Unless you’ve agreed a bespoke agreement with Cirkay Ltd., you agree to the Merchant Terms of Use.
CIRKAY LIMITED
CIRKAY FAN PASS
MERCHANT TERMS OF USE
These Terms of Use are BETWEEN: (1) CIRKAY LIMITED with registered office International House, 61 Mosley Street, Manchester, M2 3HZ and registered number 05149084 (“CIRKAY”, “us”, “we”, or “our”); and (2) the MERCHANT who installs the App and/or enters into a Subscription (“Merchant”, “you”, “your”).
(A) CIRKAY has developed certain “CIRKAY Fan Pass” software applications, a related app and technology platform which it makes available to merchants on a SaaS basis to enable merchants to create and distribute CIRKAY Fan Passes via their ecommerce outlets to their customers.
(B) The Merchant wishes to use CIRKAY’s Services in relation to its business operations, and acknowledges that these Terms of Use apply to all use by the Merchant of the CIRKAY Services under this Agreement.
1. INTERPRETATION
1.1 In this Agreement, unless the contrary intention appears:
“Agreement” means these Terms of Use together with all Subscription details, schedules, annexes and all other documents referred to herein;
“App” means any CIRKAY owned or controlled app or other software or plugin that can be downloaded or installed for use in relation to the Platform and Services;
“Dependencies” means any responsibilities of the Merchant under this Agreement and other dependencies including as set out within the Platform;
“Effective Date” means the start date of the Subscription;
“Employee Users” meansthose employees, agents, contractors or other authorised personnel of the Merchant who access the Services on behalf of the Merchant;
“External Service Providers” any external party suppliers of, and platforms used by, CIRKAY to enable the Service, such as wallet providers and blockchain technology providers, and ecommerce / Storefront providers – further details of these providers are available in the FAQs on the Platform;
“Fan Pass(es)” means an NFT created or enabled under the Services for distribution by the Merchant via its Storefront – further details relating to the Fan Passes is available in the FAQs on the Platform;
“Fees” means the fees for the Services as specified in the Subscription details according to the package selected, as set out on the Platform;
“Force Majeure Event” means any event or sequence of events beyond a party’s reasonable control and which prevents it from, or delays it in, performing its obligations under this Agreement, including (a) an act of God, flood, storm, drought, earthquake, or other natural disaster; (b) adverse weather conditions; (c) any cause or event arising out of or attributable to war, civil commotion or terrorist activity (or threat thereof); (d) any law, or any governmental order, rule or regulation; (e) fire or explosion; (f) labour dispute including strikes, industrial action, lockouts or boycott; (g) a shortage of raw materials; (h) power outages, blockages, or internet or telecoms failure; and (i) any epidemic or pandemic and compliance with any applicable governmental guidelines designed to prevent the spread of the relevant disease;
“Initial Term” means the initial term of the relevant Subscription;
“Intellectual Property Rights” means all intellectual property rights, howsoever arising and in whatever media, whether or not registered or capable of registration, including copyright, database rights, confidential information, patents, trademarks, service marks, trade names, design rights, moral rights, business names, domain names and other similar rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
“Laws” means any applicable legislation, regulation, by law, ordinance, subordinate legislation, code of practice, published guidance and other requirement of any relevant government or governmental agency;
“Merchant” means the company or other legal person or entity identified in the Subscription or that is otherwise downloading or installing the App;
“Merchant Materials” means all assets, data, information, content or other materials used or processed using the Platform, as inputted or made available by the Merchant, its Employee Users, or otherwise on its behalf, including as versioned or altered as part of the Services and or attached to or associated with any Fan Pass(es), including in relation to all creators, artists or other content providers with which the Merchant engages;
“Merchant System” means the Merchant’s own systems, databases or other tools or functionality that it may wish to use to enable it to interact with the Platform, including to input Merchant Materials or with which to utilise the Merchant Materials;
“Platform” means the CIRKAY software platform, including any CIRKAY owned or controlled App, via which the Services are made available, including all versions, amendments and improvements thereto and/or any other APIs, tools, methods, models, know how, code, functionality or other elements owned or developed by CIRKAY;
“Platform Data” means all usage and/or statistical or other data, information, learnings or know how related to and/or generated or derived from the use of the Platform and Services by merchants and users, in anonymised and aggregated form, and at all times not including anything that can identify the Merchant or their customers or users, or that the relevant data was aggregated and derived from or related to the Merchant or its use of the Platform or Services.
