Terms of Service

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• The Partner must use and put in place an End User Licence Agreement, Terms of Use and Privacy Policy and provide such to M14 Industries prior to the Live Date.

• The Partner shall not put in place or use or make changes to the End User Licence Agreement, Terms of Use or Privacy Policy without the prior written consent of M14 Industries.

• The Partner acknowledges that many terms of the End User Licence Agreement, Terms of Use or Privacy Policy are relevant to M14 Industries and its interests.

• The Partner shall ensure that any materials it provides for or uploads to the Application or Website are in compliance with the End User Licence Agreement, Terms of Use and Privacy Policy and is at least not content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of or likely to be in breach of any third party Intellectual Property Rights.

• The Partner acknowledges that M14 Industries has no control over any content placed, submitted, transmitted or created on the Website or the Application by an End User or other user of the Website or Application and that M14 Industries does not and has no obligation to monitor the content of the Website or the Application, including users’ private inboxes.

• M14 Industries reserves the right to remove any content from the Website or Application where, in its opinion, it considers such content is or is likely to be content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights.

• The Partner shall indemnify and shall keep indemnified M14 Industries against all damages, liabilities, losses, costs and expenses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) as a result of any action or claim made against M14 Industries as a result of or in connection with:

  • Any content provided, upload or submitted by or on behalf of the Partner to the Application or the Website; and
  • Any content placed, submitted, transmitted or created on or through the Website or the Application by an End User or other user of the Website or Application.

• The Partner acknowledges and agrees that the enclosed End User Licence Agreement, Terms of Use and Privacy Policy have been provided by M14 Industries to the Partner as an example of terms that it may wish to use in its dealings with End Users.

• The Partner further acknowledges and agrees that M14 Industries does not warrant the fitness for purpose of the enclosed End User Licence Agreement, Terms of Use or Privacy Policy and that the Partner must take its own professional advice as to the adequacy of and the use of such terms provided.

• M14 Industries shall not be liable for any reliance the Partner places upon the use of the enclosed End User Licence Agreement, Terms of Use or Privacy Policy and nor shall M14 Industries be liable for any damages, liabilities, losses, costs and expenses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred by the Partner as a result of or in connection with the use of the enclosed End User Licence Agreement, Terms of Use or Privacy Policy or such terms as incorporated by the Partner.

• The Partner acknowledges and agrees that M14 Industries is not under any obligation to and shall not update or provide updated versions or provide any advice in relation to the enclosed End User Licence Agreement, Terms of Use and Privacy Policy.

Confidentiality and Publicity

• Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under this agreement (“Permitted Purposes”).

In relation to the Partner’s Confidential Information:

• M14 Industries shall treat as confidential all Confidential Information of the Partner supplied under this agreement. M14 Industries shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees, third parties or sub-contractors who need to know it for the Permitted Purposes and, where required to do so, an App Store. M14 Industries shall ensure that its employees are aware of, and comply with, this clause 12; and

• M14 Industries may provide any subcontractor authorised under clause 17 with such of the Partner’s Confidential Information as it needs to know for the Permitted Purposes.

In relation to M14 Industries’ Confidential Information:

• The Partner shall treat as confidential all Confidential Information of M14 Industries contained or embodied in the Application, Services and Documents, or otherwise supplied to the Partner during the performance of this agreement;

• The Partner shall not, without the prior written consent of M14 Industries, divulge any part of M14 Industries’ Confidential Information to any person except its own employees who need to know it for the Permitted Purposes; and

• The Partner undertakes to ensure that its employees are made aware, before the disclosure of any part of M14 Industries’ Confidential Information, that the same is confidential and that they owe a duty of confidence to M14 Industries in terms similar to clause 12.3(a) which the Partner shall ensure is adhered to.

The restrictions imposed by clauses 12.1, 12.2 and 12.3 shall not apply to the disclosure of any Confidential Information which:

• Is now in, or subsequently comes into, the public domain otherwise than as a result of a breach of this clause 12;

• Before any negotiations or discussions leading to this agreement was already known by the receiving party and was obtained or acquired in circumstances under which the receiving party was not bound by any form of confidentiality obligation; or

• Is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).

• If legally permitted to do so, each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.

• No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

• This clause 12 shall remain in full force and effect, despite any termination of the Licence or this agreement.

Definitions:

• The terms “data controller”, “data processor”, “personal data”, “data subject” and “processing” bear the respective meanings given them in the Data Protection Act 1998, and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act.
• “Data” includes personal data and the data inputted into the information fields of the Application by the End Users.
• “Data Protection Laws” means all applicable data protection law and regulations in any jurisdiction.

M14 Industries acknowledges that it will be the data controller of the Data.

M14 Industries obligations:

• Only carry out processing of any Data in accordance with the Data Protection Act 1998.
• Implement appropriate technical and organisational measures to protect any Data against unauthorised or unlawful processing and accidental loss or damage.

Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise) in, any Intellectual Property Rights in any Data.

