This agreement is made between:
Client subscriptions are valid for a period of twelve (12) months, commencing on the date you complete the online subscription process (the “Initial Term”). Unless earlier terminated in accordance with clause 17 below, the Agreement shall automatically renew upon the expiration of the Initial Term for successive twelve (12) month terms ("Renewal Terms" and, collectively with the Initial Term, the "Term"), subject to any agreement by the parties to adjust the fee or to modify the subscription level.
2. Supply of Services
The Provider will:
2.1 provide a web based application to allow the Client to view the relevant information. The application will be designed to work with the current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Edge and Internet Explorer), Mozilla Firefox and Opera. The application will be developed for use on devices operating with a screen resolution (in pixels) of 1920x1080 (Large Desktop), 1400x900 (Laptop), 768x1024 (Tablet), and 320x568 (Smartphone);
2.2 use reasonable endeavours to maintain the availability and access to the application throughout the Term, but does not guarantee 100% availability. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of The Client's computer systems or networks;
(d) any breach by The Client of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.;
2.3 develop and periodically update The MeetingsBenchmark.
The Client will:
2.4 not give access to the web based application to any person within, or outside, their organisation unless they are a Permitted User;
2.5 not use or supply The Provider’s information in any format whatsoever [including electronic, hard copy or mobile devices] to any publisher or other user unless otherwise agreed by The Provider;
2.6 provide its own hardware, software and connectivity so as to be able to access The MeetingsBenchmark.
3. Provision of Data
3.1 The Client shall submit its "raw" booking data to The MeetingsBenchmark Ltd as agreed and outlined in the subscription form
3.2 The Provider is under no obligation to continue to grant access if data is not received as outlined in the subscription form, or the data provided is modified, without prior agreement. In this instance The Provider could withdraw access without recourse
3.3 The Client data submissions will be true, correct and complete, and The Provider will have no obligation to audit it.
The Provider hereby grants to The Client a non-transferable, non-exclusive licence to access and use The MeetingsBenchmark by means of a supported web browser in accordance with their agreed subscription level during the Term. For the avoidance of doubt the licence is only granted to Permitted Users and is limited to the Term of this agreement and subscription level. The Client may use The MeetingsBenchmark only for their internal business purposes.
5. No assignment of Intellectual Property Rights
Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Client, or from the Client to the Provider. The Provider retains ownership of all Intellectual Property Rights in the software and services it provides. The Client retains ownership of all Intellectual Property Rights in its systems and data. Specifically, the Provider retains ownership of the software code (including object code, intermediate code and source code) of the platform and The Client has no right to access the code either during or after the Term.
The Client shall pay the Charges to The Provider in accordance with their subscription level. Access to the web based platform will only be granted once the online subscription process, including making any payment due, has been completed by The Client. The Client may elect to vary their subscription level by giving to The Provider not less than thirty (30) days’ written notice of the variation, providing that no such variation shall result in a decrease in the relevant Charges during the Term.
7.1 The Client must pay the Charges by way of The Provider’s online payment process. The Provider warrants the payment process will be compliant with the Payment Card Industry Data Security Standards (PCI DSS).
7.2 If The Client does not pay any amount properly due to the Provider under this Agreement, The Provider may deny access to the application until the matter is resolved.
The Party’s respective “raw” booking data, aggregated data, reports, other aggregated and/or processed data, financial information and any other information provided by one Party to another under this Agreement constitutes the disclosing Party’s trade secrets, confidential and proprietary information that is non-public in nature and is of competitive value to other Party’s (“Confidential Information”)
The Provider will:
(a) keep confidential and not disclose the Client Confidential Information to any person save as expressly permitted by this Clause 8; and
(b) protect the Client Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
(c) not intentionally or knowingly use, quote or restate MeetingsBenchmark data or reports for the purpose of misleading third parties or damaging the reputation of The Client, and its services.
The Client will:
(a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause 8; and
(b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
(c) not intentionally or knowingly use, quote or restate MeetingsBenchmark data or reports for the purpose of misleading third parties or damaging the reputation of The Provider, and its services.
8.1 Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, agents, insurers and professional advisers who have a need to access the Confidential Information for the performance of their work, provided that the recipient is bound in writing or professional obligation to maintain the confidentiality of the Confidential Information disclosed.
