These Terms and Conditions (these “Terms”) govern the terms on which miFuture Group Ltd, a company incorporated in England and Wales whose registered company number is 09590463 and whose registered office is at 18 Commercial St, Tynant, Beddau. CF38 2DB and trading under the name ‘miFuture’ (“We/ miFuture/ supplier/ our”) makes available the Platform (as defined below) to Opportunity Providers (as defined below).
These Terms, together with any documents referred to herein, shall together constitute the contract between the Supplier and the Opportunity Provider setting out the terms upon which the Opportunity Provider may use the Platform (the “Agreement”). Any Opportunity Provider seeking to use the Platform must agree to the terms of the Agreement, and any use of the Platform by an Opportunity Provider shall be deemed to be an acceptance of such terms. If an Opportunity Provider does not so accept or agree to the terms of the Agreement then that Opportunity Provider will not be entitled to use the Platform and must stop using it immediately.
Definitions and interpretation:
In this Agreement:
1. Opportunity Provider: means the Opportunity Provider whose details are set out in the SLA, which may include (without limitation) earning, learning, training or volunteering positions suitable for those in early entry into the job market, experiences to enrich life and employability chances, entrepreneurial and start up support or other suitable and credible provision/ opportunities wishing to make their opportunities available through the Platform;
2. Opportunity Provider Data: means all information provided by the Opportunity Provider or on the Opportunity Provider’s behalf to the Supplier when using the Platform, including information relating to a Listing;
3. Applicable Law: means, as applicable to and binding on:
- (a) the Opportunity Provider and/or the Supplier in the performance of their obligations under this Agreement; and/or
- (b) the Platform,
any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances;
4. Bribery Laws: means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010, all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption, and any similar or equivalent legislation in any other relevant jurisdiction;
5. Business Day: means a day other than a Saturday, Sunday or bank or public holiday in England and Wales;
6. Commencement Date: means the commencement date specified in the SLA or, if not so specified, the date when the Opportunity Provider is first granted access to the Service;
7. Confidential Information: means any and all confidential information, (whether in oral, written or electronic form) including commercial, technical, tactical or strategic information of any kind or any other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;
8. Contract Term: means the term of this Agreement as specified in the SLA (where applicable);
9. Documentation: means the documents (in whatever media) provided to the Opportunity Provider to facilitate use of the Platform;
10. Emergency Maintenance: means non-scheduled maintenance which is required at short notice to ensure the integrity or availability of the Platform and/or any data hosted on the Platform;
11. Fees: has the meaning given in clause 12;
12. Force Majeure: means an event or sequence of events beyond a party's reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party's own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;
14. Infringing Data: means information or data that: (i) infringes Applicable Law; or (ii) infringes any third party Intellectual Property Rights; or (iii) includes any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous;
15. Intellectual Property Rights: means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, software right and rights in software (including source code and object code), and all similar and related rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
16. Listing: means a opportunity listing available on the Platform for Users to view and apply;
17. Party: means a party to this Agreement and “parties” shall be construed accordingly;
18. Payment Plan: has the meaning given in clause 12;
19. Platform: means the Supplier’s website platform available under the ‘miFuture’ brand, together with any associated software and/or applications (including mobile applications), which allows Users to search for and make enquiries about student accommodation;
20. Management Software: means third party management software which can store and/or display information about listings and which may be integrated into or connected with the Platform in accordance with clause 9 below;
21. Representatives: means the Opportunity Provider’s employees, officers, agents, contractors, authorised representatives, and any other persons duly authorised on the Opportunity Provider’s behalf to use the Platform;
22. Support Hours: means the support hours set out in the SLA;
23. Term: means the term of this Agreement as calculated in accordance with clause 2; and Users: means individual users that view opportunities on the Platform and may make enquiries or swipe to apply through the Platform about such opportunities.
