Background
- The Provider is a provider of the Goods and/or Services, initial details of which are contained in the Heads of Agreement and which may be updated or amended from time to time on the written agreement of the Parties and which are governed by the Terms and Conditions (Goods & Services).
- Network is a provider of member discount and reward schemes (Network Schemes) to a registered audience (Members) and has a database containing contact information for such Members (Database).
- Network wishes to offer its Members the opportunity to purchase the Goods & Services and/or the opportunity to take advantage of the Offer(s), as defined in the Heads of Agreement, as updated or amended from time to time as agreed in writing between the Parties, from the Provider on preferential terms.
- The Provider wishes the Goods & Services and/or Offer(s) to be promoted to such Members and is willing to remunerate Network on the terms of this Agreement if such Members enter into Relevant Contracts with the Provider as a result of such promotion.
- Network is willing to promote the Goods & Services and/or Offer(s) to Members in return for Payment as specified in the Heads of Agreement.
AGREED TERMS
- Interpretation
The following definitions and rules of interpretation apply in this Agreement.- Definitions:
- A reference to a statute or statutory provision is a reference to it as is in force as at the date of this Agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
- A reference to writing or written includes e-mail.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Purpose and Performance of the Agreement
- The Provider is appointed by Network as a provider of the Goods & Services and/or Offer(s) to the Members.
- The Provider shall provide the Offer(s) for the Goods & Services to the Members and shall not provide the Offer(s) for the Goods & Services, or any substantially similar Offer(s) for the Goods & Services, to any other Person who is not a Member on terms which are more favourable than the Offer(s) provided to the Members.
- Network shall co-operate with the Provider in the operation of this Agreement in good faith and shall perform its obligations under this Agreement with reasonable care, skill and diligence;
- Network shall not:
- have any authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind the Provider in any way, and shall not do any act which might reasonably create the impression that Network is so authorised;
- make or enter into any contracts or commitments or incur any liability for or on behalf of the Provider, including for the provision of the Goods & Services and/or Offer(s) or the price for them, and shall not negotiate any terms for the provision of the Goods & Services and/or Offer(s) with its Members; and
- without the Provider’s prior written consent, make or give any representations, warranties or other promises concerning the Goods & Services and/or Offer(s) which are not publicly available.
- Suspension of Services
- If the Provider is in breach of any of its obligations under this Agreement, or if Network is prevented or delayed from performing any of its obligations under this Agreement or Network is at risk of reputational damage for any reason attributable to the Provider, its affiliates, employees, agents, representatives or subcontractors, then Network (without prejudice to any other rights it has or may have under this Agreement or otherwise):
- may suspend performance of its obligations under the Heads of Agreement and/or these Terms and Conditions more generally until such time as the Provider fully remedies its breach or default;
- shall not be liable for any losses, damages, costs and/or expenses incurred by the Provider as a result of such suspension; and
- shall recover from the Provider all losses, damages, costs and expenses incurred which arise from the Provider’s breach or default.
- If the Provider is in breach of any of its obligations under this Agreement, or if Network is prevented or delayed from performing any of its obligations under this Agreement or Network is at risk of reputational damage for any reason attributable to the Provider, its affiliates, employees, agents, representatives or subcontractors, then Network (without prejudice to any other rights it has or may have under this Agreement or otherwise):
- Payment
- The Provider shall pay to Network Payment as per the Heads of Agreement and in accordance with this clause 4.
- The Provider shall provide to Network at the beginning of each calendar month and in any case not later than the fifth Business Day of the month a report which sets out all Sales and/or Renewals attributed to the Members made by the Provider in the previous month. Network shall calculate the Payment due to it from this report and shall raise an invoice in accordance with sub-clause 4.5.
- Payment shall be paid by way of direct bank transfer to the account nominated by Network.
- Payment shall be payable to Network in pounds sterling.
- Network shall raise monthly invoices for the Payment payable by the Provider (as determined in accordance with sub-clause 4.2). Each invoice shall be paid by the Provider within 30 days of the date of the invoice unless amended by an alternative payment timescale as agreed between the parties within the Heads of Agreement.