8.2 The Client may disclose The Provider Confidential Information, in whole or in part, in external presentations, advertising or marketing materials, so long as the source is quoted. Any and all copies of any Report that is made, copied or reproduced must include the following notice “Source: The MeetingsBenchmark Limited” The Client will notify The Provider, in writing, of any violations to this provision within ten (10) days after it becomes aware of such violation.
8.3 The Provider reserves the right to use and reproduce aggregate portions of The Client’s “raw” data in its publications. However, neither the identity of The Client, nor the source of any information received, shall be revealed by The Provider to any other person except upon written consent from The Client.
8.4 Nothing in the Agreement shall restrict a party from making any disclosure of Confidential Information that is:
(a) required by law; or
(b) required by a governmental authority, stock exchange or regulatory body,
provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement.
8.5 The obligations set out in this Clause 8 shall not apply to:
(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence) ;
(b) Client Confidential Information that is in possession of the Provider prior to disclosure by the Client, and Provider Confidential Information that is in possession of the Client prior to disclosure by the Provider; or
(c) Client Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Client, from an independent third party who has a right to disclose the relevant Confidential Information
8.6 The provisions of this Clause 8 shall continue in force for a period of five (5) years following the termination of this Agreement, at the end of which period they will cease to have effect
The Client grants authority to The Provider to display its approved logo and company name on The Provider’s websites and use in corporate and marketing literature for promotional purposes for the term of this agreement, subject to their approval which will not be unreasonably withheld or delayed. The Provider grants authority to The Client to display its approved logo and company name on The Provider’s websites and use in corporate and marketing literature for promotional purposes for the term of this agreement, subject to their approval which will not be unreasonably withheld or delayed. Additionally, The Client agrees that The Provider may issue a press release identifying them as a Client of the MeetingsBenchmark Ltd subject to their approval which will not be unreasonably withheld or delayed.
10. Data Protection
10.1 The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
10.2 To the extent that the Provider processes Personal Data disclosed by the Client, the Provider warrants that:
(a) it will act only on instructions from the Client in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
(c) it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Customer.
11.1 The Client warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
11.2 The Provider warrants to the Client:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) that it will perform its obligations under this Agreement with reasonable care and skill;
(c) that the infrastructure on which the platform runs has been certified by national and international security standards (ISO9001:2008, ISO27001, and SSAE16 / ISAE 3402) and it will implement recommendations from the Open Web Application Security Project to protect data;
(d) that all data will be anonymised to remove any reference to a specific venue, agency or client and only aggregated data will be published;
(e) that all data will be housed in servers within the EU; and
(f) that the application when used by the Client in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person; or breach any laws or regulations; in each case under English law.
12. Acknowledgements and warranty limitations
12.1 The Client acknowledges that the application is designed to be compatible only with that software and those systems specified within this agreement; and the Provider does not warrant or represent that the application will be compatible with any other software or systems.
12.2 The Client acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
12.3 The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
12.4 The Client acknowledges that The Provider Reports are generated from subscribers “raw” data submissions and that The Provider uses its best efforts to insure the information contained in its Reports, including the aggregated data therein, is accurate and complete. Therefore, The Provider has no control over, and takes no responsibility, for the accuracy and validity of the “raw” booking data provided by subscribers and the aggregated results thereafter so EACH REPORT IS PROVIDED TO CLIENT “AS IS” WITHOUT WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR RESULT.
12.5 The Client acknowledges that The Provider does not purport to provide any legal advice under this Agreement or in relation to the application and the Provider does not warrant that the application will not give rise to any civil or criminal legal liability on the part of the Client or any other person.
On demand from The Provider, The Client will indemnify The Provider against all actions, claims or proceedings brought or threatened by your professional advisers, the owners or franchisees, if applicable, or any other party, and any liabilities, losses, damages, costs and expenses relating thereto arising from the provision to them by The Client of The Provider’s Reports, save where caused by our fraud. The Client also agrees to indemnify The Provider, on demand, against all liabilities, costs, claims, losses or expenses incurred by or made against The Provider as a result of any breach by The Client or any of their Permitted Users of the terms of this Agreement.
