Student Beans Standard Terms & Conditions

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

Definitions:

  1. In this Agreement, the following words and expressions shall have the following meanings:

  2. “Administration Fee” means the fee related to the Client choosing to make payment of Annual Technology License fee through an Affiliate Network.

  3. “Annual Technology License Fee” means the annual fee as specified in the Booking Form.

  4. “Applicable Law” means all applicable laws, legislation, statutes and statutory instruments, existing from time to time.

  5. “Authorized User” means a Customer who accesses the Technology via the Client Website(s) or Client Venue(s).

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

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

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

  9. “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 Services.

  10. “Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in the United States.

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

  12. "Campaign Management" means the coordination of your student discount promotion across the Student Beans website, application and Publisher Network.

  13. “Client’s Affiliate Program” means any affiliate program owned or operated by or on behalf of the Client.

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

  15. “Client Venue” means any one or more venues which is owned or operated by or on behalf of the Client to market goods or services and shall include any shops, restaurants, cafes, bars, outlets, stores, venues, sites or any other physical premise or establishment which Customers may access from time to time during the Term of this Agreement.

  16. “Commencement Date” means the date on which the Booking Form is signed by both TBG and the Client.

  17. “Charges” means the charges for the Services set out in the Booking Form.

  18. “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.

  19. “Content” means any content provided by TBG to the Publisher relating to Student Vouchers.

  20. “Customer” means a consumer who uses a Client Website or Client Venue.

  21. “Initial Term” means the period specified in the Booking Form.

  22. “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 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; (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.

  23. "Insertion Order" means an order by the Client for Media services as set out in the Booking Form.

  24. “Media Insertion Order Fee” means the fee related to an Insertion Order where Media is selected in the Booking Form.

  25. "In-store" means the use of the Technology in the Client's shops, stores, sites, venues, outlets, restaurants, cafes, bars, clubs, establishments or other physical locations as maybe otherwise agreed in writing.

  26. “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).

  27. “List Territories” means the territories listed in the Booking Form.

  28. “POS Assets” means the promotional materials to be used in the Client Venues to direct Customers to the Technology;

  29. "Media" means a Client Advertisement using one or more of the following inventory items as set out in the booking form (1) Homepage Takeover (2) Carousel (3) Featured Offer (4) Email Newsletter Inclusion (5) Targeted Solus Email (6) Blog Article (7) Social Media Posts (8) Push Notifications.

  30. “Minimum Discount” means the minimum Student Voucher made available by the Client to TBG.

  31. “Minimum CPA’ means the minimum CPA rate provided by the Client for sales made via the Client’s website(s) by Customers referred by Publishers.

  32. "Online" means the use of the Technology via the Client's websites or applications.

  33. “Payment Plan” means a payment of Annual Technology License fee or any other fee specified in the Booking Form that is paid in installments

  34. “Publisher” means any publisher, including but not limited to Student Beans, to whom TBG distributes Student Vouchers.

  35. "Publisher Network" means the Publisher Network.

  36. “Renewal Term” means any period beyond the Initial Term as stipulated in accordance with the terms of this Agreement.

  37. “Service Commencement Date” means the date stated in the Booking Form under Service Commencement Date.

  38. “Student Beans mark and logo” means the mark and logo owned or operated by or on behalf of TBG.

  39. “Student Beans Data” means the information collected and/or generated through Authorized Users’ registration for and use of the Technology (including but not limited to Authorized Users’ email address and password), but excluding any Brand Data and Brand Materials.

  40. “Services” means the following services made available to the Client which are selected on the Booking Form: (1) Online (2) In-store (3) Media (4) Publisher Network.

  41. "Single Sign-on" or "SSO" means the session and user authentication service that permits a user to use their Student Beans login credentials to access third party applications.

  42. “Smart Overlay” means the service owned by TBG that can identify the probability of a Customer on the Client’s website(s) being a student and then show them a customized message.

  43. “Publisher Network” means any digital method use by TBG, in its sole discretion, to transfer the Content to Publishers 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.

  44. “Student Voucher” means any offer, voucher, discount, or promotion of the Client made available by the Client to TBG for the purpose of distribution to Publishers.

  45. “TBG Marks” means the brand names, logos and marks of TBG including any referred to in this Agreement.

