Hummingbird Technologies Limited
Terms and Conditions
Please note that we may update or amend these Terms and Conditions from time to time. Any amendments to these Terms and Conditions will be notified to Customers via our website: www.hummingbirdtech.com (and/or via any other methods we may, in our discretion, choose to use).
1.2 1.1 The following definitions and rules of interpretation apply in this Agreement:
Agreement means these Terms and Conditions together with the Customer Contract;
Applicable Laws means all applicable laws, statutes, regulation and codes from time to time in force;
Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Charges means the sums payable for the Services as set out in the Customer Contract;
Customer Contract means the Customer Contract entered into between the Customer and the Supplier or any other member of the Supplier’s group to which these Terms and Conditions apply;
control means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
Customer’s Equipment means any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services;
Customer Materials means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to Clause 4.1(d);
Data Protection Legislation means unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR or the Data Protection Act 1998;
Deliverables means any output to be provided by the Supplier to the Customer as specified in the Customer Contract and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s Equipment);
GDPR means General Data Protection Regulation ((EU) 2016/679);
Intellectual Property Rights means 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 or unfair competition, 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;
Milestone means a date by which a part or all of the Services are to be completed, as set out in the Customer Contract;
Services means the services set out in the Customer Contract;
Services Start Date means the date set out in the Customer Contract;
Supplier means Hummingbird Technologies Limited;
Supplier’s Equipment means any equipment, including tools, systems, cabling or facilities, provided by the Supplier or any third party providing services required for the provision of Services to the Customer and used directly or indirectly in the supply of the Services but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer;
Terms and Conditions means these terms and conditions for the provision of the Services by the Supplier to the Customer; and
VAT means value added tax chargeable under the Value Added Tax Act 1994.
1.3 Clause headings shall not affect the interpretation of this Agreement.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 The Customer Contract forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Customer Contract.
1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.9 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.10 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.11 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.12 A reference to writing or written includes fax and email.
1.13 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.14 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.16 If there is a conflict between a provision in this Agreement and the Customer Contract, the provisions of the Customer Contract shall prevail.
- Commencement and duration
2.2 This Agreement shall commence on the Services Start Date and shall continue, unless terminated earlier in accordance with Clause 11 (Termination), until either party gives to the other party written notice to terminate. This Agreement shall expire on the completion of the Milestones, save that any accrued rights owed to the Supplier by the Customer (including unpaid Charges) shall remain valid and enforceable.
2.3 The Supplier shall provide the Services from the date specified in the Customer Contract.
- Supplier’s responsibilities
3.2 The Supplier shall use its commercially reasonable endeavours to provide the Services, and deliver the Deliverables to the Customer, in accordance with the Customer Contract in all material respects.
3.3 The Supplier shall use commercially reasonable endeavours to meet the Milestones specified in the Customer Contract but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement. For the avoidance of doubt, the Supplier shall have no liability to the Customer for failure to meet a Milestone by its specified date in the Customer Contract, including (without limitation) where a Milestone is not met due to circumstances beyond the control of the Supplier such as adverse weather conditions which prevent or limit the ability of the Supplier to carry out any element of the Services.
3.4 The Supplier shall appoint a manager in respect of the Services to be performed under the Customer Contract. That person shall have authority to contractually bind the Supplier on all matters relating to the relevant Services. The Supplier may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
- Customer’s obligations
4.2 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and shall take all actions reasonably requested by the Supplier prior to and during the provision of the Services in order for the Services to be provided in an accurate and timely manner and lawfully including (without limitation) the removal or movement of any equipment, machinery or other objects on the Customer’s land which may obstruct the provision or quality of the Services;
(b) appoint a manager in respect of the Services to be performed who shall have authority to contractually bind the Supplier on all matters relating to the relevant Services;
(c) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, land, airspace, office accommodation, data and other facilities as required by the Supplier for the provision of the Services;
(d) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete;
(e) ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(g) keep and maintain the Supplier’s Equipment in good condition and in accordance with the Supplier’s instructions from time to time and not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
(h) comply with any additional responsibilities of the Customer as set out in the Customer Contract.
4.3 If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
- Change control
5.2 Any amendment to the Services or the terms of this Agreement shall only be effective if agreed in writing between and signed by each of the Supplier and the Customer.
