1.0 Definitions

The definitions and rules of interpretation in this clause apply in this Agreement and in any associated Order Form(s).

“Activities” means any activity defined by the subscription package on the Order Form that the Client may conduct through the Platform;

“Additional Services” means the professional services provided by Element Human relating to Activities as requested by Client through the Order Form;

“Client” means the legal person as set out in an Order Form who is entering into the Agreement.

“Client Data” means all material, images, video, data or information that Client uploads to the Platform or provides to Element Human or which Element Human receives in the course of the Client’s use the Platform including any such items that are incorporated within any report created by the Client using the Platform;

“Client Participants” means the individuals using the Platform to participate in Activities that have been provided by the Client and/or a third party instructed by the Client;

“Content” means all information, documents, reports, software, products and services other than Client Data that are contained in or made available via the Platform;

“Confidential Information” means any non-public information that relates to the actual or anticipated business, research, or development of Client or Element Human and any proprietary information, trade secrets, and know-how of Client or Element Human that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.

“Element Human Technology” means any and all technology (including software) comprised within the Platform or Additional Services or otherwise utilised by Element Human in performance of its obligations under the Agreement;

“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

“Initial Term” means the initial subscription period commencing on the Order Effective Date as specified in the applicable Order Form;

“Intellectual Property Rights” means all copyrights, unpatented inventions, patent applications, patents, designs, databases, registered and unregistered trademarks, brand names, business names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and similar forms of protection anywhere in the world;

“Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective;

“Order Form” means the order form for a product/subscription package selected and agreed to by the Client via the online sign-up process contained within the Platform along with any subsequent Order Form(s), specifying, among other things, the description of the services to be provided by Element Human, the Order Effective Date, the Initial Term, Usage Credits, number of Activities and Additional Services as agreed to between the parties, each such Order Form to be incorporated into and to become a part of these Terms of Service (if there is any conflict between the terms of these Terms of Service and the terms of any such Order Form, the terms of these Terms of Service shall prevail);

“Panel Participants” means the independent third-party service providers using the Platform to provide services to Client by participating in Activities. The Panel Participants are neither employees nor agents of Element Human. Element Human expressly disclaims all liability for the acts or omissions of the Panel Participants;

“Participants” means Client Participants and Panel Participants collectively;

“Personal Data” as defined in the UK Data Protection Legislation.

“Platform” means Element Human human data capture, analytics, artificial intelligence and reporting software platform developed, operated, maintained and hosted by Element Human or its third party hosting provider as made available to the Client by Element Human and as further described in any Order Form;

“Renewal Term” means each subsequent period equal in length to the Initial Term;

“Client Customers” means, if the Client is a marketing and/or research agency or similar service provider, the companies for whom the Client uses the Platform and Additional Services;

“Usage Credits” means prepaid credit amounts that may be applied to Client Participants and/or Panel Participants as governed by a specific Order Form or any subscription package referred to therein;

“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses or other similar things or devices.

2.0 License Grant

2.1 License. Subject to the terms and conditions of this Agreement Element Human hereby grants to the Client a limited, revocable, non-exclusive, non-transferable and non-assignable right to access and use the Platform for the purpose of conducting Activities solely for Client’s own internal business purposes. Element Human, its licensors and/or its suppliers, reserve all rights not expressly granted to the Client in this Agreement. Element Human may make improvements and/or changes to the Platform from time to time at its sole discretion.

2.2 Client Customers. Notwithstanding the terms of Sections 2.1 above if the Client is a marketing and/or research agency or other similar service provider, then the Client may download, copy, license, sell and distribute tangible copies of reports generated by the Client through the Platform to Client Customers for such Client Customer’s only internal business purposes only.

3.0 Use of the Platform

3.1 Limitations on Use. Except as otherwise expressly permitted in the Agreement the Client shall not:

• reproduce, mirror, modify, frame, republish, display, transmit, or create derivative works based upon the Platform, Additional Services or Content;
• transfer, lease, lend, sublicense, resell, assign, commercially exploit or otherwise distribute or allow or attempt to allow any third-party access to all or any portion of the Platform or the Content;
• de-compile, reverse compile, reverse engineer or access or otherwise reduce to human-perceivable form the Platform.
• upload or store infringing, obscene, threatening, unlawful or libellous material including material that facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability or any otherwise unlawful or tortious material, including material harmful to children or violate of third party privacy rights or Intellectual Property Rights;
• upload or store material containing Viruses;
• interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or
• attempt to gain unauthorised access to the Platform or its related systems or networks or to any Client Data belonging to another customer or to Activities that are not displayed in, or intended for, Client’s account.