1. In this Agreement:
- a reference to a party includes that party’s personal representatives, successors and permitted assigns;
- a reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
- a reference to a gender includes each other gender, or how that person perceives his/ her gender;
- words in the singular include the plural and vice versa;
- any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- unless the context requires otherwise, references to “in writing” include email;
- the background section and any clause or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under this Agreement.
- This Agreement will begin on the Commencement Date and shall continue:
- for the Contract Term, on the expiry of which the Agreement shall automatically renew for a further period of similar subscription 1.e. 12 calendar months or 1 calendar month (a “Renewal Term”); unless terminated (whether during the Contract Term or Renewal Term) in accordance with clause 14 (data protection), clause 17 (termination) or clause 21 (force majeure).
3. Platform and availability
- Throughout the Term the Supplier shall use reasonable endeavours make the Platform and the Documentation available to Opportunity Provider excluding:
- scheduled maintenance;
- Emergency Maintenance; or
- downtime caused in whole or part by Force Majeure.
- The Supplier will use reasonable endeavours to notify the Opportunity Provider in advance of scheduled maintenance but the Opportunity Provider acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by Force Majeure.
- The Opportunity Provider acknowledges and agrees that the Supplier may monitor and record communications with the Opportunity Provider (including telephone conversations and emails) for the purposes of provision of services, quality assurance, training, fraud prevention and compliance purposes.
- The Opportunity Provider acknowledges that the Supplier shall be entitled to modify the features and functionality of the Platform as part of its ongoing development of the Platform. The Supplier shall use reasonable endeavours to ensure that any such modification does not adversely affect the Opportunity Provider’s use of the Platform.
4. Supplier warranties
The Supplier warrants to the Opportunity Provider that:
- the Supplier has the right, power and authority to enter into this Agreement and grant to the Opportunity Provider the rights contemplated in this Agreement and to supply the Platform; and
- the Platform will be supplied:
- (a) with reasonable care and skill; and
- (b) subject to clause 3.4, in accordance in all material respects with any descriptions provided on the Platform and/or in the Documentation (as applicable).
- While the Supplier tries to make sure that the Platform will be available during the Term, the Supplier does not warrant or represent that the Platform will be available at all times or free from errors and interruptions.
- The warranties in this clause are subject to the Opportunity Provider giving notice to the Supplier as soon as it is reasonably able upon becoming aware of breach of a warranty. When notifying the Supplier of such a breach the Opportunity Provider shall use its reasonable endeavours to provide the Supplier with such documented information, details and assistance as the Supplier may reasonably request.
- The Supplier will not be liable under this clause or be required to remedy any problem arising from or caused by the Opportunity Provider’s use of the Platform in a manner other than as reasonably directed by the Supplier.
- The Opportunity Provider acknowledges and agrees that:
- the Supplier is not and cannot be aware of the extent of any potential loss resulting from any failure by the Supplier to discharge its obligations under this Agreement;
- the Platform has not been designed to meet the Opportunity Provider’s individual requirements and cannot be tested in every operating environment; and
- it is the Opportunity Provider’s responsibility to ensure that the facilities and functions of the Platform meet the Opportunity Provider’s requirements and will not cause any error or interruption in the Opportunity Provider’s own software or systems.
- Subject to clauses 4, if the provision of the Platform does not comply with clause 4 the Supplier shall, at its option, remedy, re-perform, or refund payments made in relation to, the Supplier’s provision of the Platform and this shall be the Opportunity Provider's sole and exclusive remedy for any such failure.
- To the extent permitted by applicable law, the Supplier disclaims all other warranties and conditions as to the Platform including but not limited to implied warranties relating to quality, fitness for a particular purpose, or ability to achieve a particular result. This does not exclude any liability for fraudulent misrepresentation or any warranties and/or conditions to the extent that the same cannot be lawfully excluded.
5. Account and Account Information
- In order to use the Platform the Opportunity Provider will be required to create and manage an account on the Platform (an “Account”). Accounts may be created in the Platform by Opportunity Providers choosing, or being provided with, a user identification code, password or other piece(s) of information as part of the Supplier’s security procedures (“Account Information”) to set up and manage an Account.
