(A) TriOptima AB, incorporated and registered in Sweden with company registration number 556584-9758 whose principal place of business is at Fleminggatan 14 SE-112 26 Stockholm, Sweden (“TriOptima”) provides a triBalance service for portfolio risk reduction (“triBalance”) and You (as defined below) wish to use triBalance (the “Services”).
(B) Transactions are identified by the triBalance Service (“Identified Transactions”) and then arranged between the relevant participants, as further described in these terms of service (as amended from time to time, the “Terms”).
(C) By using the triBalance Service, You (meaning, for the purposes of these Terms, both individuals and the institution that they represent) will be deemed to agree to these Terms each time You submit any Participant Data (as hereinafter defined) for inclusion in any triBalance Session (as hereinafter defined), each time you participate in any triBalance Session and each time triBalance Identified Transaction(s) (as hereinafter defined) are generated pursuant to such triBalance Session. Your compliance with these Terms is a condition of Your continued access to, and use of, the triBalance Service.
In these Terms, the following terms shall have the meanings set forth below:
“Affiliate” means an entity that controls, is controlled by or is under common control with a Party. Control means the ownership or control, directly or indirectly, of fifty percent (50%) or more of all of the voting shares (or other securities or rights) entitled to vote for the election of directors or other governing authority or possession, direct or indirect, of the power to direct or cause the direction of the policies and management of the subject entity, whether through the ownership of voting securities, by contract or otherwise.
“Claim” means any claims, demands, proceedings or actions of any kind (including any brought by a government authority), and including threats of any of the foregoing;
“Intellectual Property Rights” means all rights in inventions, patents, copyrights, design rights, rights relating to computer programs, database rights, trade marks and trade names, service marks, trade secrets, know-how and any other intellectual property rights (whether registered or unregistered) and all applications for any of them, anywhere in the world;
“Service Fees” means the fees for the Service as agreed between the Parties from time to time;
“System” means TriOptima’s triBalance service, software, database and the Websites used in the Service;
“triBalance Identified Transactions” means the transactions set forth by the Service pursuant to a triBalance Session;
“triBalance Session” means a Service run participated in by You, under which triBalance Identified Transaction(s) may be generated by the Service from time to time;
“Website” or “Websites” means, as applicable, each of and collectively the TriOptima and triBalance websites.
2.1.1 TriOptima will provide the Services in accordance with these Terms, including without limitation any fee or ancillary documents between the Parties and each of You and TriOptima (collectively, the “Parties”, and individually a “Party”) shall comply with these Terms.
2.1.2 TriOptima reserves the right to amend these Terms from time to time with immediate effect. Any such changes will be notified to You via the Website. Your continued access and/or use of the triBalance Service after such a notice is made shall constitute acceptance of such amendment.
2.1.3 TriOptima does not warrant or undertake that any triBalance Identified Transactions will be identified, any triBalance Sessions will occur, or that the Service will or can be delivered.
2.2.1 The Service may generate certain triBalance Identified Transactions and other processing results based on data, tolerances and other information received, directly or indirectly, from You and/or other users of the Service (i.e., other Service participants). You acknowledge that (i) the triBalance Identified Transactions and any other processing results are dependent as regards accuracy on the data submitted to TriOptima for purpose of the Service, (ii) You are exclusively responsible for verifying the accuracy of all Participant Data supplied to TriOptima and all triBalance Identified Transactions and processing results received from TriOptima, and (iii) You will not rely on TriOptima or any of its Affiliates to validate or verify the contents of any triBalance Identified Transactions or any processing results. You further waive any right to make any Claim against TriOptima relating to triBalance Identified Transactions or triBalance Sessions.
2.2.2 You acknowledge and agree that by submitting Participant Data and/or participating in a triBalance Session, You hereby: (a) authorise TriOptima to arrange, register and/or record, as the case may be, the triBalance Identified Transactions as per a triBalance Session; (b) agree to be legally bound by every triBalance Identified Transaction identified pursuant to any given triBalance Session, and that (c) You agree that You are, accordingly, legally obligated to, and shall in fact, settle any and all triBalance Identified Transactions in accordance with this Agreement, and shall (d) in relation to the foregoing, represent and warrant on each date You submit Participant Data and/or participate in a triBalance Session (which representation and warranty will be deemed to be repeated at all times until the relevant Identified Transactions have been fully implemented) that You have taken any and all measures and actions needed in order to execute, register for clearing, as the case may be, and settle the triBalance Identified Transactions to effect their implementation, including ensuring those designated for execution on an exchange are capable of being so at the designated exchange.
