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Grip Conditions of Service
Background
A. Intros has developed a service comprised of providing custom co-branded versions of its ‘Grip’ mobile application for provision to guests at industry events, together with associated management tools and analytics (“Guest App Services”).
B. The Customer wishes to acquire Intros’ Guest App Services.
C. Intros has agreed to provide, and the Customer has agreed to take and pay for, the Guest App Services, subject to these terms and conditions, the Order Form and any documents referred to therein.
Agreed terms
1. Interpretation
1.1. The definitions and rules of interpretation in this clause apply in this agreement.
Acceptance Date: has the meaning given in clause 3.6.
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Agreement: the contract between Intros and the Customer for the sale and purchase of the Guest App Services in accordance with these Conditions, the Order Form and any documents referred to therein.
Analytics: any data comprising analysis of information collected by Intros by means of the Guest App, not including Anonymised Guest Usage Data.
Brand Guidelines: those standard requirements of the Customer or, where applicable, an End User, for use of any branding assets provided as part of the Customer Materials, further set out in the Order Form.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its Representatives) to the other party and that party's Representatives in connection with this agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
control: the beneficial ownership of more than 50% of the issued share capital of a corporate entity or the legal power to direct or cause the direction of the general management of the entity.
Customer: the entity specified as the Customer in the Order Form.
Customer Account Team: the individuals appointed by the Customer from time to time who shall serve as Intros’ primary contacts for Intros’ activities under this agreement. The initial members of the Customer Account Team are listed in the Project Document.
Customer Dashboard: the facility provided to Customer for monitoring and configuring the Guest App Services.
Customer Materials: any trade marks, logo, Event information or other materials provided by Customer for use by Intros in providing the Guest App Services.
Customer's Project Manager: the member of the Customer Account Team appointed in accordance with clause 9.1(c). The Customer's Project Manager at the Effective Date is named in the Order Form.
Data Controller: has the meaning given to that term in Data Protection Laws.
Data Processor: has the meaning given to that term in Data Protection Laws.
Data Processing Terms: the document so titled and made available to the Customer by Intros.
Disaster Recovery Plan: the plans maintained by Intros containing the actions to be taken, the resources to be used and the procedures to be followed to support recovery in the event of a disaster affecting the Guest App Services provided under this agreement.
Dispute Resolution Procedure: the procedure described in clause 26.
Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;
Effective Date: the date of the earlier of Intro’s written acceptance of the Order Form or taking any action consistent with fulfilling its obligations under this Agreement.
End User: any third party to whom the Customer supplies the Guest App Services in accordance with these terms and conditions, the Order Form and the Referrer Appendix.
Event: any event operated and controlled by Customer in respect of which the Guest App Services are to be provided.
Good Industry Practice: the standards of a skilled and experienced provider of guest-focussed application services similar or identical to the Guest App Services, having regard to factors such as the nature and size of the parties, the term, the pricing structure and any other relevant factors.
Guest App Service Specification: the specification for the Guest App Services as described in the Order Form, including the Guest App, the Customer Dashboard and the Analytics.
Guest App Services: the service described in the Guest App Service Specification to be performed by Intros in accordance with this agreement.
Guest App: a co-branded version of Intros’ ‘Grip’ mobile application, produced by Intros for downloading and use by Guests.
Anonymised Guest Usage Data: any anonymised data in relation to individual Guests’ usage of the Guest App, gathered by means of the Guest App, including anonymised demographic information.
Guest Data: any information collected by Customer from Guests (and others registered with Customer to attend the Event) which is provided to Intros for the purposes of providing the Guest App Services.
Guest Personal Data: any Personal Data comprised in the Guest Data.
Guest: an attendee of an Event (including a delegate, visitor, exhibitor, speaker, sponsor or participant) who downloads the Guest App.
Initial Term: the period from the Effective Date until the date specified in the Order Form.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Intros: Intros.at Ltd incorporated and registered in England and Wales with company number 09343609 whose registered office is at Treviot House, 186-192 High Road, IIford, Essex, IG1 1LR.
Intros Account Team: the individuals appointed by Intros from time to time who shall serve as the Customer's primary contacts for the Customer's activities under this agreement.
Maintenance: any error corrections, updates and upgrades that Intros may provide or perform with respect to the Guest App Services, as well as any other support or training services provided to the Customer under this agreement, all as described in the Order Form.