3.1 Illicit Use. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of the Platform, Additional Services or Content and, in the event of any such unauthorised access or use, promptly notify Element Human in writing.

3.2 Client Responsibilities. The Client shall:

• be responsible for all activity occurring under Client’s accounts including all acts or omissions of any third party who access the Platform using the Client’s logon details; and
• abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Platform, Additional Services and the Client Data, including those related to data privacy, international communications and the transmission of technical or personal data.

Element Human reserves the right, without liability or prejudice to its other rights against the Client, to disable the Client’s access to any material that breaches the provision of this clause 3.

3.4 Participant Privacy. Notwithstanding any other provision included herein, Client agrees not to use the Platform, Activities or Additional Services to collect, retrieve, transmit, store, deliver or provide Element Human with access to any personally identifiable information that could be legally considered private or sensitive in any applicable jurisdiction, including, without limitation, government issued ID numbers, individual health or medical information, individual financial information, credit or debit card numbers, security codes, passwords, an individual’s name (last name and first name or first initial) or any other information that, either alone or in combination with other data, could be used to identify or contact a particular person. Client agrees to indemnify Element Human, its directors, officers, employees, licensors and authorised agents from all and any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Client as a result of the collection, use, transfer, or other processing of Participants Personally Identifiable Information supplied by a Participant in connection with any Client Activity.

4.0 Client Data

4.1 Client Data. Element Human does not own any Client Data. The Client, not Element Human, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data. Element Human shall not, so far as permitted by law, be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data.

4.2 License to Client Data. The Client hereby grants Element Human a perpetual, non-exclusive, royalty-free license to use the Client Data:

• as necessary to provide the Platform and Additional Services to Client under this Agreement;
• as necessary to monitor, analyse and improve the Platform;
• and/or compiling aggregate data derived from Client’s use of the Platform to compile metrics, statistics, insights and general performance data about the Platform for, among other things, Element Human marketing and promotional purposes.

This information will be presented only in anonymized aggregate form, and in no event will Element Human process Personal Data without the Client’s express permission.

4.3 No Sale of Client Data. Element Human is not in the business of selling Client Data. However in addition to that set out in clause 4.2 above, there are certain circumstances in which we may need to share Client Data with third parties if required to do so as a legal requirement or in a good faith belief that such action is necessary to:

• comply with a legal obligation;
• protect and defend rights or property of Element Human,
• or protect against legal liability.

The Client represents and warrants having all necessary rights, licenses, and consents required to license any Client Data to Element Human under the terms of This Agreement, and further represents and warrants that this license does not infringe the rights of any third party or violate any applicable law or regulation.

4.5 Security Policies. Element Human shall, in providing the Platform and Additional Services comply with its Security Statement relating to the security of the Client Data available at the security policies website or such other website address as may be notified to the Client from time to time, as such document may be amended from time to time by Element Human in its sole discretion.

5.0 Intellectual Property

5.1 Intellectual Property. Element Human alone (and its licensors, if and where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Element Human Technology, the Platform, the Content and the Additional Services and with the exception of Client Data any recommendations, ideas, feature requests, feedback, suggestions or other information provided by Client or any other party relating to the Platform.

5.2 No Right of Ownership. This agreement does not provide or imply to Client any rights of ownership in or related to the Platform, Element Human Technology or the Intellectual Property Rights owned by Element Human. The Element Human name, Element Human logo, Engage name, Engage Logo (the Trademarks, which term shall include any other trade mark owned by Element Human from time to time) are trade marks of Element Human or third parties save as set out in clause 5.3.

5.3 Trademark Use. To the extent only that any Trademarks are incorporated within any reports produced by Element Human through the Platform then Crowd Emotion grants to the Client a revocable, non transferable, non-exclusive licence to use such Trademark(s) for the sole purpose of enjoying the benefit of such reports in accordance with this Agreement. Any goodwill derived from the use by any Client of a Trademark shall accrue to the Element Human and the Client shall not in any way change how such Trademarks are presented or laid out in any such reports.

