TERMS OF SERVICE

Please read these terms of service (the “Terms of Service”) and Client’s (as defined below) respective Order Form (the “Order Form”, and together, the “Agreement”) carefully.  This Agreement is by and between the Client and Fevo Global Limited (“Fevo”) and governs Client’s access to and use of the Services (as defined below) and Fevo Properties (as defined below).  All references to “Client” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting, as described in the Order Form.Fevo Global Limited5 New Street Square, London, United Kingdom EC4A 3TW

1. SERVICES AND LICENCES.

1.1 Services.  Subject to these Terms of Service, Fevo will provide Client with (i) the ability to use and display Fevo’s group inventory purchasing platform (the “Fevo Platform”) on the Client Properties (set forth on the Order Form) solely in accordance with the rights granted in Section 1.3 below; and (ii) facilitate, manage and process the sale of tickets (“Tickets”) or other merchandise or inventory (together with the Tickets, the “Inventory”), by Client to its Customers for the Events (as defined in the Order Form) via the Client Properties (as defined in the Order Form) and the Fevo Website (defined below), or as otherwise mutually agreed by the parties from time to time (collectively, the “Services”) in the Territories (as defined in the Order Form) in its capacity as Client’s commercial agent (as appointed pursuant to Section 1.2).  Client agrees that Fevo shall be Client’s exclusive provider during the Term of services the same as or similar to the Services, including services relating to social or group sales of Inventory.  Client shall not appoint any other person to provide services the same as or similar to the Services during the Term.  Nothing herein shall limit Fevo’s ability to provide services similar to the Services to any other person.

1.2 Nature of Appointment.  Client hereby appoints Fevo as Client’s commercial agent in relation to the sale of Client’s Inventory on the Fevo Platform.  FEVO and Client shall work together to identify and incorporate the appropriate party’s terms of sale into the Customer purchase process via the Fevo Platform to reflect such determination and arrangement.

1.3 Client Content; Feedback.

(a) Client hereby grants Fevo and its Affiliates (as defined in Section 8.3 below) a non-exclusive, transferable, sublicensable, fully paid-up and royalty-free right and licence to access, copy, perform, modify, display, process and otherwise use the content, information and materials originated by Client that Client submits or provides in connection with the Services (the “Client Content”) solely for the purpose of performing the Services, including to incorporate Client’s Inventory and Event information and branding elements as part of the Services.  Client shall reasonably cooperate with Fevo to provide any Client Content necessary for Fevo’s performance of the Services.  Client agrees that it shall bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of the Client Content and Fevo’s access, possession and use as permitted herein.

(b) Client agrees that Fevo and its Affiliates (together with their respective agents, professional advisers and subcontractors) are free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services (including that which it could have acquired performing the same or similar services for another client) to the extent that the same does not include the intentional disclosure outside Fevo and its Affiliates (and their respective agents, professional advisers and subcontractors) of any Client Confidential Information.  Client hereby grants Fevo and its Affiliates a perpetual, irrevocable, transferable, sublicensable, royalty-free and fully paid-up licence to use and exploit all feedback, suggestions and comments provided by Client to Fevo with regards to the Fevo Properties and/or the Services, in connection with Fevo’s and its Affiliates’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Fevo Properties.

1.4 Fevo Licences.  Subject to these Terms of Service, Fevo grants Client a limited, non-exclusive, non-transferable right and licence (without right to sublicense), in the Territory during the Term, to (a) embed the code provided by Fevo hereunder on the Client Properties solely to utilise the Fevo Platform with the Client Properties; and (b) use and display the Fevo Platform solely on the Client Properties.  Fevo shall to the extent reasonably practicable implement, in consultation with Client, aesthetic modifications to the Fevo Platform in order to endeavor to match the general look and feel of Client’s branding elements.  Fevo will not be liable for any failures in the Fevo Platform, Services, or any other problems which are related to (i) the Client Content or Client Properties; (ii) any equipment or service outside of Fevo’s facilities or control; or (iii) unauthorised access, breach of firewalls or other hacking by third parties (save, in respect of personal data, to the extent caused by Fevo’s failure to implement appropriate technical and organisational measures to protect such personal data in accordance with its obligations in Exhibit B); (iv) any Force Majeure Event; or (v) any acts or omissions of Client or its agents, including any failure to provide Fevo with requested information or cooperation.