- Charges and payment
6.2 In consideration of the provision of the Services by the Supplier, the Customer shall Charges.
6.3 The amount of the Charges shall be as set out in the Customer Contract. For the avoidance of doubt, the Supplier shall be entitled to set out such Charges as it requires in its absolute discretion in each separate Customer Contract and no Customer Contract shall be indicative of the likely Charges for the same or similar Services to be provided pursuant to future Customer Contracts.
6.4 Unless otherwise specified in the Customer Contract, the Charges shall be payable as follows:
(a) 50% of the total Charges shall be payable upon signing the Customer Contract; and
(b) 50% of the total Charges shall be payable within 30 days of the date upon which the Supplier delivers the final Milestone (as set out in the Customer Contract) to the Customer.
6.5 The Customer shall pay each invoice submitted to it by the Supplier pursuant to Clause 6.4 within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.
6.6 The Supplier may invoice the Customer in respect of the Charges payable pursuant to Clause 6.3 for the purpose of its internal administration, however such invoices shall be without prejudice to the rights of the Supplier to receive payment as set out in Clause 6.3 (or the Customer Contract, as applicable).
6.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) the Supplier may suspend part or all of the Services until payment has been made in full.
6.8 All sums payable to the Supplier under this Agreement:
(a) are exclusive of VAT and any other applicable taxes, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- Intellectual property rights
7.2 In relation to the Deliverables:
(a) the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
(b) the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 7.1(b).
7.3 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all IPRs in the Customer Materials; and
(b) grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
7.4 The Customer:
(a) warrants that the receipt and use in the performance of this Agreement by the Supplier, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials.
7.5 If the Customer is required to indemnify the Supplier under this Clause 7, the Supplier shall:
(a) notify the Customer in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 7.3(b) or Clause 7.4(b) (as applicable) (IPRs Claim);
(b) allow the Customer, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Customer shall obtain the Supplier’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Customer with such reasonable assistance regarding the IPRs Claim as is required by the Customer, subject to reimbursement by the Customer of the Supplier’s costs so incurred; and
(d) not, without prior consultation with the Customer, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Customer considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Supplier into disrepute.
- Data protection and data processing
Both parties will comply with all applicable requirements of the Data Protection Legislation.
9.2 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 9.2(a).
9.3 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 9; and
(b) as may be required by any Applicable Laws, a court of competent jurisdiction or any governmental or regulatory authority.
9.4 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
- Limitation of liability
10.2 Nothing in this Agreement shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by Applicable Law.
10.3 Subject to Clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; or
(g) indirect or consequential loss.
10.4 Subject to Clause 10.1, the Supplier’s total aggregate liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the amount equal to 50% of the Charges paid by the Customer and received by the Supplier under this Agreement.
10.5 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
11.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement upon one month’s written notice to the Customer.
11.3 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 commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 Business Days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(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 any of its creditors other than (being a company) 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) 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 (being a company) 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;
(f) 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);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) 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;
(j) 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 11.1(c) to Clause 11.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.4 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 Business Days after being notified in writing to make such payment; or
(b) there is a change of control of the Customer.
- Consequences of termination
12.2 On termination or expiry of this Agreement:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;
(c) the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
(d) the following clauses shall continue in force: Clause 1 (Interpretation), , Clause 7 (Intellectual property rights), Clause 9 (Confidentiality), Clause 10 (Limitation of liability), Clause 12 (Consequences of termination), Clause 16 (Waiver), Clause 18 (Severance), Clause 20 (Conflict), Clause 25 (Governing law) and Clause 26 (Jurisdiction).
12.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
- Force majeure
13.2 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any Applicable Laws or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); an
(h) interruption or failure of utility service.
13.3 Provided it has complied with Clause 13.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.4 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
13.5 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 5 Business Days days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.6 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 8 weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving 2 weeks’ written notice to the Affected Party.
- Assignment and other dealings
14.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
14.3 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
15.2 Subject to Clause 5 (Change control), no variation of the Customer Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.3 The Supplier shall have the right to update and amend these Terms and Conditions from time to time, which will be published on the Supplier’s website and the Supplier shall not be required to notify the Customer of any such changes.
16.2 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.3 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
- Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.2 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
18.3 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Entire agreement
19.2 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.3 Each party agrees that it 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Customer Contract, the provisions of this Agreement shall prevail.
- No partnership or agency
21.2 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Third party rights
22.2 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.
22.3 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
23.2 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business 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, in the case of the Supplier to firstname.lastname@example.org and in the case of the Customer, the email address (if any) included in the Customer Contract.
23.3 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the first Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email at 9.00 am on the next Business Day after transmission.
23.4 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Governing law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.