Normal Business Hours: 9.30 am to 5.30 pm local UK time on Business Days.
Order Form: the document (including email) setting out the project-specific arrangements for the provision of the Services.
Personal Data: has the meaning given to that term in Data Protection Laws.
Project Plan: the plan to be developed in the planning stage of the Set-up Service.
Referrer Appendix: the document setting out additional terms and conditions under which the Customer may supply the Guest App Services to End Users, which shall only apply when so indicated in the Order Form.
Service Credit: any credits payable to the Customer in accordance with the Service Level Arrangements.
Service Level Arrangements: the service level arrangements set out in the Order Form.
Services: the Set-up Service, the Guest App Services and the Maintenance.
Set-up Service: the due diligence, configuration and related work referred to in clause 3.1 and the Order Form, to be performed by Intros to set up the Guest App Services.
Sub-Processor: any agent, subcontractor or other third party (excluding its employees) engaged by Intros for carrying out any processing activities on behalf of the Customer in respect of the Guest Data.
Subscription Fee: the fee for the provision of the Services as specified in the Order Form.
Virus: without limitation, any malicious code, Trojans, worms and viruses, lock, authorisation key or similar device that impairs or could impair the operation of the Guest App Services.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.5. A reference to writing or written includes e-mail.
1.6. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.7. If there is an inconsistency between any of the provisions in these conditions of service and the Order Form, the provisions in these conditions of service shall prevail.
2. The agreement
2.1. These terms and conditions together with the documents referred to herein apply to the agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. The agreement shall come into existence on the date that both parties have confirmed their agreement to and acceptance of the Order Form.
2.3. In the event of any inconsistency between the terms set out in the Order Form, these terms and conditions and any document set out therein, the following order of precedence shall apply:
2.3.1. the Order Form;
2.3.2. these terms and conditions; and
2.3.3. any other document referred to in these terms and conditions.
3. Set-up Services
3.1. Intros Account Team shall so far as is reasonably practicable consist of the personnel listed in the Order Form.
3.2. Intros shall appoint Intros’ Project Manager, who shall have the authority to contractually bind Intros on all matters relating to this agreement.
3.3. Intros shall perform the Set-up Services in accordance with the timetable set out in the Order Form. Intros shall use reasonable endeavours to meet any performance dates set out in the Order Form, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.
3.4. When Intros considers that the Guest App Services are ready for activation it shall so notify the Customer. Within five days of such notification the Customer shall review the operation of the Guest App Services to confirm that they function in material conformance with the Guest App Service Specification. If the Guest App Services fail in any material respect to conform with the Guest App Service Specification, the Customer shall give Intros a detailed description of any such non-conformance (Error) in writing, within the five-day review period.
3.5. Intros shall use reasonable endeavours to correct any Error within a reasonable time and, on completion, re-submit the Guest App Services to the Customer. The provisions of clause 3.4 and this clause 3.5 shall then apply again, up to three additional times. If Intros is unable to correct the Error after three attempts, either party may terminate this agreement without further liability to the other.
3.6. If the Customer does not provide any written comments in the five-day period described above, or if the Guest App Services is found to conform with the Guest App Service Specification, then the Guest App Services shall be deemed accepted as from the date of the notification (Acceptance Date).
3.7 The Customer shall review custom integrations within 5 business days. If the customer fails to review a custom integration within 5 business days, Grip reserves the right to charge a “Surcharge” on the custom integration for the fee stated in the Order Form.
4. Service provision
4.1. Intros will provide the Guest App Services as from the Acceptance Date until expiry or termination of this agreement for any reason.
4.2. Intros reserves the right to:
4.2.1. modify Intros’ technical systems, the Guest App, its network, system configurations or routing configuration; or
4.2.2. modify or replace any hardware or software in its network or in equipment used to deliver any Service,
provided that this has no adverse effect on Intros’ obligations under this agreement and its provision of the Guest App Services.
4.3. Intros shall comply with the Brand Guidelines at all times when providing the Services.
4.4. This agreement shall not prevent Intros from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this agreement.
4.5. The Service Level Arrangements shall apply with effect from the start of the first complete month occurring at least 30 days after the Acceptance Date.
5. Rights in Data and use of data
5.1. The Customer or End User, as applicable, shall own all right, title and interest in and to all of the Guest Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Guest Data.
