These are the terms and conditions incorporating a License Agreement where applicable for Services (the "Service" as more fully set out below) between Scorpion Research Ltd (the "Licensor") and the Licensee (as indicated on the Accompanying Materials more fully set out below), whereby the Licensee agrees to license, and the Licensor agrees to provide under license, the Service on the terms and conditions set out below (the "Terms")
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| 1. | Definitions
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| 1.1 | The "Agreement" means the Agreement between the Licensor and the Licensee of which these Terms form a part.
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| 1.2 | "Fees" means those amounts published by the Licensor from time to time and payable by the Licensee to the Licensor as further defined in Clause 5 hereof.
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| 1.3 | The "Cancellation Charge" means the amount payable by the Licensee to the Licensor as further defined in Clause 6 hereof.
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| 1.4 | The "Intellectual Property" means all patents, registered and unregistered trademarks, trade and business names, copyright and rights in the nature of copyright including property rights in relation to compilations or databases, design rights and registered designs and all applications for patents and registered trademarks and registered designs including in each case, all extensions and renewals thereof.
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| 1.5 | The "Interest Rate" means the base rate charged by National Westminster Bank plc from time to time plus eight percent.
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| 1.6 | The "Administration Costs" means any registration or third party licensing and other costs charged to the Licensor for the licensing or registration or attempted licensing or attempted registration of third party Intellectual Property, reservations, services or materials.
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| 1.7 | The "Accompanying Materials" means the information provided by the Licensee to the Licensor at the time of making the Request including full details of the Licensee and further particulars in relation to the Request.
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| 1.8 | The "Request" means a request for the Service or Additional Services made by the Licensee to the Licensor as better defined in the Accompanying Materials.
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| 1.9 | The "Service" means the service or services as detailed in the Accompanying Materials and provided by the Licensor under this Agreement, as further defined in Clause 2 hereof.
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| 1.10 | The "Additional Services" means the additional services provided by the Licensor under this Agreement, as further defined in Clause 2 hereof.
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| 1.11 | The "Network Services Acceptable Use Policy" means the Network Services Acceptable Use Policy as attached to these Terms.
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| 1.12 | The "Duration Period" means the period of one year from the date of the Request being made by the Licensor to the Licensee.
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| 2. | The Service
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| 2.1 | Subject to payment of the Fees, the Administration Costs, and the terms of this Agreement, the Licensor shall provide the Service in accordance with the Request, under license for use by the Licensor, exclusively in a single device or premises as appropriate to the Service, owned or leased by the Licensor or the Licensee for the Duration Period of this Agreement and any renewal thereof.
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| 2.2 | Subject to payment of the Fees, the Administration Costs, and the terms of this Agreement, the Licensor shall provide such Additional Services in accordance with any separate Request made from time to time, under license for use by the Licensor, exclusively in a single device or premises as appropriate to the Service, owned or leased by the Licensor or the Licensee for the Duration Period of this Agreement and any renewal thereof.
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| 3. | Obligations Of The Licensor
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| 3.1 | The Licensor warrants that the Service or Additional Services will be provided with reasonable care and skill and in a professional and timely manner. Notwithstanding the foregoing, the Licensee acknowledges and agrees:
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| | 3.1.1 | That the success or failure of the Request depends on many factors outside the control of the Licensor, that the Licensor does not guarantee the success of any Service or Additional Services, and that the only obligation of the Licensor in relation to each Request shall be to use its reasonable endeavours to provide the Service or Additional Services,
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| | 3.1.2 | That the Licensor shall be entitled to refuse to process Requests submitted by the Licensee and also to refuse to continue processing with any Requests previously accepted by the Licensor, where such processing may in the opinion of the Licensor expose the Licensor to the risk of legal or other proceedings,
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| | 3.1.3 | That the Licensor does not guarantee that any Request will be free and clear of Intellectual Property rights and/or claims by third parties including, without limitation, claims in relation to Intellectual Property rights,
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| | 3.1.4 | That any Request by the Licensor on the behalf of the Licensee may subsequently be challenged and/or cancelled by persons other than the Licensor.
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| 3.2 | The Licensor shall endeavour to meet any dates agreed for the provision of the Service or Additional Services requested by the Licensee, but such dates shall be an estimate only and the Licensor accepts no liability for failure to meet such date or dates.