“Renewal Term” means the renewal term of the relevant Subscription;
“Services” means the SaaS and/or other services provided by CIRKAY via the Platform, according to the package selected or itemised in the Subscription package, allowing the Merchant to access and use the Platform including to create and manage the Fan Pass(es);
“Storefront” means the Merchant’s own shop front or other ecommerce facility, including as enabled through third parties such as Shopify;
“Subscription” means thesubscription package in relation to the supply of Services as selected by the Merchant – further details of the available Subscription packages, including Fees, term and functionality is provided on the Platform ;
“Term” means the term of the Agreement as provided for in clause 11 and the Subscription package details which will include the Initial Term and any Renewal Terms;
“Working Day” means any day other than a Saturday, a Sunday or a day which is a public or bank holiday in England and Wales.
1.2 In this Agreement, unless the context otherwise requires:
(a) words importing a gender include any other gender;
(b) words in the singular include the plural and vice versa;
(c) a reference to a person shall include a company, partnership, joint venture, association, corporation or other body corporate;
(d) a reference to any Law or standard shall include a reference to that Law or standard as amended, extended, consolidated or re-enacted from time to time;
(e) a reference to a document shall include all authorised amendments, supplements to and replacements to that document;
(f) a reference to the parties shall include their permitted successors and assigns;
(g) where a word or a phrase is given a particular meaning, other grammatical forms of that word or phrase shall have corresponding meanings; and
(h) the words ‘include’, ‘including’, ‘for example’ or similar words shall be construed as illustrative and without limitation to the generality of the related words.
1.3 The headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.4 Unless otherwise stated a reference to a clause or a schedule or a party is a reference to a clause in or a schedule to or a party to this Agreement.
1.5 This Agreement was drafted with the joint participation of the parties and no provisions of this Agreement will be construed adversely to a party solely on the ground that such party was responsible for the preparation of this Agreement.
2. PLATFORM SERVICES, RIGHT TO USE THE PLATFORM AND DISCLAIMERS
2.1 This Agreement sets out the overall terms of use and relationship between CIRKAY and you as a Merchant in relation to the Platform and the Services.
2.2 Subject to acceptance of the relevant Subscription by CIRKAY, and receipt of the Fees in accordance with the relevant payment terms, CIRKAY will provide the Services in accordance with the Subscription details.
2.3 To the extent necessary to provide the Services, CIRKAY grants to the Merchant a non-exclusive, non-transferable, royalty free right to use the Platform (including the App), in accordance with the permissions, restrictions and other details set out on the Platform, solely for the Merchant’s own business purposes in relation to the receipt of the Services, and subject to the terms and conditions of this Agreement.
2.4 The rights and services provided under this Agreement are granted to the Merchant only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Merchant.
2.5 CIRKAY’s obligations and warranties with regard to and the Services and other provisions of this Agreement shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the terms of the Agreement and/or CIRKAY’s reasonable instructions; by modification or alteration of the Services by any party other than CIRKAY or CIRKAY’s duly authorised contractors or agents; by combination or integration of the Services with any third party or Merchant Systems or services contrary to the terms of the Agreement; by the Merchant Materials, Merchant System, Merchant Dependencies; by External Service Providers outside of the control of CIRKAY; or by other Merchant breach of the Agreement.
2.6 Merchant acknowledges that CIRKAY may facilitate elements of the Service by enabling Merchant to integrate with various External Service Providers and that accordingly, as a separate ‘end user’ of such services, Merchant may be asked to enter into terms of service with such External Service Providers directly, and that CIRKAY is not providing or responsible for such services.
2.7 Merchant acknowledges that it is solely responsible for its own contracts and terms its own users or customers to whom it may market, distribute or sell Fan Pass(es), and that it is solely responsible for defining and drafting its licensed rights structure to attach to and travel with the Fan Pass(es) which will define the usage rights for the buyer of the Fan Pass in relation to the relevant assets or rights made available via the Fan Pass;
2.8 CIRKAY is not at any time giving advice or direction in relation to any regulatory or legal matters, or security requirements or best practice, including in relation crypto assets, tokens, blockchain, data protection, privacy, terms and conditions or payment processing requirements, and the Merchant agrees it will take its own advice and be solely responsible (to the exclusion of CIRKAY) in relation to all such matters.
