1. Interpretation

1.1. In this Agreement, unless the contrary intention appears:

“Additional Services” means any further development, integration, set up or other services agreed case by case;

“Agreement” means these Terms of Use together with all the Orders, schedules, annexes and all other documents referred to herein;

“Benefits” means the relevant benefits, content assets or rights made available via the Fan Pass, which may include the Customer Materials;

“Customer ” means the company or other legal person or entity identified in the Order or that is otherwise contracting for the Services;

“Customer Materials” means all assets, data, information, content or other materials used or processed using the Platform, as inputted or made available by the Customer, 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 Customer engages, including but not limited to the Benefits and / or as may be included in the Benefits;

“Customer System” means the Customer’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 Customer Materials or with which to utilise the Customer Materials;

“Dependencies” means any responsibilities of the Customer under this Agreement and other dependencies including as set out within the Platform;

“Effective Date” means the start date identified in the Order, or otherwise, the date the Order is accepted by CIRKAY;

“Employee Users” means those employees, agents, contractors or other authorised personnel of the Customer who access the Services on behalf of the Customer;

“End Users” means the end users or customers of the Customer that acquire, use or otherwise interact with the Fan Passes, Benefits, User Interfaces and other end user elements of the Platform;

“End User T&C” has the meaning as defined in clause 2.6 below.

“External Service Providers” any external party suppliers of, and platforms used by, CIRKAY to enable the Service, such as wallet providers and technology providers, and ecommerce / User Interface providers – further details of these providers are available in the FAQs on the Platform;

“Fan Pass(es)” means a digital pass or other End User facing benefit mechanic created or enabled under the Services for distribution by the Customer via its User Interfaces – 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 Order details according to the services or 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 order and related Services as set out in the Order;

“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;

“Order” means the specific order for a Package of Services, as selected by the Customer agreed by CIRKAY in accordance with the relevant ordering process on the Platform – further details of the available Packages, including Fees, term and functionality are provided on the Platform;

“Package” means the specific package, module(s) or other product functionality ordered by the Customer;

“Platform” means the CIRKAY software platform and related websites and apps, 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 customers and users, in anonymised and aggregated form, and at all times not including anything that can identify the Customer or their customers or users, or that the relevant data was aggregated and derived from or related to the Customer or its use of the Platform or Services.

“Renewal Term” means the renewal term of the relevant Order;

“Services” means the SaaS and/or other services provided by CIRKAY via the Platform, according to the Package(s) selected or itemised in the Order, allowing the Customer to access and use the Platform including to create and/or manage the Fan Pass(es), as well as any Additional Services that may be agreed case by case;

“Term” means the term of the Agreement as provided for in clause 12 and the Package details in the Order which will include the Initial Term and any Renewal Terms;

“User Interface” means the Customer’s own shop front, ecommerce facility, or other End User facing channel or interface, including as enabled through External Service Providers and other third parties;

“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 Customer in relation to the Platform and the Services.

2.2. Subject to acceptance of the relevant Order by CIRKAY, and receipt of the Fees in accordance with the relevant payment terms, CIRKAY will provide the Services in accordance with the Order and Package details.

2.3. To the extent necessary to provide the Services, CIRKAY grants to the Customer a non-exclusive, non-transferable, royalty free right to use the Platform, in accordance with the permissions, restrictions and other details set out on the Platform, solely for the Customer’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 Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

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 Customer Systems or services contrary to the terms of the Agreement; by the Customer Materials, Customer System, Customer Dependencies; by External Service Providers and/or User Interfaces outside of the control of CIRKAY; or by other Customer breach of the Agreement.

2.6. Customer acknowledges that it is solely responsible for its own contracts, terms and conditions and privacy notices with its own End Users or other users and/or customers to whom it may market, distribute or make available Fan Pass(es) and provide access to the associated Benefits (“End User T&C”), and that it is solely responsible for defining and drafting within those End User T&C its licenses, rights structure, disclaimers and/or other terms to attach to the Fan Pass(es), which will define the usage rights and access rights for the user of the Fan Pass in relation to the relevant Benefits, assets or rights made available via the Fan Pass. To the extent CIRKAY provides any template or draft End User T&C as part of the Platform service, the Customer acknowledges that these are merely samples which the Customer may choose to use at its own risk.

2.7. Customer acknowledges that CIRKAY may facilitate elements of the Service by enabling Customer to integrate with various External Service Providers and that accordingly, as a separate ‘end user’ of such services, Customer 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.

2.8. 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 Customer agrees it will take its own advice and be solely responsible (to the exclusion of CIRKAY) in relation to all such matters.

3. ADDITIONAL SERVICES

3.1. Subject to further agreement to provide any Additional Services as may be specified in writing case by case, and receipt of the Fees in accordance with the relevant payment terms, CIRKAY will provide any Additional Services.

3.2. The Additional Services will be provided in accordance with the details set out in writing, which will include details of, including but not limited to, specifications, timetables, acceptance criteria, acceptance testing and other details and requirements of the deliverables for the Additional Services.

4. CIRKAY’S OBLIGATIONS AND WARRANTIES

4.1. 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.

4.2. 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.

4.3. In any event, CIRKAY:

(a) does not warrant that the Customer’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 Customer 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 Customer’s specific requirements or produce any specific business benefits, nor create any revenue or other benefits.

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.

