Feedrr Limited (Travlrr) – Terms of Service
Dated 30th July 2018
(1) Feedrr Limited a company incorporated and registered in England and Wales with number 11217269 whose registered office is at 32 Byron Hill Road, Harrow on the Hill, Middlesex, England, HA2 0HY. (“Feedrr”) ;
(2) The organisation entering into this Agreement with Travlrr (the “Client”).
(A) Travlrr offers a platform which facilitates tenders for creative services and streamlines the process of engaging video and photography production professionals.
(B) The Client wishes to make use of the platform and has agreed to pay the Commission in consideration for such use.
The following definitions and rules of interpretation apply in this agreement.
In this Agreement, the following words have the following meanings:
“Agreement” means this agreement and all schedules and annexures to it.
“Assignment” means an engagement between a Provider and a Demander in which the Provider agrees to provide services to the Demander in return for a fee which has been mutually agreed between the two parties.
“Assignment Acceptance” shall mean the point in time at which a Demander and Provider enter into a formal legal agreement which species the parameters of a particular Assignment and the price to be paid in respect of the same, as described in clause 5.5.
“Assignment Completion” shall mean the point in time at which a Demander receives the final version of Content produced as part of a particular Assignment from a Provider, and confirms that such delivery has occurred using the relevant functionality provided via the Service, as described in clause 5.7.
“Commencement Date” means the date on which this Agreement is entered into by the parties to it.
“Commission” means a payment calculated by reference to the total price of an Assignment which is payable from a User to Travlrr; unless otherwise specified in the Online Specification the value of the Commission shall be equal to 22.5% of the value of the payment (a Commissioning Payment or a Concluding Payment) from which the Commission is deducted – save for in respect of fees incurred pursuant to clause 6.3.4 in respect of which the Commission shall be 15%.
“Commissioning Payment” means a payment which is due to be paid from the Demander of a particular Assignment to Travlrr at Assignment Acceptance, as set out more particularly in clause 5.6, the value of which shall (unless otherwise specified in the Online Specification) be 50% of the total value of the relevant Assignment.
“Concluding Payment” means a payment which is due to be paid from the Demander of a particular Assignment to Travlrr at Assignment Completion as set out more particularly in clause 5.8 the value of which shall (unless otherwise specified in the Online Specification) be 50% of the total value of the relevant Assignment.
“Conduct Legislation” means the Modern Slavery Act 2015 and the Bribery Act 2010 and all replacement and modifying legislation and regulations pertaining thereto.
“Content” means content (which may be video, photography or other media) created, provided or licensed by a User of the Services and uploaded to the same (or, where such content is not technically uploaded to the Services, provided via the Services to another User).
“Customer Data” means all data processed by Provider in respect of the Customer or otherwise provided to Provider by Customer pursuant hereto.
“Data Protection Legislation” means the Data Protection Act 2018 and the GDPR and all replacement and modifying legislation and regulations pertaining to data protection in the UK.
“Data Controller” shall have the meaning of ‘data controller’ set out in the Applicable Data Protection Legislation.
“Data Processor” shall have the meaning of ‘data processor’ set out in the Applicable Data Protection Legislation.
“Data Subject” shall have the meaning of ‘data subject’ set out in the Applicable Data Protection Legislation.
“Demander” means a User who uses the App to search for Providers in order to offer them the possibility of entering into Assignments.
“Downtime” means a period of time during which the Software and the Services are inaccessible by the Customer.
“End-User” means an individual who uses the App; either using a general login address issued to a Provider or Demander, or by using an individual user account intended for use by a single individual.
“GDPR” means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
“Initial Period” means a period of twelve months, which shall begin on the Commencement Date.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
“Online Specification” means any technical specification of the Service’s functionality and/or any commercial details relating to pricing or similar details which may be posted on Travlrr’s website or otherwise made available via the Service from time to time.
“Outage” means an instance of Downtime.
“Permitted Purpose” means the purpose of using the Service and Software to solicit the service of video and photography production professionals, or to offer such services to other Users.
“Personal Data” shall have the meaning of ‘personal data’ set out in the Applicable Data Protection Legislation.
“Provider” means a User who uses the App to tender for Assignments and to deliver video and photography production services.
“Service Fee” means the total value of Commissions owed by the Client to Travlrr pursuant to this Agreement.
“Services” means the functionality of the Software, which consists of a marketplace for the engaging of video and photography production services, including the ability for Providers and Demanders to solicit and enter into Assignments.