2.2.3 Notwithstanding Clause 8, You shall indemnify and hold TriOptima harmless from and against any and all losses arising out of a Claim from a third party, as the case may be, pertaining to triBalance Identified Transactions.
2.2.4 You are, and will remain, in compliance with all applicable/relevant laws and regulations of any relevant jurisdiction.
3.1 You shall pay Service Fees to TriOptima as agreed between the Parties from time to time.
3.2 All Service Fees shall be exclusive of value-added taxes, sales taxes, customs duties or any similar taxes or imposts (collectively “Taxes”). TriOptima shall charge the Taxes to You and all amounts payable by You to TriOptima shall be paid in full, and such that You will ensure that the net amount received by TriOptima equals the amount due to be paid.
4.1 It is agreed and understood that TriOptima shall retain all Intellectual Property Rights or other proprietary rights in any documents, analyses, concepts, ideas, technology, services, text or any other such work performed by TriOptima pursuant to these Terms, including, without limitation, source code and object code in the System, the System, processes relating to the System and related documentation. You shall not attempt to encumber or gain any rights whatsoever to any of the above. Notwithstanding the foregoing, TriOptima shall have no rights to any data provided by You (the “Participant Data”).
4.2 TriOptima agrees that all right, title and interest in and to all Participant Data (including, without limitation all Intellectual Property Rights in the same) shall belong to You. TriOptima further agrees that it has no rights in Participant Data and shall not use such data except as expressly licensed by these Terms.
4.3 Without limiting Clause 5, You hereby grant TriOptima and each of its Affiliates a non-exclusive, royalty free licence to use, copy, modify and adapt, all Participant Data provided by You to TriOptima during the term of these Terms, solely in connection with TriOptima’s provision of the Services hereunder or as otherwise permitted under these Terms.
4.4 Subject to Clause 4.1, TriOptima grants You a royalty-free, non-transferable licence for the term of these Terms to use the Intellectual Property Rights in the System for the purposes of Your authorised use of the Services in accordance with these Terms.
5.1 Each Party (“Recipient”) undertakes to the other Party (“Disclosing Party”) to treat as confidential all information in any medium or format (whether marked “confidential” or not) which the Recipient receives from the Disclosing Party either directly or from any person, firm, company or organisation associated with the Disclosing Party, which concerns the business, operations or customers of any or all of the Disclosing Party and its Affiliates (“Confidential Information”). TriOptima may divulge Confidential Information to its Affiliates to the extent reasonably necessary for the purposes of performing TriOptima’s obligations or exercising its rights under these Terms.
5.2 The Recipient may only use the Confidential Information for the purposes of this Agreement. Notwithstanding Clause 5.1 above, You agree that TriOptima or its Affiliates may divulge to the other users of the Service such information as is necessary to deliver the Service.
5.3 Notwithstanding the foregoing in Clauses 5.1 and 5.2, TriOptima agrees that You may discuss with any other user of the Service those details of the Service necessary for the purpose of participating in the Service. Notwithstanding the above, TriOptima does not grant You the right to discuss or disclose the contents of these Terms.
5.4 This Clause 5 shall not apply to any information which:
(a) enters the public domain other than as a result of a breach of this Clause;
(b) is received from a third party which is under no confidentiality obligation in respect of that information; or
(c) is independently developed by the Recipient without use of the Disclosing Party’s Confidential Information.
5.5 Notwithstanding the foregoing in this Clause 5, the Recipient and its Affiliates may retain Confidential Information which it is obliged under law, regulation, code of practice or other similar legislation in any relevant jurisdiction to retain and disclose that Confidential Information in connection with any, inquiry or other request by a regulatory authority or self-regulatory authority with jurisdiction over the Recipient or where disclosure to a third party is required by applicable law, court order or subpoena.