5.2. Intros shall own all right, title and interest in and to all of the Anonymised Guest Usage Data.
5.3. Intros shall own all right, title and interest in and to all of the Analytics.
5.4. The Customer hereby grants to Intros and, where applicable, shall procure that any End User shall grant a perpetual, irrevocable, sub-licensable, non-exclusive, royalty-free, worldwide license to use, reproduce, distribute, publicly display, sub-license, modify, improve, enhance and make derivative works of all the Guest Data, solely for the purposes of providing the Guest App Services.
5.5. Intros hereby grants to Customer a perpetual, irrevocable, non-sub-licensable, non-exclusive, royalty-free, worldwide license to use, reproduce, modify, improve, enhance and make derivative works of all the Analytics and the Anonymized Guest Usage Data, solely for its own purposes.
5.6. Intros shall follow any archiving and security procedures for Guest Data as described in the Order Form after 36 months.
5.7. Intros shall promptly notify the Customer in writing of any loss or damage to the Guest Data. In the event of any loss or damage to Guest Data, the Customer's sole and exclusive remedy shall be for Intros to use reasonable commercial endeavours to restore the lost or damaged Guest Data from the latest backup of such Guest Data maintained by Intros in accordance with the archiving procedure described in the Order Form. Intros shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Guest Data caused by any third party (except those third parties subcontracted by Intros to perform services related to Guest Data maintenance and back-up).
6. Data Processing Terms
6.1. The parties acknowledge that for the purposes of the Data Protection Laws, the Customer is the Controller and Intros is the Processor in respect of all data processing activities in relation to Guest Personal Data that Intros carries out as part of the Guest App Services. The Customer acknowledges and agrees that Intros may derive and use anonymised and aggregated data based on the Guest Personal Data from which neither Customer, Customer’s customers, nor any individual can be identified for Intros’ own purposes, not as Data Processor. Intros shall be Data Controller of the Anonymised Guest Usage Data. To the extent that Intros acts as Data Processor for the Customer, the Data Processing Terms will apply.
We only control data that we generate on our own (i.e. when we run our own events) or when data is collected through our marketing activities outside of customer events or apps. We anonymise on our own derived data from analysis and research of existing data.
7. Intros’ obligations
7.1. Intros warrants that the Guest App Services will be performed with reasonable skill and care and in accordance with Good Industry Practice and that it will be provided substantially in accordance with the Guest App Service Specification and the terms and conditions of this agreement.
7.2. The warranty in clause 7.1 shall not apply to the extent of any non-conformance that is caused by use of the Guest App Services contrary to Intros’ instructions.
7.3. If the Guest App Services do not conform with the warranty in clause 7.1, Intros will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the warranty in clause 7.1.
7.4. Notwithstanding the foregoing, Intros does not warrant that the provision of the Guest App Services will be uninterrupted or error-free.
8. Security
8.1. Intros shall ensure that appropriate safety and security systems and procedures are maintained and enforced with a view to prevention of unauthorised access or damage to any and all Services, Intros’ technical systems and related networks or resources and the Guest Data, in accordance with Good Industry Practice.
8.2. Intros shall ensure that Intros’ technical systems are designed, maintained and upgraded at all times so as to minimise the risk of attack by Viruses.
8.3. The Customer shall promptly inform Intros if it suspects or uncovers any breach of security, and shall use all commercially reasonable endeavours to promptly remedy such breach.
9. Customer's obligations
9.1. The Customer shall:
9.1.1. provide Intros with:
9.1.1.1. all necessary cooperation in relation to this agreement; and
9.1.1.2. all necessary access to such information and facilities as may be required by Intros, including the Customer Materials, the Guest Data and potentially barcode/badge IDs information in respect of Guests.
9.1.2. provide such personnel assistance, including the Customer Account Team and other Customer personnel, as may be reasonably requested by Intros from time to time. Intros Account Team shall consist of the personnel listed in the Order Form;
9.1.3. appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer's Project Manager;
9.1.4. comply with all applicable laws and regulations with respect to its activities under this agreement; and
9.1.5. carry out all other Customer responsibilities set out in this agreement or in any of the schedules in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Intros may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.
9.2. The Customer shall not store, distribute or transmit any material through the Customer Dashboard that:
9.2.1. is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
9.2.2. facilitates illegal activity;
9.2.3. depicts sexually explicit images; and/or
9.2.4. promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.