“Term” means the effective term of this Agreement.
“Treatment” means a proposal for the performance a particular Assignment, setting out particulars of the Content to be provided and the associated cost of the same.
“User” means a user of the Services and the Software (which may be a Provider or a Demander)
“Working Day” means 0900 – 17:00 Monday to Friday excluding UK bank and public holidays.
1.2 Clause and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 References to clauses are to the clauses of this agreement.
1.5 Unless the context clearly and unambiguously requires otherwise, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes fax and email.
1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1. This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue for the Initial Period. Thereafter this Agreement shall run in perpetuity until terminated by either party in accordance with Clause 10 below.
3. Platform Licence
3.1. In consideration of the continued and timely receipt of the Service Fee Travlrr grants to the Client a non-exclusive, non-transferable, non sub-licensable licence to use the Software in order to receive the Services and to make use of the same for the Permitted Purpose for the Term.
3.2. The Client recognises that the Software shall be provided remotely on a ‘software as a service’ basis and that the licence set out in clause 3.1 shall not entitle the Client to receive a copy of the Software in source or object code form. The Client further acknowledges that Travlrr may at any time, and without notice, incorporate licence management software into the Software for the purposes of ensuring that licence rights are not exceeded.
4.1. Travlrr warrants to and undertakes with the Client that:
4.1.1. it has full right, power and authority to licence to Software to the Client on the basis set out and in accordance with the terms of this Agreement;
4.1.2. without prejudice to clauses 4.3 or 4.5.2, use, possession or receipt of the benefit of the Software in accordance with the terms of this Agreement shall not cause or represent a breach of any third party’s Intellectual Property Rights; and
4.1.3. it has all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation; and
4.2. Travlrr does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Travlrr will use its reasonable endeavours and take all actions commercially appropriate to remedy and avoid such events, Travlrr cannot guarantee that such events will not occur and the parties to this Agreement agree that Travlrr shall have no liability for any Outages caused by such events.
4.3. Travlrr makes no warranty that any Content provided pursuant to any particular Assignment will be fit for any particular purpose, nor that it will meet any particular specification or quality benchmark, Content is the sole responsibility of the User which uploads or provides it and Users’ sole remedy for Content that fails to meet any particular criteria shall be from the User from which that content was commissioned.
4.4. Travlrr makes no warranty that the Service will be available at all times, or that provision of it will be uninterrupted or error free. Save for as expressly set out in these terms, no implied warranties or other terms, including any implied term relating to satisfactory quality or fitness for purpose, shall apply to the Service or its use by the Client.
4.5. Client warrants to and undertakes to Travlrr that:
4.5.1. it will use the Software only for lawful purposes and in accordance with this Agreement;
4.5.2. it has and shall maintain all necessary rights to upload, use, provide and licence any Content which it may upload to the Service and/or which it may provide to any User or third party via the Service. The Client recognises that it has sole control over the Content that it uploads to the Service and accordingly undertakes to indemnify and hold harmless Travlrr from any breach by it of this clause 4.5.2;
4.5.3. it will comply at all times with the Data Protection Legislation and with the Conduct Legislation;
5. Commissioning AND CONDUCTING Assignements
5.1. From time to time Demanders may use the Service to invite Providers to provide Treatments in respect of a proposed Assignment, seeking tendered proposals from those Providers with a view to potentially selecting a successful applicant to enter into an Assignment. Users acknowledge that Demanders shall not be under any obligation to submit any particular number or value of such proposals to the Service in any particular period or at all.
5.2. Where Providers are invited to submit a Treatment they may do so using the relevant functionality offered within the Service. Users acknowledge that Providers are not obliged to respond to invitations to submit Treatments, but that Demanders shall be entitled to set deadlines and/or criteria for responses which must be complied with in order for any particular response to such an invitation to be considered valid.
5.3. Users recognise and acknowledge that solicitations for Treatments represent offers to treat and that a response to such a solicitation shall not, without more, create any kind of binding contract or agreement between the relevant parties.
5.4. Where a Demander wishes to engage a Provider to enter into an Assignment it shall be obliged to inform all other solicited Providers that their Treatments have been unsuccessful. Where a Demander fails to respond to provided Treatments Travlrr reserves the right to configure the Software so as to automatically decline such Treatments after a particular period of time has passed.
