STUDENT BEANS RETAIL AREA AGREEMENT

Acceptance of terms and conditions: By placing an order with The Beans Group you confirm that you have read and accepted the following terms and conditions.

 

BETWEEN

(1)     THE BEANS GROUP LIMITED (company number: 5486885) whose registered office is at 1 Vincent Square, London, SW1P 2PN (“TBG”); and

(2)    The Client named on the Booking Form

 

1.    DEFINITIONS AND INTERPRETATION

  1. In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:

  2. “Agreement” means this agreement including any schedules hereto;

  3. “Applicable Law” means all applicable laws, legislation, statutes and statutory instruments, existing from time to time, including without limitation Data Protection Legislation;

  4. “Application(s)” means the software application(s) owned and operated by the Client that are submitted to TBG by the Client at any time during the Client’s participation in the Student Discount Service and that are accepted by TBG for participation in the Student Discount Service.

  5. “Brand” means one or more of the brands of the Client;

  6. “Brand Data” means data in any form whatsoever associated with any Brand;

  7. “Brand Marks” means the brand names, logos and/or marks of the Client;

  8. “Brand Materials” means all visual content and copy, including any Brand Marks owned by the Client and given to (or made accessible to) TBG for use in connection with the Student Discount Service;

  9. “Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in England;

  10. “Business Hours”: 9am until 5pm on Business Days;

  11. “Client’s Website” means any one or more websites which is owned or operated by or on behalf of the Client and shall include any technologies or devices on which such websites may be accessed from time to time during the Term of this Agreement;

  12. “Commencement Date” means the date on which the booking form is signed by both TBG and the Client;

  13. “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; or (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;

  14. “Customer” means an end-user of any Site or Application;

  15. “Data Protection Legislation” means all applicable data protection legislation, including without limitation the Data Protection Act 1998 and all orders made, and codes of practice issued, under it, including without limitation the Privacy and Electronic Communications (EC Directive) Regulations 2003;

  16. “Digital Transmission Method(s)” means any digital method used by TBG, in its sole discretion, to transfer the Student Discounts to the Client for the purposes of the Client’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, white label, extension or such other method as determined by TBG;

  17. “Group” means any subsidiary or holding company of a party;

  18. “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;

  19. “Initial Term” means the period specified in the booking form;

  20. “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 advertised 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;

  21. “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);

  22. “Merchant” means any merchant or retailer that permits TBG to distribute its Student Discounts.

  23. “Opt-in User Data” means the information collected and/or generated through Customers’ registration for and use of the Student Discount Hubs whereby the user has consented to share their information (including but not limited to their name and email address), with the Client;

  24. “Payment Plan” means a payment of Annual Technology License fee or any other fee specified in the booking form that is paid in instalments

  25. “Renewal Term” means any period beyond the Initial Term as stipulated in accordance with clause 3 of this Agreement;

  26. “Retail Area(s)” means the overall area, district, zone or space in which the Client's Venues are located and shall include any shopping centres, malls, retail parks, leisure parks, high streets, town centres, campuses, festivals, theme parks or other locations where Customers can access Venues that the Client owns, operates or leases;

  27. “Student Discount Service” means the service provided by TBG designed to enable the Client and other TBG partners to receive and promote Student Discounts via the Client’s Site(s), Application(s) and Retail Area(s);

  28. “Student Discount” means any offer, deal, discount, voucher, or promotion of a Merchant made available by TBG to the Client for distribution to Customers through the Client’s Site(s)Application(s) and Retail Area(s);

  29. “Student Discount Hub” means any digital location used by TBG, in its sole discretion, to present the Student Discounts available at the Client’s Venues to Customers pursuant to this Agreement, including, without limitation, to specific website or application pages, screens, sections or websites or applications in their entirety.

  30. “Site(s)” means the website(s) owned and operated by the Client that are submitted to TBG by the Client at any time during the Client’s participation in the Student Discount Service and that are accepted by TBG for participation in the Program.

  31. “Term” means the duration of this Agreement including any Renewal Term;

  32. “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 Client).

  33. “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)

  34. “VAT” value added tax chargeable under English law for the time being and any similar, additional tax;

  35. “Venue(s)” means any one or more Venues which is owned, operated or leased by or on behalf of the Client within the Client’s Retail Area and shall include any units, stores, shops, restaurants, cafes, bars, outlets, venues, sites or other physical premises or establishments which Customers may access to by goods or services from the Venue Operators from time to time during the Term of this Agreement;

  36. “Venue Operator(s)” means the Client’s tenants and lessees of the Venues within the Retail Areas.