6.0 Payment

6.1 Payment Terms. Client shall pay to Element Human all fees and charges set forth in the Order Form in accordance with the billing and payment terms set forth on the Engage website or in an Order Form and this Agreement. Client agrees to provide Element Human with accurate billing, payment and contact information that is promptly updated with any changes. Client authorises Element Human or its third-party payment processors to bill client’s credit card or other payment instrument in advance on a periodic basis at the Initial Term and every subsequent Renewal Term(s) (collectively “Billing Cycle”) in accordance with such terms.

6.3 No refunds. All fees or charges paid pursuant to this Agreement shall not be refundable under any circumstances.

6.4 Unused Usage Credits. Unused Usage Credits whether included or purchased separately will not be carried over a Billing Cycle. Client will be deemed to have forfeited any unused Usage Credits at the end of each Billing Cycle.

6.5 Invoice Acceptance. The Client accepts that Element Human shall invoice the Client, and the Client shall pay for any Charges arising from the use of the Platform by any third party who is given or acquires access to the Platform via the Client.

6.6 Changes and Taxes. Element Human reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least ten (10) days prior notice to Client, which may be sent by email or posted on the Platform, effective upon the next Renewal Term.

6.7 Applicable Taxes. Sales and use tax, VAT or GST, or similar governmental assessments of any nature are the sole responsibility of the Client, and Client hereby acknowledge and agree that the all fees are exclusive of all such taxes.

6.8 Termination. Element Human reserves the right to suspend or terminate client access to the platform if the client fails to make any payment to Element Human within the specified payment terms. Element Human will also terminate client access to the platform upon the termination or expiration of this agreement.

6.9 No Damages. Element Human will not be responsible for any damages resulting from such suspension or termination of client access to the platform, whether damages are direct, indirect, incidental or consequential, even if Element Human has been advised of the possibility of such damages. Unless otherwise stated, all fees are quoted in the currency specified in the the applicable Order Form.

6.10 Currency. Unless otherwise stated in the Agreement, all fees are quoted in the currency specified in the applicable Order Form.

7.0 Client Indemnity

7.1 Client Indemnity. Client agrees to indemnify Element Human, its directors, officers, employees, licensors and authorised agents from all and any claims, causes of action, damages, judgments, settlements, liabilities and/or costs to the extent arising out of or in connection with:

• (i) a claim alleging that the use or processing of the Client Data by Element Human pursuant to this Agreement infringes any Intellectual Property Rights of, or has caused harm to the rights of, a third party;
• (ii) any claim arising out of Client’s license, sale and/or distribution to third parties (including Client Customers) of copies of reports generated through Client’s use of the Platform; or;
• (iv) a claim by a third party or Participant as a result of the collection, use, transfer, or other processing of Personal Data in connection with any Activity.

8.0 Confidentiality

8.1 Confidential Information. Confidential Information includes any and all information (however recorded or preserved) that is defined or otherwise marked as “Confidential Information” in relation to any Order Form between the parties and any services provided thereunder. Confidential Information also includes the confidential information of third parties that has been provided to Client or Element Human. Element Human’s confidential information includes, but is not limited to, all information related to the Platform or the Element Human Technology.

8.2 Ownership. The parties acknowledge that each party’s Confidential Information is the sole property of that party.

8.3 Exceptions. Confidential Information does not include any information that either party can demonstrate:

• (i) was publicly known and made generally available in the public domain before the other party disclosed the information,
• (ii) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations,
• (iii) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or
• (iv) was independently developed without use of or reference to the Confidential Information.

8.3 Nondisclosure and Nonuse. Each party will not, during and after the term of this Agreement disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than the performance of its obligations hereunder. Each party will take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement.

9.0 Limited Warranty

9.1 Client Warranties. The Client represents and warrants that Client has full power and authority to enter into the Agreement and the terms of conditions of this Agreement will constitute a valid and binding obligation of Client; and that Client has the rights to upload and use the Client Data, that the use and processing of Client Data in accordance with this Agreement does not infringe the Intellectual Property Rights of any third party and Client has not falsely identified itself nor provided any false information to gain access to the Platform and that Client’s billing information is correct.

