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PLAYER XP SERVICE AGREEMENT – Updated 13 July 2020
The Customer wishes to use Hertzian’s Services in its business.
Hertzian has agreed to provide and the Customer has agreed to take and pay for the Hertzian Services subject to the terms and conditions of this Agreement.
Hertzian Ltd incorporated and registered in England and Wales with company number 09753777 whose registered office is at Health & Wellbeing Innovation Centre, Truro, Cornwall, TR1 3FF , “Hertzian”.
BY USING THE SERVICE, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND AS A CONDITION TO CUSTOMER’S USE OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS PLAYER XP SERVICE AGREMEENT (“AGREEMENTS”). THE PERSON WHO ENTERS INTO THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THIS AGREEMENTS. THIS AGREEMENTS CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END USERS WHETHER IN CONNECTION WITH A ORDER OR SUBSCRIPTION PERIOD TO THE SERVICES.
YOUR USE OF THE PLAYER XP (TOGETHER WITH ITS AFFILIATES, “PLAYER XP REPORTS”, “HERTZIAN API” OR “US”/ “WE”/ “OUR”) WEBSITES (THE “SITES”), MOBILE APPLICATIONS AND ANY SERVICES OFFERED BY HERTZIAN’S NETWORK OF PROPERTIES (COLLECTIVELY WITH THE FOREGOING, THE “SERVICES”) IS SUBJECT TO YOU AGREEING TO THESE TERMS AND CONDITIONS (THESE “AGREEMENTS”). IF YOU DO NOT AGREE TO THESE AGREEMENTS, THEN YOU MAY NOT USE THE SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Hertzian and Customer agree as follows:
The Customer agrees to ensure that any third party on whose behalf the Customer accesses or use any Hertzian Services for any business purpose is bound by the Agreements, and any applicable supplemental terms, and you represent and warrant that you have the authority to bind that third party to such terms.
The definitions and rules of interpretation in this clause apply in this agreement.
This Agreement sets out the terms of the contract between the Customer and Hertzian and the Services Hertzian provides, including any Third Party Services, Data Sources that Customer accesses related to the Services.
The Order shall be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order. An Order may also be executed electronically. Signatures sent by electronic means (facsimile or scanned and sent via email, or signed by electronic signature service where legally permitted) shall be deemed original signatures.
Hertzian shall make the Services available to Customer in accordance with the Order during the Term and hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to remotely access and use the Service solely for Customer’s own internal business purposes as permitted by and subject to the Agreements and the supplementary terms. If Customer is a Consultant Agency, Customer may use the Services to provide services to its designated customers as third party Users, subject to the restrictions herein and in accordance with the Order, and, if available, permit its customers to use Hertzian Services. Any charges from Third Party Services, shall be the responsibility of the Customer or its clients. If a Subscription Period is designated in the Order, the Subscription Period will automatically renew on the last day of each Subscription Period. The Subscription Renewal will be for the amount of time of the initial Subscription Period. When a Trial Period expires this will automatically convert to a 12-month paid Subscription Period as costed in the Order, unless cancelled before the before the Trial Period ends. The Customer can cancel Subscription Renewals within 30 days of expiry by emailing Hertzian manager as set out in the Order. If the Customer does not cancel within 30 days of expiry the Term, there will be an automatic Subscription Renewal.
Third Party Services: An Order may contain obligations in respect of Services and Third-Party Services. Where an Order specifies Services and Third-Party Services, the obligation: (i) to provide Services creates a contract between Hertzian (as principal) and Customer in respect of such Services (and that contract is this Agreement); and (ii) to provide Third-Party Services is a contract between the third party (as principal) and Customer (to provide Third-Party Services to Customer on the terms that are in place between Customer and the third party). Hertzian is only responsible for its own Services and not any Third-Party Services. Where applicable upon Customer requests, various Third-Party Services and Data Sources will be included as part of the Services. Hertzian assumes no responsibility for the correctness, completeness or quality of the provided data or source. Liability claims against Hertzian based on these Data Sources, losses of a tangible or intellectual nature caused by your use or the failure to use the provided information, or the use of incorrect and incomplete information are categorically excluded. All Third-Party Services and Data Sources are subject to change without notice. Hertzian expressly reserves the right to change, supplement, or delete parts of the Third Party Services and Data Sources as it might find necessarily pursuant to its Services to the Customer.