- The Opportunity Provider acknowledges and agrees that it is solely responsible for keeping its Account Information confidential. The Opportunity Provider should only disclose Account Information to its employees, agents, suppliers or other authorised representatives and must not disclose Account Information to any other person. If the Opportunity Provider knows or suspects that any unauthorised person knows or has access to its Account and/or Account Information the Opportunity Provider must promptly notify the Supplier accordingly.
- The Opportunity Provider acknowledges and agrees that it shall be responsible for and shall be liable to the Supplier in respect of, any and all actions taken through the Opportunity Provider’s Account unless the Opportunity Provider has notified the Supplier of any unauthorised access under clause 5.2 above.
6. Use of the Platform and restrictions on use
- The Supplier grants the Opportunity Provider a non-transferable, non-exclusive right during the Term to access and use the Platform in accordance with this Agreement.
- In consideration of the licence granted above, the Opportunity Provider shall:
- pay all Fees due under this Agreement in accordance with clause 12; and
- comply with its obligations as set out in the SLA, including (without limitation) its obligations relating to displaying ‘miFuture’ URLs on its website and ‘miFuture’ stickers in its ‘shop window’ or place of work.
- Except to the extent such activities are expressly agreed by the parties in writing, the Opportunity Provider’s right to benefit from the Platform does not permit it to:
- copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Platform;
- combine, merge or otherwise permit the Platform (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;
- attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Platform, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
- to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Platform, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.
- Notwithstanding clause 6.3, the Opportunity Provider shall not and shall procure that Representatives shall not:
- use the Platform to carry out or promote any activity that is unlawful in any way under Applicable Law; or
- use the Platform for any purpose that is prohibited by this Agreement; or
- introduce any software virus or other malware (including any bugs, worms, logic bombs, trojan horses or any other self-propagating or other such program) that may infect or cause damage to the Platform or the Supplier’s systems or otherwise disrupt the provision of the Platform.
- The Supplier reserves the right to monitor usage by the Opportunity Provider (by way of audits or otherwise) during the term of this Agreement for the purpose of (among others) ensuring compliance with the terms of this Agreement. Such monitoring may be carried out by the Supplier or a third party authorised by the Supplier
7. Listings and Opportunity Provider Data
- Save for information uploaded in accordance with clause 9, the Opportunity Provider shall be responsible for uploading Listings information to the Platform. Such Listings information shall constitute Opportunity Provider Data under this Agreement.
- The Opportunity Provider acknowledges and agrees that it shall be solely responsible for:
- verifying that any details contained in a Listing are true and accurate in all material respects; and
- ensuring that any recruiter, admin or other person who manages or controls a opportunity which is the subject of a Listing is genuine and does not and would not give rise to any reasonable concerns regarding the status of such person or the condition of such opportunity.
- The Opportunity Provider shall indemnify and hold harmless the Supplier from and against any and all loss caused to the Supplier as a result of or relating to:
- the Opportunity Provider’s failure to comply with its obligations under clauses 7; and any loss, damage or injury to any User that results from the Opportunity Provider’s failure to comply with its obligations under clauses 7.
8. Infringing Data
- The Opportunity Provider shall not use Infringing Data on the Platform.
- The Opportunity Provider shall retain ownership of all Opportunity Provider Data and all rights therein. The Opportunity Provider grants a royalty-free, transferable, non-exclusive licence for the Term to the Supplier to use the Opportunity Provider Data to the extent necessary to provide the Platform.
- The Opportunity Provider acknowledges that the Supplier has no control over any Opportunity Provider Data hosted as part of the provision of the Platform and, although it reserves the right to do so, the Supplier does not actively monitor the content of the Opportunity Provider Data.
- The Supplier shall notify the Opportunity Provider immediately if it becomes aware of any allegation that any Opportunity Provider Data may be Infringing Data and the Supplier shall have the right to remove such Opportunity Provider Data from the Platform without the need to consult the Opportunity Provider.
