1. DEFINITIONS

In this Agreement, capitalised words shall have the meanings set out below or elsewhere in this Agreement (including its Schedules and the Subscription Order Form):

1.1 “Additions” shall mean the additional content and personal notes that any of the Authorised Users may record on the Customer’s version of the Content Data.

1.2 “Authorised User” shall mean the client or, nominated person of the setting and or business.

1.3“FUP” shall mean the fair use policy.

1.4 “Complaint” means a complaint or request relating to either Party’s obligations under Data Protection Legislation relevant to this Agreement.

1.5 “Confidential Information” shall mean any information which is confidential in nature provided by or on behalf of one party (the "Owner") to the other party (the "Recipient") in connection with this Agreement (and for the avoidance of doubt, including the existence and terms of this Agreement) whether before or after the date of this Agreement and whether or not such information is marked or otherwise designated as confidential or proprietary to the Owner or its licensees (including but not limited to information relating to trade secrets, industrial rights, intellectual property rights, patents, designs, design rights, copyrights, know-how, inventions, discoveries, improvements, formulae, techniques, specifications, test methods, recipes, procedures, processes, drawings, manuals, computer systems or software, codes of practice, instructions, catalogues, ideas, facilities, plant and equipment, business methods, finances, prices, business plans, marketing plans, development plans, manpower plans, sales targets, sales statistics, customers and suppliers) and whether in oral, visual, electronic or any other medium, form or format whatever.

1.6 “Content Data” shall have the meaning as set out in paragraph 1.1 Schedule C.

1.7 “Control” shall mean the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise.

1.8 “Customer Content” shall mean any data, video, graphics, information, statements or other material that is inputted by or on behalf of the Customer or an Authorised User during their use of the Services.

1.9 “Customer Data” shall have the meaning in Clause 7.10.

1.10 “Data” shall have the meaning in Clause 7.2.

1.11 “Data Breach” shall mean any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Data.

1.12 “Data Protection Legislation” shall mean any Applicable Law relating to the processing, privacy, and use of personal data, as applicable to the Supplier, the Customer and/or the Services, including: 1.12.1 In the United Kingdom: (a) the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any laws or regulations implementing or replacing Directive 95/46/EC (Data Protection Directive) or Directive 2002/58/EC (ePrivacy Directive); and/or;

1.12.2 the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and/or any corresponding or equivalent implementing laws, regulations and secondary legislation, as amended or updated from time to time ; any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.

1.13 “Documentation” means the document made available to the Customer by the Supplier in the form of help files provided with the Product or at a web address notified by the Supplier to the Customer from time to time which sets out a description of the Product and the applicable user instructions.

1.14 “Effective Date” shall mean the date identified as such in the Subscription Order Form from which the Services shall be provided by the Supplier.

1.15 “Force Majeure Event” shall mean any acts, events, omissions or accidents beyond the reasonable control of the Supplier, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction in relation to the Force Majeure Event, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

1.16 “Fees” shall mean the agreed monthly subscription fees payable by the Customer to the Supplier for the User Subscriptions set out.

1.17 “Influencer” includes influencers, journalists, bloggers, vloggers, politicians and politicians’ staff or similar persons.

1.18 “Initial Term” unless stated otherwise shall mean the period of 36 months.  

1.19 “Product” shall mean  our services to the Customer and identified as such in the Subscription detailing.

1.20 “Renewal Period” shall mean the period identified as such in the Subscription Order Form.

1.21“Services” shall mean the provision to  access our services via email and telephone and site visits

1.22“Support Services” shall have the meaning set out in Clause 2.4.

1.23“Term” shall have the meaning set out in Clause 3.1.

1.24“User Subscriptions” shall mean the user subscriptions purchased by the Customer and set out in the Subscription Order Form which entitle Authorised Users to access and use the Services in accordance with this Agreement

 

2. SERVICES AGREED

2.1 In consideration for the Fees and subject to the Customer's compliance with the terms of this Agreement, the Supplier grants the Customer and its Authorised Users to  use the Services (as advertised) and any content created through authorised use (“Additions”) solely for the Customer's lawful internal business purposes and for use by Authorised Users in support of the Customer's lawful internal business purposes.

2.2 For the purposes of the Data Protection Legislation, the Supplier’s obligations set out in this Agreement comprise the entirety of all written instructions of the Customer to the Supplier in relation to the Supplier’s processing of personal data on behalf of the Customer under this Agreement.

