Terms and Conditions
These terms and conditions (“Terms and Conditions”) are between the Wolfhound Analytics entity listed on the relevant Order Form (“Wolfhound”) and the client listed on that Order Form (“Client”), and are effective as of the date stated on the first Order Form entered into between the parties (the “Effective Date”). Wolfhound and Client are each a “party” and together the “parties”.
1.1 The following terms (and their grammatical variants provided the initial letter is capitalised), when used in these Terms and Conditions will have the following meanings:
“Anti-Corruption Laws” means any applicable laws relating to anti-bribery or anti-corruption in any jurisdiction, including the US Foreign Corrupt Practices Act and the UK Bribery Act of 2010.
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of fifty percent (50%) or more of the voting power or equity in an entity or the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity.
“Authorised Users” shall mean, where applicable, the employees or service providers of Client or its Affiliates that the Client authorises to access and use the Wolfhound Product.
“Commercially Reasonable Efforts” means with respect to activities of a party, those endeavours, efforts and resources typically used by that party to achieve or fulfill a similar objective or obligation that was in its own interest in similar circumstances but in any event no less than the effort and resource that would be used by a similar company acting reasonably in such circumstances, provided, however, that the party will not be required to sacrifice its commercial interests in order to achieve or fulfil such objective.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However,
“Confidential Information” will not include any information which: (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Contract Year” means each successive twelve (12) calendar month period commencing on the Effective Date or an anniversary thereof.
“Data Protection Laws” means all applicable legislation relating to data protection and privacy, including the GDPR (together with any national implementing laws in any Member State of the European Union or, to the extent applicable, in any other country) and the UK Data Protection Act 2018, as amended, repealed, consolidated or replaced from time to time.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Wolfhound for the Wolfhound Product, including any specification.
“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Intellectual Property” means all patents, rights to inventions, copyright and related rights, moral rights, database rights, trademarks and trade names, rights to goodwill and to sue for passing off, rights in designs, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications (and rights to apply) for, and renewals and extensions of and rights to claim priority from such rights and all similar or equivalent rights and forms of protection which subsist or will subsist now or in the future in any part of the world.
“Liable” means any liability arising under, out of or in connection with these Terms and Conditions, whether or not foreseeable or in the contemplation of the parties at any time, in or under contract, tort (including negligence), breach of statutory duty, misrepresentation, indemnity, restitution or otherwise.
“Order Form” means an order form, quote or other similar document produced by Wolfhound that references these Terms and Conditions and sets forth the specific Wolfhound Product subscription length, pricing therefore.
“Personal Data” has the meaning given to it in Data Protection Laws.
“Professional Services” shall mean any implementation, training, configuration, consulting, data migration, conversion, integration setup, or other professional services provided by Wolfhound to Client (including those provided by Wolfhound’s customer success team), as set forth in an Order Form.
“System Data” means anonymised or aggregated Client Data and other data collected by Wolfhound regarding the Wolfhound Product.
“Territory” means the territory(s) specified in the Order Form or worldwide if no territory(s) is specified.
“Wolfhound Product” means the sensor (measuring cattle rumen pH, temperature and activity), Base Station for data reception and software platform made available to Client by Wolfhound on a subscription basis, as set forth in the applicable Order Form, together with any Client-side components provided by Wolfhound for the purpose of accessing and using such platform.
2. Wolfhound product
2.1 Provision of the Wolfhound Product. Subject to these Terms and Conditions, Wolfhound will make the Wolfhound Product available to Client pursuant to these Terms and Conditions and the applicable Order Form, and hereby grants Client and its Affiliates named in the Order Form a non-exclusive, non-transferable, non-sublicensable right and limited licence to access and use the Wolfhound Product in the Territory internally for the Permitted Purposes. All Order Forms will be subject to and are hereby incorporated into these Terms and Conditions, and no terms or conditions contained in any purchase order or other document issued by Client shall form part of any contract between Wolfhound and Client.