2.9 Merchant acknowledges that current legislation and regulations governing blockchain technologies and tokens varies by territory and may be uncertain, and new legislation and regulations may materially adversely affect the development of the Service or any product made available via the Service therefore affecting utility, and that the Services may need to be amended in response to such issues.
3. CIRKAY’S OBLIGATIONS AND WARRANTIES
3.1 CIRKAY shall provide the Services with all reasonable skill and care and good industry practice, and will comply with all applicable Laws with respect to its activities under this Agreement.
3.2 CIRKAY warrants and represents that:
(a) it has full right, power and authority to enter into this Agreement;
(b) it has all the rights, licences, permits, approvals and clearance of third party rights as are necessary to perform its obligations and grant the relevant rights under this Agreement; and
(c) the Platform will, to the best of its knowledge, contain nothing that infringes the statutory, common law, or Intellectual Property Rights of any third party;
(d) the Platform will be kept secure in accordance with good industry practice and CIRKAY will employ industry standard security protocols in relation to the Platform and the Services provided.
3.3 In any event, CIRKAY:
(a) does not warrant that the Merchant’s use of the Services will be uninterrupted or error-free; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Merchant acknowledges that the Services are dependent on various third party networks, platforms, services and infrastructures, including those of External Service Providers, and as such CIRKAY can give no guarantee of availability or functionality of such third party infrastructure which may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(c) makes no warranties or other assurances as to the fitness for purpose of the Services nor that they will meet the Merchant’s specific requirements or produce any specific business benefits, nor create any revenue or other benefits; and
3.4 Save as expressly set out in this Agreement, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
4. CUSTOMER’S OBLIGATIONS AND WARRANTIES
4.1 The Merchant shall:
(a) provide CIRKAY with all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be reasonably required by CIRKAY in order to provide the Services;
(b) carry out all other of the Merchant’s responsibilities and Dependencies as set out in this Agreement and as may be detailed on the Platform, in a timely and efficient manner (other than making payment which shall be as required under clause 6);
(c) and hereby does accept responsibility for the selection of the Services to achieve its intended results;
(d) comply with all applicable Laws with respect to its activities under this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions, including in relation to the Merchant Materials and Employee Users, as necessary for CIRKAY, its contractors and agents to perform their obligations under this Agreement;
(f) have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Merchant Materials and their input and use within the Platform;
(g) procure that each Employee User keeps secure the password and account details for their use of the Platform, and that such password is kept confidential;
(h) be responsible for all activities that occur under the Merchant’s account, and for any access to or use of the Platform including submission of Merchant Materials or other data by any person or entity using the account or any password whether or not such access, submission or use has been authorised by the Merchant;
(i) ensure that it takes all necessary steps to prevent any unauthorised access to, or use of, the Platform or Services and if it believes that there has been any such unauthorised access or use, or any breach of security such as the disclosure, theft or unauthorised use of any username or password, it will notify CIRKAY immediately;
(j) ensure that the Employee Users, are notified of the relevant terms, rules or restrictions relating to their usage and access of the Platform and/or Services, and in any event that they use the Platform and/or Services in accordance with the terms and conditions of this Agreement, and the Merchant shall be responsible for any Employee User’s breach of this Agreement.
4.2 The Merchant shall not and shall not permit any third party to:
(a) attempt to download, copy, modify, create derivative works from, frame, mirror, republish or distribute any portion of the Platform except to the extent expressly set out in this Agreement; or
(b) attempt to copy, adapt, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(c) use any knowledge or information acquired in relation to the Platform or Services in order to build a product or service which competes with the Platform and/or the Services;
(d) resell, sublicense or otherwise use the Platform or Services to provide services to third parties, unless otherwise specifically agreed in writing;
(e) attempt to obtain, or assist third parties other than Employee Users, in obtaining, access to the Platform or Services;
(f) upload to the Services and/or Platform or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
(g) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Platform or networks connected to the Platform, or otherwise interfere with or disrupt the operation of any of the Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks.