2.3 The scope, nature and purpose of processing by the Supplier pursuant to this Agreement is as set out in Clause 7.6 and otherwise as further set out in this Agreement.

2.4 The duration of the Services (including as to any processing of Data) shall be for the Term of the Agreement.

 

3. TERM

3.1 The Initial Term, unless specified otherwise will be 36 months from date of receipt of first payment of monthly subscription. shall commence on the Effective Date unless otherwise agreed between the parties. After expiry of the Initial Term, and unless terminated earlier in accordance with the provisions of this Agreement, this Agreement will be automatically renewed for successive Renewal upon the same terms and conditions as those specified herein (and any such Renewal Periods collectively with the Initial Term shall constitute the "Term") unless either:

3.1.1 the Fees for the Initial Term and/or relevant Renewal Period (or any part thereof) are outstanding (and for the avoidance of doubt, this Agreement shall not be so renewed unless and until such Fees have been paid; or

3.1.2 written notice terminating this Agreement is given by either party not less than 90 calendar days before the end of the Initial Term or any subsequent Renewal Period (as applicable).

3.2  Upon expiration or any termination of this Agreement the Customer's rights and those of the         Authorised Users to use the Services shall cease.

3.3 The Supplier may destroy or otherwise dispose of any of the Customer Content in its possession unless the Supplier receives, no later than 10 days after the date of the termination or expiry of this Agreement.

3.4 The Customer shall pay all reasonable expenses incurred by the Supplier disposing of Customer Content or in returning the Customer Content following a request in accordance with clause 3.3.

 

4. CUSTOMER RIGHTS AND RESPONSIBILITIES

4.1 The Customer shall at all times comply with the FUP and shall procure that all Authorised Users do the same.

4.2 The Customer must at all times ensure that competent staff are suitably trained to manage and use the Service, and are aware of limitations and procedures.

4.3 Except to the extent and in the circumstances expressly permitted by applicable law, the Customer shall not alter, modify, adapt or translate the whole or any part of the intellectual property in any way.

4.4 In relation to the Authorised Users, the Customer undertakes that:

4.4.1 the maximum number of Authorised Users that it authorises to access and use the Services shall be the nominated account holder or authorised representative.

4.4.2 each Authorised User shall keep a secure password for  use of the Services and that each Authorised User shall keep his or her password confidential;

4.4.3 it shall permit the Supplier to audit  in order to establish the name and password of each Authorised User and/or that the maximum number of Authorised Users that the Customer has authorised to access and use the Services does not exceed the number of User Subscriptions it has purchased for a Product.  This right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

4.4.4 if any of the audits referred to in Clause 4.4.3 reveal that any password has been provided to any individual who is not an Authorised User, then we reserve the right to terminate the service and to recover costs in for such.

4.4.5 if any of the audits referred to in Clause 4.4.3 reveal that, or the Supplier otherwise becomes aware that, the Customer has underpaid Fees to the Supplier and/or that the maximum number of Authorised Users that the Customer has authorised to access and use the Services exceeds the number of User Subscriptions it has purchased for the service, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prevailing prices for the Product within 10 business days of the date of the relevant audit.

 

5. SUPPLIER RIGHTS AND RESPONSIBILITIES

5.1 Subject to payment of the applicable Fees by the Customer, the Supplier shall commence delivery of the Service on the Effective Date.

5.2 The Supplier is under no obligation to monitor the activities of the Customer or its Authorised Users.

5.3 The Supplier shall use commercially reasonable endeavours to make the Services available as set out in schedule D

 

6. COSTS AND PAYMENT

6.1 The Customer shall pay the Supplier the Fees for the Services in accordance with this Clause 6.

6.2 All invoices supplied by the Supplier shall be paid by the Customer from the date of the relevant invoice.

6.3 The Fees are payable in advance of the Effective Date unless otherwise agreed in writing with the Supplier.

6.4 The Fees specified are subject to change by the Supplier, such change to be communicated in writing 120 days prior to end of the Initial Term or a subsequent Renewal Period and any such change in the Fees will take effect upon the commencement of the succeeding Renewal Period.