14. Limitations and exclusions of liability
14.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in the Agreement:
(a) are subject to Clause 14.1;
(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will limit and exclude the liability of the parties under the express indemnities set out the Agreement, and any amounts paid under any indemnity in the Agreement shall not count towards any aggregate liability cap under Clause 14.10.
14.3 Neither party shall be liable to the other party in respect of any loss of profits, income, revenue, use, production or anticipated savings.
14.4 Neither party shall be liable to the other party for any loss of business, contracts or commercial opportunities.
14.5 Neither party shall be liable to the other party for any loss of or damage to goodwill or reputation.
14.6 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
14.7 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
14.8 Neither party shall be liable to the other party for any losses arising out of a Force Majeure Event.
14.9 The liability of each party to the other party in relation to any event or series of related events will not exceed the greater of:
(a) £1,000,000; and
(b) the total amount paid and payable by the Client to the Provider under the Agreement during the twelve (12) month period immediately preceding the event or events giving rise to the claim.
14.10 The aggregate liability of each party to the other party under the Agreement and any collateral contracts will not exceed the greater of:
(a) £1,000,000; and
(b) the total amount paid and payable by the Client to the Provider under the Agreement.
The Client agrees that The Provider shall not be liable for damages, including consequential damages, resulting from the use of its Data and the Reports to the extent such damages arise from or are due to incorrect, inaccurate or invalid raw data. The Provider’s total liability under this Agreement for any reason and for any cause of action arising out of or relating to this Agreement shall be limited to 2 times the total of all payments made by The Client to The Provider during the twelve (12) months immediately preceding the date the cause of action first arose.
15. Force Majeure Event
Neither party shall be liable for any delay in or failure of performance under this Agreement caused by any contingency beyond its reasonable control (“a Force Majeure event”) provided that it gives prompt notice in writing of such Force Majeure event to the other party and, notwithstanding such Force Majeure event, uses all reasonable endeavours to continue to perform its obligations under this Agreement.
16.1 Either party may terminate this Agreement by giving to the other party at least thirty (30) days written notice of termination prior to the expiration of a Term. If no such notice is received, the Agreement will automatically renew for an additional Term, and The Client will be obligated to pay any corresponding Fee that may be due for the entire next Term.
16.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party:
(a) commits a material breach of this Agreement and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within thirty (30) days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach).
16.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (if that other party is an individual) that other party dies, or as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs, or that other party is the subject of a bankruptcy petition or order.
17. Effects of termination
17.1 Access to the online application will be denied immediately upon termination for all The Client Permitted Users. Any scheduled Reports, or any other electronic communications, will be terminated.
17.2 If The Client is providing data to the application through an automated process (i.e. API) this channel will be closed immediately upon termination. If The Client is uploading data to the application manually access to this facility will also be denied.
17.3 If the Agreement is terminated by either party under Clause 16.2, or under Clause 16.3 (but not in any other case) The Client will be entitled to a refund of any Charges paid to The Provider in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Developer (such amount to be calculated by The Provider using any reasonable methodology).
17.4 Save as provided in Clause 17.3, the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay any Charges due to the Provider.
17.5 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 7.2, 8 (a), (b) and (c), 8.6, 14, and 17
18.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by recorded signed for post, or sent by email, for the attention of the relevant person, and to the relevant address, or email address given below (or as notified by one party to the other in accordance with this Clause).
Mr J Quintrell, The MeetingsBenchmark Limited, St George's Court, Winnington Avenue, Northwich, Cheshire, CW8 4EE
The addressee, address, and email address set out in the Subscription Form.
18.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by recorded signed for post, 48 hours after posting; and
(c) where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
The Provider may subcontract any of its obligations under this Agreement to any third party, subject to The Client approval which may not be withheld unless subcontracting would result in an increase in charges, or reduction in services, during the current term.
Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time, subject to approval which may not be withheld unless assignment would adversely affect services or commercial arrangements during the current term. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in any contractual rights or obligations under the Agreement.
21. No waivers
No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
23. Third party rights
This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
25. Entire agreement
Subject to Clause 14.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
26. Law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the jurisdiction of the English courts for the settlement of all disputes or claims, which may arise out of or in connection with this Agreement. Each party irrevocably waives any objection which it might at any time have to the English courts being nominated as the forum to hear and decide any proceedings or dispute and agrees not to claim that the English courts are not a convenient or appropriate forum