- If the Provider fails to make any Payment due to Network under this Agreement by the due date for Payment, then, without limiting Network’s remedies under clause 14 the Provider shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Provider shall pay the interest together with the overdue amount.
- The Provider shall keep separate accounts and records giving correct and adequate details of all Relevant Contracts entered into by the Provider, all payments received under them and all deductions made in the calculation of Net Income. The Provider shall permit the duly appointed representatives of Network at all reasonable times to inspect all such accounts and records and to take copies of them in accordance with the audit terms under Clause 6. For the avoidance of doubt, all rights in such records (including database right and copyright) shall belong to the Provider.
- Termination of this Agreement, howsoever arising, shall not affect the continuation in force of this clause 4 and the Provider’s obligation to pay amounts to Network in accordance with it. For the avoidance of doubt, Payment amount shall be due and payable to Network for the period the Discount Mechanic remains live on the Provider’s Website or elsewhere as applicable.
- Obligations of the Provider
- The Provider agrees that it shall:
- pay the Payment to Network in accordance with clause 4;
- co-operate with Network in the operation of this Agreement in good faith and perform its obligations under this Agreement with reasonable care, skill and diligence;
- provide Network at all material times with all such information and data Network reasonably requires to carry out its duties, including marketing information for and details of the Goods & Services and/or Offer(s), and information about the Provider, in accordance with clause 6;
- inform Network immediately if the Provider suspends or ceases to provide the Goods & Services and/or Offer(s);
- in all dealings with Members, act in a polite, courteous and professional manner and do-nothing which harms, or may harm, the reputation of Network, or the Network Schemes;
- comply with all requirements contained within these Terms and Conditions, this clause 5 and within the Agreement more generally;
- grant to Network a licence in respect of its Intellectual Property, for use in the Marketing Materials in accordance with any marketing required under this Agreement;
- make available the Goods & Services specified in the Heads of Agreement to all Members of the Network Schemes; and
- ensure that the Offer(s) applied to the Goods & Services result in a lower price point and/or preferential terms for Members than Offer(s) provided by the Provider to non-Members in relation to the Goods & Services.
- The Provider agrees that it shall not:
- remarket any goods and/or services (including the Goods & Services and/or Offer(s)) to the Members outside of the terms of this Agreement; and
- carry out any procedures that would reasonably constitute email harvesting and/or web-remarketing. Such procedures would include (but for the avoidance of doubt are not limited to) collection of email addresses of those Members who are not customers and the use of cookies for re-targeting Members outside the terms of this Agreement.
- The Provider agrees that it shall:
- Management Information and Auditing
- The Provider shall provide, via such method and in such format as Network reasonably requests, a weekly report showing sales, revenue, and commission. (Data). The Provider shall also provide any supporting documents, information, other reports and/or a full copy of the Data which has been collected during that period as is reasonably requested by Network (Management Information).
- The Management Information will be provided by the Provider within 5 days of Network’s written request.
- Network shall be entitled, upon reasonable notice during the Provider’s usual business hours, to carry out an audit of the Provider’s records in relation to this Agreement to verify its performance under this Agreement, compliance with all applicable laws and for the purposes of obtaining information in relation to any regulatory enquiry. Such audit may be by way of independent professional expert if Network, in its absolute discretion, so requires.
- Subject to the Provider’s obligations of confidentiality the Provider shall provide to Network (and its auditors and other advisors) with all reasonable co-operation, access and assistance in relation to each audit.
- If the audit identifies a material default by the Provider, the Provider shall reimburse Network for its reasonable costs incurred in the course of the audit.
- Intellectual Property
- Each Party hereby grants the other a right to use its Intellectual Property (including access to the Database and/or Member data contained within the Database or otherwise held by Network (Member Data) as expressly agreed in writing by Network) for the purposes only of exercising its rights and complying with its obligations under this Agreement.