6.5In addition to the Fees, The Supplier reserves the right to charge the Customer the Standard Hourly Rate, as identified in Schedule D, to cover;

6.6.1 the resolution of excessive or unusual problems or complaints that arise from the improper use, operation and modification or neglect of the Service by the Customer;

6.6.2 failure by the Customer to implement recommendations in respect of, or solutions, to faults previously advised by the Supplier;

6.6.3 any problem with Service which is caused by or results from any repair, adjustment, alteration or modification of the Service by any person other than the Supplier without the Supplier’s prior written consent;

6.6.4 any problem with Service which is caused by or results from the Customer changing any hardware, operating system software, networks or email configuration including DNS and MX records or other technical infrastructure; or

6.6.5 other services not covered by the Agreement.

6.7 The Customer will pay all sales, excise and other value- added taxes, duties or levies of any kind whatsoever imposed by any authority, government agency or commission in connection with the Services as provided under this Agreement.

6.8 The Customer is responsible for all costs over the entire term of the Agreement payable as set out herein or on demand if not specified herein. If the Supplier terminates this Agreement for the Customer's breach of the terms of this Agreement before the end of the Initial Term (or the relevant Renewal Period, if the Initial Term has been extended pursuant to Clause 3.1) then the remaining, unpaid costs for the remainder of the Initial Term and/or the relevant Renewal Period (as applicable) are due and payable immediately.

6.9 There are no partial refunds or credits for early cancellations and all payments to the Supplier are final and non-refundable except as otherwise set out in this Agreement.

6.10 The Supplier reserves the right to charge interest on any overdue account from the first day after payment should have been made and until payment is made, accruing daily, at 4% points per annum above the base lending rate of the Bank of England from time to time. The Customer shall pay the interest together with the overdue account.

6.11 The Supplier may at any time set off any liability of the Customer to the Supplier against any liability of the Supplier to Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.

 

7. DATA PROTECTION

7.1 In this Clause 7, the terms “controller”, “data processor”, “data subject”, "processing" (and any variants of the same) and “personal data” will bear the meanings given to them in the Data Protection Legislation.

7.2 The parties acknowledge and agree that:

7.2.1 All client information is held in compliance with GDPR

7.3 Where the Supplier is the data processor, the Customer shall be solely responsible for determining the purposes for which and the manner in which the applicable personal data are processed.

7.4 For the purposes of Article 28(3) of the GDPR, the Supplier and Customer agree that the subject matter of the processing is Influencers’ contact details and CRM reference data, the categories of data subjects is Influencers, and the type of personal data is Customer’s authorised users’ personal notes and additions relating to certain Influencers (in order to develop CRM with Influencers) being added to the Supplier’s database including (without limitation) records of prior conversations which may or may not include personal data.

7.5 Each of the Supplier and the Customer warrant that during the term of this Agreement they shall comply with all applicable requirements of the Data Protection Legislation in relation to the processing of personal data.

7.6 The Supplier hereby records its determination that the lawful ground for collating, storing, hosting, and making available to Customers the Data is ‘legitimate interests’ on the basis that it is in the commercial interests of (i) the Influencers whose data is collated on the database and it is in the commercial interests of (ii) the Supplier’s Customers who have purchased the right to access this Data in order to enable them to readily identify relevant Influencers for the purpose of communicating their press releases to the correct audience.

7.7 The Supplier will maintain a written log of all processing of Personal Data performed on behalf of the Customer. The written log shall include the following information: 7.7.1 the categories of recipients to whom Personal Data have been or will be disclosed;

7.7.2 to the extent that Personal Data is transferred to a third party outside the EEA and UK, a list of such transfers (including the name of the relevant nonEEA country and organisation), and documentation of the suitable safeguards in place for such transfers; and

7.7.3 a general description of the technical and organisational security measures referred to in this clause. The Supplier will provide the Customer a copy of such log upon the Customer’s request.

7.8 The Supplier will, in relation to any Data processed in its capacity as data processor in connection with the performance of the Services:

7.8.1 not appoint any person to perform any or all of the Services unless such person (i) is listed on the Register of Sub-Processors and (ii) has submitted in all material respects to terms and conditions of contract with the Supplier which are no less onerous than the terms set out in this Agreement;

7.8.2 remain primarily liable for breach of this Agreement arising directly from all acts and omissions of the Sub-Processor in its performance of any part of the subcontracted services for the Supplier;

7.8.3 update the register of Sub-Processors not less than 4 days in advance of the date on which the change of Sub-contractor is effected;

7.8.4 subject to clause 7.5 process that Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Data, the Supplier shall notify the Customer of this unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

7.8.5 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Data and against accidental loss or destruction of, or damage to, Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, ensuring the pseudonymisation, encryption, confidentiality, integrity, availability and resilience of its systems and services, and from time to time assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