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| 3.4 | Except as set out expressly in these Terms, the Licensor makes no warranties or representations either express or implied in relation to whole or part of the Service or Additional Services, including but not limited to implied warranties or conditions of completeness, accuracy, satisfactory quality and fitness for a particular purpose and that all such conditions, warranties, terms and undertakings, express on implied, statutory or otherwise in respect of the provision or non-provision of the Service or Additional Services and any other services supplied hereunder are hereby expressly excluded.
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| 4. | Obligations Of The Licensee
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| 4.1 | The Licensee shall not:
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| | 4.1.1 | submit to the Licensor any Requests in relation to any matter which it knows, or should after reasonable inquiry have known, infringes or might reasonably be considered to infringe the Intellectual Property or other rights of any third party,
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| | 4.1.2 | in using the Services or Additional Services, act in a manner which is, or might be reasonably considered to be, in breach of any Intellectual Property or other rights of any third party,
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| | 4.1.3 | use the Service or Additional Services to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or to contribute to the acts of a third party, whether realised or not, to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, abusive, indecent, defamatory, obscene or menacing.
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| 4.2 | The Licensee undertakes to adopt and enforce in its entirety, the current and prevailing Internet Acceptable Use Policy in respect of the Service or any Additional Services.
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| 4.3 | The Licensee undertakes not to sell to any other person whether in money or equivalent worth, the giving or withholding of any business or benefit of any kind or description, either directly or indirectly, the Service or the Additional Services.
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| 5. | Fees
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| 5.1 | The Fees shall be those amounts payable by the Licensee to the Licensor for the provision of the Services and the Additional Services at the prevailing rates published by the Licensor from time to time.
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| 5.2 | The Licensee shall pay in English Pounds Sterling to a UK Bank Account specified by the Licensor, the Fees together with the Administrative Costs incurred by the Licensor in processing a Request.
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| 5.3 | The Fees and Administrative Costs shall be paid by the Licensee to the Licensor at the time of making a Request without set off or counterclaim.
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| 5.4 | The Licensee acknowledges that the Administration Costs may differ from the amount or amounts if any previously indicated by the Licensor as a result of changes in pricing by the relevant third party and/or of changes in the exchange rates, and agrees that the Licensor shall, in relation to each Request, charge the Licensee the Administration Costs as published by the Licensor from time to time or a sum in Pounds Sterling equal to the actual Administrative Costs charged to the Licensor, whichever is the higher.
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| 5.5 | The Licensee recognises that the Administrative Costs represent only the initial costs for the Request, and that continued use of the Service or Additional Services by the Licensee is likely to expose the Licensee to additional Administrative Costs payable from time to time as notified by the Licensor to the Licensee.
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| 5.6 | The Licensee acknowledges that occasionally unforeseen Administrative Costs are incurred in processing Requests. The Licensor shall obtain the written consent of the Licensee before incurring such Administrative Costs.
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| 5.7 | Interest will be charged on sums overdue both before and after lodgement at the Interest Rate calculated on a daily basis from the date payment was due until the date payment is received, such interest to be compounded daily.
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| 5.8 | Subject to Clause 6, the Licensee shall pay the Fees, Administration Costs and any other charges referred to in Clause 5.6 above notwithstanding that the Request is unsuccessful or discontinued unless the lack of provision of the Service or Additional Services is wholly attributable to negligence or wilful default on the part of the Licensor.
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| 6. | Cancellation Charges
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| 6.1 | The Licensee shall be entitled to cancel a Request subject to the following terms:
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| | 6.1.1 | If the Licensor has not started processing the Request and the cancellation request is received within 4 hours of the receipt of the Request by the Licensor, the Request will be cancelled without charge to the Licensee,
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| | 6.1.2 | If the Licensor has not started processing the Request and the cancellation request is received more than 4 hours after receipt of the Request by the Licensor, the Request will be cancelled subject to the Licensee paying a Cancellation Charge of £250 (Pounds Sterling Two Hundred And Fifty) plus VAT at the prevailing rate,
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| | 6.1.3 | If the Licensor has started processing the Request then irrespective of whether or not the cancellation request is received within 4 hours, the Request will be cancelled subject to the Licensee paying the Fees of the Licensor in full including the Administration Costs, but only if these have been incurred.