  46. "Technology" means the digital student verification software tools and all associated methods, tools and software and promotional assets and tools used by TBG, in its sole discretion, to enable the Client to run and promote their own student discount program via their website, app or stores and verify if Customers are students for the purposes of permitting Customers access to the Client's Student Voucher(s) including, without limitation API, feeds, web interface, FTP, plugin, widget, module, SDK, application, iframe, Connect site, SSO, extension, Smart Overlay, banners, badges, POS assets, marketing materials or such other method as determined by TBG and as may be modified or updated from time to time.

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

  48. “User Data” has the meaning set out below.

  49. “Sales Tax” any sales tax or any similar, additional tax.

  50. “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.

Interpretation

  1. 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.

2. COMMENCEMENT DATE AND TERM OF AGREEMENT

  1. These Terms shall come into force on the Commencement Date and unless terminated earlier in accordance with the provisions set out below 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 twelve (12) months commencing at the end of the Initial Term or Renewal Term unless either party provides at least thirty (30) days’ written notice to the other party, prior to the expiration of the existing Term, in which case this Agreement shall terminate upon the expiration of the existing Term (the “Term of the Agreement”).

  2. The Initial Term will commence on the Service Commencement Date.

3. TBG’S RESPONSIBILITIES

TBG shall provide the Services selected in the Booking Form subject always to these Terms and Conditions.

  1. Technology:

    1. Following receipt of the Annual Technology License Fee (for Online and In-store services as selected in the Booking Form) plus any applicable Sales Tax and subject to the continuing performance by the Client of its obligations under this Agreement, TBG agrees during the Term of the Agreement to provide the Client with the Technology Services and, in that connection, to grant the Client a non-exclusive, non-transferable right to use the Services, subject always to the terms of this Agreement.

    2. TBG may, at its sole discretion, choose to modify or update the Publisher Network and the Technology properties from time to time.

    3. TBG reserves the right in its sole discretion to determine all matters concerning the configuration and other administrative or operational issues for the Publisher Network and the Technology as it deems necessary or helpful in the normal course of business.

  2. Media:

    1. Following receipt of the Media Insertion Order Fee plus any applicable Sales Tax and subject to the continuing performance by the Client of its obligations under this Agreement, TBG agrees during the Term of the Agreement to provide the Client with the Services and, in that connection, to grant the Client a non-exclusive, non-transferable right to use Media subject always to the terms of this Agreement.

    2. TBG may, at its sole discretion, choose to modify or update Media properties from time to time.

    3. TBG reserves the right in its sole discretion to determine all matters concerning the configuration and other administrative or operational issues for Media properties as it deems necessary or helpful in the normal course of business

4. CHARGES

A. Student Beans Services:

  1. The Annual Technology License Fee and any other fee specified in the Booking Form  plus any applicable Sales Tax shall be due and payable as set out in the Booking Form and, unless otherwise stated, shall be due and payable within fifteen (15) days of the Commencement Date or  before Services commence, whichever date occurs sooner.

  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 Annual Technology License Fee or any other fee 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) to charge interest on the outstanding fee in the amount of One and a Half Percent (1.5%) per annum to Client.

  3. TBG shall be entitled to increase or change the Annual Technology License Fee and/or the terms of this Agreement on or after the start of each Renewal Term upon thirty (30) days’ prior notice to the Client.

  4. Affiliate commission shall be payable by the Client on sales made via the Client’s website(s) by Customers referred by Publishers. The affiliate commission shall be tracked, charged and payable in accordance with the Client’s Affiliate Program run by its preferred affiliate network and (unless otherwise agreed in writing) at its most favorable rate of affiliate commission.

  5. If the Client chooses to pay through an Affiliate Network, there will be a One Thousand ($1000.00) Dollar Administration Fee due and payable within 15 days of the Commencement Date or before Services commence, whichever date occurs sooner.

  6. If the Client fails to make payment, pursuant to this Section 4, , TBG shall be entitled to claim the full amount due as set out in the Booking Form within thirty (30) days of default of such payment.