Updates: We may need to update these Agreements from time to time, including to accurately reflect the access or uses of our Services for business purposes, and so we encourage you to check them regularly for any updates. You agree by continuing any access or use of any Hertzian Services for business purposes after any notice of an update to these Agreements, you agree to be bound by them. Any updates to the Disputes section of this Agreement will apply only to disputes that arise after notice of the update takes place. If you do not agree to the updated Agreements, please stop all access or use of our Services for business purposes.
You are responsible for your conduct. Content in the Services may be protected by others’ intellectual property rights. Please don’t copy, upload, download or share content unless you have the right to do so. You must not use the Services to harm others or the Service. You expressly agree by using the Services you will comply with our Acceptable Use Policy. You agree not to use the Services provided or through the Services, for any purposes that is unlawful or prohibited by these Agreements, Applicable laws or the rules, guidelines or Documentation of use posted for a specific area of the Services on or through the Services.
User protection: Customer shall designate one of its employees to be the point of contact with Hertzian for the management and support of the Services, and who will be responsible for establishing and managing Customer’s use of the Service, including the creation of usernames and passwords to access Customer’s account. Customer is solely responsible for maintaining the status of its User base. Customer will safeguard all user authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under its account, including without limitation unauthorised access. Customer will not: (a) knowingly display, distribute, or otherwise make Data Sources available to any person or entity that it reasonably believes may use Data Sources in a manner that would have the potential to be inconsistent with that individual’s reasonable expectations of privacy; (b) conduct any research or analysis that isolates a small group of individuals or any single individual for unlawful or discriminatory purposes; (c) use Data Sources to target, segment, or profile any individual based on health, negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by Applicable Law; or (d) without Hertzian’s prior written consent, but subject to Applicable Law, display, distribute, or otherwise make Data Sources available to any member of the US intelligence community or any other government or public-sector entity. Each party is responsible for using reasonable efforts to ensure that any User IDs and passwords required for Users to use Services are kept safe and confidential. Subject to Applicable Law, each party will promptly notify the other party upon discovery if the security of a User ID or password may be or is compromised.
Customer will not: (a) sell, resell, license, sublicense, distribute, or otherwise make the Services (or the results of the Services, including Data Sources) available to anybody other than its Users for their own internal use, unless stated otherwise on an Order; (b) subject to Applicable Law, attempt to reverse-compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form any part of the Services; (c) use the Services or any Data Sources to violate Applicable Law, rules, regulations and including Applicable Law about data protection, privacy, or information security; or (d) purposefully interfere with or disrupt the performance of the Services, including spamming, hacking, and violating Hertzian’s API rate limits or terms set forth in the Agreements. Customer further represent that you will restrict access to your use of Services in accordance with all applicable laws, rules and regulations.
Customer will pay the fees for the Services set out in an Order. The fees for the Services are exclusive of legally applicable taxes, levies, duties, or similar governmental assessments, including goods and services, value- added, withholding, and sales taxes. Customer will provide Hertzian with the information it reasonably requires sending an invoice. All fees are invoiced monthly in advance, unless stated otherwise on an Order. The Customer shall pay each invoice within 15 days after the date of such invoice. Hertzian shall be entitled to increase the fees, the fees payable in respect of the Services set out in an Order purchased upon 60 days' prior notice to the Customer. The Services are non-cancellable, and all fees are non-refundable. Customer shall have no right to withhold or reduce fees under the Agreement or set off any amount against fees owed for alleged defects in the Service.
Customer will authorise the use of Credit or Debit Card that you enter when creating a billing account. Customer authorises us to charge you for the Service using the Credit or Debit card and for any paid for Services that you chose to sign up for or use while these Agreements are in force. We may bill (a) in advance; (b) at the time of purchase; (c) shortly after the purchase; or (d) on a recurring basis for Subscription Period and Services. Also, we may charge you up the amount you’ve approved, and we’ll notify in advance of a difference for recurring Subscription Period, Term and Services. We may bill you simultaneously for more than one of your prior billing periods. We may automatically renew your Service and Subscription Period and charge you for any Subscription Renewals. All paid accounts are due the date the invoice is posted on your account. Except as specifically set forth in this section, all Services are prepaid for the period agreed (monthly, yearly or otherwise) and are non- refundable. This includes Services and Subscription Periods that are renewed
You must keep all information in your billing account current. You can access and modify your billing account information using the Site. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Services, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
When Trial Period expires, you expressly authorise us to charge you, where applicable (a) Fees, to be billed during a Subscription Period (b) other fees for Services purchased, including but not limited to, (c) charges for use of the Services, Subscription Periods and Subscription Renewals in excess of an Order and taxes connected with your use of the Services.