- The Parties hereby acknowledge that neither shall acquire rights in the other’s Intellectual Property by virtue of any act in connection with the marketing and provision of the Goods & Services and/or Offer(s) to Members under this Agreement.
- Any and all of the Parties’ Intellectual Property shall at all times remain the sole and absolute property of that Party.
- The Parties will not permit any third party to use the other’s Intellectual Property without the prior written consent of that Party.
- The Provider accepts that all data and information relating to the Members which is generated by the Provider, its employees, agents and/or subcontractors (as applicable) from the data in the Database and/or from Member Data shall be the sole and absolute property of Network. The Provider shall not have any claim to the Intellectual Property in any such data generated.
- Confidentiality
- Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or Providers of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by sub-clause 8.2. For the avoidance of doubt, the confidential information of Network shall include, but not be limited to, details of Members and the content of the Database and Member Data.
- Each Party may disclose the other Party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement. Each Party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this clause 8;
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
- with the express written consent of the other Party.
- No Party shall use any other Party’s confidential information for any purpose other than to perform its obligations under this Agreement.
- All documents and other records (in whatever form) containing confidential information supplied to or acquired by Provider from Network shall be returned promptly to Network on termination of this Agreement, and no copies shall be kept, whether digitally or otherwise.
- Compliance
- Each Party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
- Data Protection
- For the purposes of this Agreement, “Data Protection Legislation” shall refer to:
- unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
- any successor legislation to the GDPR or the Data Protection Act 1998.
- The Parties shall comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, the Parties’ obligations under the Data Protection Legislation.
- The Parties agree not to transfer Personal Data to each other unless agreed otherwise in writing and in compliance with this Clause 10.
- Remarketing to or email harvesting / from Members of Network Digital Marketing Hosted Websites/Schemes is not permitted without the prior written permission of Network Digital Marketing.
- Without prejudice to the generality of sub-clause 10.2, each Party agrees that it shall, in relation to personal data processed in connection with this Agreement:
- ensure that it has all necessary consents and notices in place to enable lawful transfer of any personal data to the other Party for the duration and purposes of this Agreement;
- process personal data only on the written instructions of the other Party unless the Party is required by the laws of any member of the European Union or by the laws of the European Union applicable to that Party to process personal data (Applicable Laws). Where the Party is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, that Party shall promptly notify the other Party of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Party from so notifying the other Party;
- ensure that it has in place all appropriate technical and organisational measures, reviewed and approved by the other Party if required, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal 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, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measure adopted by it);
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- not transfer any personal data outside the European Economic Area unless the prior written consent of the other Party has been obtained and the following conditions are fulfilled:
- one of the Parties has provided appropriate safeguards in relation to the transfer,
- the data subject has enforceable rights and effective legal remedies;
- the Party complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred, and
- the Party complies with reasonable instructions notified to it in advance by the other Party with respect to the processing of personal data;
- assist the other Party, at the other Party’s cost, 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;
- notify the other Party without undue delay on becoming aware of a personal data breach;
- at the written direction of the other Party, delete or return personal data and copies thereof to the other Party on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and allow for audits by the other Party and/or the other Party’s designated auditor.
- Each Party agrees to provide the other with contact details of at least one employee as point of contact for all issues arising out of the Data Protection Legislation.
- The Provider shall indemnify Network against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of the Provider’s unauthorised processing, unlawful processing, destruction of and/or damage to any personal data processed by the Provider, its employees or agents.
- In this clause data controller, data processor, data subject, personal data and processing shall have the same meanings as set out in the Data Protection Legislation, and all processing shall be construed accordingly.
- Further to this Clause 10 and the remainder of the Agreement, if the Parties wish to pass personal data of any sort between the Parties then a separate Data Processing Agreement is required.
- For the purposes of this Agreement, “Data Protection Legislation” shall refer to:
- Limitation of Liability
- Nothing in this Agreement shall limit or exclude the liability of either Party for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation or wilful default;
- liability under the indemnities contained in clause 10.7 and clause 12; and
- any matter in respect of which it would be unlawful to exclude or restrict liability.
