclusive property of NWB. The Customer acquires no rights in or to the Software, the AI System, or the Documentation other than those expressly granted by this clause 10.

10.3 NWB confirms that it has all the rights in relation to the Software, the AI System, and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement. NWB reserves the right to grant a licence to use the Software, the AI System, and the Documentation to any other party or parties.

10.4 The Customer shall own all right, title, and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all such Customer Data.

10.5 Upon full payment of the Subscription Fees, all Intellectual Property Rights in the data generated from the Customer’s authorised use of the Software shall be owned by the Customer. At the Customer’s expense NWB shall and shall use all reasonable endeavours to procure that any necessary third party shall, execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this clause 10.5.

10.6 The Customer acknowledges and agrees that NWB may use the Customer Data for training of the AI System and improvement of the Software and the Services. The Customer hereby waives any claim, including any claim for infringement of any Intellectual Property Rights, which relates to the use of Customer Data for training of the AI System and improvement of the Software and the Services.

11. Charges and payment

11.1 The Customer shall pay the Subscription Fees to NWB for the User Subscriptions in accordance with this clause 11 and Schedule 1 and the support fees in accordance with clause 5.3 and Schedule 1. Failure to comply with this clause 11 shall constitute a material breach of this agreement.

11.2 The Customer shall on the Effective Date provide to NWB valid, up-to-date, and complete credit card details or approved purchase order information acceptable to NWB and any other relevant valid, up-to-date, and complete contact and billing details and, if the Customer provides:

(a) its credit card details to NWB, the Customer hereby authorises NWB to bill such credit card:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;

(b) its approved purchase order information to NWB, NWB shall invoice the Customer:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 15 days after the date of such invoice.

11.3 If NWB has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of NWB:

(a) NWB may, on no less than five Business Days' notice to the Customer and without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and NWB shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of NWB's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.4 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 13.3(b), non-cancellable and non-refundable;

11.5 NWB shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 4.3, the support fees payable pursuant to clause 5.3 and/or the excess storage fees payable pursuant to clause 11.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.

12. Confidentiality

12.1 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this agreement in connection with the provision of the Services, including but not limited to:

(a) any information which was disclosed prior to the Effective Date pursuant to the terms of any confidentiality or a non-disclosure agreement between the parties or designated as confidential by the parties;

(b) the existence and terms of this agreement or any agreement entered into in connection with this agreement;

(i) the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and

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

(d) any information developed by the parties in the course of carrying out this agreement and the parties agree that:

(i) details of the Services, and the results of any performance tests of the Services, shall constitute NWB Confidential Information; and

(ii) Customer Data shall constitute Customer Confidential Information.

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

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

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

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

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

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

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

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

(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement or in connection with the training and improvement of the AI System (“Permitted Purpose”); or

(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 12.

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

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

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

12.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

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

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

12.8 On termination or expiry of this agreement, each party shall:

(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;

(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

(c) certify in writing (which includes email) to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating, or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Termination).

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

12.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

12.11 The above provisions of this clause 12 shall survive for a period of five years from termination or expiry of this agreement.

13. Limitation of liability

13.1 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and/or the Documentation by the Customer, and for conclusions drawn from such use. NWB shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to NWB by the Customer in connection with the Services, or any actions taken by NWB at the Customer's direction;

(b) all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

13.2 Nothing in this agreement excludes the liability of NWB:

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

(b) for fraud or fraudulent misrepresentation.

13.3 Subject to clause 13.1 and clause 13.2:

(a) NWB shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and

(b) NWB's total aggregate liability to the Customer, in respect of all breaches of duty occurring within any contract year shall not exceed the overall amount of fees paid by the Customer to NWB within one contract year (“cap”). A “contract year” shall mean a 12-month period commencing on the Effective Date or any anniversary of it.

(c) If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, NWB’s total liability for those claims shall not exceed the single highest annual cap for those contract years.

13.4 References to liability in this clause 13 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.5 Nothing in this agreement excludes the liability of the Customer for any breach, infringement, or misappropriation of NWB’s Intellectual Property Rights.

14. Term and termination

14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a) either party notifies the other party of termination, in writing (which includes email), at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

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

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

(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing (which includes email) to do so;

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

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

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

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

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

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

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

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

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause 14.2(j) (inclusive);

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

(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or

(n) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

14.3 Without prejudice to the foregoing, the Customer may terminate this agreement:

(a) with immediate effect by cancelling the Order within the Cancellation Period, in accordance with clause 2;

(b) within 14 days after being notified in writing (which includes email) of the changes to this agreement.

14.4 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

(b) all amounts owed to NWB shall become immediately due and payable;

(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(d) NWB may destroy or otherwise dispose of any of the Customer Data in its possession unless NWB receives, no later than ten Business Days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. NWB shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by NWB in returning or disposing of Customer Data; and

(e) 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.

15. Force majeur

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.

16. Waiver

16.1 A waiver of any right or remedy is only effective if given in writing (which includes email) and shall not be deemed a waiver of any subsequent right or remedy.

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

17. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

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

18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. Entire agreement

19.1 This agreement, together with any documents referred to herein, constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

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

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

19.4 Nothing in this clause shall limit or exclude any liability for fraud.

20. Assignment

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

20.2 NWB may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

21. No partnership or agency

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

22. Third party rights

22.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

22.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

23. Notices

23.1 Any notice given to a party under or in connection with this agreement shall be in writing (which includes email) and shall be:

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

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

(i) NWB: support@newwavebiotech.com or any other email address specified in writing by NWB for the provision of notices.

(ii) Customer: email address provided in writing by the Customer to NWB for the purposes of receiving the Services.

23.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

(d) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

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 governed by and interpreted in accordance with the law of England.

25. Jurisdiction

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

Schedule 1 - Subscription Term and Subscription Fees

Subscription term
Subscription shall be ongoing until the customer gives notice for cancellation.
Subscription Fees
Unless you’re in a free trial or other offer period, you’ll need to pay for a subscription based on the pricing of your selected plan. The pricing details and other terms of your subscription are explained when you select your plan, and can also be found at https://www.newwavebiotech.com/pricing.

Schedule 2 - Particulars of Data Processing

SCOPE: provision of the Services, maintenance, help desk or technical support.
NATURE: collecting, transferring, scheduling, payment provision, billing, account management.
PURPOSE OF PROCESSING: provision of the Services.
DURATION OF THE PROCESSING: ongoing provision of the Services.
TYPES OF PERSONAL DATA: name, title, address, email address, gender, bank details.
CATEGORIES OF DATA SUBJECT: users of the Software (directors, employees, customers, suppliers, and contractors of the Customer).