1.5 Suspension Rights.  Without limiting any other rights or remedies, Fevo, at its sole discretion, may suspend Client’s access to the Services if Fevo believes (i) that Client has violated, or Client’s use of the Services is in violation of, any of the Agreement; (ii) that there has been an excessive number of disputes, refunds or reversals of Inventory purchases; or (iii) there has been fraud, unlawful or other suspicious activity.

2. PROPRIETARY RIGHTS.

2.1 Client.  Except for the limited licences expressly granted in these Terms of Service, no other rights or licences are granted, no other uses are permitted and Client shall retain all right, title and interest (including all patents, utility models, rights to inventions, copyright and neighbouring and related rights, (including moral rights), trade marks, service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights and/or proprietary rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or may subsist now or in the future in any part of the world, together “Intellectual Property Rights”) in and to the Client Content.

2.2 Fevo.  Except for the limited licences expressly granted in these Terms of Service, no other rights or licences are granted, no other uses are permitted and Fevo (and its licensors) shall retain all right, title and interest (including all Intellectual Property Rights) in and to (a) the Fevo Platform; and (b) Fevo’s website located at the URL www.fevo.com and including subdomains created by Fevo to which the Fevo Platform directs (the “Fevo Website” and together with the Fevo Platform, the “Fevo Properties”).  Any Intellectual Property Rights created in the performance of the Services are the exclusive property of Fevo (which, for the avoidance of doubt, includes but is not limited to Intellectual Property Rights: (a) created in relation to or deriving from Client Content (such as improvements to, or developments in, the Fevo Properties); and (b) that subsist in the copy held by Fevo of any data, including Customer data, collected by Fevo through the Fevo Platform, including any database rights that arise), and to the extent any such Intellectual Property Rights vest in Client, Client hereby assigns, including by present assignment of future rights, all right, title, and interest in and to all such Intellectual Property Rights and agrees to execute such deeds or documents and do such acts and things as Fevo may deem necessary or desirable to give effect to that assignment.

2.3 Restrictions.  Client shall not, and shall not attempt to, directly or indirectly (a) rent, lease, sublicense, encumber, distribute, transfer, copy, reproduce, modify or timeshare any Fevo Property or any portion thereof; (b) use any information provided to it by Fevo to create any application, service, software or documentation that is similar to any Fevo Property; (c) use the Fevo Properties or any Fevo Confidential Information for any competitive purpose, including to develop any product or service that competes, directly or indirectly, with any products or services offered by Fevo; (d) adapt, combine, create derivative works of or otherwise modify any Fevo Property; (e) translate, disassemble, decompile, reverse engineer or otherwise attempt to discover any source code, algorithms or trade secrets underlying any Fevo Property or any portion thereof (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (f) probe, scan or test the vulnerability of any Fevo Property; (g) breach the security or authorisation measures of any Fevo Property; (h) use, or permit the use of, the Services in violation of applicable law, statute, rule, regulation, legislation, or order, or industry code, policy or standard (“Law”); or (i) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to the Agreement (or any direct product thereof) in violation of any applicable export control or other laws and regulations.

3. FEVO OBLIGATIONS.

3.1 Inventory Orders.  Client authorizes Fevo to accept, and Fevo shall be responsible for the processing of, online orders on Client’s behalf in Fevo’s capacity as Client’s commercial agent, including via a third-party payment processor, for Inventory made through the Fevo Platform (such online orders, “Online Orders”). Fevo shall submit the Settlement Payment (as defined below) to Client in accordance with Section 6.    

3.2 Support.  Fevo shall use commercially reasonable efforts to provide general support to purchasers of Inventory through the Fevo Platform (“Customers”), including answering questions about the Events, subject to Section 4.4.

3.3 Event Pages on Fevo Website.  Fevo shall implement, in consultation with Client, a page on the Fevo Website for each Event through which a Customer’s friends and invitees may also purchase Tickets to the Event or other Inventory in relation to the Event.