7.8.6 ensure that all personnel who have access to and/or process the Data are obliged to keep the Data confidential; and

7.8.7 not transfer any Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained (such consent not to be unreasonably withheld, delayed or conditioned);:

7.8.8 assist the Customer in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with Supervisory Authorities or regulators and the Supplier shall be entitled to levy an additional charge on the Customer for its reasonable time and effort utilised in providing such prompt cooperation and assistance as well as any costs and expenses incurred;

7.8.9 notify the Customer without undue delay on becoming aware of a Data Breach;

7.8.10 at the written direction of the Customer, delete or return the Data and copies thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the Data;

7.8.11 maintain complete and accurate records and information to demonstrate its compliance with this Clause 7;

7.8.12 permit the Customer to audit or carry out inspections at the Supplier’s premises upon reasonable notice (at the Customer’s cost including as to any reasonable costs and expenses of the Supplier) to enable the Customer to have access such information as is necessary for the Customer in relation to assessing the processing of personal data by the Supplier on the Customer’s behalf (including information the Customer may need to ensure that both parties are meeting their legal requirements under Article 28(3)); and 7.8.13 tell the Customer immediately if the Customer asks the Supplier to do something which infringes the GDPR or other Data Protection Law.

7.9 Subject to Clauses 7.8.1 and 7.8.2, the Customer hereby gives its consent to the Supplier to appoint any of the its Sub-Contractors from for the purpose of performing any or all of the Services under this Agreement for and on behalf of the Supplier.

7.10 The Supplier shall promptly notify the Customer in writing of any loss or damage to the Data that it processes on behalf of the Customer (“Customer Data”). In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data. The Supplier shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Customer Data caused by any third party (except those third parties subcontracted by the Supplier to perform services related to Customer Data maintenance and back-up) nor for the security or integrity of any Customer Data during its transmission via public telecommunications facilities, the Internet or similar.

 

 

7.11 The Customer shall:

7.11.1 ensure that it has all necessary appropriate consents or has satisfied an applicable lawful ground and that fair processing notices are in place to enable the processing of the Data by the Supplier for the duration and purposes of this Agreement;

7.11.2 ensure that any Data that the Supplier processes on its behalf is lawfully disclosed, made available or provided to the Supplier;

7.11.3 not cause the Supplier to be in breach of the Data Protection Legislation;

7.11.4 ensure that any instructions provided to the Supplier regarding the processing of Data are lawful and shall, at all times, be in accordance with Data Protection Legislation;

7.11.5 have sole responsibility for the technical and organisational measures employed in its own environments and shall put in place any reasonable measures recommended by the Supplier in respect of the security of the Data, which may include the pseudonymisation and encryption of the Data

7.11.6 ensure that the Data processed by the Supplier as a data processor shall not include any sensitive personal data or special categories of personal data (as defined in the Data Protection Legislation) without first agreeing additional data protection and information security controls with the Supplier; and

7.11.7 indemnify the Supplier for any costs, losses, damages, expenses, penalties, awards or fines suffered or incurred by the Supplier including arising under or in connection with any claim by a third party, including a data subject or which are imposed upon by a Supervisory Authority in the event of any breach of this Clause 7 by the Customer.

7.12 The Supplier reserves the right to make any reasonable amendment to this Agreement to bring it into line with any amendment to any Data Protection Legislation or other applicable laws including to reflect the General Data Protection Regulation, or to reflect any requirement or recommendation of the Information Commissioner or any other data protection or supervisory authority in relation to the Processing of Personal Data.

 

9. WARRANTIES

9.1 The Supplier:

9.1.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and

9.1.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.2 Except as expressly provided in this Agreement:

9.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer and the Authorised Users, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

9.2.2 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; and

9.2.3 the Services and the Documentation are provided to the Customer on an "as is" basis. 9.3 The Customer warrants that it will comply with all applicable law with respect to its and its Authorised Users' access to and use of the Services.

10. CONFIDENTIALITY

10.1 Subject to Clause 10.2, each party shall treat all Confidential Information as strictly confidential and shall not disclose Confidential Information to any person.

10.2 A party may disclose Confidential Information:

10.2.1 if and to the extent required by law or order of the courts, or by any securities exchange or regulatory or governmental body to which such party is subject, wherever situated (whether or not the requirement for information has the force of law); or

10.2.2 on a necessary basis and under conditions of confidentiality to the professional advisers, auditors and bankers of such party; or

10.2.3 if such Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or

10.2.4 with the prior written approval of the other party such approval not to be unreasonably withheld or delayed.