2.2 Permitted Purpose. Client may only use the Wolfhound Product internally in connection with the management and operation of Covered Sites and ancillary premises to: (a) view, retrieve and display Client Data; (b) distribute to its employees, one-off selections of Client Data in print format with the source “Wolfhound Analytics” clearly identified; (c) distribute to other authorised Users, one-off selections of Client Data in electronic format with the source “Wolfhound Analytics” clearly identified; or (d) perform internal analytics using Client Data for Client’s internal purposes (collectively, the “Permitted Purposes”).
2.3 Data Security.
(a) Wolfhound will maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security and integrity of data generated by the Wolfhound Sensors and / or uploaded by or on behalf of Client to, or collected or produced by, the Wolfhound Product (“Client Data”); (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorised access to Client Data.
(b) Wolfhound’s security safeguards include measures for preventing access, use, modification or disclosure of Client Data by Wolfhound personnel except: (i) to provide the Wolfhound Product and prevent or address service or technical problems; (ii) as required by applicable law; or (iii) as Client permits or under these Terms and Conditions.
(c) To the extent that Wolfhound processes any Personal Data contained in Client Data, on Client’s behalf, the Wolfhound processing agreement found at wolf-hound.com/data-processing shall apply and is incorporated into these Terms and Conditions by reference.
(d) For more details in relation to how the Wolfhound Product uses and displays Client Data, please see the Wolfhound data policy found at wolf-hound.com/data-policy.
2.4 License Restrictions. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Client will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the trade secrets concerning the manufacturing methods, blueprints and / or source code underlying the Wolfhound Product (except if permitted by applicable law and required to integrate the Wolfhound Product with other software where Wolfhound is not prepared to carry out such activity at a reasonable fee or provide Client with the information reasonably necessary to achieve such integration for a reasonable cost within a reasonable period);
(b) remove or alter the conditions of use, any copyright notices and other identification disclaimers as they may appear on the Wolfhound Product or the Documentation;
(c) make copies, electronic or otherwise, of Client Data for any external purpose;
(d) provide Client Data via electronic means to any person other than an authorised User;
(e) frame or mirror any part of the Wolfhound Product, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation;
(f) attempt to probe, scan or test the vulnerability of the Wolfhound Product, breach the security or authentication measures of the Wolfhound Product without proper authorisation or willfully render any part of the Wolfhound Product unusable for any user;
(g) use or access the Wolfhound Product or Intellectual Property of Wolfhound: (i) to develop a product or service that is competitive with Wolfhound’s products or services; or (ii) to engage in competitive analysis or benchmarking against products or services provided by third parties that are similar to the Wolfhound Product;
(h) transfer, distribute, resell, lease, license, or assign the Wolfhound Product unless this right has been explicitly granted in writing by Wolfhound;
(i) allow the Wolfhound Product to become the subject of any charge, lien or encumbrance; or
(j) otherwise use the Wolfhound Product: (i) in violation of applicable law; (ii) to infringe or violate third party rights; or (iii) other than for the Permitted Purposes or stated in the applicable Order Form.
2.5 Client Responsibilities.
(a) Client acknowledges that Wolfhound’s provision of the Wolfhound Product is dependent on Client providing all reasonably required cooperation (including the prompt provision of personnel, cooperation and materials as reasonably required and any other requirements as may be specified in the applicable Order Form), and Client will provide the same in a diligent and timely manner.
(b) Client will: (i) be responsible for the installation of the Wolfhound Base Station and applying the sensors only to cattle with a maximum Body Condition Score of between 1 to 3.5 and a minimum weight of 80kg; (ii) capturing video evidence of the application of the sensors to the cattle, clearly showing the animal’s ear tag ID, the ID of the sensor applied and the actual application, with no cuts, interruptions or edits; (iii) all use of the Wolfhound Product under its account; (iv) use Commercially Reasonable Efforts to prevent unauthorised access to or use of the Wolfhound Product and Client Data and notify Wolfhound promptly of any unauthorised access or use of the same; and (v) be responsible for obtaining and maintaining any equipment, software and ancillary software, services or data needed to connect to, access or otherwise use the Wolfhound Product, including as set forth in the Documentation. Client will be solely responsible for its failure to maintain such equipment, software and services, and Wolfhound will have no Liability for such failure.