B. Media

  1. Media Insertion Order Fee plus any applicable Sales Tax 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 sooner.

  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 Media Insertion Order Fee under this Agreement on or before the due date for payment, then TBG shall be entitled to charge interest in the amount of One and a Half Percent (1.5%) per annum to Client.

5. CLIENT’S OBLIGATIONS

  1. The Client acknowledges that on sales of any goods and services using the Services, if TBG is not the selling contracting party and is solely responsible for supplying the relevant goods or services, providing refunds to customers and calculating payment of Sales Tax and, in doing so, complying with all Applicable Laws.

  2. Where this Agreement is signed on behalf of a party (“Agent”) (i) the Agent warrants that they have full and proper authority to sign on behalf of the Client; and (ii), the Agent must, if requested, disclose full contact details for the relevant individual(s) within the Client.

  3. Client’s Obligations - All Clients.  The Client shall:

    1. Pay the Annual Charges set out in the Booking Form plus any applicable Sales Tax and any other applicable Charges as may be due from time to time under this Agreement without deduction, withholding or set-off.

    2. Provide such Brand Materials, Brand Data and Brand Marks as is reasonably required by TBG for the purposes of the Services.

    3. Provide TBG with a valid Student Voucher for the duration of the Term as set out on the Booking Form.

    4. Ensure that whenever the Client promotes the availability of its student discount including (without limitation) via its websites, emails, social and other digital media channels or its venues and other offline media channels or via 3rd parties to feature information about its partnership with Student Beans.  

    5. Ensure that Customers using the Services can access the Client’s best available Student Voucher or other discount. For purposes of clarity this means that if the Client provides a Student Voucher or other discount outside of the Services then a more advantageous Student Voucher must be available to Customers via the Services.

    6. Provide such information as TBG may reasonably require from time to time in order to perform its own obligations under this Agreement and generally cooperate in an efficient and timely manner with TBG in the design, setup and maintenance of the Services.

    7. Promote the availability of its student discount to the Client’s Customers at least once per quarter.

    8. Provide TBG with a monthly performance report that includes the value and number of student sales generated via all online and offline channels.

    9. Ensure that all customer facing staff are made aware of the Client’s Student Voucher and the Client’s use of the Services.

  4. Client’s Obligations - All Clients. The Client shall not:

    1. Except as expressly stated in this Agreement, permit any third party to access or use the Services or use the same on behalf of any third party;

    2. Copy, translate, modify, adapt or create derivative works from the Services;

    3. Attempt to discover or gain access to the source code for the Services or reverse engineer, modify, decrypt, extract, disassemble or decompile the Services;

    4. Obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of, the Services;

    5. Use the Services 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 similar, alternative or competing Services for the duration of the Term unless otherwise agreed in writing between the parties;

    7. approach Publishers directly with the aim of running, facilitating, promoting or verifying a student discount outside of the Publisher Network or without the use of the Services for the duration of the Term unless otherwise agreed in writing between the parties;

    8. Run, promote or provide a discount or other offer outside of the Publisher Network that is stronger, deeper, better or more advantageous to Customers than the Student Voucher it makes available via the Services.

  5. Client’s Obligations - Online. The Client shall:

    1. Use the Technology on the Client’s website(s) in the List Territories to offer its Customers a student discount;

    2. Provide access to the Technology from the Client’s website, and unless otherwise agreed provide a prominent link from the homepage, within thirty (30) days of signing the Booking Form;

    3. Ensure TBG is accepted on its affiliate program run via its preferred affiliate network.

    4. Be solely responsible for configuring and maintaining its systems and all hardware, software and network connections necessary to enable it to connect to the internet to use the Services 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.

  6. Client’s Obligations - In-store. The Client shall:

    1. Use the Technology in the Client’s Venues in the List Territories to offer its Customers a student discount.

    2. Display the POS Assets in the Client Venue(s) to prominently promote the availability of its student discount.

    3. Be solely responsible for providing, organizing and maintaining its Venues and associated stock, staff and POS software and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s Venues.

6. 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 Services shall be performed with reasonable care and skill and in accordance with generally recognized 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 recognized 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 Services.

7. CONFIDENTIALITY AND PUBLICITY

  1. 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.

  2. Subject to clause 7.3, 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 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, 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.

