Student Beans Publisher Network Agreement
These Terms and Conditions (“Terms”) apply to the Agreement made between THE BEANS GROUP, INC., a Delaware corporation with a principal place of business at The Beans Group, Inc., Bond Collective, 115 E 23rd Street, 3rd Floor, New York, NY 10010 (“TBG”) and the Client as stated on the booking form (whether electronically or otherwise, referred to as “Booking Form”) by or on behalf of TBG and the Client and which is incorporated herein and forms an integral part of the Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:
“Agreement” means this agreement including any schedules hereto;
“Applicable Law” means all applicable laws, legislation, statutes and statutory instruments, existing from time to time, including without limitation Data Protection Legislation;
“Application(s)” means the software application(s) owned and operated by the Publisher that are submitted to TBG by the Publisher at any time during the Publishers participation in the White Label Service and that are accepted by TBG for participation in the White Label Service.
“Brand” means one or more of the brands of the Publisher;
“Brand Data” means data in any form whatsoever associated with any Brand;
“Brand Marks” means the brand names, logos and/or marks of the Publisher;
“Brand Materials” means all visual content and copy, including any Brand Marks owned by the Publisher and given to (or made accessible to) TBG for use in connection with the White Label Service;
“Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in England;
“Business Hours”: 9am until 5pm on Business Days;
“Publisher’s Website” means any one or more websites which is owned or operated by or on behalf of the Publisher and shall include any technologies or devices on which such websites may be accessed from time to time during the Term of this Agreement;
“Commencement Date” means the date stated above or, if later, the date when TBG commenced supply of the White Label Service;
“Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other party’s or its Group Companies’ business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which (a) is available to the public other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) Personal Data.
“Content” means any content provided by TBG to the Publisher relating to Student Vouchers;
“Customer” means an end-user of any Site or Application;
“Data Controller” shall have the meaning of ‘data controller’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK ;
“Data Protection Legislation” means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend or replace them and which relates to the protection of individual’s rights in their Personal Data and the protection of their privacy;
“Data Subject” an individual who is the subject of Personal Data;
“DPA” means the Data Protection Act 1998;
“GDPR” means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales;
“Digital Transmission Method(s)” means any digital method use by TBG, in its sole discretion, to transfer the Content to the Publisher for the purposes of the Publisher’s distribution on the Site(s) and/or Application(s) pursuant to this Agreement, including, without limitation, transmission via a direct connection, individual links, API, feeds, web interface, FTP, plugin, widget, module, iframe, extension or such other method as determined by TBG;
“Group” means any subsidiary or holding company of a party;
“Inappropriate Content” means any pornography; misleading, abusive, violent, racist, discriminatory or hate orientated material; any materials which infringe or assist others to infringe the intellectual property rights of others; libellous statements about a private or public person or organization;
“Initial Term” means a period of 12 months, unless otherwise specified on the booking form.
“Insolvency Event” means in relation to either party, any of the following events: (a) a meeting of creditors of that party being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that party; (b) a chargeholder, receiver, administrative receiver or other similar party taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that party; (c) that party ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (d) that party or its directors or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator; (e) a petition being advertized or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that party; and/or (f) the happening in relation to that party of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;
“Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
“Merchant” means any merchant or retailer that permits TBG to distribute its Student Vouchers.
“Merchant Commission” means any commission actually received by TBG from a Merchant for the purchase of a product or service with a Student Voucher promoted on a Site or Application, which commission has not been refunded or otherwise charged back to the Merchant, minus any taxes, fees, duties, or other governmental charges (other than taxes based on either party’s income) payable by TBG relating to the purchase of such product or service.