5.6 The Recipient and its Affiliates may disclose Confidential Information to consultants, contractors, legal advisors, or auditors that have the need for such Confidential Information that relates to these Terms. The Recipient shall ensure that the provisions of this Clause 5 shall apply equally to every consultant or contractor, to whom Confidential Information is disclosed by the Recipient or at the Recipient’s request.
6.1 You represent to TriOptima, on each such date on which you first submit Participant Data for inclusion in a triBalance Session, and on which you participate in a triBalance Session (which representation and warranty will be deemed to be repeated at all times until the relevant triBalance Identified Transactions generated under such triBalance Session have been fully implemented), that:
(a) You are duly organised and validly existing under the laws of the jurisdiction of your organisation or incorporation and, if relevant, in good standing under such laws;
(b) You have the power to execute and deliver these Terms and to perform Your obligations under these Terms and any triBalance Session and any triBalance Identified Transaction and have taken all necessary action to authorise such execution, delivery and performance;
(c) such execution, delivery and performance do not violate or conflict with any law applicable to You, any provision of Your constitutional documents, any order or judgement of any court or other agency of government applicable to You, or any of Your assets, or any contractual restriction binding on or affecting You or any of Your assets;
(d) all governmental and other consents that are required to have been obtained by You with respect to these Terms and any triBalance Session and any triBalance Identified Transaction, have been obtained and are in full force and effect, and all conditions of any such consents have been complied with;
(e) Your obligations under these Terms and any triBalance Identified Transactions identified with respect to You by TriOptima constitute or will constitute Your legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(f) none of the following events has occurred with respect to You:
(i) have been dissolved;
(ii) are insolvent or unable to pay Your debts or are failing or have admitted in writing Your inability generally to pay Your debts as they become due;
(iii) have made a general assignment, arrangement or composition with or for the benefit of Your creditors;
(iv) have instituted or have had instituted against You a proceeding seeking a judgement of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditor’s rights
(v) have had a resolution passed for Your winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(vi) have caused or are subject to any event with respect to You which, under the applicable laws of any jurisdiction, has had an analogous effect to any of the events specified in Clause (i) to (v) (inclusive)
(g) there is not pending or, to Your knowledge, threatened against You or any of Your Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against You of these Terms.
6.2 You shall be solely responsible for any eventualities and liabilities, arising directly or indirectly, from the provision of or implementation of any triBalance Identified Transaction, including but not limited to, any contractual, tax or regulatory liabilities.
6.3 You will indemnify TriOptima for all loss or damage that TriOptima sustains as a result of any breaches of the obligations set out in Clause 10, directly or indirectly caused by You, or by Your use of the System, including, without limitation, any unauthorised access to the System, or any breach by You of any representation, warranty, covenant, procedure or other provision of Clause 10.
6.4 You acknowledge that You are exclusively responsible for verifying the accuracy of all information exchanged for the purposes of triBalance, the triBalance Sessions and the triBalance Identified Transactions (“Service Information”) supplied to TriOptima and all Service Information received from TriOptima pursuant to these Terms. You expressly waive any claim against TriOptima in respect of Service Information contained in, or omitted from, any triBalance Identified Transactions.
6.5 You acknowledge to TriOptima that:
(a) You are acting for Your own account, and You have made or will make Your own independent decisions to use the Service, including without limitation to participate in a triBalance Session under which You shall be legally bound with respect to any triBalance Identified Transaction that may be identified by TriOptima with respect to You;
(b) TriOptima is not acting as a fiduciary or financial or investment advisor for You;
(c) You are not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel, or representations (whether written or oral) of TriOptima; and
(d) You have consulted or will consult with Your own legal, regulatory, tax, business, investment, financial and accounting advisers to the extent You deem necessary, and You have made or will make Your own investment, hedging and trading decisions (including decisions regarding the suitability of participating in any triBalance Session) based upon Your own judgement and upon advice from such advisers as You deem necessary.