8. 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, the Technology, and the Publisher Network and all associated software and data; and all goodwill in the use of the TBG Marks the Technology and the Publisher Network shall be owned by TBG.

  3. Subject always to the other terms of this Agreement, TBG hereby grants to the Client a perpetual royalty-free worldwide non-exclusive non-transferable license to use that part of the name and email address of any Authorized Users who has given their consent to receive marketing emails from the Brand (“User Data”). TBG shall provide the relevant Brand with all User Data for Authorized Users who have consented to receive marketing emails from the Brand in that week.

  4. The Client and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Brand Data, Client Websites and Brand Materials. The Client grants TBG, a non-exclusive, non-transferable worldwide royalty-free license to use the Brand Marks, Brand Data and Brand Materials to such extent as is necessary to enable TBG to provide the Services and to perform its obligations under this Agreement; and in the case of the Brand for the provision of marketing and promotional services.

9. LIMITATION OF LIABILITY

  1. 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.

  2. Subject to Clauses 9.1:

    1. The aggregate liability of TBG for all claims arising under or in connection with this Agreement (whether arising under contract, statute, tort (including without limitation negligence) or otherwise) shall be limited to the actual charges paid to TBG by the Client under this Agreement during the twelve (12) months immediately preceding the date on which the claim arose; and

    2. The liability of TBG for all claims arising from a single event or series of events under this Agreement (whether arising under contract, statute, tort (including without limitation negligence) or otherwise) shall be limited to the charges actually paid to TBG by the Client under this Agreement which relate to the transactions in question i.e. relating to the particular event on or at a particular date and time.

  3. As way of example and by no means an exhaustive list, TBG will not be liable for:

    1. Any failure to comply with the provisions of this Agreement if such default is  attributable  to any extent to the acts or omissions of the Client its agents, employees or contractors including without limitation the failure of the Client to perform its obligations under this Agreement;

    2. Any damages arising from TBG complying with the Client’s instructions or requirements;

    3. Any damages arising from the Client failing to secure any necessary consents, licenses or permissions;

    4. Any damages arising from the Client failing to correctly enter information into its own system(s);

    5. Any act or omission of the Client in connection with the promotion and publicizing of events.

  4. Nothing in this Clause shall exclude or restrict the Client’s obligation to pay the Charges.

  5. The Charges have been calculated on the basis that each Party will exclude and limit its liability as set out in this Agreement and the Parties expressly agree that the limitations and exclusions of liability in this Agreement are reasonable.

10. TERMINATION

  1. Without prejudice to any other rights or remedies which the parties may have, TBG may terminate this Agreement with immediate effect on written notice to the Client if:

    1. Client 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 Client being notified in writing of the breach;

    2. Client commits any act which causes or may cause reputational damage to TBG;

    3. Client suffers an Insolvency Event;

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

    5. Upon TBG’s termination of this Agreement for any reason, the Client shall immediately cease to utilize any of the Services;

    6. Without prejudice to the foregoing, clauses 6, 7, 8 and 9 shall survive termination of this Agreement.

11. FORCE MAJEURE

  1. Nothing in this Clause shall exclude or restrict the Client’s obligation to pay the Charges.

  2. 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”).

  3. 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 endeavors 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.

12. AMENDMENTS

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

13. 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.

14. SEVERENCE

  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.

15. ENTIRE AGREEMENT

  1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, 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.

16. ASSIGNMENT

  1. 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.

17. NO PARTNERSHIP OR AGENCY

  1. 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).

19. NOTICES

  1. A notice given to a party under or in connection with this Agreement:

    1. 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

    2. 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.

  2. The addresses for service of a notice are as follows:

    1. TBG:

      1. Unit 420 Highgate Studios, 53-79 Highgate Road, London, NW5 1TL

      2. for the attention of: The Commercial Director

    2. Client: Details as shown on the Booking Form.

  3. 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.

  4. The provisions of this clause shall not apply to the service of any process in any legal action or proceedings.

  5. Day to day communications under this Agreement in the ordinary course of the Services may be sent by email.

20. DISPUTE RESOLUTION

  1. 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.

  2. Nothing in this clause shall prevent either party from issuing legal proceedings.

21. COUNTERPARTS

  1. 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.

22. GOVERNING LAW AND JURISDICTION

  1. 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.