“Personal Data” has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other;
“Processing and Process” have the meaning set out in section 1(1) of the DPA;
“Renewal Term” means any period beyond the Initial Term as stipulated in accordance with clause 3 of this Agreement;
“Student Beans mark and logo” means the mark and logo owned or operated by or on behalf of TBG;
“Student Beans Data” means the information collected and/or generated through Authorised Users’ registration for and use of the Technology (including but not limited to Authorised Users’ email address and password), but excluding any Brand Data and Brand Materials;
“Student Voucher” means any offer, voucher, or promotion of a Merchant made available by TBG to the Publisher for distribution to Customers through the Site(s) or the Application(s).
“Site(s)” means the website(s) owned and operated by the Publisher that are submitted to TBG by the Publisher at any time during the Publisher’s participation in the White Label Service and that are accepted by TBG for participation in the Program.
“Term” means the duration of this Agreement including any Renewal Term;
“Third-Party Marketers” means any third-parties who market, promote, distribute, license, or sell any Site or Application (whether or not such third-party has entered into an agreement with the Publisher).
“Trademark Terms” means, collectively, any trademark, servicemark, tradename, or other similar designation of a Merchant and any iterations and misspellings of the same (whether or not such trademarks, servicemarks, tradenames, and other similar designations include the name of the Merchant or any portion thereof)
“VAT” value added tax chargeable under English law for the time being and any similar, additional tax;
“Virus” means any computer software intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorized access to or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices;
“White Label Service” means the service provides by TBG designed to enable the Publisher and other TBG partners to receive and distribute Student Vouchers on the Sites and/or Applications.
In this Agreement unless the context otherwise requires:
reference to a person includes a legal person (such as a limited company) as well as a natural person;
clause headings are for convenience only and shall not affect the construction of this agreement;
reference to “including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;
reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; and words in the singular shall include the plural and vice versa
3. COMMENCEMENT DATE AND TERM OF AGREEMENT
This Agreement shall come into force on the Commencement Date and unless terminated earlier in accordance with the provisions of clause 12 of this Agreement or as otherwise permitted as a matter of law shall continue and remain in effect for the Initial Term and shall be automatically renewed for successive periods of 12 months commencing at the end of the Initial Term or Renewal Term unless either party gives at least 30 days’ written notice to the other prior to the expiry of the existing term, in which case this Agreement shall terminate upon the expiry of the existing Term.
4. PROGRAM PARTICIPATION
The Publisher’s participation in the White Label Service is subject to TBG’s prior approval and the Publisher’s continued compliance with this Agreement. TBG reserves the right to refuse to permit the Publisher to participate or continue participating in the Program at any time in its sole discretion.
Subject to the terms and conditions of this Agreement, TBG hereby grants to the Publisher a non-exclusive, worldwide, non-transferable, non-sublicensable (except as otherwise set forth in this Agreement), limited license, during the term of this Agreement, to publish and display the Content on the Site(s) and the Application(s) subject to the restrictions set forth in this Agreement.
TBG will make the Content available to the Publisher through one or more Digital Transmission Methods in TBG’s sole and absolute discretion. Participation in this White Label Service does not guarantee the Publisher access to the Content through any particular Digital Transmission Method. TBG may, in its sole discretion, change, update, or otherwise revise the types of Digital Transmission Methods supported at any time and available to the Publisher, including terminating support for any and all Digital Transmission Methods. The Publisher agrees to comply with the specifications provided by TBG from time to time to enable proper delivery, display, tracking, and reporting of Merchant Commissions in connection with the Site(s) and Application(s), including, without limitation, by not modifying the URL, affiliate link identification, or other elements of the Content provided to the Publisher by TBG (regardless of the Digital Transmission Method used), unless expressly authorized in writing by TBG.
Any and all rights in the Content and Student Vouchers not expressly granted to the Publisher in this Agreement are reserved by TBG. Except as expressly licensed in this Agreement, the Publisher will make no other use of the Content or Student Vouchers. The Publisher agrees to comply with all legal requirements applicable to the Publisher’s use of the Content and/or Student Vouchers. If TBG believes that the display of any Content on the Site(s) or Application(s) would negatively affect TBG’s relationship with any Merchant or could result in liability to the Publisher or TBG, TBG may request that the Publisher remove such Content from any portion of the Site(s) and the Publisher shall forthwith comply with such request.