Orders and Third Party Services: Customer will pay: (a) Hertzian the fees for the Services and any Third Party Services set out on an Order which Hertzian sends to Customer (for Third Party Services, Hertzian collects the fees for Third Party Services on the third party’s behalf); and (b) the fees for the Services set out on an Order that a third party sends to Customer, and in such case, the third party collects the amounts due to Hertzian on Hertzian’s behalf.
Change Request: If the Customer wishes to change its duly executed and signed Order of Services, the Customer shall notify the Hertzian in writing. Hertzian shall evaluate such request and respond to the Customer with approval or disapproval of the request subject to a signed Change Request. If Hertzian approves the Customer’s request to change its Order, the Customer shall, within 15 days of the date of the Hertzian invoice, pay to the Hertzian the relevant fees for such additional Services as set out in the applicable Change Request.
Late fees: Without prejudice to any other rights and remedies and except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorney’s fees and other legal fees and costs. We may suspecnt or cancel your Services if oyu fail to pay in full on time.
Currency: All amounts and Fees set out in an Order shall be payable in Great British Pounds Sterling unless stated otherwise on an Order and are, subject to Section Fees and Payment, non-cancellable and non- refundable;
Intellectual property rights: The Customer acknowledges that Hertzian or its licensors owns all intellectual property rights in the Services and the Data Sources, including any queries that Hertzian generates or writes as part of the Services. Other than as set out elsewhere in this Agreement, Hertzian does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services. Customer is not granted any rights to Hertzian’s intellectual property rights.
Reports: Customer owns a non-exclusive, non-transferable, limited licence to any Report; provided that the rights to any Data Sources in a Report are granted to Customer under a worldwide, non-exclusive, non-transferable, licence to use the Data Sources and the Report in accordance with this Agreement and Applicable Law.
Customer Data: Customer grants to Hertzian a non-exclusive, worldwide, royalty-free licence to process Customer Data for the purposes of providing the Services.
User feedback: Hertzian may, and Customer grants Hertzian the right to, irrevocably reproduce, distribute, sell, incorporate into the Services, or otherwise exploit any suggestion, enhancement request, recommendation, correction, or other feedback (“Feedback”) that Customer or its Users provide related to the use of the Services. Customer will obtain for Hertzian the rights in any Feedback that its Users provide in connection with the use of the Services.
Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends, which appear on the original. Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) the receiving party knew prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (c) a third party made available to the receiving party without breach of any obligation owed to the disclosing party; or (d) the receiving party independently developed.
Keep in confidence: The receiving party will keep the Confidential Information of the disclosing party confidential for the Term and for five years after the end of the Term, provided that if the Confidential Information contains a party’s trade secrets, then those trade secrets will remain confidential until they are no longer trade secrets. The receiving party will only use the disclosing party’s Confidential Information for performing its obligations under this Agreement or using the Services. Nothing in this Section prevents the receiving party from disclosing the disclosing party’s Confidential Information: (a) to its corporate affiliates, legal advisers, accountants, potential investors, or other professional advisers where required (collectively, “Permitted Recipients”), provided that the disclosing party remains responsible for its obligations and for the Permitted Recipients’ use and disclosure of the Confidential Information; or (b) if required to disclose it under Applicable Law, provided that the receiving party will inform the disclosing party of the disclosure requirement, if legally permitted, as soon as reasonably practicable.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. The Customer acknowledges that details of the Services, including but not limited to cost, data, insights, reports and usage, and the results of any performance tests of the Services, constitute Hertzian’s Confidential Information. Hertzian acknowledges that the Data Sources and Customer Data is Confidential Information. This Section Confidentiality shall survive termination of this agreement, however arising.
The indemnified party will give the indemnifying party prompt written notice of any Claim and sole control to defend or settle the Claim. The indemnified party will use its commercially reasonable efforts to mitigate its Losses.
If anyone brings a claim, cause of action or dispute against us, which is related to your services, actions, content or information on Hertzian Services or other Hertzian commercially available products or your use of any Hertzian products and Services, you agree to indemnify and hold us harmless from and against all damages, losses and expenses of any kind (including reasonable legal fees and costs) related to any such claim, cause of action or dispute. In no event shall Hertzian, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) modification of the Services under this Agreement (b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Hertzian; or the Customer's use of the Services after notice of the alleged or actual infringement from the Hertzian or any appropriate authority.
IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, DIRECT OR INDIRECT PROFITS, INVESTMENTS; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (I) THE PERFORMANCE OR NON- PERFORMANCE OF THE AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, OR (II) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THE AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT.