6.6 TriOptima represents to You (which representations will be deemed to be repeated on each date on which it identifies a triBalance Identified Transaction) that:
(a) it is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation and, if relevant under such laws, in good standing;
(b) it has the power to execute these Terms and any other documentation relating to these Terms to which it is a party, to provide these Terms and any other documentation relating to these Terms that it is required to perform its obligations under these Terms and has taken all necessary action to authorise such execution, delivery and performance;
(c) such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;
(d) all licences, registrations and/or consents that are required by TriOptima to provide the Services have been obtained by it and are in full force and effect and all conditions of any such licences, registrations and/or consents have been complied with;
(e) its obligations under these Terms constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(f) there is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under these Terms;
(g) TriOptima has the right to produce, provide and sell the Services and owns or has the right to use all software used by it in connection with its provision of the Services. Neither the use nor the provision of the Services will alter, impair or infringe the Intellectual Property Rights of any person.
7.1 TriOptima undertakes to defend You from and against any claim or action that the provision or use of the Services or the Websites infringes the Intellectual Property Rights of a third party (“IPR Claim”) and shall indemnify You from and against any losses, damages, reasonable costs (including legal fees) and expenses incurred by or awarded against You as a result of, or in connection with, that IPR Claim. The foregoing indemnity shall remain in full force and effect notwithstanding any termination of this agreement.
7.2 You agree that:
(a) You shall as soon as reasonably practicable notify TriOptima in writing of any IPR Claim of which You have notice;
(b) You shall not make any admission as to liability or agree to any settlement of or compromise any IPR Claim without the prior written consent of TriOptima; and
(c) TriOptima shall, at its request and own expense, be entitled to have the conduct of and/or settle all negotiations and litigation arising from any IPR Claim and You shall, at TriOptima’s request and expense, give TriOptima all assistance in connection with those negotiations and litigation.
7.3 If any IPR Claim is made, or in TriOptima’s reasonable opinion is likely to be made, against You, or any other user of the Service, TriOptima shall at its discretion either:
(a) procure for You the right to continue using the Services; or
(b) modify or replace the infringing part of the Services and without diminishing or curtailing in any material respect any of the functions or facilities or the performance of the Services, so as to avoid the infringement or alleged infringement; or
(c) immediately terminate these Terms.
7.4 The undertaking and indemnity under Clause 7.1 shall not apply to any infringement arising from any software or modifications to the software contained in the System developed by You.
7.5 The provisions of this Clause 7 state TriOptima’s entire liability to You in respect of an IPR Claim.
8.1 Except with respect to its obligations under Clauses 4, 5 and 7, and subject to Clause 8.10, to the maximum extent permitted by law, TriOptima and its Affiliates disclaim all liability arising out of or in connection with the use of the Services, the Websites, any triBalance Session or any triBalance Identified Transaction. TriOptima and its Affiliates shall be under no obligation to ascertain or confirm the authority or capacity of any employee or agent of Yours for any purpose in connection with these Terms. TriOptima accepts no liability for the commercial advisability of any triBalance Identified Transaction or any information supplied by any user in relation to any triBalance Identified Transactions. In providing the Services and the System to You, neither TriOptima nor its Affiliates is undertaking to:
(a) manage money;
(b) provide advice with respect to any triBalance Identified Transactions;
(c) provide any other financial advice whatsoever; or
(d) act as a fiduciary with respect to any of Your affairs.
8.2 TriOptima and its Affiliates will not be deemed to have recommended that any triBalance Identified Transaction should be implemented, nor will TriOptima or its Affiliates have any responsibility for knowledge of or compliance with any applicable laws, regulations or rules applicable to You that limit Your authority to conduct Your business using the Service or Systems.
8.3 Other than as provided in Clauses 4, 5 and 7, TriOptima and its Affiliates’ aggregate liability to You, Your Affiliates and their respective partners, officers, employees, directors, agents, contractors, representatives, successors and assigns under or in connection with the Services, these Terms, the Websites, any triBalance Session or any triBalance Identified Transaction, whether arising from negligence, breach of contract or otherwise shall not exceed in aggregate an amount equal to the lesser of US$100,000 or the Service Fees received from You in the previous 12 months.