- Subject to sub-clause 11.1 above, Network shall not under any circumstances whatsoever be liable to the Provider:
- in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, goodwill, or anticipated savings; and
- in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
- any loss arising out of the lawful termination of this Agreement or any decision not to renew its term, or
- any loss that is an indirect or secondary consequence of any act or omission of the Party in question.
- The total liability of Network to the Provision in respect of all loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £250,000 or the value of the Payments received by Network under this Agreement whichever is the lower amount.
- In relation to the liability of the Parties for the supply of the Goods & Services and/or Offer(s):
- the liability of the Provider arising in connection with the supply of Goods & Services and/or Offer(s) shall be as set out in the Provider’s applicable terms and conditions of sale; and
- Network shall have no liability to any member or any other person in respect of any of the Goods & Services and/or Offer(s) (or any claims made under any contract for the supply of the Goods & Services and/or Offer(s)).
- Nothing in this Agreement shall limit or exclude the liability of either Party for:
- Warranties and Indemnities
- The Provider shall keep Network fully indemnified against all claims, loss, liability, damages, injury, costs and expenses (on a full indemnity basis and including legal and other reasonably incurred professional fees and expenses) as a result of or in connection with any claim that the use of the Provider’s Intellectual Property, or Network’s Intellectual Property (as applicable) used in the marketing materials approved in accordance with the provisions of this Agreement infringes the Intellectual Property of any third party.
- The Provider warrants that:
- it is duly incorporated and validly existing under the laws of England and Wales;
- it has the requisite power and authority to enter into and perform this Agreement;
- this Agreement will, when executed, constitute valid and binding obligations in accordance with its terms;
- the execution and delivery of this Agreement, and the performance by it of its obligations under it, will not require the consent of any other person; and
- it owns or has the licence to use all its Intellectual Property.
- Termination
- Without affecting any other right or remedy available to it, Network may terminate this Agreement with immediate effect by giving written notice to the Provider if:
- if the Provider fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
- the Provider commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedythat breach within a period of 15 Business Days after being notified in writing to do so (which for the avoidance of doubt would include a breach of sub-clause 5.1(e) by the Provider);
- the Provider repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- the Provider ceases or threatens to cease to carry on all or a substantial part of its business;
- the Provider suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Provider commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Provider with one or more other companies or the solvent reconstruction of the Provider;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Provider (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Provider with one or more other companies or the solvent reconstruction of the Provider;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Provider (being a company);
- the holder of a qualifying floating charge over the assets of the Provider (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Provider or a receiver is appointed over the assets of the Provider;
- a creditor or encumbrancer of the Provider attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Provider’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Provider in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-clause 13.1(d) to sub-clause 13.1(k) (inclusive);
- there is a change of control of the Provider (within the meaning of section 1124 of the Corporation Tax Act 2010);
- any warranty given by the Provider in clause 12 is found to be untrue or misleading;
- the Provider is, in Network’s reasonable opinion, guilty of conduct which brings (or is likely to bring) either Party into disrepute or which negatively impacts (or may impact) on Network’s financial and/or commercial interests, or otherwise prejudices Network’s rights or interests, or the rights and interests of its principals, suppliers or its Members;
- the level of Member complaints received by Network relating to the Service provided by the Provider is deemed, in Network’s reasonable opinion, to be unacceptably high, provided that Network has notified the Provider of such complaints and has provided it with a reasonable period of time to rectify the issues identified by Network; or
- the Provider withdraws or makes significant changes to the availability or nature of the Goods & Services and/or Offer(s).
- Without affecting any other right or remedy available to it, Network may terminate this Agreement with immediate effect by giving written notice to the Provider if:
- Force Majeure
- “Force Majeure Event” means any circumstance not within a Party’s reasonable control including, without limitation:
- acts of God, flood, drought, earthquake, or other natural disaster;
- epidemic or pandemic;
- terrorist attack, civil war, civil commotion or riots, war, threat or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
- nuclear, chemical, or biological contamination or sonic boom;
- any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
- collapse of buildings, fire, explosion or accident;
- any labour or trade disputes, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause, or companies in the same group as that Party);
- non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause); and
- interruption or failure of a utility service.