If the Order includes a free trial (“Trial Period”), then the following terms apply for the Trial Period: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL PERIOD THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND HERTZIAN SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE TRIAL PERIOD UNLESS ANY SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE HERTZIAN’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD SHALL NOT EXCEED £100.
Customer Decisions: The Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Hertzian shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Hertzian by the Customer in connection with the Services, or any actions taken by Hertzian at the Customer's direction; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreements; and (c) the Services are provided to the Customer on an "as is" basis.
Nothing in this Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Agreement even if that person has relied on any such term or has indicated to any party its assent to any such term.and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Customer will indemnify Hertzian’s Indemnitees against Losses arising out of a third-party Claim against Hertzian that Customer breached its obligations under these Agreements of the Customer or that the Customer Data, Third Party Services infringes the intellectual property rights of a third party.
Intellectual Property Claims. In the event a claim is made or in Hertzian’s reasonable opinion is likely to be made, Hertzian may, at its sole option and expense: (i) procure for Customer the right to continue using the Service under the terms of the Agreement; or (ii) replace or modify the Service to be non-infringing. If Hertzian provides written notice to Customer that the foregoing options are not reasonably available, Hertzian or Customer may terminate the Agreement and Hertzian shall refund to Customer all prepaid fees for the remainder of its Term after the date of termination.
Claims Brought Against Hertzian. Customer shall defend (at its sole expense) Hertzian and licensors against claims brought against Hertzian by any third party arising from or related to an allegation that the Customer Data or Data Sources used in connection with the Service violates, infringes or misappropriates the intellectual property rights of a third party. Customer will pay damages finally awarded against Hertzian with respect to such claims, and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer or by the conduct of a third party using Customer’s access credentials.
Conditions. The obligations under this Section are conditioned on (i) the Party against whom a third party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Section except to the extent such failure or delay prejudices the defense; (ii) the Party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (iii) the Party against whom a third party claim is brought reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Party against whom the claim is brought, provided however that Hertzian may settle any claim on a basis requiring Hertzian to substitute for the Service any alternative substantially equivalent non-infringing service. The Party against whom a third party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the Party obligated to defend claims hereunder. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
Third Party Indemnification Disclaimer. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF A PARTY TO THE OTHER PARTY, AND IS THE OTHER PARTY’S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Term: This Agreement begins when it is signed by the parties or agreed to via an Order, and shall continue for the Subscription Period designated in the Order, including any Subscription Renewals, or if no Subscription Period is designated in the Order, until terminated by one of the Parties. If a Subscription Period is designated in the Order, the Term will renew automatically on the last day of each Subscription Period and Subscription Renewal for an additional time period corresponding to the prior Subscription Period.
Termination of Use: Hertzian may, in its sole discretion, at any time discontinue providing or limited access to the Services, any areas of the Services or Data Sources provided on or thoughts the Sites and Services. You agree that Hertzian may, in its sole discretion, at any time terminate or limit your access to, or use of, the Services or Data Sources. Hertzian may terminate or limit your access to or use of the Services if Hertzian determines, in its sole discretion that you have infringed the copyrights or rights of a third party or Third Party Services. You agree that Hertzian shall not be liable to you or any third-party for any termination or limitation of your access to,or use of the Services or Data Sources including Customer Data you may have shared.
Mutual termination: A party may terminate this Agreement at any time on written notice to the other party if: (a) the other party is in material breach and, if remediable, the breach is not remedied within 30 days of being notified in writing of the breach; or (b) the other party begins insolvency proceedings, becomes the subject of a petition in liquidation, or any other proceeding relating to insolvency, liquidation, bankruptcy, or assignment for the benefit of creditors (including similar proceedings under Applicable Law); or (c) the other party makes an arrangement with its creditors related to concerns about insolvency (including similar proceedings under Applicable Law).
Effect of Termination: If these Agreements expire or is terminated for any reason (a) A party’s accrued rights and obligations are not impacted by termination of this Agreement. (b) Customer will pay to Hertzian any amounts that have accrued before, and that remain unpaid, as of the date of the termination or expiration, including those for the billing cycle which termination occurs. (c) All licences and use rights granted to the Customer under these Agreements shall immediately terminate. (d) Hertzian obligations to provide any further Services to Customer under this Agreements will immediately terminate and (e) Customers accrued liabilities, losses and claims shall immediately expire and terminate under these Agreements. (f) Customer shall delete, destroy and return and make no further use of any equipment, property, Data Source, Services and other items (and all copies of them) belonging to the other party. (g) any Order outstanding at the time of termination will remain outstanding until its completion, and Customer will remain liable for the full and complete payment due for those outstanding Orders.