The Publisher may not use any Trademark Terms or any variation thereof in conjunction with search keyword programs or other advertising designed to drive users to the Site(s) and/or Application(s). When promoting any Merchant via external paid search engines, which may include, but are not limited to, entities such as Google, Yahoo, or Bing, the following guidelines must be followed: (i) The Publisher must not give the impression that they are, or represent, any Merchant, through use of phrases such as ‘Official Site’; (ii) The Publisher may not bid on the Merchant's trademark or any variation thereof in conjunction with search keyword programs or any other advertising; (iii) the Publisher must not engage in marketing practices that are illegal or violate the rights of any third party; and (iv) the Publisher must ensure that all copy used for search and keyword purposes is appropriate and 100% accurate and does not contain any claims that could be construed to be false or misleading. If the Publisher engages in keyword bidding, paid placement, or any other form of advertising using generic voucher terms, the Publisher shall apply "negative broad match" for all Trademark Terms. The Publisher agrees that, following notice from any Merchant or TBG, the Publisher will promptly remove any search listing containing copy and/or creative components that the Merchant or TBG, in its sole discretion, deems inappropriate for any reason. The Publisher agrees not to use, register or seek to register any trademark, service mark or domain of a Merchant or any variations or misspellings thereof. The Publisher will ensure that all Third-Party Marketers comply with the terms of this clause.
Notwithstanding anything to the contrary in this Agreement, the Publisher may not display Content on any website or software application that has not been approved by TBG in writing (e-mail being sufficient). If such a website is approved by TBG in accordance with this clause, such website will thereafter be deemed a “Site”, or such application will thereafter be deemed an “Application”, as the case may be, for the purposes of this Agreement.
The Publisher will not directly or indirectly generate interaction with Student Vouchers and/or Content through any automated, deceptive, fraudulent or other invalid means, including but not limited to:
Repeated manual clicks by the Publisher and/or persons or entities engaged by (or at the direction of) the Publisher.
The use of robots or other automated tools and/or computer generated actions.
Offering anything of value to users for interacting with Student Vouchers and/or Content.
Offering to provide a third party anything of value if users interact with Student Vouchers and/or Content.
Unless otherwise agreed by TBG, the Publisher agrees to display an attribution to Student Beans on all web pages within any Site that displays any Content, which attribution will specify, using mutually agreeable copy, that the Student Voucher(s) are provided or powered by Student Beans (e.g., “discounts provided by Student Beans”).
5. TBG’S RESPONSIBILITIES
TBG agrees during the Term of the Agreement to design, set up, grant the Publisher access to, and maintain the White Label Service and, in that connection, to grant the Publisher a non-exclusive, non-transferable right to use the White Label Service subject always to the terms of this Agreement.
TBG may, at its sole discretion, choose to modify or update the the White Label Service from time to time.
TBG reserves the right to determine the configuration and other administrative or operational issues for the White Label Service as it deems necessary or helpful in the normal course of business, subject always that TBG shall act reasonably and in good faith.
TBG will pay the Publisher on a monthly basis 50% of the total Merchant Commissions received by TBG for sales generated via the White Label Service.
Each month TBG will provide the Publisher with a report showing the total confirmed Merchant sales generated from the White Label Service and the resulting commissions due to the Publisher. Save in the absence of manifest error this report shall be conclusive evidence of the commission owed to the Publisher.
TBG will deliver monthly payments to the Publisher within sixty (60) days after the end of each calendar month if the monthly payment exceeds $100. If the monthly payment is less than $100, it will be carried forward until the next month in which the aggregate monthly payments owed exceeds $100.
Notwithstanding the foregoing, TBG will have no obligation to pay the Publisher for any monthly payment that (a) is less than $10 or (b) were based on Merchant Commissions generated in a manner that involved a breach of this Agreement by the Publisher.