4. CLIENT OBLIGATIONS.

4.1 Inventory Orders.  Client acknowledges and agrees that it shall be bound by the terms and conditions of each and every Online Order that Fevo accepts and/or processes on its behalf in Fevo’s capacity as Client’s commercial agent pursuant to Section 3.1.  Client further acknowledges and agrees that the receipt of payment by Fevo from a Customer for the relevant Online Order shall operate to satisfy such Customer’s payment obligations to Client.

4.2 Integration.  Client shall integrate the Fevo Platform onto the Client Properties in accordance with Fevo’s reasonable instructions and the rights and licences granted to Client.

4.3 Inventory Holds.  Unless otherwise agreed, Client, as applicable, will place holds (i.e., withhold from sale) on a mutually agreed number of (i) seats (in locations determined by Client in its sole discretion and communicated to Fevo via a seating map) to each Event; or (ii) other items of Inventory.

4.4 Support.  Client shall provide second level support for Customer questions about the Events that cannot be answered by Fevo.

4.5 Information Request.  Within seven (7) days of receipt of Fevo’s written request for information, Client will provide to Fevo information: (i) required by Fevo’s third-party payment processor(s); or (ii) required to comply with applicable Law.  

5. DATA PROTECTION.

5.1 Compliance with Laws.  Each party agrees that to the extent personal data are processed under or in connection with the Agreement, it will comply with the terms of the Data Processing Addendum as set out in Exhibit B in relation to the processing of Processed Data by Fevo on Client’s behalf under these Terms of Service.

5.2 Relationship Data.

(a) “Relationship Data” means any data that Fevo receives about Client in connection with creating and managing Client’s account with Fevo, such as contracting and licensing details and name and work contact details of Client’s representatives who manage Client’s account or business relationship with Fevo and Client’s authorized users of the Fevo Platform (“Authorized Users”).

(b) Client acknowledges that Fevo collects and processes Relationship Data to: (i) provide services and associated support to Client; (ii) manage Client’s account with Fevo; (iii) obtain and process payments for Fevo’s services; (iv) communicate with Client about Fevo’s services and provide Client with recommendations on additional Fevo products and services; (v) enforce the Agreement or other contractual terms; (vii) perform contractual or other obligations that Fevo may have to Customers; and (viii) as otherwise described in Fevo’s Privacy Policy.  Fevo may share Relationship Data with its affiliates, third party service providers, and other third parties for these purposes or as otherwise required or permitted by applicable law.

5.3 Usage Data.

(a) “Usage Data” means any data (other than Client Content) relating to use of the Services by Client and its Authorized Users, such as user name, activity records, date and time stamps, type of browser and systems that are used and/or accessed, IP address, licensing, system and service performance data.

(a) Client acknowledges that Fevo collects and process Usage Data to: (i) provide services and associated support to Client; (ii) manage and secure Fevo’s technical infrastructure; (iii) develop and improve Fevo’s products and services; (iv) provide Customer and technical support to Client; (v) communicate with Client about its use of Fevo’s services and provide Client with recommendations on additional Fevo products and services; (vi) enforce the Agreement or other contractual terms; and (vii) as otherwise described in Fevo’s Privacy Policy.  Fevo may share Usage Data with its affiliates and third party service providers for these purposes or as otherwise required or permitted by applicable law.

6. PAYMENTS.

6.1 Billing and Payment Terms.  Fevo will collect all proceeds from Inventory sales under the Agreement on behalf of Client in its capacity as Client’s commercial agent and remit such proceeds to Client, less the Fees (as defined in the Order Form and applicable value added tax Fevo is liable to remit to a tax authority in respect of the Inventory and/or Fees), amount of CDs (defined in Section 6.4) and any amounts refunded or to be refunded to Customers (collectively, the “Settlement Payment”).  Fevo will use commercially reasonable efforts to remit Settlement Payments to Client by bank transfer, check or other mutually agreed to method within seven (7) business days following the conclusion of the Event.  

6.2 Inventory Pricing.  Client shall be responsible for instructing Fevo as to the prices at which Client wishes to advertise and sell Inventory on the Fevo Platform, as permitted by Law.