10.3 The restrictions contained in this Clause 10 shall continue to apply after the termination or expiry of this Agreement (howsoever arising).

 

11. LIMITATION OF LIABILITY

11.1 Nothing in this Agreement shall exclude or limit either party's liability to the other for:

11.1.1 personal injury or death resulting from negligence;

11.1.2 fraud or fraudulent misrepresentations; and

11.1.3 for any other reason which may not be excluded by applicable law.

11.2 Subject to Clauses 11.1 and 11.3 the Supplier shall not be liable to the Customer for:

11.2.1 loss of profits or revenue (whether direct or indirect);

11.2.2 loss on anticipated savings;

11.2.3 loss of or corruption of data, service;

11.2.4 loss or damage to goodwill, reputation or business; and

11.2.5 any indirect, special or consequential loss, arising out of or in connection with this Agreement or any breach or non-performance of it no matter how fundamental and whether any claim for recovery is based in contract, tort (including by any reason of negligence), for breach of statutory duty or otherwise.

11.3 Subject to Clauses 11.1 and 11.2, the Supplier's total aggregate liability under the Agreement whether in contract, tort (including by any reason of negligence) or otherwise in relation to any given event or series of connected events is limited to the greater of:

11.3.1 an amount equal to 100% of the total amount paid or payable by the Customer under this Agreement during the 12 month period immediately preceding the date on which the claim arose; or

11.3.2 if the Customer has not paid any monies under this Agreement then £500.

 

12. INTELLECTUAL PROPERTY RIGHTS

12.1 The Supplier shall defend, indemnify and hold harmless the Customer against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with a claim that the Customer's use of the Services infringes the trade mark, copyright, database right or right of confidentiality of a third party, provided that:

12.1.1 the Customer shall not have (without the consent of the Supplier) done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any copyright, patent, trade mark or other rights as hereinbefore provided;

12.1.2 the Supplier is given prompt notice of any such claim;

12.1.3 the Customer provides reasonable cooperation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

12.1.4 the Supplier is given sole authority to defend or settle the claim.

12.2 In the event that any such infringement as set out in Clause 12.1 occurs or may occur, the Supplier may at its sole option and expense:

12.2.1 procure for the Customer the right to continue using the Services or infringing part thereof;

12.2.2 If applicable, modify or amend the Product or infringing part thereof so that the same becomes non-infringing;

12.3 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim:

12.3.1 that the Customer Content infringes the copyright, trade mark, database right or right of confidentiality of a third party; or

12.3.2 arising out of or in connection with the Customer's or an Authorised User's use of the Services and/or Documentation in contravention of the AUP; or

12.3.3 any defamatory material contained in the Customer Content.

12.4 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, Products and Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or any accompanying documentation.

12.5 The Customer shall own all right, title and interest in and to all of the Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content.

13. TERMINATION

13.1 Unless agreed prior, minimum term of this agreement is 36 months from the first date of monthly payment The supplier may terminate this Agreement at any time on written notice, either immediately or following such notice period as it shall see fit if the other party:

13.1.1 is in material breach of this Agreement, and such breach is irremediable;

13.1.2 commits any remediable material breach of this Agreement and fails to remedy such breach within a period of 30 business days from the service on it of a notice specifying the material breach and requiring it to be remedied (or, having so remedied, subsequently commits a similar breach within the next 30 business days); or

13.1.3 undergoes a change of Control where Control passes to a competitor of the Terminating Party, and such change of Control would (in the Terminating Party‘s reasonable opinion) have a material effect on the business of the Terminating Party.

13.2 In the event of termination by the Supplier in accordance with Clause 13.1 the Customer must pay immediately all fees and costs accrued before the termination, all annual recurring fees for each year remaining in the Term and any other amounts the Customer owes to the Supplier under this Agreement.

13.3 Either party may terminate the Agreement immediately by notice in writing to the other if the other:

13.3.1 has a winding up petition presented against it and does not make an application to set aside the same within 7 days or goes into liquidation whether compulsorily or voluntarily (unless as part of a bona fide scheme for amalgamation or reconstruction first approved in writing by the other party);

13.3.2 becomes subject to an administration order;

13.3.3 has a receiver or administrative receiver appointed over or encumbrancer take possession of the whole or any part of its assets, compounds with its creditors or any class of the same;

13.3.4 ceases to carry on its business or threatens to cease the same or becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

13.3.5 being an individual, has a bankruptcy order made against him or, being a partnership, has a bankruptcy order made against any of the partners or a notice served by a partner for the dissolution of the partnership; or

13.3.6 undergoes any similar or equivalent process to the above in any jurisdiction.