8.4 Neither Party, nor its Affiliates, or their respective partners, officers, employees, directors, agents, contractors, representatives, successors and assigns, shall be liable to the other Party or anyone claiming under or through such other Party for loss of profit, damages for loss of capital, interest, revenue, data or use, or interruption of business or any indirect or consequential loss or damages under or in connection with these Terms or any triBalance Session or any triBalance Identified Transaction or the use of the Services, or the Websites, including without limitation, damages for loss of capital, interest, revenue, data or use, or interruption of business, even if such Party had been advised of the possibility of such damages.
8.5 In addition, but without prejudice to Clauses 8.3 and 8.4, TriOptima, its Affiliates and their respective partners, officers, employees, directors, agents, contractors, representatives, successors and assigns shall have no liability for losses resulting from unauthorised use of the Services by You or those gaining access to the Services as a result of the Your breach of your obligations hereunder.
8.6 TriOptima or its Affiliates or their respective partners, officers, employees, directors, agents, contractors, representatives, successors and assigns shall have no liability for losses resulting from TriOptima’s (or its Affiliates’) failure to receive or send any data or notifications from/to You, or failure to arrange, register and/or record any triBalance Identified Transactions.
8.7 Without prejudice to Clauses 8.3 and 8.4, neither Party nor its Affiliates shall be liable for any damage or loss that may be caused to any equipment, software or data due to any viruses, defects or malfunctions in connection with the use of the Services or the Websites, save to the extent such losses arise directly from that Party’s failure to comply with Clause 10 or in the case of You the reasonable instructions of TriOptima in relation thereto.
8.8 For the purposes of Clause 8.4 the expression “consequential loss or damage” shall include any loss, liability or cost which You may suffer or incur arising from not being able to enter into any triBalance Identified Transaction.
8.9 TriOptima will take all reasonable steps to provide the System in a reliable manner to good industry standards, however, neither TriOptima nor its Affiliates give any warranties or undertakings as to the performance and quality of the System.
8.10 Notwithstanding any either provision of these Terms, neither TriOptima nor its Affiliates excludes or limits its liability for misconduct, fraud or for death or personal injury arising from its negligence or that of its employees, agents or contractors.
8.11 The Parties agree that the limitations and exclusions set out in this Clause 8 are reasonable having regard to the levels of risk associated with each of their obligations under these Terms.
Except to the extent specifically set forth in these Terms, TriOptima makes no other representation or warranty with respect to the Service or the Websites, any triBalance Session or any triBalance Identified Transaction or any data or materials retrieved, obtained, provided or transmitted by or through the Service, the Websites any triBalance Session or any triBalance Identified Transaction. Except to the extent specifically set forth in these Terms, the Service, the Websites, any triBalance Session or any triBalance Identified Transaction and all data and materials retrieved therefrom are being provided to You “as is”. Except to the extent specifically set forth in these Terms, TriOptima hereby disclaims any and all other representations or warranties, whether express or implied, including without limitation, any representation or warranty as to merchantability or fitness for a particular purpose, any representations or warranties arising from course of dealing or course of performance, and any representations or warranties of accuracy, reliability or functionality.
10.1 You shall implement and maintain security procedures conforming to good industry practice and, additionally, You shall follow any security instructions set forth in the these Terms and any reasonable instructions as stated on the Website or as otherwise notified to You by TriOptima in respect of security. You agree with TriOptima that You (i) are responsible for preserving the confidentiality of Your (including your in-house or external designated users’ and administrators’) login credentials (including, without limitation, its username, password, token code and, when using public-key cryptography, private keys) (collectively “Login Credentials“) to the System, (ii) shall be responsible for unauthorised access to the System and/or access to the System in breach of the Agreement by use of any Login Credentials, (iii) shall be responsible for the actions of any persons, authorised or unauthorised, who gain access to the System using Login Credentials, (iv) shall not attempt to get access to other users of the service, their affiliates’ or third parties’ data which has not been made available to You by TriOptima, and (v) shall not, intentionally or by negligence, introduce any viruses or in any other way harm or attempt to harm the System.
10.2 TriOptima shall implement security conforming to good industry practice in the financial industry in relation to triBalance and such security is in the form described in the document called triBalance Security as available on the Website from time to time.