TBG shall only be obliged to (and will only) pay any commission on such sales after TBG has received in full its Merchant Commissions. Further, for the avoidance of doubt, TBG will not pay commission on any bookings made from any source other than the White Label Service.
Monthly payments will be calculated solely based on records maintained by TBG. No other measurements or statistics of any kind will be accepted by TBG or have any effect under this Agreement.
7. THE PUBLISHER’S OBLIGATIONS
The Publisher shall:
provide such Brand Materials, Brand Data and Brand Marks as is reasonably required by TBG for the purposes of the White Label Service;
provide access for Customers to the White Label Service from the Publisher’s Website;
provide to TBG such information as TBG may reasonably require from time to time in order to perform its own obligations under this Agreement and generally co-operate in an efficient and timely manner with TBG in the design, setup and maintenance of the White Label Service;
be solely responsible for providing configuring and maintaining Publisher’s Website, its systems and all hardware, software and network connections necessary to enable it to connect to the internet to use the White Label Service and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Publisher’s network connections or telecommunications links or caused by the internet;
The Publisher shall not:
except as expressly permitted by this Agreement, permit any third party to access or use the White Label Service or use the same on behalf of any third party;
copy, translate, modify, adapt or create derivative works from the White Label Service;
attempt to discover or gain access to the source code for the White Label Service or reverse engineer, modify, decrypt, extract, disassemble or decompile the White Label Service;
obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of, the White Label Service;
use the White Label Service for any unlawful purpose or to upload, store, post, email, transmit or otherwise make available any Viruses or Inappropriate Content;
procure, develop or use a similar, alternative or competing White Label Service for the duration of the term.
Without prejudice to their rights under this Agreement or otherwise, the Publisher and TBG agree to:
act fairly towards each other, in a spirit of trust and mutual co-operation in their performance of their obligations under this Agreement; and
help each other to resolve problems which may otherwise prejudice the performance of the White Label Service in accordance with this Agreement.
The Publisher may, at its sole discretion, choose to modify or update the Publisher’s Website from time to time.
The Publisher reserves the right in its sole discretion to determine all matters concerning the Publisher’s Website including without limitation the configuration, design and functionality and all administrative and operational aspects. All content, including without limitation Brand Data, Brand Marks, Brand Materials, data compilations and software made available by Publisher are (and shall at all times remain) the property of the Publisher.
TBG warrants and represents to the Publisher that:
it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement;
the White Label Service shall be maintained with reasonable care and skill and in accordance with generally recognized commercial practices and standards in the industry and all Applicable Laws;
it will use good industry practice to seek to avoid introducing any Viruses into the Publisher’s Website.
The Publisher warrants and represents to TBG that:
it will perform its obligations under this Agreement with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry and all Applicable Laws; and
it will use good industry practice to avoid introducing any Viruses into the White Label Service.
Neither party makes any express or implied warranties or representations with respect to this Agreement or any service, product or other items sold through its websites, including implied warranties of merchantability or fitness for a particular purpose, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information provided by such party or on such party’s website. In addition, neither party makes any representation that the operation of such party’s website will be uninterrupted or error-free, and neither party shall be liable to the other, or to any third party, for the consequences of any interruptions or errors in the operation of its own website.
9. DATA PROTECTION
TBG and the Client agree that for the purpose of Data Protection Legislation that they shall be independent Data Controllers in respect of any Personal Data which may be shared in accordance with this Agreement.
Each party to this Agreement shall take steps to ensure that its employees and agents are informed of its obligations in relation to Personal Data that it collects, transfers or holds.
Each party to this Agreement warrants to the other that it will Process Personal Data in compliance with all applicable Data Protection Legislation.
Each party to this Agreement warrants to the other that having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, it will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against the accidental loss or destruction.