5.5. Where a Demander selects a Provider to perform an Assignment in the fashion described in clause 5.4 it shall invite that Provider to enter into a formal contract with it which specifies the parameters of the relevant Assignment and the price to be paid in respect of the same. While the Service may offer functionality to facilitate the exchange and storage of such contracts, and to enable the parties to them to record when particular milestones in an Assignment have been met, Travlrr shall not be responsible for the content of such agreements nor for their negotiation and enforcement.
5.6. On Assignment Acceptance the Demander shall be obliged to pay the Commissioning Payment to Travlrr. On receipt of the Commissioning Payment Travlrr will deduct the Commission from that sum and make the balance available to the relevant Provider without undue delay.
5.7. At the conclusion of each Assignment the Provider shall transfer to the Demander final versions of the Content produced in the course of that Assignment, after which the relevant Demander shall be able to use the Service’s functionality to confirm that the Assignment has been completed and to rate the quality of the service provided by the relevant Provider.
5.8. On Assignment Delivery the Demander shall be obliged to pay the Concluding Payment to Travlrr. On receipt of the Concluding Payment Travlrr will deduct the Commission from that sum and make the balance available to the relevant Provider without undue delay.
5.9. For the avoidance of doubt, in respect of each Assignment Travlrr shall be entitled to be paid the Commission:
5.9.1. at Assignment Acceptance; and
5.9.2. at Assignment Delivery
including where Assignment Delivery is deemed pursuant to clause [PAYMENTS].
5.10. any failure by the Demander or Provider to comply with the terms of this Agreement (including for the avoidance of doubt clauses 5.6 or 5.8) shall not relieve the relevant parties from the obligation to pay the full value of the Commission to Travlrr, and the Demander and Provider of that Assignment shall remain jointly and severally liable for it.
5.11. In no circumstances will Travlrr refund a payment of Commission on account of the quality of Content or any deficiency in the conduct of a performance of an Assignment by a Provider. Travlrr does not accept responsibility for the performance of individual Assignments, each of which shall be governed by the terms of a separate and free-standing legal agreement between the relevant parties as described in clause 6.
6. Legal status of assignments
6.1. The Service facilitates introductions between Buyers and Providers in relation to the provision of video and photographic production services. Users are not obliged to enter into any particular Assignments as a result of such introductions, nor is any User’s use of the Service conditional on the entering into of any particular Assignment or number of Assignments.
6.2. Where Buyers and Providers agree to enter into an Assignment as a result of any introduction, or other interaction, facilitated by or arising from use of the Service, the agreement which governs the conduct of that Assignment will exist solely between those two parties and Travlrr will not be a party to it.
6.3. Without prejudice to clause 6.2 Users shall ensure that all agreements relating to the conduct and delivery of Assignments entered into:
6.3.1. grant to the Demander, on payment of the Concluding Payment, full title to all deliverables provided pursuant to that Assignment, including all Intellectual Property Rights inherent in those deliverables which, for the avoidance of doubt, shall include the right to distribute, display and broadcast the Intellectual Property Rights inherent in those deliverables on any and all online mediums without limitation or royalty obligation;
6.3.2. where the deliverables provided pursuant to that Assignment are intended by the Demander to be distributed, displayed or broadcast by television, cinema, or via a similar offline medium, comprehensive terms stating on what basis such performance is permitted and any limitation or royalty obligations that pertain to the same;
6.3.3. Contain clauses which stipulate that, where Assignments do not proceed to conclusion as originally anticipated that a Concluding Payment will paid by the Demander as follows:
(a) where an Assignment is cancelled or terminated more than seven days before the shooting of footage and/or images is scheduled to commence the Demander shall compensate the Provider by paying a fee of equal to the value of the time and materials expended by the Provider in relation to that Assignment prior to termination a sum equal to £1,000 + VAT, whichever is greater (from which Travlrr shall be entitled to deduct the Commission);
(b) where an Assignment is cancelled or terminated where seven or less days remain before the shooting of footage and/or images is scheduled to commence the Demander shall compensate the Provider by paying a fee equal to the Commissioning Payment minus the Commission (which shall be retained by Travlrr in the usual way described in clause 5);
(c) where an Assignment is cancelled or terminated after the shooting of footage and/or images has commenced the Demander shall compensate the Provider by paying a fee equal to the combined value of (i) the Commissioning Payment minus the Commission (which shall be retained by Travlrr in the usual way described in clause 5) and (ii) a fee of equal to the value of the time and materials expended by the Provider in relation to that Assignment from the commencement of the shooting of footage and/or images to the date of termination (from which Travlrr shall be entitled to deduct the Commission);
6.3.4. Contain clauses which stipulate that increases in the scope of any particular Assignment, or any delays to the schedule of performance of the Assignment which are not caused by the Provider, will entitle the Provider to recover any additional costs incurred on a time and materials basis;
and, where such agreements fail to contain such clauses the parties agree that equivalent clauses shall be deemed to be included within them.