6.3 Refunds.  All Inventory sales are final, unless the Event is cancelled or Client authorises a refund prior to the Event in its sole discretion.  If an Event is cancelled or Client otherwise authorises refunds to Customers, Fevo will issue refunds to such Customers for the applicable amount.  However, Fees due or paid to Fevo based on such Inventory sales still apply and are non-refundable.  It is agreed and understood that Fevo’s obligation to make any refunds is subject and limited to Fevo holding (or as described below, receiving from Client) the full amount of funds necessary to make refunds to all Inventory buyers properly entitled to a refund.  Fevo may set off such refunds against any Settlement Payments payable to Client.  If the amount of any Settlement Payment held by Fevo and not yet paid to Client is insufficient to cover refunds, Fevo will invoice Client for the total amount due and Client will provide Fevo with sufficient funds to cover such refunds within thirty (30) days of receiving an invoice.  

6.4 Chargebacks and Disputes.  Client is solely responsible for all chargebacks and disputed charges and the Fees associated therewith (collectively and individually, “CDs”), including those due to user or Customer error.  Fevo will use commercially reasonable efforts, on behalf of Client, to reverse any CDs.  In certain circumstances where Fevo determines the risk of loss is higher than normal, Fevo may place a portion of the Settlement Payments in reserve, which Client hereby authorises Fevo to do as its sole discretion.  Upon or after establishing the reserve, Fevo will notify Client of the amount, timing and conditions for release of such reserve funds to Client.  Fevo reserves the right to deduct CDs from the Settlement Payment and reserve.  If the then-current month’s Settlement Payment is insufficient to cover CDs, Fevo will invoice Client for the amount due (including any amount necessary to replenish the reserve) and Client will provide Fevo with sufficient funds to cover such CDs within thirty (30) days of receiving the invoice.

6.5 Taxes.  Client is solely responsible for, and shall timely pay, any and all taxes or fees including without limitation income, withholding, property, excise, value added, sales, use or transfer taxes or fees (“Taxes”), which accrue or become due or payable, arising out of use of the Services and the gross proceeds from Inventory sales, including any such Taxes relating to the Settlement Payments.  Client shall indemnify and hold Fevo harmless from any and all penalties, fines or other liabilities arising from Client’s failure to timely pay any Taxes.

7. CONFIDENTIALITY.  

7.1 Confidential Information.  “Confidential Information” means any and all proprietary or non-public information in any form that is identified as confidential or proprietary or that by the nature of the information should, in good faith, be reasonably expected to be treated as proprietary or confidential, including any source code.  All Confidential Information provided by the disclosing party will be maintained in confidence by the receiving party, and the receiving party will not, during the Term of the Agreement and for a period of five (5) years (or, in the case of any trade secrets or source code, indefinitely) following the expiration or termination of the Agreement, divulge to any person or organisation (save to its Affiliates and their respective directors, employees, agents, subcontractors and professional advisers and provided in all cases that they have a need to know the same), or use in any manner whatsoever, directly or indirectly, for any reason whatsoever, any of the Confidential Information without receiving the prior written consent of disclosing party.  In the event the Agreement is terminated for any reason, or at any time upon the request of disclosing party, the receiving party agrees to return or destroy such Confidential Information, at the option of disclosing party, not including any information required for the receiving party to use or provide the Service.

7.2 Scope.  Client acknowledges that Fevo does not wish to receive any Confidential Information from Client that is not necessary for Fevo to perform its obligations under the Agreement.  Fevo will not use Confidential Information for any other purposes than in connection with performing its obligations and exercising its rights hereunder.  Fevo shall not be responsible or liable for the deletion, correction, destruction, damage, or failure to store any Confidential Information.

7.3 Exceptions.  The foregoing obligations shall not apply to any Confidential Information that (a) was already known by the receiving party prior to disclosure by the disclosing party without restriction, (b) rightfully and lawfully furnished to it without restriction by a third party not in breach of any obligation to disclosing party, (c) generally available to the public without breach of the Agreement or (d) independently developed by receiving party.

7.4 Compelled Disclosure.  Nothing herein shall prevent either party from disclosing any Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided that, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose in order for the disclosing party to have an opportunity to seek a protective order or otherwise contest the disclosure and (b) cooperate with the disclosing party (at the disclosing party’s expense) in protecting against or minimising any such disclosure or obtaining a protective order.

7.5 Nothing in this Section 7 shall be construed to convey to the receiving party any right, title or interest in or to any Confidential Information, or any licence to use, sell, exploit, copy or further develop any such Confidential Information, except that the receiving party may use Confidential Information as expressly permitted herein.