9.3. The Customer shall remain responsible for the use of the Customer Dashboard under its control, including any use by third parties (whether fraudulent or invited by the Customer).
9.4. The Customer shall not provide the Guest App Services directly or indirectly to third parties or End Users unless indicated to the contrary in the Order Form.
10. Warranties
10.1. The Customer warrants that:
10.1.1.it has full capacity and authority to enter into and perform this agreement and that this agreement is executed by a duly authorised representative of the Customer;
10.1.2.it is the operator or controlling promoter of the Event, and has the authority to grant any rights to be granted to Intros under this agreement in respect of the Event, for the same to be used in the provision of the Guest App Services and otherwise in connection with this agreement;
10.1.3. it will comply with and use the Guest App Services in accordance with the terms of this agreement and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws;
10.1.4. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to Intros, any materials reasonably necessary for the fulfilment of all its obligations under this agreement, including any third-party licences and consents in respect of any Customer Materials and Guest Data; and
10.1.5. Intros’ use in the provision of the Guest App Services or otherwise in connection with this agreement of any third-party materials, including Guest Data and Customer Materials, shall not cause Intros to infringe the rights, including any Intellectual Property Rights or other rights, of any third party.
10.2. Intros warrants and represents that:
10.2.1.it has full capacity and authority to enter into and perform this agreement and that this agreement is executed by a duly authorised representative of Intros;
10.2.2.subject to clause 10.1(d) above, it owns or has obtained valid licences, consents, permissions and rights to enable Intros to comply with this agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this agreement including for the Customer's use and receipt of the Services, and Intros shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;
10.2.3.it will comply with all applicable laws in performing its obligations under this agreement;
10.2.4.it is and shall remain throughout the term of this agreement International Standards Organisation (ISO) 27001, ISO 9001 compliant;
10.2.5. any software, system or telecommunications provided by or on behalf of Intros will be tested for Viruses and any identified Viruses deleted in accordance with Good Industry Practice before the date of delivery or use of such software, systems or telecommunications by Intros; and
10.2.6. all personnel and sub-contractors used by Intros in the performance of this agreement are adequately skilled and experienced for the activities they are required to perform.
11. Charges and payment
11.1. The Customer shall pay the Subscription Fees set out in the Order Form for the Services before the Event date If the customer fails to make a payment before the Event date Intros.at reserves the right to deactivate the Guest App Services up until payment has been made.
11.2. The Customer shall reimburse Intros for all actual, reasonable travel costs and expenses agreed in advance with the Customer including airfares, hotels and meals incurred by Intros in performance of the Set-up Service.
11.3. All amounts and Subscription Fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to Intros’ invoice(s) at the appropriate rate.
11.4. Intros shall invoice the Customer for the Subscription Fees as specified in the Order Form. If any Service Credits are due, then they will be shown as a deduction from the invoice. Customer shall pay all invoices without further set-off or deduction within 30 days of receipt.
11.5. If the Customer fails to make any payment due to Intros under this agreement by the due date for payment, then, without limiting Intros’ remedies under clause 16, the Customer shall pay interest on the overdue amount. At any time when the base rate is at or above zero, interest shall accrue at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. At any time when the base rate is below zero, interest shall accrue at the rate of 4% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.
11.6. On expiry or termination of this agreement for any reason, any unpaid Service Credits represent a debt due from Intros to Customer.
12. Proprietary rights
12.1. The Customer acknowledges and agrees that, as between the parties, Intros and/or its licensors own all Intellectual Property Rights in all materials connected with the Services and in any material developed or produced in connection with this agreement by Intros, its officers, employees, subcontractors or agents including without limitation the Guest App and the Analytics. Except as expressly stated herein, this agreement does not grant the Customer or any End User any rights to such Intellectual Property Rights.
12.2. Intros shall own and retain all rights, title and interest in and to all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trade marks, know-how, algorithms, software, computer code, routines or subroutines, specifications, plans, notes, drawings, designs, pictures, images, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by Intros in connection with the Services or which relate in any manner to the Services or which result from any work performed by Intros for the Customer, including any and all Intellectual Property Rights therein (collectively, Work Product).