Each party to this Agreement agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant this clause 7. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
As independent Data Controllers each party to this Agreement acknowledge that each party will be reliant on the other party from time to time for directions as to the extent to which each party will be entitled to use and Process the relevant Personal Data. Consequently, the party acting on instructions from the other will not be liable to the instructing party for any loss or damage which arises from any claim brought by a Data Subject or any fine levied by any relevant regulatory authority which results from any action or omission by it, to the extent that such action or omission resulted directly from the other party’s instructions.
10. CONFIDENTIALITY AND PUBLICITY
The Client acknowledges and agrees that the Services and the terms of this Agreement including but not limited to, the Annual Technology License Fee and pricing structure, constitute Confidential Information of TBG. TBG acknowledges that the terms of this Agreement, including but not limited to, the Annual Technology License Fee and pricing structure, constitute Confidential Information of the Client.
Subject to clause 10.3, each party shall:
Keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
Apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
Only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
Not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and subcontractors on a ‘need to know’ basis as strictly required for the purposes of this Agreement and subject to each such person being bound by an obligation of confidentiality no less onerous than this clause); and
Promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulatory or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement) and only after providing the other party reasonable notice of such necessary disclosure.
11. INTELLECTUAL PROPERTY AND DATA
Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
TBG and/or its licensors shall, as between the parties, remain the owner of all Intellectual property rights in the TBG Marks, the Content and the Student Vouchers, the White Label Service and all associated software and data; and all goodwill in the use of the TBG Marks the White Label Service shall be owned by TBG. TBG grants the Publisher, a non-exclusive, transferable, worldwide royalty-free licence to use the TBG Marks, the White Label Service and all associated software and data during the Term to such extent as is necessary to enable the Publisher to make use of the White Label Service and to perform its obligations under this Agreement, including (without limitation) the right to grant sub-licences to the Customers for the purpose of their use of the White Label Service as intended by this Agreement.
The Publisher shall, as between the parties, remain the owner of all Intellectual Property Rights in the Brand Data, Brand Marks, Brand Materials and Publisher’s Website; all goodwill in the use of the Brand Marks shall be owned by the Publisher. The Publisher grants TBG, a non-exclusive, non-transferable worldwide royalty-free licence to use the Brand Marks, Brand Data and Brand Materials during the Term to such extent as is necessary to enable TBG to provide the White Label Service and to perform its obligations under this Agreement; and in the case of the Brand for the provision of marketing and promotional services.
12. LIMITATION OF LIABILITY
TBG shall not be liable in any circumstances for consequential, special or indirect damages or the following damages whether direct or indirect: loss of profits, loss of revenue, economic loss, loss of business or contracts, loss of anticipated savings or goodwill, loss of data (or any losses arising from a claim by a third party for any of the above losses) whether arising under contract, statute, tort (including, without limitation negligence) or otherwise.
The Publisher will, at its sole expense, defend, indemnify, and hold harmless TBG and TBG’s officers, directors, agents and employees from any and all actual or potential losses resulting from any and all actual or threatened claims arising out or relating to (i) any alleged breach by the Publisher of its representations, warranties and covenants set forth in this Agreement; (ii) any representations or warranties made by the Publisher to any Customer regarding the Content or the Student Vouchers; (iii) the collection, storage, maintenance, processing, transfer, disclosure, renting, sharing, or any other use of information of Customers by the Publisher; (iv) the acts or omissions of any Third-Party Marketer with respect to the Student Vouchers and/or the Content; and (v) the Site(s) and the Application(s), including any content therein (other than the Content and the Student Vouchers).
Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement with immediate effect on written notice to the other if:
the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
the other party commits any act which causes or may cause reputational damage to the first party;
the other party suffers an Insolvency Event;
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Upon termination of this Agreement for any reason, the Publisher shall immediately cease to utilize, cease to access, and discontinue all use, of the White Label Service;
Without prejudice to the foregoing, clauses 8, 9, 10, 11 and 12 shall survive termination of this Agreement.