- The Supplier reserves the right to disclose Opportunity Provider Data to law enforcement officials and/or HMRC in the investigation of fraud or other alleged unlawful activities.
- The Opportunity Provider shall indemnify and hold harmless the Supplier from and against all loss caused to the Supplier as a result of the use by the Opportunity Provider of Infringing Data on the Platform.
9. Integration with third party Management Software
- From time to time the Supplier may allow or enable Management Software to integrate or connect with the Platform for the purpose of obtaining Listings and related information from such Management Software for display on the Platform.
- The Supplier shall maintain an up to date list of Management Software that the Supplier has allowed to integrate or connect with the Platform and shall provide such list to the Opportunity Provider upon request.
- The Opportunity Provider acknowledges that Management Software and any Listing information held therein is maintained by third parties and that the Supplier cannot guarantee the accuracy of such Listing information, and therefore:
- although it reserves the right to do so, the Supplier shall not be obliged to check the accuracy of Listings information that is obtained through the use or integration of Management Software; and
- subject to clause 9.4, the Supplier shall not be liable in any way for any errors or inaccuracies contained in any Listings information obtained through the use or integration of Management Software.
- Subject to clauses 9.3 and 9.6, where Management Software has integrated or connected with the Platform and such integration or connection has caused issues with the Opportunity Provider’s use of the Platform (including any inaccuracies in Listings information being displayed on the Platform) (“Issues”) the Opportunity Provider shall notify the Supplier accordingly in writing as soon as possible. Following the receipt of such written notification the Supplier shall:
- start working to rectify such Issue within 48 hours of receipt of such notification (and confirm the same to the Opportunity Provider in writing); and
- rectify such Issue to the Opportunity Provider’s reasonable satisfaction within seven (7) days.
- If the Supplier is not able to rectify such Issue under clause 9.4 and the Issue materially prevents the Opportunity Provider from having full use of the Platform then, subject to clause 9.6, the Supplier shall, in relation to any period during which such Issue materially prevents the Opportunity Provider from having full use of the Platform, refund to the Opportunity Provider such proportion of the Fees which have already been paid in respect of such period, and this shall be the Opportunity Provider's sole and exclusive remedy in respect of any such Issue.
- The Supplier shall not be required to remedy any Issue, or be liable for any failure to remedy any Issue, to the extent that such Issue:
- is the result of changes to the Management Software that were made after the date when such Management Software was first integrated with or connected to the Platform; or
- is caused by inaccuracies in the Listing information originally provided to or available on or through the Management Software.
10. ‘Swipe to apply’ enquiries (your leads)
- Where a User makes an enquiry or ‘swipe to apply’ about a Listing through the Platform the Supplier shall provide contact details for the User to the Opportunity Provider.
- Within a reasonable time of receipt of such User contact details under clause 10.1, such reasonable time being no longer than two (2) Business Days, the Opportunity Provider shall contact the relevant User about their enquiry.
- The Opportunity Provider shall not use or store that information for any other purpose than to connect with the User for the sole purpose of that enquiry and application process.
- The Opportunity Provider acknowledges and agrees that once the Opportunity Provider has made contact with a User under clause 10.2, any further communications between the Opportunity Provider and such User, and any contractual relationship that may ultimately arise between them, shall be matters between the Opportunity Provider and such User and that the Supplier shall have no involvement in, or liability in relation to, such communications and/or contractual relationships.
- As of 25th of May 2018 we urge the Opportunity Provider to process, use, store and destroy all information obtained in accordance with GDPR legislation.
11. Suspension of access
- The Supplier may suspend, deny or block the Opportunity Provider’s access to the Platform, including by blocking, without prior notification, the IP addresses that the Opportunity Provider used to access the Platform, if:
- the Supplier reasonably suspects that there has been any misuse or unauthorised use of the Platform by the Opportunity Provider or its Representatives or through the Opportunity Provider’s Account; or
- the Supplier suspects that there has been a breach of this Agreement; or
- the Opportunity Provider fails to pay any sums due to the Supplier by the due date for payment.