  37. “Virus” means any computer software intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised 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;

 

2.    INTERPRETATION

In this Agreement unless the context otherwise requires:

  1. reference to a person includes a legal person (such as a limited company) as well as a natural person;

  2. clause headings are for convenience only and shall not affect the construction of this agreement;

  3. 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;

  4. 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; and

  5. reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

 

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. PROGRAMME PARTICIPATION

  1. Without prejudice to their rights under this Agreement or otherwise, the Client and TBG agree to:

    1. act fairly towards each other, in a spirit of trust and mutual co-operation in their performance of their obligations under this Agreement; and

    2. help each other to resolve problems which may otherwise prejudice the performance of the Student Discount Service in accordance with this Agreement.

  2. The Client’s participation in the Student Discount Service is subject to TBG’s prior approval and the Client’s continued compliance with this Agreement. TBG reserves the right to refuse to permit the Client to participate or continue participating in the Program at any time in its sole discretion.

  3. Subject to the terms and conditions of this Agreement, TBG hereby grants to the Client 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 display and promote the Student Discounts on the Site(s), the Application(s) and in the Retail Area(s) subject to the restrictions set forth in this Agreement.

  4. Participation in this Student Discount Service does not guarantee the Client access to the Student Discounts 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 Client, including terminating support for any and all Digital Transmission Methods. The Client agrees to comply with the specifications provided by TBG from time to time to enable proper delivery, display, tracking, and reporting of transactions in connection with the Site(s) , Application(s) and Retail Area(s), including, without limitation, by not modifying the URL, link identification, or other elements of the Student Discounts provided to the Client by TBG (regardless of the Digital Transmission Method used), unless expressly authorized in writing by TBG.

  5. Any and all rights to the Student Discounts not expressly granted to the Client in this Agreement are reserved by TBG. Except as expressly licensed in this Agreement, the Client will make no other use of the Student Discounts. The Client agrees to comply with all legal requirements applicable to the Client’s use of the Student Discounts. If TBG believes that the display of any Student Discounts on the Site(s) or Application(s) would negatively affect TBG’s relationship with any Merchant or could result in liability to the Client or TBG, TBG may request that the Client remove such Student Discounts from any portion of the Site(s) and the Client shall forthwith comply with such request.

  6. When promoting any Merchant the Client must not engage in marketing practices that are illegal or violate the rights of any third party.

  7. Notwithstanding anything to the contrary in this Agreement, the Client may not display Student Discounts via any website, software application or retail area 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”, or such retail area will thereafter be deemed a “Retail Area”, as the case may be, for the purposes of this Agreement.

  8. The Client will not directly or indirectly generate interaction with Student Discounts through any automated, deceptive, fraudulent or other invalid means, including but not limited to:

    1. Repeated manual clicks by the Client and/or persons or entities engaged by (or at the direction of) the Client.

    2. The use of robots or other automated tools and/or computer generated actions.

    3. Offering anything of value to users for interacting with Student Discounts.

    4. Offering to provide a third party anything of value if users interact with Student Discounts.

 

5.    TBG’S RESPONSIBILITIES

  1. For the duration of the Term of this Agreement TBG shall:

  1. Design, set up, grant the Client access to, and maintain the Student Discount Service and, in that connection, to grant the Client a non-exclusive, non-transferable right to use the Student Discount Service subject always to the terms of this Agreement.

  2. At its sole discretion, choose to modify or update the the Student Discount Service from time to time.

  3. Reserve the right to determine the configuration and other administrative or operational issues for the Student Discount Service as it deems necessary or helpful in the normal course of business, subject always that TBG shall act reasonably and in good faith.

  4. Create and maintain a Student Discount Hub for each of the Client’s Retail Areas that are specified on the booking form for the purpose of displaying the Student Discounts available at any of the Retail Area’s Venues.

  5. Provide all Opt-in User Data to the Client.

  6. Provide the Client with the Digital Transmission Methods for the purpose of promoting the Student Discounts and Student Discount Hubs on the Client's Site(s) and Application(s).

  7. Work with the Venue Operators and the Retail Areas to:

    1. Manage and maintain all Student Discounts made available to TBG by the Venue Operators

    2. Provide the Student Discount redemption methods via the Student Discount Hub appropriate for each individual Venue Operator such as discount codes or barcodes.