6.4. Pursuant to clause 6.2, while the Service may contain functionality enabling the delivery of aspects of an Assignment, payment of fees due pursuant to an Assignment, and or the delivery of Content, Travlrr shall not be responsible for the performance of, or payment owed in respect of, any Assignment. Responsibility for settling any disputes arising from Assignments shall belong solely to and remain at all times with the parties to the contract which governs the relevant Assignment.
6.5. In accordance with clause 6.3 Client releases Travlrr from all liability for claims, liabilities and losses arising from the type of arrangements described in clause 6.2 and agrees that Travlrr shall have no liability for, or in relation to, any dispute which may arise between the Client and any other User for any reason. In particular, in the event that a Buyer withholds payment from a Provider then any dispute between the two parties shall be subject to independent adjudication in a forum mutually agreed between them. Travlrr is not and will not be responsible for adjudicating disputes between Providers and Buyers and shall not be a party to such proceedings.
6.6. While Travlrr does not have liability for the performance of Assignments, Travlrr will not tolerate Providers who undermine the integrity of the Service by reneging on offers made via it, or which are deemed to have breached the terms of agreed Assignments, and reserves the right to suspend or remove such Providers from it without notice or liability.
6.7. Travlrr does not provide or offer insurance cover to Providers or Buyers. Accordingly, Travlrr recommends that all users take out independent insurance and that they take steps to satisfy themselves that all Providers or Buyers with whom they engage via the Service have adequate insurance in place.
6.8. The Service provides functionality to enable Users to indicate to other Users that they have put insurance cover in place as recommended in clause 6.6. Users accept that Travlrr shall not be responsible for checking or verifying that any such representation is accurate and/or remains current.
6.9. While the Service may enable Users to make representations as to their expertise and/or qualifications (or any other matter), these representations are not verified by Travlrr. Accordingly, Travlrr accepts no liability or responsibility for any such representations (including where any user makes false, misleading or otherwise incorrect statements) and Users accept that they shall have and retain sole responsibility for any representations that they may make via the Service.
7. Statements and Representations made via the Service
7.1. In order to make full use of the Service, Users will be required to upload certain details about their organisations and the services that they offer, or are seeking, to the Service.
7.2. Some details about Users may be inferred, auto-completed or manually provided by Travlrr when those Users register to use the Service and/or create a profile for their organisation. In the event that the Client does not believe that such details are correct then the Client may use the Service’s functionality to amend or change those details. Travlrr accepts no liability for such information and Users are solely responsible for checking and confirming the accuracy of all details set out in their profile listings on the Service.
7.3. By uploading details to the Service in the fashion described in clause 7.1 Users are warranting that those details are true and accurate. Other User’s will be entitled to rely on the representations that Users make via the Service and accordingly the Client acknowledges that it shall be responsible for the accuracy and truth of any representations that it may make via it.
7.4. The Client acknowledges that Travlrr will not have any control over the specification of individual Assignments, nor over how they are performed. Accordingly, the Client undertakes that it shall not (and shall procure that its employees, directors and agents shall not) hold itself out as an agent or representative of Travlrr and shall at all times make it clear to other Users that it is requesting and/or performing Assignments as a private entity in its own right.
7.5. The Service contains functionality that enables Providers to detail their experience. While the Service will filter search results so as to match Demander queries to Providers which have listed relevant experience, that filtering does not represent any form or recommendation or endorsement service. By using the Services, Demanders accept that they are solely responsible for browsing for and selecting potential Providers and that Travlrr is not, and will not be, responsible for promoting or supplying any particular Provider.
7.6. While Travlrr may perform background checking in respect of individual Users (for example, if it receives a high volume of complaints in relation to a particular User) no warranty or undertaking is given that Travlrr will perform such checks in respect of any particular User or at all. As such, the Client agrees that it shall have sole responsibility for any reliance which it may place on any particular representation found on the Service (including without limitation any ratings or reviews given by other Users) and that, in the event that any such information is false or misleading, its sole remedy shall be against the relevant User that provided that representation.