- The Supplier shall notify the Opportunity Provider as soon as possible after suspending the Platform under clause 11.1.
- Where the reason for the suspension or withholding is suspected misuse of the Platform or breach of this Agreement the Supplier shall, without prejudice to its rights under clause 17, take steps to investigate the issue and may restore or permanently suspend access at its discretion. If the Supplier considers it appropriate to permanently suspend access to the Platform it will notify the Opportunity Provider in writing and this Agreement will terminate immediately on service of such notice.
- In relation to suspensions or withholdings under clause 11.1.3, the Supplier shall restore access to the Platform promptly after the Supplier receives payment in full and cleared funds, however this duty on the Supplier is subject to the Supplier’s right to terminate for non-payment under clause 17.1.2 below.
- The Fees shall remain payable during any period of suspension notwithstanding that the Opportunity Provider may not have access to the Platform during such period.
12. Fees and payment
- Our relationships shall specify:
- the fees payable for the use of the Platform are generally immediately through our payment platform provided by Stripe Ltd., together with any applicable taxes or duties (including VAT) which may be charged in addition (together the “Fees”); though we can make exceptions and invoice manually on occasions with a bespoke SLA in place, and any applicable plan setting out timings and conditions for payment of the Fees (the “Payment Plan”).
- The supplier shall invoice the Opportunity Provider at the times and in the amounts specified in the Payment Plan. If no times are specified in the Payment Plan then the Supplier shall be entitled to raise its invoices in monthly instalments in advance.
- The Supplier shall invoice the Opportunity Provider electronically to the email address notified by the Opportunity Provider in writing to the Supplier for all sums due under this Agreement.
- The Opportunity Provider shall pay all sums due under this Agreement in full without set-off or counterclaim within thirty (30) days of the date of the Supplier's valid invoice, or on the due date for payment specified in the SLA, if earlier.
- Unless stated otherwise in the bespoke SLA or otherwise in writing, all amounts payable to the Supplier under this Agreement shall be paid by direct debit and online banking.
- If sums due under this Agreement are not paid in full by the due date:
- the Supplier may, without limiting its other rights, charge interest on such sums at four percent (4%) a year above the base rate of the Bank of England from time to time in force, and
- interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
- The Supplier may increase the Fees at any time by giving the Opportunity Provider not less than thirty (30) days’ notice in writing provided that:
- the increase does not exceed five percent (5%) of the Fees in effect immediately prior to the increase; and
- the Supplier shall not be entitled to increase Fees under this clause 12 more than once in any twelve (12) month period.
- Notwithstanding clause 12, the Supplier may increase the Fees with immediate effect by written notice to the Opportunity Provider where there is an increase in the direct cost to the Supplier of supplying the Platform which exceeds ten percent (10%) and which is due to any factor beyond the control of the Supplier.
- If, at the time of a variation to Fees under clause 12 an Order has been submitted by the Customer but has not yet been accepted by miFuture then
- The Supplier shall notify the Opportunity Provider of any increase in Fees under clause 12 and the Opportunity Provider shall have the opportunity within thirty (30) days of such notification to object to such Fee increase. If the Opportunity Provider does not notify the Supplier of an objection within this thirty (30) day period then the Opportunity Provider will be deemed to have accepted the increase in Fees. If the Opportunity Provider does notify the Supplier that it objects to the Fee increase the Supplier will have the option in its sole discretion to:
- allow the Agreement to continue at the previous Fee level; or
- terminate this Agreement on giving thirty (30) days’ notice to the Opportunity Provider.
13. Intellectual Property Rights
- Except as expressly stated in this clause 13, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
- All Intellectual Property Rights in and to the Platform, the Documentation or any part of them belong to and shall remain vested in the Supplier. To the extent that the Opportunity Provider acquires any Intellectual Property Rights in the Platform, the Documentation or any part of them, the Opportunity Provider shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to the Supplier. The Opportunity Provider shall execute all such documents and do such things as the Supplier may consider necessary to give effect to this clause.