(c) Client agrees that: (i) open source libraries are provided by Wolfhound in connection with the Wolfhound Product, the applicable open source libraries and governing licenses are made available by Wolfhound upon request, and are licensed to Client pursuant to the terms of the applicable open source license and not these Terms and Conditions; and (ii) Wolfhound may change, deprecate or republish APIs for the Wolfhound Product, and that it is Client’s responsibility to ensure that calls or requests Client makes to the Wolfhound Product are compatible with the then-current APIs for the Wolfhound Product.
2.6 Changes. Wolfhound may, from time to time, develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Wolfhound Product and Documentation (“Changes”). Client hereby authorises Wolfhound to implement such Changes, provided that such Changes do not have a material adverse effect on the functionality or performance of the Wolfhound Product.
2.7 Affiliates. Any Affiliate of Client will have the right to enter into an Order Form executed by such Affiliate and Wolfhound and these Terms and Conditions will apply to each such Order Form as if such Affiliate were a signatory to these Terms and Conditions. With respect to such Order Forms, such Affiliate becomes a party to these Terms and Conditions and references to Client in these Terms and Conditions are deemed to be references to such Affiliate. Each Order Form is a separate obligation of Client entity that executes such Order Form, and no other Client entity has any liability or obligation under such Order Form.
2.8 Authorised Users. Client may permit the maximum number of authorised Users specified in the Order Form to use the Wolfhound Product and such access rights shall not be shared with any third parties other than authorised Users. Client shall: (a) ensure that all authorised Users acknowledge and agree to the obligations and restrictions regarding use of the Wolfhound Product described herein; and (b) ensure authorised Users do not share passwords or usernames or make the Wolfhound Product or Client Data available to any unauthorised third party. Client is responsible for the acts and omissions of authorised Users.
2.9 Authorised Locations. Each Wolfhound Product is for use in conjunction with cattle farms and each Order Form states the number (and location) of the farm which Client may use the Wolfhound Product in connection with (“Covered Sites”). Client may change the Covered Site, and provided the overall number of Covered Sites does not increase and no additional charges are incurred by Wolfhound, no additional fees will be levied on Client in respect of such changes. In the event Client sells or disposes of any Covered Site, Client shall give Wolfhound sixty (60) days’ notice and after the expiry of such notice, future payments will be reduced to reflect the reduced number of Covered Sites. Unless otherwise stated in an Order Form, the Wolfhound Product is licensed by reference to specific Covered Sites, but Client may access the Wolfhound Product from one or more central locations and via the cloud from any other place. Wolfhound gives no warranties, representations or conditions, express or implied that accessing the Wolfhound Product from a location other than where a Covered Site is situated complies with applicable laws.
2.10 Integration. The Wolfhound Product may be integrated onto third party equipment or terminals or take feeds from third party suppliers to Client. Client shall, with Wolfhound’s assistance, if reasonably required, secure the cooperation of such third parties to enable the Wolfhound Product to take the relevant feeds from such third-party equipment or terminals and suppliers. Client has the option to share data derived from third party suppliers including feed or mixer wagons, milking parlours, milk flow meters, herd management software providers, veterinary records, farm work logs and local weather data that will enhance the insights and models Wolfhound processes on Client’s behalf, or supply to Client. Client shall inform Wolfhound promptly of any changes to Covered Sites that may affect the Wolfhound Product, including changes in the hardware or software used on the Covered Site(s) and such changes shall not impact Client’s obligation to pay fees. Client agrees to let Wolfhound know twenty one (21) days in advance of agreeing any major changes to a Covered Site and to discuss the impact of such changes on the Wolfhound Product prior to implementing them.
2.11 Training. Wolfhound may provide Client with training or other assistance in relation to the Wolfhound Product. Unless otherwise stated in an Order Form, such training and assistance may be provided at Client’s premises, via telephone or other electronic means, will be charged at Wolfhound’s standard hourly rates in force as at the time and shall constitute Professional Services. Furthermore, Client shall, where required, provide Wolfhound with safe access during opening hours to any premises to which it controls which Wolfhound reasonably needs to enter in order to install any hardware or software to enable Client to access the Wolfhound Product.