11.1 Notwithstanding Clause 5, the Parties agree that TriOptima may (i) disclose that You are a user of the Service to other users and potential users of the Service, and (ii) submit triBalance Identified Transactions and other data and information relating to You to its Affiliates involved in providing the Services.
11.2 Furthermore, You may agree to share certain information (including but not limited to bilateral tolerances) with other triBalance users as designated on the Website by You.
11.3 Notwithstanding Clause 5, any transfer of Participant Data, and/or triBalance Identified Transactions by TriOptima to an eligible recipient third party, (e.g., including, without limitation, for the purposes of STP trade booking to Trayport (or similar system) or the registration of Identified Transactions with relevant exchanges) which has been approved by You via e-mail, on the Website or otherwise shall be deemed part of the Services and You shall be solely responsible for (i) any instructions to such eligible recipient third party as to the use of the Participant Data, and/or the triBalance Identified Transactions, as the case may be, and any instructions given by TriOptima (as mandated by You) shall be deemed to have been given by TriOptima solely at the instruction of You, and (ii) all eventualities and liabilities arising from the transfer or use of Participant Data, and/or triBalance Identified Transactions.
12.1 These Terms are effective from the date you first submit Participant Data for inclusion in a triBalance Session and shall continue until terminated by either Party in accordance with this clause 12.
12.2 Either Party may terminate these Terms on giving prior notice to the other Party and such termination shall be effective 30 days after the notice was given.
12.3 Furthermore, these Terms may be terminated by either Party immediately upon notice if the other Party (i) becomes insolvent or an order is made or a resolution passed for that Party’s liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrator or other receiver, manager, liquidator, administrative trustee, examiner or similar officer is appointed over all or any substantial part of that Party’s assets or that Party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction, or (ii) is in material breach of any provision or condition of these Terms, and fails to rectify the breach within 15 days of receipt of a notice from the other Party requesting it to do so. Following any such notice, in the case of breach by You, TriOptima may suspend provision of the Service until rectification of the breach.
12.4 Termination of the Terms for any reason shall be without prejudice to the rights of either Party at the date of termination in respect of any antecedent breach, any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party. The following clauses shall survive termination of the Terms for any reason: (i) the definitions set out in the Terms; (ii) this Clause; and (iii) Clauses 4, 5, 6, 7, 8, 9 and 15.7.
Neither Party may assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of the other Party; provided, however, that a Party may assign any or all of its rights or delegate any or all of its obligations under these Terms without the prior written consent of the other Party to an Affiliate of such Party by providing prior written notice to the other Party and provided that each such assignee agrees in writing to be bound by all of the terms and conditions of these Terms. No such assignment shall relieve such Party of its obligations hereunder. Subject to the preceding sentence, all of the terms and provisions of these Terms shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
The data processing terms and conditions at the Website shall apply where TriOptima processes personal data (“Processed Personal Data”) as a processor on behalf of You in order to provide the Service.
The headings used in these Terms do not affect its interpretation.
No waiver of any breach of any provision of these Terms shall constitute a waiver of any other breach of the same or other provision thereof and no waiver shall be effective unless made in writing nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
Any notice to be served under these Terms shall be in writing and in accordance with the contact information held, as applicable, by TriOptima and You. For the purpose of these Terms an electronic communication will be treated as being in writing.
These Terms (including, without limitation, as may be incorporated herein) constitute the complete and exclusive agreement between the Parties and supersede any and all prior communications, representations and understandings, whether written or oral regarding the subject matter hereof. To the extent that there is any inconsistency between the main body of these Terms and any ancillary supplements thereto, these Terms shall prevail.
If any term of these Terms is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
15.5.1 the validity or enforceability in that jurisdiction of any other provision of these Terms; or
15.5.2 the legality, validity or enforceability in other jurisdictions of that or any other provision of these Terms.
A person who is not a party to these Terms may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999, provided that the Affiliates of either Party may enforce the provisions of Clauses 6 and 8.
These Terms shall be governed by English law. Each party submits to the exclusive jurisdiction of the English courts for all purposes relating to these Terms (including the enforcement of any determinations).
TriOptima irrevocably appoints TriOptima UK Limited, 1 Duval Square, London, England E1 6PW as its agent for service of process.