- Subject to clause 13.2 and any other terms expressly agreed by the parties in writing, each party grants to the other a licence of such of its Intellectual Property Rights as are necessary to enable the other party to fulfil its obligations under this Agreement or provide or make use of the Platform and the Documentation as supplied under this Agreement, but not otherwise.
14 Data Protection
- Each party agrees that, in the performance of its respective obligations under this Agreement, it shall comply with all applicable Privacy and Data Protection Requirements.
- For the purpose of this clause:
- “Privacy and Data Protection Requirements” means: the Data Protection Act 1998 (until repealed) (“DPA”), the Data Protection Directive (95/46/EC) (until repealed) and, from 25 May 2018, the General Data Protection Regulation 2016/679 (“GDPR”) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom from the European Union; the Regulation of Investigatory Powers Act 2000; the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699); the Electronic Communications Data Protection Directive (2002/58/EC); the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003); and all applicable laws and regulations which may be in force from time to time relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction; and
- “data controller”, “data processor”, “data subject”, “Information Commissioner”, “personal data” and “processing” shall have the meanings given to them in the DPA or, from 25 May 2018, the GDPR.
- Both parties agree that they shall carry out processing of personal data in accordance with applicable Privacy and Data Protection Requirements, and accordingly (and without prejudice to the generality of the foregoing) shall:
- implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss, so as to allow compliance with the seventh data protection principle set out in Schedule 1 to the DPA;
- include in any contract with any subcontractors who shall process such personal data directly or indirectly on their behalf, provisions which are at least equivalent to those in this clause 14, and each party consents to the other party’s use of subcontractors in accordance with this clause 14; and
- as soon as reasonably practicable respond to, or refer to the other party (where applicable, for example where the other party is the applicable data controller), any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority.
- Each party acknowledges and agrees that the other may be required to transfer personal data which it processes to countries outside the European Economic Area. Each party shall ensure that any such transfer that it carries out will be undertaken in accordance with applicable Privacy and Data Protection Requirements.
- Each party (“Receiving Party”) agrees that it may use the Confidential Information of the other party (“Disclosing Party”) only in relation to the performance of this Agreement and that it shall not disclose the Disclosing Party's Confidential Information except in accordance with this clause 15.
- The Receiving Party may disclose the Disclosing Party's Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the Disclosing Party's confidential information in order to perform the Receiving Party's rights and obligations under this Agreement provided that the Receiving Party shall ensure that each of its employees, officers, advisers, agents or representatives to whom the Disclosing Party’s Confidential Information is disclosed is aware of its confidential nature and complies with this clause 15 as if it were a party to this Agreement.
- Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
16. Limitation of liability
Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- any other losses which cannot be excluded or limited by Applicable Law.
- Subject to clause 16.1, the Supplier’s total liability to the Opportunity Provider whether in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with the Platform or other performance or non-performance of the Supplier’s obligations under this Agreement:
- shall not exceed:
- (a) an amount equal to the Fees paid to the Supplier in the twelve (12) month period immediately preceding the first incident giving rise to the loss, or
- (b) for incidents occurring in the first twelve (12) months of this Agreement, an amount equal to the paid and projected Fees for that period; and
- in any event shall not extend to:
- (a) loss of profits, loss of revenue, loss of business, loss of goodwill, loss of contracts, loss of anticipated savings, loss of production or loss of or corruption to data; or
- (b) any special, indirect or consequential loss or damage whatsoever.
- Except as expressly stated in this Agreement, and subject to clause 16.1, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
Either party may terminate this Agreement at any time by giving notice in writing to the other if the other party: commits:
- (a) a material breach of this Agreement (other than failure to pay); or
- (b) a series of breaches (other than failure to pay) which together may reasonably be considered to constitute a material breach of this Agreement, and such breach is not remediable or, if capable of remedy, is not remedied within twenty (20) Business Days of receiving written notice to do so; or
- has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within thirty (30) days after the other party has given notification that the payment is overdue; or is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of that party (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee 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 any analogous event occurs in any applicable jurisdiction; or takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clause 17 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
- If either party becomes aware that any event has occurred, or circumstances exist, which may entitle the other party to terminate this Agreement under this clause 17, it shall immediately notify the other party in writing.
- Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
18. Consequences of termination
In the event of termination of this Agreement for any reason:
- the right to access the Platform provided under this Agreement shall terminate immediately;
- the Opportunity Provider shall within seven (7) days return or destroy (at the Supplier’s option) all the Supplier’s Confidential Information or Documentation in its possession or under its control and all copies of such information;
- all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect; and the Supplier shall at the Opportunity Provider’s cost return or destroy (at the Opportunity Provider’s option) all Opportunity Provider Data in its possession or under its control and all copies of such Opportunity Provider Data.
- Where information or data is stored in or on any disc, computer, word processor or other device or system in a party’s possession, custody or control, that party’s obligations under this clause 18 to destroy such information or data shall be satisfied by applying the delete functions available in the relevant software, regardless of whether the applicable information or data has technically been permanently erased from the hard drive or other memory of the relevant system.
- For the purposes of this clause 19 the expressions “adequate procedures” and “associated with” shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
- Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
- all of that party’s personnel; all others associated with that party; and all of that party’s subcontractors; involved in performing the Contract so comply.
- Without limitation to clause 19, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
- Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 19.
The Opportunity Provider undertakes, warrants and represents that: neither the Opportunity Provider nor any of its officers, employees, agents or subcontractors has:
- committed an offence under the Modern Slavery Act 2015 (an “MSA Offence”); or
- been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
- is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
- it shall comply with the Modern Slavery Act 2015; and it shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors, have breached or potentially breached any of Opportunity Provider’s obligations under clause 20.1, and such notice shall set out full details of the circumstances concerning the breach or potential breach of the Opportunity Provider’s obligations.
- Any breach of clause 20.1 by the Opportunity Provider shall be deemed a material breach of this Agreement and shall entitle the Supplier to terminate the Agreement with immediate effect.
21. Force Majeure
- A party shall not be liable or be deemed to be in breach of this Agreement if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it: promptly notifies the other party of the Force Majeure event and its expected duration; and uses best endeavours to minimise the effects of that event.
- If, due to Force Majeure, a party: is or shall be unable to perform a material obligation under this Agreement; or is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) days or a total of more than thirty (30) days in any consecutive period of ninety (90) days; the parties shall, if requested by the party not affected by the Force Majeure within thirty (30) days, renegotiate this Agreement to achieve, as nearly as possible, the original commercial intent.
- Notices under this Agreement shall be in writing and sent to a party's address or email address as set out in the SLA. Alternatively, notices may be sent to any other address or email address as previously notified in writing by a party to the other for the purposes of this clause 22.
- Notices may be given, and shall be deemed received: by email: on receipt of a delivery confirmation notification from the correct email address of the intended recipient confirming that the notice has been sent to that email address.
- In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged, as the case may be.
- This clause does not apply to notices given in legal proceedings or arbitration.
23. Entire Agreement
- This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
- The Opportunity Provider may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.
- The Supplier may perform any of its obligations and exercise any of its rights granted under this Agreement through any associate or subcontractor. The Supplier acknowledges and agrees that any act or omission of such associate or subcontractor in relation to the Supplier’s rights or obligations under this Agreement shall be deemed to be an act or omission of the Supplier itself.
- Each clause of this Agreement is severable and distinct from the others. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under Applicable Law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced):
- the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable; and
- without limiting the foregoing, in such circumstances the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
- Amendment – this Agreement may only be amended in writing signed by duly authorised representatives of each of the parties. Such amendment will only take effect when signed by duly authorised representatives of each of the parties.
- No partnership or agency – the parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.
- Waiver – no failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
- Set off – each party must pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
- Third party rights – except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
- 26.6.Compliance with law – the Opportunity Provider shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with this Agreement.
27. Governing law
- This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).