13.4 The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by a Force Majeure event, provided that the Customer is notified of such an event and its expected duration.

 

14. NON-SOLICITATION

14.1 During the period during which the Supplier is providing the Services to the Customer and for a period of six months thereafter the Customer shall not (whether personally or by its agent and whether for itself or on behalf of any other person, firm or company) induce or seek to induce any employee or subcontractor of the Supplier.  If such is the case then we reserve the right to invoke clause 13.2

 

15. DISPUTE RESOLUTION

15.1 The parties shall attempt to resolve any dispute arising out of or relating to this Subscription Agreement through negotiations between senior executives of the parties, who have authority to settle the same.

15.2 If the matter is not resolved by negotiation within 30 days of receipt of a written 'invitation to negotiate', a party may refer the dispute to a mediator for resolution. The parties shall attempt to agree upon the appointment of a mediator, upon receipt, by either of them, of a written notice to concur in such appointment. Should the parties fail to agree within 14 days, either party, upon giving written notice, may apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators, for the appointment of a mediator.

15.3 Should the mediation fail, in whole or in part, to resolve the dispute within thirty (30) Business Days either party shall be entitled to seek resolution of the dispute by application to the English Courts. 15.4 In relation to:

15.4.1 any dispute involving any allegations of infringement of intellectual property rights or misuse of Confidential Information or breach of confidence;

15.4.2 any other dispute in which either party's rights are reasonably likely to suffer significant prejudice in the event that it is not able to apply to the Court for nonmonetary relief,

15.4.3 then in any such case either party may apply to the English Courts without having to go through any of the other procedures provided for by this Clause 15 or otherwise by this agreement. In that event, all issues in the dispute concerned (including those in relation to which monetary relief is sought) may be dealt with by the English Courts.

 

16. GENERAL

16.1 No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.

16.2 The following Clauses shall survive termination of this Agreement: Clause 1, Clause 3, Clause 10, Clause 11, Clause 12, Clause 13.2, Clause 14, Clause 15 and Clause 16.

16.3 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 and construed in accordance with English Law. In the event of dispute the English courts 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). The failure to exercise or delay in exercising a right or remedy provided to a party under this Agreement shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision. Unless otherwise stated in this Agreement, each right or remedy of a party under this Agreement is without prejudice to any other right or remedy of that party under this Agreement or at law.

16.4 The Supplier reserves the right to vary the terms of this Agreement at any time during the Term on one (1) month’s prior written notice to the Customer.

16.5 In the event that the Customer does not agree to any variation made by the Supplier in accordance with the provisions of clause 16.4, the Supplier reserves the right to:

16.5.1 increase the Fees; and/or

16.5.2 amend any of the Schedules

16.6 In the event that the Customer requests any amendments and/or variation and/or enhancement (together, Enhancement) to the Products and/or the Services:

16.6.1 the Supplier shall be under no obligation to consider any such request.

16.7 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or electronically to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.

16.8 Any notice to be given shall be deemed effective (a) when left at the address mentioned above (if delivered personally) or (b) two business days after posting by first class post or recorded delivery addressed as required above (if given by post).

16.9 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16.10 Subject to Clause The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16.11 If any provision of this Agreement is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, or if any enactment is passed that renders any provision of this Agreement illegal, invalid or unenforceable under the law of any jurisdiction this shall not affect or impair the legality, validity or enforceability of the remaining provisions of this Agreement.

16.12 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

16.13 This Agreement constitutes the entire agreement and understanding between the parties relating to the transactions contemplated by or in connection with this Agreement and the other matters referred to in this Agreement and supersedes any other agreement or understanding (written or oral) between the parties or any of them relating to the same.

16.14 Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, statement, warranty, undertaking or representation made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement in respect of which its sole remedy shall be for breach of contract. Nothing in this Clause 16.14, however, shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.

16.15 The Customer agrees that the Supplier may issue a press release announcing the order once the Agreement is signed. The release to be issued will be agreed with the Customer in advance.

16.16 For the avoidance of doubt, neither party will make any derogatory comment regarding the other party in any medium (whether social or otherwise).