Partner obligations: If the Partner is transferred or granted access to any Data by M14 Industries and the Partner is acting as a data processor the Partner shall:

• Only act upon the instructions of M14 Industries from time to time when processing the Data and promptly comply with any request from M14 Industries requiring it to amend, transfer or delete the Data.
• Act in accordance with the Data Protection Laws, laws, enactments, regulations, orders, standards and other similar instruments.
• Keep and maintain an accurate record of any processing of Data it carries out and notify M14 Industries of any unauthorised process, loss of, damage or corruption or destruction of Data.
• At the request of M14 Industries provide M14 Industries with a copy of all Data held by it in the format and on the media specified by M14 Industries.
• Implement appropriate technical and organisational measures to protect any Data against unauthorised or unlawful processing and accidental loss or damage.
• Not transfer or permit any Data to countries outside of the European Economic Area.
• Only contact End Users or allow third parties to contact End Users upon prior written consent from M14 Industries.
• Not disclose Data to any data subject or third party other than at the request of M14 Industries or as provided or in this agreement.
• Only process the Data in accordance with this agreement, the Privacy Policy and the End User Licence Agreement.
• Ensure that access to the Data is limited to those employees who need access to the Data to meet the obligations of the Partner under this agreement and who are informed of the confidential nature of the Data, have undertaken and successfully completed any training in the Data Protection Laws related to handling personal data and are aware of the Partners obligations under Data Protection Laws and this agreement.

The Partner shall notify M14 Industries within 3 Business Days of it receiving a request from a data subject for access to that person’s Data.

The Partner shall provide M14 Industries with full co-operation and assistance in relation to any request made by a data subject to have access to that person’s Data.

Upon termination of this agreement, the Data shall be transferred to the Partner and the Partner shall own such rights, title and interest in the Data that M14 Industries may transfer.

The Partner shall indemnify and keep indemnified M14 Industries against all damages, liabilities, losses, costs and expenses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) as a result of any action or claim made against M14 Industries due to any failure by the Partner or its employees, third parties, contractors or agents to comply with any of its obligations under this clause 13 or following or as a result of any transfer of the Data to the Partner upon termination of this agreement or in accordance with clause 13.8.

Warranties

M14 Industries warranties:

• M14 Industries’ Standard Software is proprietary to M14 Industries and that it has the right to license all Intellectual Property Rights in and to the M14 Industries’ Standard Software for the purposes of this agreement.
• It will perform the Services using reasonable care and skill.

The sole remedies for breach of the warranty in clause 14.1(a) is set out in clause 15.3.

The warranties given by M14 Industries in this agreement do not apply to the extent that any failure to perform its obligation or any failure of the Application, Services is caused by the Partner, End Users, the Partner Materials or an event of force majeure in accordance with clause 19.

The warranties set out in clause 14.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Except as expressly provided by this agreement M14 Industries excludes all conditions, warranties and terms and undertakings express or implied statutory or otherwise in respect of the Application and the Services and shall not be liable for any loss of profit, goodwill or any type of special, indirect or consequential loss even if such loss was reasonably foreseeable or the Partner had been advised of the possibility of incurring the same.

Any Third Party Software or Open-Source Software provided by M14 Industries may be used according to the terms and conditions of the specific licence under which the relevant Third Party Software or Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 14.3.

Partner warranties: The Partner:

• Warrants and represents to M14 Industries that it will at all times comply with all applicable laws and regulations with respect to its activities under this agreement and any part of the Services or Application.
• Warrants and represents that it is and will remain the sole and exclusive originator of the Partner Materials.
• Warrants and represents that the Partner Materials or anything requested in the Specification or otherwise will not contain any matter which is injurious to M14 Industries or any other person or which is scandalous, libellous, obscene or otherwise in a manner unlawful.
• Warrants and represents that there is no litigation, proceeding or claim pending or threatened against the Partner or any other party relating to the Partner Materials.
• Warrants and represents that any information or data it provides shall be accurate and complete and provided in a timely manner.
• Shall not access, store, distribute or transmit or cause, suffer or allow to be accessed, stored, distributed or transmitted any Virus.
• Shall indemnify M14 Industries against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by M14 Industries arising out of any non-compliance by the Partner with clauses 14.6(a) to (f)).

Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign.

Intellectual Property Rights Indemnity

Subject to the application of clauses 15.2 and 16, M14 Industries shall indemnify the Partner against all liabilities, costs, expenses, damages and losses, including:

• Any direct, indirect or consequential losses
• Loss of profit
• Loss of reputation
• All interest, penalties
• Legal and other reasonable professional costs and expenses

These are suffered or incurred by the Partner arising out of or in connection with any claim made against the Partner for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use of the M14 Industries’ Standard Software.

Provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Partner which may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Partner:

• As soon as reasonably practicable, gives written notice of the Claim to M14 Industries, specifying the nature of the Claim in reasonable detail.
• Does not make any admission of liability, agreement, or compromise in relation to the Claim without the prior written consent of M14 Industries.
• Gives M14 Industries and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents, and records within the power or control of the Partner, so as to enable M14 Industries and its professional advisers to examine them and to take copies (at M14 Industries’ expense) for the purpose of assessing the Claim.
• Shall take such action as M14 Industries may reasonably request to avoid, dispute, compromise, or defend the Claim.