14. FORCE MAJEURE
Nothing in this Clause shall exclude or restrict the Publisher’s obligation to pay the Charges.
Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, cyber-attack, act of terrorism, governmental act, war, fire, flood, explosion or civil commotion (“Force Majeure Event”).
In the event of either party being delayed or prevented from performing its obligations under this Agreement as a result of a Force Majeure Event such party shall:
give notice in writing of such delay or prevention to the other party as soon as reasonably possible stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
use all reasonable endeavors to mitigate the effects of such delay or prevention upon the performance of its obligations under this agreement; and
resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that right or remedy. A waiver (which may be given subject to conditions) of any right or remedy provided under this Agreement or by law shall only be effective if it is in writing.
Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, representations, statements, understandings or agreements between them, whether written or oral, relating to the subject matter of this Agreement.
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.
Nothing in this clause shall limit or exclude any liability for fraud.
Neither party shall, without the prior written consent of the other party, assign, transfer, charge, mortgage or subcontract this agreement or all or any of its rights or obligations under this Agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
A notice given to a party under or in connection with this Agreement:
Shall be in writing and sent for the attention of the person, at the address, email or fax number specified in this clause (or to such other address, email or fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and
Shall be delivered personally; or sent by commercial courier; or sent by email or fax; or sent by pre-paid recorded delivery; or sent by airmail requiring signature on delivery.
The addresses for service of a notice are as follows:
The Beans Group, Inc., Bond Collective, 115 E 23rd Street, 3rd Floor, New York, NY 10010
for the attention of: The Managing Director
Client: Details as shown on the Booking Form.
If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows: (a) if delivered personally, at the time of delivery; or (b) if delivered by commercial courier, at the time of signature of the courier’s receipt; or (c) if sent by fax, at the time of transmission; or (d) if sent by pre-paid recorded delivery, at 9.00 am on the second day after posting; or if sent by airmail, five days from the date of posting. For the purposes of this clause, all times are to be read as local time in the place of deemed receipt; and if deemed receipt under this clause is not within Business Hours on a Business Day, the notice is deemed to have been received on the next Business Day.
The provisions of this clause shall not apply to the service of any process in any legal action or proceedings.
Day to day communications under this Agreement in the ordinary course of the Services may be sent by email.
22. DISPUTE RESOLUTION
The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or related to this Agreement (or its construction, validity or termination) (a “Dispute”). If a Dispute cannot be so settled within ten (10) Business Days after the Dispute has arisen, either party may give to the other a notice in writing that the Dispute has arisen (a “Dispute Notice”). Within five (5) Business Days of the Dispute Notice being given, the Dispute shall be referred to a senior executive of each of the parties for resolution. If the Dispute is not settled by agreement in writing between the parties within thirty (30) Business Days after the date of the Dispute Notice, then the parties may (but shall have no obligation to) agree to opt for mediation. If the Parties do not opt for mediation, both parties are left to their remedies at law and equity.
Nothing in this clause shall prevent either party from issuing legal proceedings.
This Agreement may be executed in counterparts and delivered in electronic form by facsimile transmission, email or in original hard copy. Each such counterpart shall be deemed an original and when considered together shall be one agreement.
24. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by Delaware law. The parties shall endeavor to resolve any dispute arising out of or in connection with this Agreement in good faith failing which such dispute shall be subject to the exclusive jurisdiction of the State or Federal Courts of Delaware provided always that TBG shall have the unilateral option to refer any such dispute to arbitration in New York City by a single arbitrator and, in the event of the exercise of such option and such reference to arbitration, it is agreed that (i) where TBG nominates a person as a potential sole arbitrator and the Client fails to respond within 14 days of such nomination, it is agreed that such person shall be duly appointed as sole arbitrator; and (ii) the recoverable costs of any party shall be limited to $1,000.