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| 7. | Licensee Indemnity
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| 7.1 | The Licensee shall indemnify and keep the Licensor fully and effectually indemnified from and against all liability, claims, losses, costs, expenses, loss of profits, business interruption, and other pecuniary or consequential loss including reasonable legal costs and expenses suffered or incurred by the Licensor as a result of any breach of this Agreement by the Licensee, the employees if any of the Licensee, and/or any person authorised by or under the control of the Licensee.
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| 7.2 | The Licensee shall indemnify and keep the Licensor fully and effectually indemnified from and against all liability, claims, losses, costs, expenses, loss of profits, business interruption, and other pecuniary or consequential loss including reasonable legal costs and expenses suffered or incurred by the Licensor as a result of any breach of the Internet Acceptable Use Policy by the Licensee, the employees if any of the Licensee, and/or any person authorised by or under the control of the Licensee.
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| 8. | Exclusions And Limitations Of The Licensor
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| 8.1 | The Licensee agrees that the Licensor shall not be liable either in contract or in negligence, statutory duty or otherwise, for any loss of profits, revenue or goodwill or any type of indirect or special loss or damage whatever arising from or in any way connected with this Agreement.
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| 8.2 | The Licensee agrees that the Licensor shall not be liable either in contract, tort, negligence, statutory duty or otherwise, for any direct loss or damage including loss or damage which is reasonably foreseeable or occurs naturally including, without limitation, damage for loss of business, loss of sales, loss of profits, loss of reputation, or any other financial loss or damage, resulting from or in relation to:
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| | 8.2.1 | Any acts, omissions, failures or delays occurring on or without any negligence on the part of the Licensor, or occurring on or in relation to those aspects of the Service or Additional Services not under the direct control of the Licensor,
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| | 8.2.2 | the consequences of any unsuccessful or failed Request,
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| | 8.2.3 | Any claims by such third parties that the Intellectual Property in use by the Licensor on behalf of the Licensee is in breach or infringement of the Intellectual Property rights of the third party.
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| 8.3 | The Licensee also agrees that except in relation to such liability as has been expressly excluded in Clauses 8.1 and 8 2 above the maximum aggregate liability of the Licensor in contract, tort, negligence, statutory duty or otherwise, for:
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| | 8.3.1 | Any loss or damage whatsoever arising from or in anyway connected with any negligent or reckless failure to provide the Service or Additional Services within a reasonable time,
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| | 8.3.2 | Any negligent or reckless failure by the Licensor to process Requests correctly or in a timely manner,
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| | 8.3.3 | Any failure to provide the Service or Additional Services with reasonable care and skill, and
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| | 8.3.4 | Any liability not excluded by this Agreement,
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| | Shall in respect of any one or more events or series of events whether connected or unconnected taking place over the Duration Period or notified at any later date be limited to the Fees paid. This limit shall also apply in the event that any exclusion or other provision contained in this Agreement is held to be invalid for any reason and the Licensor becomes liable for loss or damage that could otherwise have been limited.
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| 8.4 | Nothing in this Agreement shall exclude the Licensor from:
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| | 8.4.1 | Its liability for death or personal injury arising from the negligence of the Licensor, its servants or agents, or
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| | 8.4.2 | Any other liability which it is prohibited from excluding by law.
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| 9. | Suspension And Termination By The Licensor
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| 9.1 | Without prejudice to any of its other rights, the Licensor shall have the right to immediately terminate this Agreement and/or suspend and/or restrict the Service and/or the Additional Services to the Licensee, if:
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| | 9.1.1 | The Licensee does not pay to the Licensor by its due date any sum due,
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| | 9.1.2 | The Licensee breaches Clause 4 of these Terms,
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| | 9.1.3 | The supply of the Service or Additional Services to the Licensee may in the reasonable opinion of the Licensor expose the Licensor to the risk of litigation or other civil proceedings,
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| | 9.1.4 | The supply of the Service or Additional Services to the Licensee may in the reasonable opinion of the Licensor expose the Licensor to the risk of damage to its commercial reputation and goodwill,
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| | 9.1.5 | The Licensee commits any other material or repeated breach of this Agreement and, if it is capable of being remedied, fails to remedy such breach within seven days from the date of the first notice specifying the nature of the breach and requesting its remedy,
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| | 9.1.6 | The Licensee becomes insolvent, ceases to trade or in the reasonable opinion of the Licensor is likely to cease to trade or has a liquidator, receiver, administrator or administrative receiver appointed, or enters into any arrangement with its creditors, or is wound up otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all at its obligations, or is unable to pay its debts as they fall due within the meaning of Section 123 of the insolvency Act 1986, or is made bankrupt, or undergoes a similar or analogous event in any jurisdiction.