The following provisions shall survive termination or expiration of the Agreement: (i) Section Interpretation; (ii) Section Services; (iii) Section Customer responsibilities; (iv) Section Copyright; (v) Section Fees and Payments; (vi) Section Proprietary rights; (vii) Section Confidentiality; (viii) Section Limitation of Liability; (ix) Section Third Parties; and (x) Section Term and Termination and (xi) Section General (xii) any other provision of the Agreement that must survive to fulfill its essential purpose.
The Parties shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Hertzian or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This Agreement is the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations about its subject matter. Each party agrees that in entering into this Agreement, neither party relies on, and will have no remedy in respect of, any proposal, understanding, agreement, or representation other than as set out in this Agreement.
Neither party may assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with this Agreement, or any right, benefit, or interest under it, nor transfer or novate (each an “Assignment”) without the other party’s prior written consent. Any Assignment without Hertzian’s prior written consent is void. Notwithstanding the previous sentence, either party may make an Assignment without the other party’s prior written consent (but with notice to the other party) to a successor pursuant to a merger, acquisition, Change of Control, or similar transaction.
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. We reserve all rights not expressly granted to you. You will not transfer any of your rights or obligations under this Agreement to anyone else without our consent.
Upon acceptance and payment of any Services or Order under this Agreement, Hertzian shall have the right to use the Customer name and logo on the customers list contained on its website. Upon Customer acceptance of the Services required by the applicable Order, Customer shall provide a testimonial relating to the Services provided for in such Order, and such testimonial may not be edited without Customer approval. Hertzian shall have the right to use such testimonial on its website.
Each party will deliver notices for legal service or material breach by a courier service or recorded delivery: for Hertzian, to its registered office address as set out above; for Customer, to its address as set out in an Order. Any notices for any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, Customer will send the notice to firstname.lastname@example.org with Customer’s account manager in cc, and Hertzian will send the notice to Customer to via an email address listed in any Order. Notice sent by recorded delivery is received three business days after posting; email notice is deemed received 24 hours after it is sent.
You may not post, modify, distribute, or reproduce in any way copyrighted or other proprietary materials without obtaining the prior written consent of the copyright owner of such materials.
Without limiting the foregoing, if you believe that your copyright or other rights have been infringed please provide our Designated Agent written notice with the following information:
Our Designated Agent for notice of claims of copyright infringement can be reached as follows:
Office of Data Protection Officer
Health and Wellbeing Innovation Centre
Truro, Cornwall, TR13FF
Attn: Christopher Weavill, DPO.
If the dispute materials were posted by a Third-Party Services or Customer identifiable through reasonable efforts, we will provide reasonable notice to the third party or Customer of the change. If the third party or Customer responds with a valid counter-notification, we will provide you with a copy so that you may take any other steps you may consider appropriate.
Hertzian and Player XP are unregistered trademarks of Hertzian and/or its affiliates. Other names appearing in the Services may be trademarks of their respective owners.
If there is a conflict of this Agreement: sections Entire Agreement, Limitation of Liability, and Third Parties of these Agreements prevail over an Order, an Order prevails over other sections of these terms and conditions, which in turn prevail over the Service Level Agreement. The English version of these terms and conditions prevails over any non-English version.
Hertzian shall be entitled to engage subcontractors for the provision of the Services without Customer’s prior consent, and shall be liable for all acts and omissions of subcontractors, as for its own acts and omissions. In respect of processing of personal data.
The parties will: (a) comply with all Applicable Law relating to anti-bribery or anti-corruption; (b) not engage in any act which, if it had occurred in the United Kingdom, the United States, the European Union, Singapore, or Australia would have violated Applicable Law relating to anti-bribery or anti-corruption; and (c) promptly report to the other party if it receives a request for undue advantage.
If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this section: (a) either party shall give to the other written notice of the Dispute, setting out its nature and full (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Chief Executive Officer of the Customer and Chief Operations Officer of Hertzian shall attempt in good faith to resolve the Dispute; And (b) if the Chief Executive Officer of the Customer and Chief Operations Officer of Hertzian are for any reason unable to resolve the Dispute within 15 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 15 days after the date of the ADR notice. No party may commence any court proceedings under Section GOVERNING LAW AND JURISDICTION in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 15 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause Section GOVERNING LAW AND JURISDICTION.
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Hertzian Ltd, Health and Wellbeing Innovation Centre, Treliske, Truro, TR13FF | 01872 248892 | Legal@hertzian.co.uk
Confidential © 2021 Hertzian Ltd.
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