9.2 Element Human Warranties. Element Human warrants

• (i) the Platform, Additional Services and Element Human Technology provided by Element Human, if any, shall be supplied with reasonable care and skill. In the event of a breach of this warranty, Client’s sole remedy and Element Human’ sole obligation will be for Element Human to make reasonable commercial efforts to correct the non-conformity or provide the Client with an alternative means of accomplishing the desired performance. If Element Human is unable to correct the non-conformity, Element Human may allow Client to terminate the applicable Order Form.
• (ii) it has all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

9.3 Disclaimer of Warranties. Other than as set out in the clause 9 (limited warranty) of this Agreement, the Platform, Additional Services, Content, Element Human Technology, third party data and documentation are provided “as is” and Element Human, its suppliers and licensors make no other warranties or representations, express, implied, or statutory, including warranties of quality, performance, non-infringement, merchantability or fitness for a particular purpose. No warranties shall arise by course of dealing, course of performance or trade usage. Element Human, its suppliers and licensors do not warrant that the Platform, Additional Services, content, Element Human Technology, third party data, or documentation will meet client needs or other requirements or expectations, or be free from errors, or that errors will be fixed or that the operation of the Platform will be uninterrupted or timely. The foregoing exclusions and disclaimers are an essential part of this agreement and form the basis for determining the platform fees and charges.

9.4 No Liability. Element Human shall not be liable for delays, interruptions, service failures or other problems inherent in the use of the internet, electronic communications or other systems outside the reasonable control of Element Human.

9.5 Warranty Exclusion. The warranty at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform or Additional Services contrary to Element Human's instructions, or modification or alteration of the Platform or Additional Services by any party other than Element Human or Element Human's duly authorised contractors or agents.

The foregoing exclusions and disclaimers are an essential part of this agreement and form the basis for determining the Platform Fees and Charges.

10.0 Limitation of Liability

10.1 Limitation of Liability. Except as expressly and specifically provided in this agreement:

• (i) the Client assumes sole responsibility for results obtained from the use of the Platform or any Additional Services by the Client, and for conclusions drawn from such use. Element Human shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Element Human by the Client in connection with the Platform or any Additional Service, or any actions taken by Element Human at the Client’s direction;
• (ii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

10.2 Exclusions. Nothing in this agreement excludes the liability of Element Human for death or personal injury caused by the Element Human’s negligence; or for fraud or fraudulent misrepresentation.

10.3 Subject to clause 10.1 and clause 10.2:

• (i) Element Human shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
• (ii)Element Human’s total aggregate liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid by the Client to Element Human under this Agreement for use of the Platform during the twelve (12) months immediately preceding the event the date on which the claim arose.

11.0 Term, Renewal, and Termination

11.1 Term and Renewal. The Initial Term of this Agreement shall begin on the Order Effective Date and continue for the Initial Term as set forth in each Order Form. The Initial Term of each Order Form will automatically renew for Renewal Terms unless a party notifies the other party in writing of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or subsequent Renewal.

11.2 Termination. Either party may terminate this Agreement on written notice to the other party if there is no current Order Form.

11.3 Termination for Breach. Either party may terminate this Agreement (and any Order Form(s) then in effect) if the other party breaches any material term of this Agreement which, in the case of Client, will include any breach of Client’s payment obligations or unauthorized use by Client or its users of the Platform or Element Human Technology, if the other party fails to remedy such breach within ten (10) business days following written notice of such breach.

11.4 Termination of Access. Element Human will terminate the Client’s access to the Platform and any Additional Services upon the termination or expiration of the Agreement.

11.3 Survival. Termination or expiration of this Agreement shall not relieve either party of obligations that by their nature or term survive termination or expiration; such as, by way of example and without limitation, the obligation to make all payments that have or will become due under these Terms of Use, Clauses 1 (Interpretation), 3 (Use of the Platform), 4 (Client Data), 5 (Intellectual Property), 7 (Client Indemnity), 8 (Confidentiality), 9 (Limited Warranty), 10 (Limitation of Liability), 11.5 (Survival), 11.6 (Effect of Termination) and 13 (Miscellaneous).

11.4 Effect of Termination. Upon termination or expiration of this Agreement, whichever is sooner: each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control and the Client will no longer have access to the Platform or any Additional Services. Client agrees and acknowledges that Element Human is not obligated to retain Client Data for longer than twenty-eight (28) days after termination and if Client requests Client Data within such twenty-eight (28) day period, subject to Client’s payment of the applicable fees, Element Human will provide Client with a copy of the Client Data that it holds. Thereafter, Element Human has no obligation to retain Client Data, and may delete Client Data from the Platform without liability.