4.3 The Merchant warrants and represents that:
(a) it, and its representative signing up to the Agreement, has full right, power and authority to enter into this Agreement;
(b) it has all the rights, licences, permits, approvals and clearance of third party rights as required by the Laws and as are necessary to perform its obligations under this Agreement;
(c) the Merchant Materials will contain nothing that infringes the statutory, common law, or Intellectual Property Rights of any third party, and the same shall not, nor shall the Merchant otherwise use the Services in a way that could be unlawful, harmful, threatening, infringing, discriminatory, hateful, abusive, harassing or facilitate illegal activity, or be in breach of any confidentiality or any applicable Laws.
5. DATA PROTECTION
In connection with its supply of the Services, it is not anticipated that CIRKAY will be required to process personal data on behalf of the Merchant. All user data relating to the purchasers of the Fan Passes will belong to and reside at all times with Merchant and/or its Storefront supplier. CIRKAY will only ever have anonymous data and user IDs – for more information see the FAQs on the Platform.
6. FEES
6.1. The non-refundable Fees to be paid by the Merchant to CIRKAY for providing the Services are those stated in the Subscription package details.
6.2 The Fees may be changed by agreement during the Term in the event that the Merchant wishes to change the type or level of Services provided.
6.3 Any recurring Fees will be increased on each annual renewal in accordance with the then current CPI percentage.
6.4 All sums payable under the Agreement will be paid by electronic transfer to CIRKAY’s bank account or such bank account CIRKAY may specify from time to time. Any charges on payments will be at the Merchant’s expense.
6.5 All sums payable under this Agreement are exclusive of VAT which will be payable in addition to the sum in question at the rate and in the manner prevailing at the relevant tax point.
6.6. If any sums due under this Agreement are not paid when due CIRKAY may charge interest in respect of those sums from the date due until payment is made in full (before and after any judgment) at 4% per annum over Barclays Bank Plc base rate from time to time accruing on a daily basis, and CIRKAY may suspend the Merchant’s access to the Platform and/or Services.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Subject to clause 7.2, the Merchant acknowledges and agrees that CIRKAY and/or its licensors own all Intellectual Property Rights in the Platform, Services and Platform Data. Except as stated in this Agreement CIRKAY, does not grant the Merchant any rights in respect of the Platform, Services and/or Platform Data or any related documentation.
7.2 CIRKAY acknowledges and agrees that the Merchant and/or its licensors own all Intellectual Property Rights in the Merchant Materials, save for the avoidance of doubt in any elements relating to the Platform and Platform Data. To the extent necessary to effect such ownership, CIRKAY by way of future assignment hereby assigns all such relevant Intellectual Property Rights to the Merchant throughout the world in perpetuity. The Merchant grants CIRKAY the right to use the Merchant Materials to fulfil the Services and otherwise in accordance with the terms and permissions of this Agreement. Except as stated in this Agreement the Merchant does not grant CIRKAY any rights in respect of the Merchant Materials.
8. CONFIDENTIALITY
8.1 Neither party shall without the consent of the other during the term of this Agreement or following its termination use the other party’s “Confidential Information” (meaning all information in any form which is secret or not publicly available either in its entirety or in part including commercial, financial, marketing, or technical information, know how, trade secrets, business methods and other information in any form, and any reproductions of such information in any form or any part(s) of this information) for any other purpose than as strictly necessary to fulfil this Agreement or otherwise permitted hereunder, nor disclose the other party’s Confidential Information to any other person unless necessary for the performance of obligations under this Agreement.
8.2 Any party disclosing Confidential Information in accordance with the above clause shall procure that the person to whom such information is disclosed is made aware of the obligations of confidentiality under this Agreement and complies with those obligations as if it were a party to this Agreement.
8.3 The confidentiality restrictions do not apply to Confidential Information:
(a) which is in or comes into the public domain other than through breach of this Agreement;
(b) insofar as it comes lawfully into the possession of the recipient party from a third party;
(c) which the recipient party can prove was already known to it before its receipt from the providing party; and
(d) to the extent that it is required to be disclosed by law or the requirements of any recognised stock exchange, or authority of competent jurisdiction to whose rules the party making the disclosure is subject, whether or not having the force of law.