5. CUSTOMER’S OBLIGATIONS AND WARRANTIES

5.1. The Customer 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 Customer’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 7);

(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 Customer Materials, Benefits 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 Customer Materials and Benefits and their input and use within the Platform, and shall ensure that it is clearly identified as the “Provider” of the Fan Pass on all relevant access / claim points in the end user journey;

(g) have sole responsibility for the End User T&C, which must include, without limitation, a disclaimer of liability in relation to the Customer Materials and Benefits on behalf of CIRKAY, and provisions relating to conditions on use of the Platform, and protection for the Platform IP, in favour of CIRKAY;

(h) 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;

(i) be responsible for all activities that occur under the Customer’s account, and for any access to or use of the Platform including submission of Customer 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 Customer;

(j) 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;

(k) 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 Customer shall be responsible for any Employee User’s breach of this Agreement.

5.2. The Customer 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.

5.3. The Customer 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 Customer 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 Customer 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.

6. DATA PROTECTION

6.1. All user data relating to the users (including End Users) of the Fan Passes will belong to and reside at all times with Customer and/or its User Interface supplier. CIRKAY will only ever have anonymous data and user IDs – for more information see the FAQs on the Platform.

6.2. In connection with its supply of the Services, CIRKAY may be required to process personal data on behalf of the Customer. In such circumstances the parties will each comply with the terms and conditions of Schedule 1 – the Data Processing Schedule.

7. FEES

7.1. The non-refundable Fees to be paid by the Customer to CIRKAY for providing the Services are those stated in the Order details for the Package, and /or any Additional Services specification.

7.2. The Fees may be changed by agreement during the Term in the event that the Customer wishes to change the type or level of Services provided.

7.3. Any recurring Fees will be increased on each annual renewal in accordance with the then current CPI percentage.

7.4. 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 Customer’s expense.

7.5. 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.

7.6. 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 Customer’s access to the Platform and/or Services.

8. INTELLECTUAL PROPERTY RIGHTS

8.1. Subject to clause 8.2, the Customer 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 Customer any rights in respect of the Platform, Services and/or Platform Data or any related documentation.

8.2. CIRKAY acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer 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 Customer throughout the world in perpetuity. The Customer grants CIRKAY the right to use the Customer Materials to fulfil the Services and otherwise in accordance with the terms and permissions of this Agreement. Except as stated in this Agreement the Customer does not grant CIRKAY any rights in respect of the Customer Materials.

9. CONFIDENTIALITY

9.1. 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.

9.2. 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.

9.3. 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.

9.4. CIRKAY acknowledges that the Customer Materials are the Confidential Information of the Customer.

9.5. The Customer acknowledges that details of this Agreement, Fees, Platform, Platform Data and the Services, are the Confidential Information of CIRKAY.

10. INDEMNITIES

10.1. CIRKAY will indemnify the Customer 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 Customer arising from any third party claims or actions as a result of or in connection with any breach by CIRKAY of clause 4.2 (b) or (c).

10.2. The Customer 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 Customer of clause 5.3 (b) or (c).

10.3. 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 9(Confidentiality).

10.4. 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.

11. LIMITATION OF LIABILITY

11.1. 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.

11.2. Subject to clause 11.1, 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.

11.3. Subject to clause 11.1, and save in relation to the indemnities under clauses 10.2 and 10.3, 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 Customer in the previous 12 months.

11.4. 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 Customer 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 Customer such part of any sums paid by the Customer which relate to the unexpired portion of the Agreement.

12. TERM AND TERMINATION

12.1. This Agreement shall, commence on the Effective Date and shall continue for the Term unless terminated as provided herein.

12.2. The Order and/or Package will set out the Initial Term and relevant renewal provisions.

12.3. Either party (the “Terminating Party”) may terminate this Agreement and/or in relation to an Order 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 Order , 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.

12.4. CIRKAY may terminate this Agreement by giving not less than 7 days’ written notice to the Customer if the Customer fails to make any overdue payment to CIRKAY within 30 days of the Customer receiving a written notice from CIRKAY demanding such overdue payments.

12.5. On termination of this Agreement for any reason:

(a) all permissions licences granted under this Agreement shall immediately terminate;

(b) the Customer 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 Customer 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 Customer of the then most recent back-up of the Customer Materials. CIRKAY shall use reasonable commercial endeavours to deliver the back-up to the Customer within 90 days of its receipt of such a written request, provided that the Customer 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 Customer shall pay all reasonable expenses incurred by CIRKAY in returning or disposing of Customer 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), 8 (IP), 9(Confidentiality), 10 (Indemnities), 11(Liability), 12 (Termination), 13-24 (various) shall survive and continue to apply will continue to apply notwithstanding the expiration or termination of this Agreement.

13. FORCE MAJEURE

13.1. 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.

13.2. A party suffering a Force Majeure Event and seeking to rely on clause 13.1 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.

13.3. 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 Customer will remain liable for any unpaid Fees.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. PUBLICITY

20.1. 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.

20.2. CIRKAY may use the name of the Customer as a factual reference to the fact that the Customer is or was a customer of CIRKAY, on its website and in pitch materials, without the prior written consent of the Customer, although any use of the Customer’s logo shall be subject to any brand guidelines issued by the Customer.

21. NOTICES

21.1. 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.

21.2. 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.

22. ENTIRE AGREEMENT

22.1. 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 Customer.

22.2. 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.

23. NON-SOLICITATION

The Customer 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.

24. 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.