2.12 Withdrawal or Changes. Without prejudice to Section 8, Wolfhound may withdraw any Wolfhound Product and terminate the part(s) of any Order Form governing such Wolfhound Product in the event that Wolfhound ceases to make such Wolfhound Product available to its clients generally. In such circumstances, Wolfhound will use Commercially Reasonable Efforts to give Client six (6) months’ prior written notice. Furthermore, Wolfhound may modify, supplement, enhance, or otherwise change (including through routine upgrades and bug fixes) the Wolfhound Product (in whole or part) including the technical, functional, administrative and operative methods of supply of the same wherever Wolfhound deems necessary (in its sole discretion) to: (a) comply with applicable law; (b) address unforeseen or imminent dangers or risks (including fraud, malware, spam, data breaches, cybersecurity or other risks); or (c) address actual or potential changes in the organisation of its business, technical systems or requirements, provided, in each case, the foregoing does not have a materially adverse impact on the functionality, performance or security of the Wolfhound Product. Client agrees that nothing stated herein shall limit Wolfhound in any way from determining in its sole discretion how to provide the Wolfhound Product to Client.
2.13 Suspension. Wolfhound shall be entitled to suspend or restrict access to all or part of the Wolfhound Product: (a) where it is entitled to terminate these Terms and Conditions pursuant to Section 8; (b) to carry out scheduled or emergency maintenance (in which case Wolfhound shall use Commercially Reasonable Efforts to minimise the disruption caused to Client); and (c) if Client fails to pay any invoice that is not disputed pursuant to Section 3.4 within ten (10) days of it becoming due.
3.1 Fees. Client will pay Wolfhound the fees set forth in the Order Form in accordance with the payment terms set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, fees are: (a) quoted and payable in the currency set forth in the Order Form; (b) exclusive of any reasonable expenses incurred by Wolfhound in providing Professional Services which shall be reimbursed by Client on demand; (c) subject to an increase of no more than ten percent (10%) per calendar year; and (d) non-cancelable and non-pro-ratable for partial months, and non-refundable, except as expressly set forth herein.
3.2 Invoices. Invoices are payable by Client within thirty (30) days of their date, except from the instances in which an upfront payment is required. Invoices will be raised once an Order Form is executed and may be issued before connection work for an individual Covered Site is complete if Client has failed to provide all required information for Wolfhound to complete such connection work.
3.3 Late Payment. If Client fails to pay any amounts that are not disputed pursuant to Section 3.4 Wolfhound may charge interest on the overdue amount from the due date up to (but excluding) the date of actual payment, after as well as before judgment at the greater of: (a) one and a half percent (1.5%) per calendar month; and (b) the maximum permitted under applicable law. Such interest shall accrue on a daily basis, be compounded monthly and is payable on demand.
3.4 Disputed Invoices. If Client disputes all or part of an invoice received from Wolfhound, Client shall notify Wolfhound in writing within ten (10) days of receiving the relevant invoice and the parties shall act reasonably and in good faith to resolve such dispute.
3.5 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Client will be solely responsible for payment of all Taxes, except for those taxes based on the income of Wolfhound. Client will not withhold any taxes from any amounts due to Wolfhound unless such withholding or deduction is required by applicable law. In such event, the amount of such payment due from Client shall be increased to an amount which (after making such withholding or deduction) leaves an amount equal to the payment which would have been due if no such withholding or deduction had been required.
4. Proprietary Rights and Confidentiality 9
4.1 Proprietary Rights. As between the parties, Wolfhound exclusively owns all right, title and interest in and to the Wolfhound Product (including all System Data) and Wolfhound’s Confidential Information, and Client exclusively owns all right, title and interest in and to Client Data and Client’s Confidential Information.