    3. Provide promotional assets for the Venue Operators to display in the Venues to promote their Student Discount that is made available via the Student Discount Hub

  8. Promote the Student Discounts via the Student Beans website and mobile application.

 

6.     CHARGES

  1. The Fees specified in the booking form plus any applicable VAT shall be due and payable as set out in the booking form and, unless otherwise stated, shall be due and payable within 15 days of the Commencement Date or  before services commence, whichever date occurs soonest.

  2. Without prejudice to any other right or remedy TBG may have and unless otherwise stated, if the Client fails to make payment of the Fees specified in the booking form under this Agreement on or before the due date for payment, then TBG shall be entitled (i) to cease and/or suspend the provision of any of the Services and/or (ii) claim interest on the unpaid amount under the Late Payment of Commercial Debts (Interest) Act 1998.

  3. TBG shall be entitled to increase or change the Fees and/or the terms of this Agreement on or after the start of each Renewal Term upon 30 days’ prior notice to the Client and, unless the Client otherwise gives written notice of objection within such 30 day period, the Charges set out in the booking form and the terms of this Agreement shall be deemed to have been amended accordingly.

  4. If the Client fails to make payment, pursuant to clause 6.1, for a Payment Plan, TBG shall be entitled to claim the full amount due as set out in the booking form within 30 days of default of such payment.

 

7.    THE CLIENT’S OBLIGATIONS

  1. For the duration of the Term of this Agreement and without charge to TBG the Client shall:

    1. Provide such Brand Materials, Brand Data and Brand Marks as is reasonably required by TBG for the purposes of the Student Discount Service;

    2. 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 Student Discount Service;

    3. Be solely responsible for providing configuring and maintaining Client’s Site(s), Application(s), its systems and all hardware, software and network connections necessary to enable it to connect to the internet to use the Student Discount Service and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet;

    4. At its sole discretion, choose to modify or update the Client’s Site(s) and Application(s) from time to time;

    5. Reserve the right in its sole discretion to determine all matters concerning the Client’s Site(s) and Application(s) 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 the Client are (and shall at all times remain) the property of the Client;

    6. Promote the Student Discounts, on the Client’s Site(s) and Application(s) that are listed on the booking form, including with a prominent link on the homepage;

    7. Display an attribution to Student Beans on all Site pages, Application screens or Retail Area advertisements that displays or mentions any Student Discounts, which attribution will specify, using mutually agreeable copy, that the Student Discount(s) are provided or powered by Student Beans (e.g., “Student discounts powered by Student Beans”).

    8. Provide a point of contact at each of the Retail Areas specified on the Booking Form for TBG to liaise with on the delivery of this Agreement;

    9. In the event that any of the Retail Areas organise a student night or lock-in style event then, provide TBG with a stand to promote the Student Discount Service;

    10. Run student marketing campaigns to promote the Student Discount Hubs no less than three times during each 12 month period, including via the Client’s Site(s), Application(s), email databases, Retail Area advertisements and other promotional activity such as the Client may deem appropriate from time to time.

    11. Provide a full and up to date list of all Venue(s) and Venue Operators within the Client’s Retail Area(s) including the contact name, email address and phone number for the Venue Operators.

    12. Distribute a co-branded message, using mutually agreeable copy, to all Venue Operators informing them of and encouraging them to participate in the Student Discount Service.

  2. For the duration of the Term of this Agreement the Client shall not:

    1. except as expressly permitted by this Agreement, permit any third party to access or use the Student Discount Service or use the same on behalf of any third party;

    2. copy, translate, modify, adapt or create derivative works from the Student Discount Service;

    3. attempt to discover or gain access to the source code for the Student Discount Service or reverse engineer, modify, decrypt, extract, disassemble or decompile the Student Discount Service;

    4. obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of, the Student Discount Service;

    5. use the Student Discount Service for any unlawful purpose or to upload, store, post, email, transmit or otherwise make available any Viruses or Inappropriate Content;

    6. procure, develop or use a similar, alternative or competing Student Discount Service for the duration of the term.

 

8.    WARRANTIES

  1. TBG warrants and represents to the Client that:

    1. it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement;

    2. the Student Discount Service shall be maintained with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry and all Applicable Laws;

    3. it will use good industry practice to seek to avoid introducing any Viruses into the Client’s Website.