8. Fees and Payment
8.1. Travlrr reserves the right to restrict aspects of the Service’s functionality to paying users only. Travlrr reserves the right to introduce new paid functionality, or to make any particular functionality subject to the payment of a fee at any time. Where it chooses to do so, Travlrr will notify users of the relevant pricing structures.
8.2. The Client agrees that Travlrr shall be entitled to charge and to receive the Commission as set out in clause 5.9. Commission shall be payable immediately upon coming due, Travlrr reserves the right to withhold or suspend, restrict and/or withhold the Service (or any aspect of it) from any particular User until the full value of the Commission owed by that User has been paid. For the avoidance of doubt, failure to pay any particular instalment of Commission shall represent an act of default for the purposes of Clause 10.
8.3. Provider shall be entitled to charge the Customer interest in respect of the late payment of any sums due under this Agreement on a monthly basis at the rate of 8 per cent per annum above the base rate from time to time of Barclays Bank plc from the due date therefore until payment.
8.4. All sums due under this Agreement are expressed exclusive of VAT but, in the event that such sums are subject to VAT or any analogous duty, any such sums shall be payable by the Customer.
9.1. Subject to the Client’s compliance with Clause 9.2, Travlrr hereby agrees to indemnify the Customer in respect of any third party claims that the Software or any Instance of it infringes that third party’s Intellectual Property Rights.
9.2. In the event of any claim or contemplated claim which might engage the indemnity set out in clause 9.1 the Client undertakes and agrees:
9.2.1. that it shall promptly inform Travlrr of the existence of that claim, providing detailed particulars of the relevant claim to the extent that it is able to do so;
9.2.2. that it shall not, and shall refrain from making, any admission of liability or offer to settle in respect of such claim without first receiving Travlrr’s specific written permission to do so;
9.2.3. that it shall grant to Travlrr on request full right and authority to conduct the defence of any such claim;
9.2.4. that it shall provide to Travlrr all such assistance as Travlrr may request in order to assist it in conducting the defence or settlement of any such claim.
9.3. For the avoidance of doubt, the parties agree that Travlrr does not accept, and shall not have, any liability for any Content provided by any User, nor for any claim which may arise relating to the same (whether alleging that such Content infringes the Intellectual Property Rights of a third party or otherwise).
9.4. Save for where otherwise expressly set out in this Agreement, Travlrr shall be the sole owner of all Intellectual Property Rights inherent in and generated by the Software and Services (which, for the avoidance of doubt shall not include any deliverables provide by Users to one another during Assignments) and shall, with other members of its company group, be entitled to use such Intellectual Property Rights without restriction.
10.1. For the purposes of this Clause 10 the following events shall be deemed “acts of default”:
10.1.1. if a party commits any material breach of any term of this Agreement and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
10.1.2. if a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
10.2. If either party commits an act of default, the other party may terminate this Agreement forthwith by giving notice in writing.
10.3. From the conclusion of the Initial Period;
10.3.1. either party shall be entitled to terminate this Agreement forthwith by giving 30 days’ written notice to the other;
10.3.2. either party shall be entitled to terminate this Agreement forthwith by giving written notice if the other is acquired by (or otherwise falls under the control of) a direct competitor to the terminating party.
10.4. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11. Limitation of Liability
11.1. Neither party shall have any liability to the other for any losses or damages which are not suffered as a direct result of the other party’s breach (whether the same arise in contract, tort, including negligence, or otherwise) and both parties disclaim, to the maximum extent permissible at law, all liability for indirect and consequential loss or damage which arises out of this Agreement and its subject matter.
11.2. Further to clause 11.1 the parties agree that neither party shall, in any circumstances, be liable to the other for any loss of profit, loss of business, loss of contracts, loss of business opportunity, loss of data, loss of reputation or goodwill, that the other may suffer which arises out of this Agreement or its subject matter; whether such loss arises directly, indirectly or otherwise.
11.3. Except as expressly stated in Clause 11.4:
11.3.1. Travlrr’s total aggregate liability, whether under this Agreement or any collateral contract or cause of action relating to its subject matter (including claims in Tort, including negligence) for loss of or damage to the Client shall not exceed £5,000,000.