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| 9.2 | The Licensor shall not be liable for any losses incurred by the Licensee as a result of such suspension, termination, or restriction.
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| 10. | Termination By The Licensee
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| 10.1 | Without prejudice to any of its other rights, the Licensee shall have the right to immediately terminate this Agreement, if:
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| | 10.1.1 | The Licensor breaches Clause 3 of these Terms,
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| | 10.1.2 | The Licensor commits any material on repeated breach of this Agreement and, if it is capable of being remedied, fails to remedy such breach within seven days from the date of the first notice specifying the nature of the breach and requesting its remedy,
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| | 10.1.3 | The Licensor becomes insolvent, ceases to trade or in the reasonable opinion of the Licensee is likely to cease to trade or has a liquidator, receiver, administrator or administrative receiver appointed, or enters into any arrangement with its creditors, or is wound up other than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of its obligations, or is unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986, or is made bankrupt or undergoes a similar or analogous event in any jurisdiction.
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| 10.2 | The Licensee shall not be liable for any losses incurred by the Licensor as a result of such termination.
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| 11. | Force Majeure
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| 11.1 | Neither party shall be liable for any breach of its obligations hereunder other than any obligation to pay money where the breach results from causes beyond its control and the party concerned has acted reasonably and prudently to prevent and to minimise the effect of such causes.
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| 11.2 | Where an event of force majeure last for a period in excess of twelve months either party small be entitled to terminate this Agreement.
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| 12. | Confidentiality
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| 12.1 | Each party will at all times keep confidential and will not disclose without the prior written consent of the other, any business or other confidential information of the other party or use any such information other than for the purposes contemplated by this Agreement except that each party may disclose such information to those of its employees, agents and sub-contractors who need to know the same for such purpose and under conditions of confidentiality, non-disclosure and non-use equivalent to those imposed on the parties by this Clause.
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| 12.2 | These obligations of confidentiality, non-disclosure and non-use do not apply to any information which is publicly available through no fault of the party disclosing or using the information, or which was known to the final party before receipt from the other party, or received from another source without obligation as to confidentiality, or which is required to be disclosed by law or by a regulating authority.
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| 13. | Interpretation And Effect
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| 13.1 | This Agreement is personal to the Licensee and the rights of the Licensee may not be assigned, sub-licensed or transferred in any way.
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| 13.2 | This Agreement constitutes the entire understanding between the parties concerning the provision of the Service or Additional Services, and replaces, supersedes, and cancels all previous arrangements, understandings, representations or agreements relating thereto. For the avoidance of doubt each party irrevocably waives any right it may have to seek a remedy for any misrepresentation which has not become a term of this Agreement, as well as any breach of warranty or undertaking other than those contained in this Agreement whether express or implied, statutory or otherwise, unless such misrepresentation, warranty or undertaking was made fraudulently. This Agreement shall apply and prevail over any terms and conditions, whether conflicting or not, contained or referred to in any documentation submitted or provided by the Licensee.
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| 13.3 | Each provision of this Agreement excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or the other of those provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the termination of this Agreement howsoever occasioned.
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| 13.4 | No waiver by the Licensor shall be construed as a waiver of any preceding or succeeding breach of any provision.
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| 13.5 | Any notices required to be given under this Agreement shall be in writing and shall be sent by first class registered post or International equivalent to the address specified in this Agreement.
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| 13.6 | For the avoidance of doubt nothing in this Agreement shall confer on any third party any benefit or the right to enforce any term of this Agreement.
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| 14. | Jurisdiction
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| 14.1 | This Agreement shall be governed by the laws of England and the parties hereto agree to submit exclusively to the jurisdiction of the Courts of England.
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