4.2 Feedback. Client may from time to time provide Wolfhound with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”). Wolfhound will have: (a) full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality; and (b) an unencumbered right, without any obligation to compensate or reimburse Client, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of these Terms and Conditions and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with this Section; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its Commercially Reasonable Efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the non-public terms of these Terms and Conditions to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorised use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will, notwithstanding anything in these Terms and Conditions, be entitled to seek immediate injunctive and other equitable relief in any jurisdiction, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms and Conditions.
4.4 Client Data. Notwithstanding anything to the contrary, Client agrees that Wolfhound and its Affiliates is hereby granted a non-exclusive, non-transferable, sub-licensable (through multiple tiers), fully paid-up worldwide right and licence to use Client Data: (a) to provide the Wolfhound Product and Professional Services; (b) internally to develop and improve its products and services; and (c) to create System Data.
4.5 Third Party Information. The Wolfhound Product may contain Intellectual Property owned by third parties. Such third party Intellectual Property may be licensed by the third party to Client under separate or different terms and conditions (“Third Party Terms”) and are not licensed to Client under these Terms and Conditions. Such Third Party Terms are available on the Wolfhound Product and Client agrees to comply with such Third Party Terms, including any obligation to pay any fees due to third parties. Client agrees to indemnify Wolfhound in respect of any losses, damages, liabilities, costs, charges, and expenses, including reasonable legal fees and/or penalties Wolfhound incurs as a result of any breach by Client of any Third Party Terms.
5. Warranties and Disclaimers
5.1 Mutual. Each party warrants and represents to the other that it: (a) has full power and authority to enter into and perform its obligations under these Terms and Conditions; (b) shall obtain and maintain all necessary licences clearances, permissions, and consents necessary to carry out all of its obligations under these Terms and Conditions, provide any information, data or other materials that it provides hereunder, and to permit the other party to use the same as contemplated hereunder; and (c) shall employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of its obligations under these Terms and Conditions.
5.2 Wolfhound. Wolfhound warrants that: (a) the Wolfhound Product will conform in all material respects with the relevant Documentation for 90 calendar days provided that the boluses are not stored for longer than 14 calendar days from the date of receipt; and (b) it will provide the Professional Services in a professional and workmanlike manner and in accordance with the applicable Order Form. For breach of the foregoing express warranty, Client’s exclusive remedy shall be repair or replacement (as determined by Wolfhound) of the deficient Wolfhound Product or re-performance of the deficient Professional Services. If Wolfhound cannot repair or replace the deficient Wolfhound Product or re-perform the Professional Services, in each case so they are as warranted herein, Client shall be entitled to a pro-rata refund of the fees paid to Wolfhound for such deficient Wolfhound Product or Professional Services.
5.3 Disclaimers. Except as expressly set forth herein, the Wolfhound Product and Professional Services are provided on an “as is” and “as available” basis and each party disclaims all warranties and conditions express or implied, including those of merchantability, satisfactory quality, title, non-infringement, and fitness for a particular purpose. In particular, Wolfhound does not warrant that the Wolfhound Product or Professional Services (as applicable): (a) will be provided free from interruption; (b) will run on any particular computer system; (c) are accurate, complete, reliable, secure, useful, fit for purpose or timely; (d) will be tested for use; or (e) will be suitable for or be capable of being used by Client or any third party. Client acknowledges that the Wolfhound Product and Professional Services: (i) are intended to assist the efficiency of, but not replace, Client’s cattle health monitoring practices; (iii) provides recommendations only and Client is solely responsible and Liable for decisions it makes using such recommendations; and (ii) may contain bugs, viruses, make errors or misinterpret it issues, and therefore Client shall ensure it uses anti-virus software consistent with prevailing industry standards.
5.4 Beta Products. From time to time, Client may have the option to participate in a program with Wolfhound where Client gets to use alpha or beta products, features or documentation (collectively, “Beta Products”) offered by Wolfhound. Beta Products are not generally available and are provided on an “as is” and “as available” basis. Wolfhound does not provide any indemnities, warranties or conditions, express or implied, including those of merchantability, satisfactory quality, title, non-infringement, and fitness for a particular purpose, in relation thereto and Client’s exclusive remedy if it is not satisfied with Beta Products or the same has caused Client loss or damage is to cease use of the Beta Products. Client or Wolfhound may terminate Client’s access to Beta Products at any time.