12.3. Intro.at reserves all rights not expressly granted in the agreement.
13. Confidentiality
13.1. The provisions of this clause shall not apply to any Confidential Information that:
13.1.1. is or becomes generally freely available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
13.1.2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
13.1.3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
13.1.4. was known to the receiving party before the information was disclosed to it by the disclosing party;
13.1.5. the parties agree in writing is not confidential or may be disclosed; or
13.1.6. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
13.2. Each party shall keep the other party's Confidential Information confidential and shall not:
13.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or
13.2.2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
13.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
13.4. The Customer acknowledges that Intros’ Confidential Information includes any designs, plans, software or other materials created by Intros in connection with the Guest App Services and the Customer agrees not to make use of any such material for any purpose other than receipt of the Guest App Services from Intros.
13.5. Intros acknowledges that the Guest Data is the Confidential Information of the Customer.
13.6. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
13.6.1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
13.6.2. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
13.7. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, any relevant securities exchange) or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.7, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.8. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
13.9. The provisions of this clause 13 shall continue to apply after termination of this agreement.
14. Promotional materials
14.1. For the avoidance of doubt, the Customer acknowledges that the Guest App shall bear the branding of Intros or it’s ‘Grip’ brand in certain areas of the Guest App such as the menu and the ‘about’ and ‘settings’ areas.
14.2. Notwithstanding the provisions of clause 13, either party may describe to potential customers its role in relation to the Guest App Services and, if applicable, on its website and in other promotional materials, and include a link in such website or material to the other party’s website. Any such activity which exceeds the bounds of customary promotional activity in the event industry shall require the advance approval of the other party, such approval not to be unreasonably withheld or delayed.
15. Limitation of liability
15.1. This clause 15 sets out the entire financial liability of Intros (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
15.1.1. any breach of this agreement;
15.1.2. any use made by the Customer of the Services; and
15.1.3. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
15.2. Except as expressly and specifically provided in this agreement:
15.2.1. the Customer assumes sole responsibility for results obtained from its use of the Guest App Services, and for conclusions drawn from any Analytics. Intros shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Intros by the Customer in connection with the Guest App Services, or any actions taken by Intros at the Customer's direction; and
15.2.2. all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.
15.3. Nothing in this agreement excludes or limits the liability of Intros for:
15.3.1. death or personal injury caused by Intros’ negligence;
15.3.2. fraud or fraudulent misrepresentation; or
15.3.3. any other liability which cannot lawfully be excluded or limited.
15.4. Subject to clause 15.3, neither party shall be liable for consequential, indirect or special losses.
15.5. Subject to clause 15.3, neither party shall be liable for any of the following (whether direct or indirect):
15.5.1. loss of profit;
15.5.2. loss of data;
15.5.3. loss of use;
15.5.4. loss of production;
15.5.5. loss of contract;
15.5.6. loss of opportunity;
15.5.7. loss of savings, discount or rebate (whether actual or anticipated);
15.5.8. harm to reputation or loss of goodwill.
15.6. The Service Level Arrangements state the Customer's full and exclusive right and remedy, and Intros’ only obligation and liability, in respect of the performance and availability of the Guest App Services, or their non-performance and non-availability.
15.7. Subject to clause 15.3 and clause 15.6:
15.7.1. Intros shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and
15.7.2. Intros’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to sums paid to Intros by the Customer for the Services, during the 12 months preceding the date on which the claim arose.
16. Term and termination
16.1. This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 16, this agreement shall continue in force until the end of the Initial Term and shall automatically extend for successive 12 month periods as the Extended Term (Extended Term) at the end of the Initial Term and at the end of each Extended Term. A party may give written notice to the other party, not later than 60 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
16.2. Without prejudice to any rights that the parties have accrued under this agreement or any of their respective remedies, obligations or liabilities, and either party may terminate this agreement with immediate effect by giving written notice to the other party if:
16.2.1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
16.2.2. the other party commits a material breach of any material term of this agreement, the Order Form, Referrer Appendix (if applicable) or any document referred to therein and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
16.2.3. a specific right to terminate arises under the Referrer Appendix (if applicable); or
16.2.4. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
16.3. Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
16.4. Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
16.5. On termination of this agreement for any reason:
16.5.1. Intros shall immediately cease provision of the Guest App Services;
16.5.2. if Intros receives, no later than ten days after the effective date of the termination or expiry of this agreement, a written request for the delivery to the Customer of the most recent backup of the Guest Data, Intros shall deliver the backup to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at, and resulting from, termination (whether or not due at the date of termination).