8.4 CIRKAY acknowledges that the Merchant Materials are the Confidential Information of the Merchant.
8.5 The Merchant acknowledges that details of this Agreement, Fees, Platform and the Services, are the Confidential Information of CIRKAY.
9. INDEMNITIES
9.1 CIRKAY will indemnify the Merchant from and against any and all losses, damages, claims, penalties, fines, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Merchant arising from any third party claims or actions as a result of or in connection with any breach by CIRKAY of clause 3.2 (b) or (c).
9.2 The Merchant will indemnify CIRKAY from and against any and all losses, damages, claims, penalties, fines, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against CIRKAY arising from any third party claims or actions as a result of or in connection with any breach by the Merchant of clause 4.3 (b) or (c).
9.3 Each Party will fully indemnify the other from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the other as a result of or in connection with any breach by the other of clause 8 (Confidentiality).
9.4 In all cases the indemnified party agrees to:
(a) promptly notify the indemnifying party of any allegation of infringement or other claim that may give rise to reliance on an indemnity, which comes to its attention, and give the indemnifying party all reasonable assistance subject to reimbursement by the indemnifying party of the indemnified party’s costs so incurred;
(b) not to make any admission, settle, compromise or negotiate the settlement of any such claim without the prior consent of the indemnifying party (such consent not to be unreasonably withheld) provided that the indemnifying party considers and defends any claim diligently, using competent counsel and in such a way as not to bring the reputation of the indemnified party into disrepute; and
(c) allow the indemnifying party to conduct and settle all negotiations and proceedings, save that the indemnifying party may not conclude settlement of any negotiations and proceedings which may have a material effect (whether financial, practical or in terms of reputation) on the indemnified party without the indemnified party’s prior written consent which will not be unreasonably withheld.
10. LIMITATION OF LIABILITY
10.1 Nothing in this Agreement shall in any way exclude or limit either party’s liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation, or for any other liability which may not be excluded by law.
10.2 Subject to clause 10.1, neither party will be liable, whether in contract, tort (including negligence) breach of statutory duty, or otherwise, for any of the following losses or damage (whether or not such losses or damage were direct, foreseen, foreseeable, known or otherwise) howsoever arising out of or in connection with this Agreement in respect of any:
(a) special, indirect, incidental or consequential loss or damage;
(b) loss of actual or anticipated profits;
(c) loss of business or contracts;
(d) loss of revenue or of the use of money;
(e) loss of anticipated savings;
(f) loss of goodwill;
(g) loss of reputation; and/or
(h) wasted expenditure.
10.3 Subject to clause 10.1, and save in relation to the indemnities under clauses 9.2 and 9.3, each party’s total aggregate liability arising out of, or in connection with this Agreement whether in contract, tort (including negligence) breach of statutory duty, or otherwise shall otherwise in no event exceed the annual Fees paid by the Merchant in the previous 12 months.
10.4 If at any time an allegation of infringement is made in respect of the Platform or Services, CIRKAY may at its own expense:
(a) modify the Platform or Services;
(b) replace the Platform or Services with non-infringing software or Services; and/or
(c) require the Merchant to alter the way in which it uses the Platform or Services,
so as to avoid the infringement or alleged infringement, in all cases without diminishing or curtailing any of the material functions or facilities or the performance of the Platform or Services. If it is unable to do the above, CIRKAY may terminate this Agreement and refund pro rata to the Merchant such part of any sums paid by the Merchant which relate to the unexpired portion of the Agreement.
11. TERM AND TERMINATION
11.1 This Agreement shall, commence on the Effective Date and shall continue for the Term unless terminated as provided herein.
11.2 The Subscription details will set out the Initial Term and relevant renewal provisions.
11.3 Either party (the “Terminating Party“) may terminate this Agreement and/or in relation to a Subscription immediately by giving written notice to the other (the “Defaulting Party“) if:
(a) the Defaulting Party is in material breach of any provision of this Agreement in relation to that Subscription, which is not remediable or, if remediable, is not remedied with a period of 10 Working Days after the Terminating Party has given notice to the Defaulting Party requiring such breach to be remedied;
(b) the Defaulting Party’s financial position is such that either the Defaulting Party, its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings with respect to the Defaulting Party of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under English law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the Defaulting Party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
11.4 CIRKAY may terminate this Agreement by giving not less than 7 days’ written notice to the Merchant if the Merchant fails to make any overdue payment to CIRKAY within 30 days of the Merchant receiving a written notice from CIRKAY demanding such overdue payments.