11.4. While the exclusions of liability set out in Clause 11.3 shall apply to the fullest extent permissible at law, the parties to this Agreement recognise that neither party intends to exclude or limit liability for:
11.4.1. death or personal injury caused by its negligence, or the negligence of its officers, employees, contractors or agents; or
11.4.2. fraud or fraudulent misrepresentation;
11.4.3. any indemnity set out in this Agreement; or
11.4.4. any other liability which cannot be excluded by law.
11.5. In addition to the exclusions of liability set out above, the parties recognise that Travlrr shall not be liable for any interruptions to, or outages of, the Services arising directly or indirectly from:
11.5.1. interruptions to the flow of data to or from the internet which are caused by a third party which affect all, or a substantial number of, users of the internet;
11.5.2. any of the factors set out in Clause 14;
11.5.3. interruptions to the Services requested by the Customer.
12. Acceptable use and Service Management
12.1. As a condition of being granted access to the Software and the Services the Client agrees that it shall (and that it shall procure that all of its employees, directors and agents shall):
12.1.1. where the Client acts as a Demander, only invite Providers to submit Treatments pursuant to clause 5.1 in good faith, where such invitation represents a genuine and serious intention to progress one or more viable Treatments to an Assignment in the event that one or more viable Treatments are received;
12.1.2. not circumvent, or attempt to circumvent, the Services by (i) entering into any Assignment solicited via the Services other than using the functionality provided within the Services, (ii) by making any payment in respect of an Assignment other than by using the functionality provided within the Services, or (iii) engaging in any other behaviour designed to enter into Assignments properly arranged via the Services via any other means, or to avoid any payment obligation that would have otherwise arisen had the Services been properly used in accordance with the terms of this Agreement;
12.1.3. not use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by using the Services to deliver any form of malicious code (including computer viruses);
12.1.4. not use the Service to offer, solicit, arrange, or engage in, any kind of activity or arrangement which is or which would be unlawful, or which the Client does not possess all necessary regulatory permissions to lawfully perform;
12.1.5. not use the Services to promote the goods or services of any third party;
12.1.6. not to use the Services to send communications in a fashion that would be considered to be excessive (or to be described as ‘spam’);
12.1.7. not infringe the Intellectual Property Rights of any third party in relation to its use of the Service;
12.1.8. not upload to the Service any data, material or information which is false or misleading in any way;
12.1.9. treat all other Users and End-Users with respect and courtesy at all times;
12.1.10. refrain from transmitting any material that is defamatory, offensive or otherwise objectionable via the Services;
12.1.11. not use the Services in a way that could damage, disable, overburden, impair or compromise Travlrr’s systems or security measures;
12.1.12. refrain from using the Service for any unlawful purposes in relation to other Users and/or End-Users, including without limitation for stalking, harassing, or intimidating any other user of the Service.
Together such conditions the “Acceptable Use Restrictions”.
12.2. The Client agrees that it shall be responsible for all representations which it may make via, or upload to, the Service (which may take the form of comments relating to, or reviews of, other Users). The Client undertakes to refrain from making any untrue and/or unlawful representations about other users and is put on notice that Travlrr will comply with any and all requests which it receives from lawful authorities to identify End-Users whose details are requested from it in connection with legal proceedings.
12.3. Travlrr reserves the right to withdraw or suspend the Service without notice or liability if it considers that a User (or any employee, director, contractor or agent of the User) or End-User has breached the Acceptable Use Restrictions.
13. Data Protection
13.1. The parties shall comply with all applicable requirements in the Applicable Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligation under the Data Protection Legislation.
13.2. The Parties agree that for the purposes of the Data Protection Legislation Client shall be the Data Controller and Travlrr shall be the Data Processor in respect of any Personal Data which is transferred from Client to Travlrr in accordance with this Agreement. Which is anticipated to include the names and related details of the Client’s personnel, and which is to be processed for enabling Travlrr to provide the Services to the Client and those members of its personnel which it may nominate to be users of the Service.
13.3. The Client recognises that Travlrr will use third party processors, such as providers of online ‘web hosting’ to process Personal Data under this Agreement. Where Travlrr appoints a third party to process Personal Data it shall only use processors which provide sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing meets the requirements of the GDPR and ensures the protection of the rights of Data Subjects.