8. WARRANTIES AND DISCLAIMERS.

8.1 Mutual Representations.  Each party represents and warrants to the other that: (a) it has full right, power and authority to enter into and fully perform its obligations under the Agreement; and (b) the execution, delivery and performance of the Agreement by that party does not conflict with any other agreement to which it is a party or by which it is bound or with Law to that party.

8.2 Rights.  Fevo represents and warrants that (a) it owns all right, title and interest, or possesses sufficient licence rights, in and to the Fevo Properties as may be necessary to permit the use contemplated under the Agreement, and the use thereof will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party.

8.3 Additional Client Representations.  Client represents and warrants continuously throughout the Term, on behalf of itself and any of its Affiliates, successors, parents, or subsidiaries, that (a) it owns all right, title and interest, or possesses sufficient licence rights, in and to the Client Content and Inventory as may be necessary to permit the use contemplated under the Agreement, and the use thereof will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or right of privacy or publicity of any third party or any Laws; (b) Inventory, upon being activated and delivered to Inventory buyers shall be available immediately for redemption by the Inventory buyer; and (c) Client’s use of the Services and Client’s terms and conditions for the sale of Inventory, including any fees, charges, discounts or incentives or goods and services offered thereunder, comply with all, and do not and will not violate any Laws, including but not limited to, (i) all Laws governing the use, sale, and/or distribution of alcohol, and (ii) all Laws governing vouchers, gift cards, coupons, and/or gift certificates.  “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.

8.4 Disclaimers.  Except as specifically provided in this Section 8, the Services and Fevo Properties are provided as-is, without any other warranty of any kind, and Client’s use of the Services is at Client’s sole risk.  Without limiting the foregoing, Fevo makes no representation or warranty (i) that the Services will meet Client’s requirements or be uninterrupted, error-free or bug-free, (ii) regarding the security, reliability, timeliness, or performance of the system (save as set out in Exhibit B), or (iii) that any errors in the system will be corrected.  Except as specifically provided in this Section 8, to the fullest extent permitted by law, Fevo hereby disclaims (for itself, its affiliates, and its and its respective licensors and suppliers) all other warranties, whether express or implied, oral or written, including all implied warranties of non-infringement, interoperability, or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.

8.5 Third party services.  Fevo is not responsible for any delays or delivery failures, or any other loss or damage resulting from third party services (including third party payment processors) or the transfer of data over communications networks and facilities, including the internet, and Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such services or communications facilities.

9. INDEMNIFICATION.

9.1 Fevo Indemnification.  Fevo agrees to defend, indemnify and hold harmless Client from and against any and all finally awarded damages, costs, expenses, liabilities, fines, penalties, including reasonable attorneys’ fees, expenses and costs in the defense and disposition of such matters in any way arising by reason of or relating to any claim by any third party (including any governmental authority) (together, “Claims”) that the Fevo Properties as provided to Client infringe or misappropriate any Intellectual Property Rights of such third party in the Territory.  Fevo shall have no obligation to Client hereunder to the extent such Claims are caused by (a) any use of the Fevo Properties not strictly in accordance with the Agreement, (b) modifications to the Fevo Properties, or combinations of the Fevo Properties with properties, hardware, software or other materials, not provided by Fevo, (c) that portion of the Fevo Properties that implements Client’s requirements, specifications or instructions, (d) Client Content, (e) Client’s continuing allegedly infringing activity, including with respect to the Fevo Properties, after being notified that such activity was alleged to be infringing, and (f) Client’s continuing use of any version of the Fevo Properties after being provided modifications that would have avoided the alleged infringement (collectively, the “Fevo Indemnity Exclusions”).  The foregoing states the entire liability of Fevo, and the Client’s exclusive remedy, with respect to any actual or alleged violation of Intellectual Property Rights by the Services or any part thereof or by its use or operation.