6.1 Indemnity by Wolfhound. Wolfhound will defend Client against any claim, demand, suit, or proceeding (“Claim”) made or brought against Client by a third party alleging that the use of the Wolfhound Product in accordance with these Terms and Conditions infringes or misappropriates any patent, copyright or trade secret and will, subject to Section 7, indemnify Client for any damages finally awarded by a court of competent jurisdiction against Client (or any settlement approved by Wolfhound in writing) in connection with any such Claim. In connection with any Claim: (a) Client will promptly notify Wolfhound of such Claim in writing; (b) Wolfhound will have the sole and exclusive authority to defend and/or settle such Claim (provided that Wolfhound may not settle any Claim without Client’s prior written consent, which will not be unreasonably withheld, delayed or conditioned where it unconditionally releases Client of all related liability); and (c) Client reasonably cooperates with Wolfhound in connection therewith. If the use of the Wolfhound Product by Client has become, or in Wolfhound’s opinion is likely to become, the subject of any Claim of infringement, Wolfhound may at its option and expense: (i) procure for Client the right to continue using and receiving the Wolfhound Product as set forth hereunder; (ii) replace or modify the Wolfhound Product to make them non-infringing (with comparable functionality); or (iii) if the options in subsections (i) or (ii) are not reasonably practicable, terminate these Terms and Conditions and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Wolfhound will have no Liability or obligation with respect to any Claim to the extent such Claim is caused by: (A) compliance with designs, guidelines, plans or specifications provided by Client; (B) use by Client of any version of any downloadable component of the Wolfhound Product other than the latest version made available to Client; (C) modification of the Wolfhound Product by any party other than Wolfhound without Wolfhound’s express written consent; (D) Client Data or Client Confidential Information; (E) the combination, operation or use of the Wolfhound Product with other applications, portions of applications, product(s) or services where the Wolfhound Product would not by itself be infringing; or (F) continued use of the Wolfhound Product after Client was aware of the Claim or Wolfhound had notified it of the possibility of the Claim (subsections (A) through (F), “Excluded Claims”). This Section represents Client’s exclusive remedy for infringement or misappropriation of Intellectual Property.
6.2 Indemnification by Client. Client will defend Wolfhound against any Claim made or brought against Wolfhound by a third party arising out of the Excluded Claims, and Client will indemnify Wolfhound for any damages finally awarded against Wolfhound (or any settlement approved by Client) in connection with any such Claim. In connection with any Claim: (i) Wolfhound will promptly notify Client of such Claim in writing; (ii) Client will have the sole and exclusive authority to defend and/or settle such Claim (provided that Client may not settle any Claim without Wolfhound’s prior written consent, which will not be unreasonably withheld, conditioned or delayed where it unconditionally releases Wolfhound of all liability); and (iii) Wolfhound reasonably cooperates with Client in connection therewith.
7.1 Exclusions. Subject to Section 7.3, Wolfhound is not Liable to Client for any: (a) loss of actual or anticipated profits; (b) injury or harm to the cattle resulted from the incorrect application of the sensors; (c) injury or harm resulted from the application of the sensors to any other animal than cattle; (d) loss of sales, business or revenue; (e) loss of agreements or contracts; (f) wasted expenditure (excluding fees paid under these Terms and Conditions); (g) loss of anticipated savings; (h) loss of or damage to reputation or goodwill; (i) loss of use or corruption of software, data or information, in each case whether direct or indirect; or (j) indirect, special, incidental, consequential or punitive damages of any character.
7.2 Limitation. Subject to Section 7.3, the total aggregate Liability of Wolfhound for all claims arising in any Contract Year shall not exceed an amount equal to the total amount paid by Client to Wolfhound under these Terms and Conditions in that Contract Year.
7.3 Exception. Nothing in these Terms and Conditions excludes or restricts any Liability that cannot be excluded or restricted under applicable law.