13.4. Travlrr shall:
13.4.1. only process the Personal Data for the performance of its obligations pursuant to this Agreement and in accordance with the written instructions of the Client from time to time, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which Travlrr is subject; in such a case, Travlrr shall inform Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
13.4.2. ensure that persons with access to the Personal Data are subject to a strict duty of confidentiality or are under an appropriate statutory obligation of confidentiality;
13.4.3. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, having regard to the state of technological developments and the costs of implementing any measures;
13.4.4. ensure that, where it does engage with a third-party processor in accordance with clause 2.3, it will enter into a written agreement incorporating the same data protection obligations set out in clause 2 of this Agreement;
13.4.5. assist Client in responding to any request from any Data Subject which concerns the exercise of that Data Subject’s right under the GDPR (subject to the reimbursement by Client of all costs reasonably incurred in the course of the same);
13.4.6. assist in ensuring compliance with the Client’s obligations under Article 32 to 36 of the GDPR, including in respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, (subject to the reimbursement by Client of all costs reasonably incurred in the course of the same);
13.4.7. notify the Client without undue delay on becoming aware of a relevant Personal Data breach;
13.4.8. at the written instruction of Client securely delete or return Personal Data and copies thereof to the Client on termination of this Agreement unless Union or Member State law requires storage of the Personal Data; and
13.4.9. maintain records of all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and grant Client and its auditors access to Travlrr’s processing facilities to conduct audits and inspections (subject to the reimbursement by Client of all costs reasonably incurred in the course of the same); and
13.4.10. immediately inform Client if, in its opinion, an instruction infringes the GDPR or other Union or Member State data protection provisions.
13.5. Subject to the Client’s compliance with clauses 13.5.1 through 13.5.5,Travlrr shall indemnify and hold harmless the Client against all liabilities, damages and losses suffered or incurred by Client arising out of or in connection with any breach by Travlrr of this clause 13:
13.5.1. If any third party makes a claim, or notifies an intention to make a claim, against Client which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), Client shall as soon as reasonably practicable, give written notice of the Claim to Travlrr, specifying the nature of the Claim in reasonable detail;
13.5.2. not make any admission of liability, agreement, offer to settle or compromise in relation to the Claim without the prior written consent of Travlrr;
13.5.3. grant to Travlrr on demand full control of the conduct of any Claim, including all proceedings, negotiations and settlement proceedings which may be associated with the same;
13.5.4. give Travlrr and its professional advisers access at reasonable times to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Client, so as to enable Travlrr and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and
13.5.5. take such action as Travlrr may reasonably request to avoid, dispute, compromise or defend the Claim.
13.6. Clause 13.5 of this Agreement shall not apply where any Claim arises from, or is connected to, the quality of the relevant Personal Data provided by the Client to Travlrr or from Travlrr following the instructions of Client.
14. Force majeure
14.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub‑contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike or labour dispute (except involving a party’s own employees), pandemic, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
14.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre‑existing rights or obligations of either party.
15.1. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
16.1. Any notice request instruction or other document to be given here under shall be delivered or sent by first class post, email or by facsimile transmission to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified or commonly used between them) and any such notice or other document shall be deemed to have been served on the earlier of the date of acknowledgement of receipt by countersignature or email from the addressee, or 24 hours after the sending of that communication.
17.1. The parties shall be free to announce their engagement in this agreement and to publicly advertise their commercial relationship with the other.
18. Invalidity and severability
18.1. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
19. Entire agreement
19.1. Subject to Clause 19.2, this written Agreement (including the Schedules) constitutes the entire agreement between the parties hereto relating to the subject matter hereof. Nothing in this Clause 19.1 or Clause 11.3 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation.
19.2. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
20.1. This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.
21.1. Neither party will be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior consent of the other party, such consent not to be unreasonably withheld or delayed.
22.1. Travlrr shall be entitled to sub‑contract the whole or any part of its obligations hereunder to any third party.
23.1. All disputes or differences which shall at any time hereafter arise between Travlrr and the Client in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Travlrr and the Client shall jointly nominate (unless the parties mutually agree to litigate their differences in the courts of England and Wales).
23.2. If Travlrr and the Client shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated by the London office of the Centre for Effective Dispute Resolution.
23.3. The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Travlrr and the Client.
24.1. This Agreement shall be governed by and construed in accordance with English law and (subject always to Clause 23) the parties submit to the exclusive jurisdiction of the courts of England and Wales.
25. Third Party Rights
25.1. No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.
26. 3rd party integrations
Where the Service integrates with third party services (such as providers of reward or incentive services) use of the functionality provided by those third parties may be subject to additional terms and conditions. Where such terms apply they will be made known to relevant Users either at the time that the relevant third party service is called upon by the User, or in
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