16.6. If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents or materials which it would otherwise be obliged to return or destroy under clause 16.5(b), it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain. clause 13 shall continue to apply to any such retained documents and materials for as long as any such requirement continues in force, subject to any disclosure mandated by any Regulatory Requirement.
17. Force majeure
17.1. Intros 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 acts, events, omissions or accidents beyond its reasonable control except to the extent that Intros could reasonably have avoided such circumstances by fulfilling its obligations in accordance with clause 17.3 or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice), including strikes, lock-outs or other industrial disputes (excluding any industrial disputes involving the workforce of Intros), act of God, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm (each a Force Majeure Event), provided that:
17.1.1. the Customer is notified of such an event and its expected duration; and
17.1.2. Intros uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned,
and that if the period of delay or non-performance continues for 4 weeks or more, the party not affected may terminate this agreement by giving 14 days' written notice to the other party.
17.2. If the Force Majeure Event results in the suspension of all or any part of the Guest App Services, then the Customer shall not be obliged to pay the relevant Subscription Fees until such time as the Force Majeure Event shall have ceased to have effect and the Guest App Services recommence in accordance with this agreement.
17.3. Intros shall have in place an appropriate Disaster Recovery Plan to ensure that it is able to comply with its obligations under this agreement and shall maintain, update and test such Disaster Recovery Plan and notify full details of its then current Disaster Recovery Plan to the Customer no less frequently than every 12 months. If such Disaster Recovery Plan is invoked, the cost and expense of invoking and executing such Disaster Recovery Plan shall be borne by Intros.
18. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19. Severance
19.1. 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.
19.2. If 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.
20. Entire agreement and amendment
20.1. This agreement including the Order Form, the Referrer Appendix (if applicable) and any document referred to therein constitute the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
20.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement.
20.3. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
20.4. Nothing in this clause shall limit or exclude any liability for fraud.
20.5. No alteration to or variation of this agreement shall take effect unless and until the same is in writing and signed on behalf of each of the parties by a duly authorised representative.
21. Assignment
21.1. The Customer shall not, without the prior written consent of Intros, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement, provided however, prior written consent shall not be required in the event of a merger or acquisition.
21.2. Intros may at any time assign, transfer, charge, subcontract or deal in any other manner, with all or any of its rights or obligations under this agreement without the consent of the Customer.
22. No partnership or agency
22.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
22.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23. Third-party rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
24. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25. Notices
25.1. Any notice required to be given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service providing proof of postage, at its registered office (if a company) or (in any other case) its principal place of business, or by email to (as applicable) the Customer’s Executive Sponsor or Intro’s Account Manager, or any substitute email address specified by either party referencing this clause 25.1.
25.2. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
25.3. 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. For the purposes of this clause, "writing" shall not include e-mail.
26. Dispute resolution
26.1. If a dispute arises under this agreement (Dispute), including any Dispute arising out of any amount due to a party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a party must first give written notice of the Dispute to the other party describing the Dispute and requesting that it is resolved under this dispute resolution process (Dispute Notice).
26.2. If the parties are unable to resolve the Dispute within 30 days of delivery of the Dispute Notice, then each party will promptly (but no later than five Business Days thereafter):
26.2.1. appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this agreement (Designated Representative); and
26.2.2. notify the other party in writing of the name and contact information of such Designated Representative.
26.3. The Designated Representatives will then meet as often as they deem necessary in their reasonable judgement to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party will be honoured.
26.4. If the parties are unable to resolve the Dispute within 30 days after the appointment of both Designated Representatives, then either party may proceed with any other available remedy.
26.5. Notwithstanding the foregoing, either party may seek interim or other equitable relief necessary (including an injunction) to prevent irreparable harm.
27. Fair Use
27.1 Usage Limitations: Customers are hereby obligated to utilize the Guest App Service in accordance with its intended design and the terms agreed upon in the executed Order Form. A specific usage limit is imposed on the campaign email functionality of Grip. The Customer is expressly restricted from sending more than 8 campaign emails per participant, whether active or inactive. In the event that the Customer surpasses this stipulated limit, Grip reserves the right to impose a charge of $2 for every 1,000 campaign emails exceeding the specified threshold. It is expressly stated that Grip shall provide written notification to the Customer prior to the application of any surcharges.
28. Governing law and jurisdiction
28.1. 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.
28.2. 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)