8.1 Term. The term of these Terms and Conditions will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the effective date of such Order Form and, unless otherwise stated in the Order Form, will continue for twenty four (24) months. Wolfhound will provide Client with written notice at least ninety (90) days prior to expiry of the initial term (and any renewal term) and the term of such Order Form will automatically renew on Wolfhound’s then current pricing for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
8.2 Termination. Wolfhound may terminate these Terms and Conditions or any Order Form at any time by providing Client with six (6) months’ prior written notice. Each party may terminate these Terms and Conditions upon written notice to the other party if: (a) there are no Order Forms then in effect: (b) the other party commits any material breach of these Terms and Conditions and fails to remedy such breach within thirty (30) days after written notice of such breach, provided, however, that if such breach is capable of remedy but cannot be remedied within such period and the breaching party initiates actions to remedy the breach and thereafter diligently pursues such actions, the breaching party shall have such additional period as is necessary in the circumstances to cure the breach; or (c) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceedings that are not dismissed within sixty (60) days.
8.3 Consequences of Termination. Following termination of an Order Form for any reason: (a) Client shall pay Wolfhound on demand all sums (not disputed pursuant to Section 3.4) due to it howsoever arising from these Terms and Conditions; (b) subject to Section 4.4(c), all rights and licences granted under these Terms and Conditions shall terminate and Client’s access to the Wolfhound Product relevant to that Order Form shall be disabled; (c) Client shall promptly return to Wolfhound or otherwise dispose of (as the other party may instruct), all equipment, materials, documents (including Documentation) or papers whatsoever including Confidential Information of the other party which are in its possession or under its control in whatever form they are recorded or stored, including any electronic or digital storage media; and (d) the parties shall have no further obligations or rights under these Terms and Conditions, without prejudice to those which have accrued to either party prior to termination.
8.4 Survival. Upon termination of these Terms and Conditions, all Order Forms and all rights and obligations will immediately terminate except that accrued payment obligations and any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and provisions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below. Nothing in this Section will relieve Client of its obligation to pay Wolfhound the fees agreed in any Order Form that are due as at the effective date of such termination.
9.1 Anti-Corruption. Each party shall: (a) at all times have in place and comply with its own policies on: (a) anti-bribery and corruption and (ii) shall comply with Anti-Corruption Laws.
9.2 Records. Client shall keep detailed, accurate and up-to-date records of its: (a) use of the Wolfhound Product and Client Data; and (b) all payments made to Wolfhound (“Records”). Records shall be retained by Client for three (3) years after termination of these Terms and Conditions. Wolfhound and/or its third party representatives (including designated auditor), may on reasonable notice during normal business hours, but without notice if Wolfhound suspects a breach of these Terms and Conditions: (i) gain remote or electronic access to, and request copies of, the Records and any other relevant information held on Client’s systems; (ii) meet with Client personnel whom Client will procure provide all explanations reasonably necessary to perform the audit effectively; and (iii) inspect all Records, premises and systems relating to Client’s use, permission and/or control of the Wolfhound Product. The cost of an audit shall be borne by Wolfhound, except where a breach of these Terms and Conditions is identified, in that case, the amounts due and the costs of the audit shall be borne by Client and payable on demand. The rights in this Section shall continue for three (3) years after termination of these Terms and Conditions.
9.3 Export Compliance. Each party will comply with the export laws and regulations of the United States, United Kingdom, European Union and other applicable jurisdictions in providing and using the Wolfhound Product.
9.4 Publicity. Client agrees that Wolfhound may refer to Client’s name and trademarks in Wolfhound’s marketing materials and website; however, Wolfhound will not use Client’s name or trademarks in any other publicity (including press releases, customer references and case studies) without Client’s prior written consent (which may be given by email).
9.5 Assignment and Delegation. Neither party hereto may assign or otherwise transfer these Terms and Conditions, in whole or in part, without the other party’s prior written consent, except that Wolfhound may assign these Terms and Conditions without consent to an Affiliate or a successor to all or substantially all of its assets or business related to these Terms and Conditions. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null or void. Subject to the foregoing, these Terms and Conditions will be binding on the parties and their successors and assigns.
9.6 Amendment and Waiver. No amendment or modification to these Terms and Conditions, nor any waiver of any rights hereunder, will be effective unless agreed to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision.