- Provided that it has complied with sub-clause 14.4, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
- The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent of the Affected Party.
- The Affected Party shall:
- as soon as is reasonably practicable after the start of the Force Majeure Event, but not later than 14 days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
- use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
- If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 months the Party not affected by the Force Majeure Event may terminate this Agreement by giving 30 days’ written notice to the Affected Party.
- “Force Majeure Event” means any circumstance not within a Party’s reasonable control including, without limitation:
- Consequences of Termination
- Any provision of this Agreement that expressly or by implication is intended to come into force or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
- In the event of termination or expiry, the termination or expiry shall not apply in respect of any sales, bookings, Relevant Contracts and/or similar by Members of the Goods & Services and/or Offer(s) which were made prior to the date of termination or expiry of this Agreement and the rights and obligation of each such sale, booking, Relevant Contract and/or similar shall survive termination or expiry and be enjoyable by the Member despite termination or expiry.
- Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
- On, or as soon as practicable after, the date of termination of this Agreement, the Parties shall:
- cease to use all and any logos, advertising and branding materials belonging to the other Party. None of the materials, logos or associated Intellectual Property belonging to the other Party is to be used thereafter without prior written consent of the other Party; and
- immediately remove any references to the other from any website (including, if applicable and without limitation, removal of any links from the Provider’s Website) and as soon as and as far as reasonably practicable remove any reference to the other Party, if any, from any Marketing Material or any promotional or other published material or destroy all such material containing reference to the other Party (including any Intellectual Property of the other Party).
- On, or as soon as practicable after, the date of termination of this Agreement, the Provider shall pay all the monies under the Agreement which are, or which will become, due and owing to Network under the terms of this Agreement as soon as practicably possible and in any event, within 28 days of the date of termination or expiry of this Agreement.
- No Partnership or Agency
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
- Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
- Entire Agreement
- These Terms and Conditions plus the Heads of Agreement forming the Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives). - Assignment and Other Dealings
- Network may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
- The Provider shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Network (such consent not to be unreasonably withheld).
- No Automatic Waiver
- No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance
- If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
- If Network gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Notices
- Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing, and delivered by hand or first class pre-paid post (or other next working day delivery service) or by commercial courier, or by email, to the addresses or email addresses and marked for the attention of the individuals set out in the Heads of Agreement
- A notice or other communication shall be deemed to have been received:
- if delivered personally, when left at the address of the Party as set out in sub-clause 22.1;
- if sent by pre-paid first-class post or other next working day delivery service providing proof of postage or delivery, at 9.00 am on the second Business Day after posting;
- if delivered by commercial courier providing proof of delivery, on the date and at the time that the courier’s delivery receipt is signed;
- if sent by email, one Business Day after transmission.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Third party rights
This Agreement does not give rise to any rights under the Contract (Rights of Third Parties) Act 1999. No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. - Dispute Resolution
- If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the Parties shall follow the procedure set out below.
- Either Party shall give the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Parties shall attempt in good faith to resolve the Dispute.
- If the Parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Parties agree to enter into mediation in good faith to attempt to settle the Dispute. To initiate the mediation, a Party must serve notice in writing (ADR Notice) to the other Party to the Dispute, referring the Dispute to mediation. Unless otherwise agreed between the Parties, the mediation will start no later than 30 days following the date of service of the ADR Notice.
- If the Dispute is not resolved within 60 days after service of the ADR Notice, or if either Party fails to participate or ceases to participate in the mediation before the expiry of the 60 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 25 below.
- Specific requirements
- The Parties will at all times ensure that they comply with all Applicable Laws and Regulations.
- This Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitute one agreement.
- This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales and the Parties submit to the exclusive jurisdiction of the courts of England and Wales to settle any such dispute or claim.
- Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. - Jurisdiction
Each Party irrevocably agrees that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).