11.5 On termination of this Agreement for any reason:
(a) all permissions licences granted under this Agreement shall immediately terminate;
(b) the Merchant shall return and make no further use of the Platform, documentation and other items (and all copies of them) belonging to CIRKAY;
(c) CIRKAY may destroy or otherwise dispose of any of the Merchant Materials in its possession unless CIRKAY receives, no later than ten Working Days after the effective date of the termination, a written request for the delivery to the Merchant of the then most recent back-up of the Merchant Materials. CIRKAY shall use reasonable commercial endeavours to deliver the back-up to the Merchant within 90 days of its receipt of such a written request, provided that the Merchant has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Merchant shall pay all reasonable expenses incurred by CIRKAY in returning or disposing of Merchant Materials; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced;
(e) the provisions contained in clauses 1 (definitions), 7 (IP), 8 (Confidentiality), 9 (Indemnities), 10 (Liability), 11 (Termination), 12 – 23 (various) shall survive and continue to apply will continue to apply notwithstanding the expiration or termination of this Agreement.
12. FORCE MAJEURE
12.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any failure to perform any obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or failure is due to a Force Majeure Event provided the party whose performance is affected has taken all steps (if any) which it could reasonably be expected to have taken to avoid the effects of and mitigate the effects of the Force Majeure Event.
12.2 A party suffering a Force Majeure Event and seeking to rely on clause 12.1 shall promptly notify the other in writing of the nature and extent of the circumstances giving rise to a Force Majeure Event. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform its obligations for the duration of any Force Majeure Event.
12.3 If the relevant Force Majeure Event prevails for a continuous or aggregate period in excess of ninety (90) days, either party may elect to immediately terminate this Agreement upon written notice and neither party will have any liability to the other except that the Merchant will remain liable for any unpaid Fees.
13. WAIVER
The failure or delay by either party in any one or more instances to insist upon strict performance or observance of any one or more of the terms of this Agreement or to exercise any remedy, privilege or right provided by law or under this Agreement shall not be construed as a waiver of any breach or right to enforcement of such terms or to exercise such remedy, privilege or right.
14. SEVERANCE
If any part of this Agreement is found by any court or competent authority to be illegal, void or unenforceable then that part shall be deemed not to be a part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.
15. ASSIGNMENT AND SUBCONTRACTING
Neither party shall, without the prior written consent of other assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16. VARIATION
This Agreement may not be varied except by an instrument in writing signed by the authorised representatives of all the parties to this Agreement.
17. RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement shall be deemed to constitute a partnership or joint venture or contract of employment between the parties nor constitute either party the agent of the other.
18. RIGHTS OF THIRD PARTIES
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
19. PUBLICITY
19.1 Neither party shall make or issue any announcement or public circular relating to the subject matter of this Agreement without the prior written approval of the other.
19.2 CIRKAY may use the name of the Merchant as a factual reference to the fact that the Merchant is or was a customer of CIRKAY, on its website and in pitch materials, without the prior written consent of the Merchant, although any use of the Merchant’s logo shall be subject to any brand guidelines issued by the Merchant.
20. NOTICES
20.1 Each notice or other communication to be given under this Agreement shall be given in writing in English and, unless otherwise provided, shall be made by hand, letter or email and will be addressed to the other party’s main contact details.
20.2 Notice delivered by hand will be deemed to have been received when delivered. Posted notice will be deemed received at the time at which it would have been delivered in the normal course of the post. Any notice given in accordance with the above but received on a day which is not a business day or after normal business hours in the place of receipt shall be deemed to have been received on the next business day.
21. ENTIRE AGREEMENT
21.1 This Agreement, and any documents explicitly referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover including any purchase order terms of the Merchant.
21.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
22. NON-SOLICITATION
The Merchant shall not, without the prior written consent of CIRKAY, at any time from the date of this Agreement to the expiry of 12 months after the termination of this Agreement, solicit or entice away from CIRKAY or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of CIRKAY in the provision of the Services.
23. GOVERNING LAW AND JURISDICTION
This Agreement and any disputes relating to it will be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts for such purposes.