  2. The Client warrants and represents to TBG that:

    1. it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement;

    2. 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

    3. it will use good industry practice to avoid introducing any Viruses into the Student Discount Service.

    4. If the Client displays Student Discounts within any Application(s) or Site(s), then the Client has, and will have throughout the term of this Agreement, a specific end-user license agreement and privacy policy governing the delivery, installation and use of each Application or Site.

  3. 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.    CONFIDENTIALITY AND PUBLICITY

  1. The Client acknowledges and agrees that the Student Discount Service and the terms of this Agreement including, in particular, the CHarges due under clause 6 of this Agreement and pricing structure, constitute Confidential Information of TBG.

  2. Subject to clause 9.3, each party shall:

    1. keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;

    2. 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;

    3. only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;

    4. 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

    5. 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 (except for this signed Agreement and the Booking Forms) and, if requested by the other party, certify in writing that it has done so.

  3. Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).

 

10.    INTELLECTUAL PROPERTY AND DATA

  1. Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.

  2. TBG and/or its licensors shall, as between the parties, remain the owner of all Intellectual property rights in the TBG Marks and the Student Discounts, the Student Discount Hubs, the Student Discount Service and all associated software and data; and all goodwill in the use of the TBG Marks the Student Discount Service shall be owned by TBG. TBG grants the Client, a non-exclusive, transferable, worldwide royalty-free licence to use the TBG Marks, the Student Discount Service and all associated software and data during the Term to such extent as is necessary to enable the Client to make use of the Student Discount 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 Student Discount Service as intended by this Agreement.

  3. The Client shall, as between the parties, remain the owner of all Intellectual Property Rights in the Brand Data, Brand Marks, Brand Materials and Client’s Website; all goodwill in the use of the Brand Marks shall be owned by the Client. The Client 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 Student Discount Service and to perform its obligations under this Agreement; and in the case of the Brand for the provision of marketing and promotional services.

 

11.    LIMITATION OF LIABILITY

  1. Notwithstanding any provision to the contrary, nothing in this Agreement shall limit or exclude either party’s liability for death, personal injury, fraud, fraudulent misrepresentation and any liability which may not be lawfully limited or excluded.

  2. Neither party shall be liable in any circumstances to the other party for consequential, special or indirect losses or the following losses 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.

  3. The Client 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 Client of its representations, warranties and covenants set forth in this Agreement; (ii) any representations or warranties made by the Client to any Customer regarding the Student Discounts; (iii) the collection, storage, maintenance, processing, transfer, disclosure, renting, sharing, or any other use of information of Customers by the Client; (iv) the acts or omissions of any Third-Party Marketer with respect to the Student Discounts; and (v) the Site(s) and the Application(s), including any content therein (other than the Student Discounts).

 

12.    TERMINATION

  1. 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:

    1. 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;

    2. the other party commits any act which causes or may cause reputational damage to the first party;

    3. the other party suffers an Insolvency Event;

    4. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

  2. Upon termination of this Agreement for any reason, the Client shall immediately cease to utilise, cease to access, and discontinue all use, of the Student Discount Service;

  3. Without prejudice to the foregoing, clauses 8, 9, 10 and 11 shall survive termination of this Agreement.

 

13.    FORCE MAJEURE

  1. 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”).

  2. 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:

    1. 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;

    2. use all reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under this Agreement; and

    3. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.

 

14.    VARIATION

No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.

 

15.    WAIVER

  1. 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.

  2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

 

16.    SEVERANCE

  1. 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.

  2. 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.

 

17.    ENTIRE AGREEMENT

  1. 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.

  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.

  3. Nothing in this clause shall limit or exclude any liability for fraud.

 

18.    ASSIGNMENT

Neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, mortgage or subcontract this agreement or all or any of its rights or obligations under this Agreement.

 

19.    NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise 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).

 

20.    RIGHTS OF THIRD PARTIES

No person or body who is not a party to this Agreement has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act). The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person other than the parties save where the contrary is expressly stated.

 

21.    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.

 

22.    COUNTERPARTS

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.

 

23.    GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by English law. The parties shall endeavour 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 English Courts provided always that TBG shall have the unilateral option to refer any such dispute to arbitration in London 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) pursuant to s63(1) of the Arbitration Act 1996, the recoverable costs of any party shall be limited to £1,000.