12.0 Data Protection

12.1 Roles. These terms will apply where the Client is operating as a “data controller” (as that term is defined in the Data Protection Legislation) in the Client’s use of the Platform or Additional Services and in which event Element Human shall be the Data Processor. The terms “Personal Data”, “Data Subject”, “Processing” and “Data Processor” shall all have the meaning given to them in the Data Protection Legislation.

12.2 Data Processing Instruction. By accessing the Platform or any Additional Services, the Client is providing Crowd Emotion with instructions to process any Personal Data collected by the Client through its use of the Platform or any Additional Services, on the Client’s behalf.

12.3 Data Compliance. The Client will ensure that it has all necessary consents and notices in place to enable lawful transfer of any Personal Data to Element Human for the duration and purposes of this Agreement so that Element Human may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer's behalf. The Client shall have sole responsibility for the accuracy, quality and legality of Personal Data processed by Element Human in the provision of the Platform and Additional Services.

12.4 Data Processor Agreement. Where Element Human is processing Personal Data on the instructions of the Client, it will:

• (i) Only do so on the Client’s written instructions and in accordance with the Data Protection Legalisation, including with regard to transfers of Personal Data to a third country or an international organization, and the parties agree that these terms constitute such documented instructions;
• (ii) ensure that all Element Human personnel involved in the processing of personal data have committed themselves to confidentiality;
• (iii) promptly notify the Client of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Platform or Additional Services;
• (iv) not retain personal data from within the Client’s account other than in order to comply with the terms of this Agreement or applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes; and
• (v) to the extent reasonably able, assist the Client as reasonably required (at Client’s expense) where the Client wishes to conduct a data protection impact assessment involving the Services.
• (vi) To the extent that Element Human uses another processor to process any Personal Data it is agreed that:

1. the sub-processors at the Order Effective Date are available upon request;
2. such sub-processors are common to all Element Human clients and Element Human shall remain fully liable for the actions of its sub-processors at all times;
3. from time to time, Element Human may appoint different sub-processors;
4. Element Human shall impose on sub-processors the same data protection obligations as set out in this clause 12;
5. Element Human shall notify the Client in advance of any changed or new sub-processors or any material change to the processing done by sub-processors, thereby giving Client an opportunity to object to such changes;
6. if Element Human notifies the Client of any changes to sub-processors and the Client objects to such changes, either party will be entitled to terminate this agreement (without liability for either party, and such termination will be deemed to be a no-fault termination).

12.5 Personal Data. Notwithstanding any other provision in the Agreement, the Client agrees not to use the Platform, Activities or Additional Services to collect, retrieve, transmit, store, deliver or provide Element Human with access to any Personal Data that could be legally considered private or sensitive in any applicable jurisdiction, including, without limitation, government issued ID numbers, individual health or medical information, individual financial information, credit or debit card numbers, security codes, passwords, an individual’s name (last name and first name or first initial) or any other information that, either alone or in combination with other data, could be used to identify or contact a particular person. The Client agrees to indemnify Element Human, its directors, officers, employees, licensors and authorized agents from all and any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Client as a result of the collection, use, transfer, or other processing of Personal Data.

13.0 Miscellaneous

13.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.

13.2 Registration. To obtain access to the Platform, Client may be required to obtain an account with Element Human by signing up and providing an email and password. When registering with Element Human the Client must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering with Element Human, Client agrees that Element Human may send Client communications or data regarding the Platform or Services, including but not limited to promotional information and materials regarding Element Human’ products and services, via electronic mail.

13.3 Notices. Notice shall be deemed given upon receipt via e-mail, personal delivery, or postage prepaid by certified or registered mail, return receipt requested.

Notices to Element Human will be sent to:

Legal

Element Human Limited
11 Dovecote Gardens,
London, UK
SW14 8PN

with a copy by email to legal@elementhuman.com

Unless noted otherwise by Client, notices to Client will be sent to the email address used during registration or appearing on the applicable Order form.

13.4 Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and 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 arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims)

13.5 No Agency. The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture. No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.

13.6 Waiver. No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.

13.7 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

13.8 Force Majeure. Element Human will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.

13.9 Publicity. Client agrees that Element Human may use Client’s company name and logo on Engage client lists on the Platform, Element Human and Engage website, and marketing materials and to promote Element Human and Engage in any way.

13.10 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Client and Element Human with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. Element Human expressly objects to any additional or conflicting terms proposed by Client in a Client purchase order or otherwise. No Client form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.