Exclusions from M14 Industries Liability

M14 Industries shall have no liability for any claim of infringement of Intellectual Property Rights:

• Caused or contributed to by the Partner’s or End Users’ or the Partner’s employees, third parties or contractors use of the Application.
• Based on the use of any release or version of any part of the Application other than the latest release or version supplied or made available by M14 Industries, if such claim could have been avoided by the use of such supplied release or version.
• Where the claim for infringement arises in respect of a feature of the Application that was specified by the Partner or in relation to the use of the Partner Materials in accordance with this agreement.

M14 Industries Remedies

If the use of the Application or receipt of the benefit of the Services becomes, or in the opinion of M14 Industries is likely to become, the subject of any such Claim, M14 Industries may at its sole discretion and expense and in any combination and using reasonable endeavors:

• Replace all or part of the Application so that it ceases to infringe.
• Modify the Application or any part of it so that it ceases to be infringing.
• Procure for the Partner a right to continue using, developing, modifying, or maintaining the Application (or any part of it) in accordance with the purposes of this agreement.
• Terminate this agreement or any part of it immediately on notice to the Partner.

Exceptions and Limitations

• Notwithstanding any other provision in this agreement, clause 15.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification, or maintenance of any Open-Source Software or through the breach of any Third-Party Licence by or requested by the Partner.

• If a payment due from M14 Industries under this clause 15 is subject to tax (whether by way of direct assessment or withholding at its source), the Partner shall be entitled to receive from M14 Industries such amounts as shall ensure that the net receipt, after tax, to the Partner in respect of the payment is the same as it would have been were the payment not subject to tax.

• Nothing in this clause 15 shall restrict or limit the Partner’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

Partner’s Indemnity to M14 Industries

The Partner shall indemnify and keep indemnified M14 Industries against all damages, liabilities, losses, costs, and expenses, including:

• Any direct, indirect or consequential losses
• Loss of profit
• Loss of reputation
• All other reasonable professional costs and expenses

These are a result of any action or claim made against M14 Industries for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with any use of the Partner Materials.

Limitation of Liability

• Neither party excludes or limits liability to the other party for:

  • Fraud or fraudulent misrepresentation,
  • Death or personal injury caused by negligence,
  • A breach of any terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982,
  • Any matter for which it would be unlawful for the parties to exclude liability.

• M14 Industries shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

  • Any loss (whether direct or indirect) of profits or anticipated profits, business, business opportunities, revenue, turnover, reputation or goodwill;
  • Any loss or corruption (whether direct or indirect) of data or information;
  • Loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
  • Any loss or liability (whether direct or indirect) under or in relation to any other contract.

• Subject to clauses 16.1 and 16.2, M14 Industries’ total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to the Price paid by the Partner to M14 Industries during the 12 month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period.

Assignment and Subcontracting

• The Partner shall not assign, transfer, mortgage, charge, subcontract, licence, sub-licence, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of M14 Industries.

• Each party confirms it is acting on its own behalf and not for the benefit of any other person.

• The parties hereby acknowledge and agree and the Partner consents to M14 Industries’ use and engagement of any App Store or any third party Hosting Service provider or gateway service provider to provide the Services without the need to obtain prior written consent from the Partner. At M14 Industries sole discretion, M14 Industries may change any third party provider or amend the terms of engagement with any App Store without requiring consent from the Partner.

Termination and Duration

• This agreement shall commence on the Commencement Date and shall continue unless terminated earlier in accordance with clause 18.2 or otherwise.

• Either party may terminate this agreement by giving the other not less than 30 days notice to terminate expiring no earlier than 6 months after the Live Date.

(Several conditions under which termination can occur have been listed, from “The other party fails to pay…” to “…warranty given in clause 14 is found to be untrue or misleading.”)

• The parties acknowledge and agree that any breach of clauses 3.4, 6, 9, 10, 12, and 13 shall constitute a material breach of a term for the purposes of this clause.

• Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement, including clauses 1, 6, 8, 9, 12, 13, 15, 16, 17, 20, and 21 shall remain in full force and effect.

• Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

(Several more detailed conditions and expectations upon termination are listed, from “Notwithstanding its obligations…” to “…the Licence shall also terminate.”)

Force majeure

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.

Notices

Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

• Delivered by hand or by pre-paid first-class post or other next Business Days delivery service at its registered office (if a company) or its principal place of business (in any other case) or such other address as notified to either party in writing from time to time; or
• Sent by email to the address specified by either party from time to time.

Any notice shall be deemed to have been received:

• If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
• If sent by pre-paid first-class post or other next Business Days delivery service, at 10.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
• If sent by email, at 10.00 a.m. on the next Business Day after transmission.

This clause 20 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

General

• No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
• Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
• This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
• Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
• Subject to clauses 6.9 and 17.3, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 21.6 shall not affect the validity and enforceability of the rest of this agreement.
• If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
• A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
• The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement.
• Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
• Each party confirms it is acting on its own behalf and not for the benefit of any other person.
• This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
• The parties irrevocably agree that the courts of England and Wales shall 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).

Schedule 1 Specification

For the specification, see m14.industries/specification.