9.7 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.8 Unenforceability. If a court of competent jurisdiction determines that any provision of these Terms and Conditions is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms and Conditions will remain in full force and effect and bind the parties according to its terms.
9.9 Governing Law and Jurisdiction. Each party irrevocably agrees that these Terms and Conditions (and any non-contractual obligations arising out of or in connection with them and any claim or dispute in relation to their formation) shall be: (a) interpreted and governed by the laws of England, excluding any rules governing choice of law and conflict of laws and not subject to the United Nations Convention on Contracts for the International Sale of Goods; and (b) the courts of London, England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions. Notwithstanding the foregoing, in the event the Client’s address (as stated in the Order Form) is located in the United States of America, these Terms and Conditions will be governed by the laws of the State of New York and the Federal laws of the United States of America, without reference to conflicts of law principles and any dispute or claim arising out of or in connection with these Terms and Conditions will be resolved by binding arbitration in New York, United States of America subject to the Rules of Arbitration of the International Chamber of Commerce.
9.10 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, by overnight delivery or by email (provided no automated bounceback message is received). Notices to the parties must be sent using the details stated in the relevant Order Form.
9.11 Entire Agreement. These Terms and Conditions and all Order Forms constitute the entire agreement and understanding between the parties relating to their subject matter and supersede any previous agreements, discussions, correspondence, negotiations, drafts, promises, assurances, warranties, representations and/or undertakings between the parties including any usage or custom and any terms arising through any course of dealing relating to such subject matter.
9.12 Non-Reliance. Each party agrees that in entering these Terms and Conditions all statements, representations, warranties and undertakings on which it relies are incorporated into these Terms and Conditions and it does not rely on (and shall have no remedy in respect of) any statement, representation (including any misrepresentation), warranty or undertaking (whether negligently or innocently made) of any person (whether party to these Terms and Conditions or not) (in each case whether contractual or non-contractual) which is not expressly set out in these Terms and Conditions. Without prejudice to: (a) any other provision of these Terms and Conditions limiting the remedies available to either party, each party agrees that it will have no remedy in relation to these Terms and Conditions for innocent or negligent misrepresentation, negligent misstatement or mistake based on any statement in or made in relation to these Terms and Conditions; and (b) the indemnification obligations contained herein and either party’s ability to seek injunctive or equitable relief in any court of competent jurisdiction for actual or threatened misuse of its Intellectual Property or Confidential Information, the only remedy available to each party in relation to any breach of these Terms and Conditions shall be for damages for breach of contract under the terms of these Terms and Conditions.
9.13 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption, delay or failure in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), pandemic, cyber-attack (including denial of service attacks), failure of any software, hardware, communications network or services provided by Client or a third party, or any change in or the adoption of any law, regulation, judgment or decree. Other than as expressly required herein, Wolfhound shall not be obliged to take any action to prevent or mitigate Force Majeure Events.
9.14 Government Terms. Wolfhound provides the Wolfhound Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of these Terms and Conditions. If Client (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Wolfhound Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms and Conditions. All other use is prohibited and no rights than those provided in these Terms and Conditions are conferred. The Wolfhound Product was developed fully at private expense.
9.15 Interpretation. Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’, ‘i.e.’, ‘other’ and ‘otherwise’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. In the event of any conflict between the Sections of these Terms and Conditions, the documentation incorporated into these Terms and Conditions by reference and any Order Form, the Order Form shall prevail, followed by the documentation incorporated by reference and finally these Terms and Conditions. References to Sections are to sections in these Terms and Conditions and headings shall not affect the interpretation of these Terms and Conditions. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to a party includes that party’s personal representatives, successors and permitted assignees. Unless the context requires otherwise, words in the singular include the plural and vice versa and a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision. A reference to these Terms and Conditions or to any other agreement or document referred to in these Terms and Conditions is a reference to these Terms and Conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these Terms and Conditions) from time to time. A reference to writing or written includes email but not fax. When a number is expressed both in words and numbers, in the event of a conflict the words shall be deemed correct.