9.2 Client Indemnification.  Client agrees to defend, indemnify and hold harmless Fevo and its Affiliates, and their respective directors, officers, employees, consultants, agents, subcontractors and licensors (“Fevo Indemnified Parties”) from and against any and all Claims in any way arising by reason of or relating to: (a) any claim or allegation that any Client Content, Inventory or Fevo’s use of such Client Content or Inventory infringes or misappropriates any Intellectual Property Rights of any third party; (b) any Taxes arising from the transactions related to the Agreement, including the sale and subsequent redemption of Inventory (and including any interest, penalties or fines imposed by any competent court or tax authority); (c) any governmental entity Claims for unredeemed Inventory or unredeemed cash values of Inventory or any other amounts under any applicable Law, including any abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) the Inventory and other products and services provided by Client, including but not limited to, the pricing thereof, any claims for false advertising, failure to deliver Inventory, product defects, personal injury, death, or property damages or for failure of Inventory or Client to comply with Law; (e) the Events; or (f) any acts or omissions that are Fevo Indemnity Exclusions.  

9.3 Procedure.  The indemnification obligations set forth in these Terms of Service are conditioned upon (a) the indemnified party providing the indemnifying party with prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith, provided, however, that failure to provide such notice shall not relieve the indemnifying party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure, (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim, provided that the indemnified party may participate at its own expense and must approve, such approval not to be unreasonably withheld, conditioned or delayed, with respect to the terms of any settlement or compromise that may impose any liability on, or adversely impact, the indemnified party (including its rights and obligations), and (c) reasonable cooperation of the indemnified party, at the indemnifying party’s expense, in connection with the settlement and defense of the applicable claim.  

10. LIMITATION OF LIABILITY; INSURANCE.  

10.1 Without prejudice to Section 10.4, the total liability of Fevo in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Agreement shall be limited in the aggregate to the total Fees paid to Fevo by Client under the Agreement in the twelve (12) months up to and including the date of the most recent event (or first in a series of events) giving rise to a claim.

10.2 In no event shall either party be liable to the other for:

(a) loss of revenue;

(b) loss of anticipated savings;

(c) loss of profits;

(d) loss of data;

(e) damage to goodwill;

(f) loss of reputation; or

(g) for any type of indirect, economic or consequential loss or damage whatsoever or howsoever caused.

10.3 Neither Party excludes or limits liability to the other for death or personal injury caused by its negligence or for fraud.

11. TERM AND TERMINATION.

11.1 Term.  The Agreement shall commence on the date last signed by the parties (the “Effective Date”) and shall continue for the Initial Term as specified on the Order Form.  At the end of Initial Term or then-current Renewal Term (as applicable), the Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party otherwise provides the other party with written notice of its intent to terminate at least ninety (90) days prior to the expiration of the then-current Term.

11.2 Termination.  The Agreement may be earlier terminated by either party (a) if the other party is in material breach of the Agreement and, if capable of remedy, fails to remedy such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if (i) the other party is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, (ii) the other party passes a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction) or has an order to that effect made by a court of competent jurisdiction, (iii) the other party enters into a composition or scheme of arrangement or voluntary arrangement with its creditors or has a receiver, manager, liquidator, administrator or administrative receiver is appointed over any of its assets; (iv) the other party ceases or threatens to cease to do business; (v) notice of intention to appoint an administrator over the assets of other party is given by any person under the Insolvency Act 1986 or an application is made to court or an order is made for the appointment of an administrator over the assets of other party; or (vi) an analogous event to Sections 11.2 (i)-(v) occurs to the other party in any jurisdiction.

11.3 Effects of Termination.  Upon any expiration or termination of the Agreement, all rights, obligations and licences of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including all payment obligations) and all remedies for breach of the Agreement shall survive, and (b) the provisions of Sections 1.3(b), 4.5, 7, 8.3, 9, 10, 11.3, and 12 shall survive any expiration or termination of the Agreement.

12. GENERAL PROVISIONS.

12.1 Entire Agreement.  The Agreement (including all Order Forms and Addenda) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of the Agreement.  No waiver, consent or modification of the Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought.

12.2 General Changes.  Fevo may make modifications, deletions and additions to these Terms of Service (“Changes”) from time to time in accordance with this Section 12.2. Changes to these Terms of Service will be posted here [https://fevo.co.uk/terms-of-service-1011], which Client should regularly check for the most recent version and also save the most up to date version for Client’s files.  When Changes are made to the Terms of Service, Fevo will indicate the effective date of the Changes at the top of the Terms of Service.  Changes to the Terms of Service do not create a renewed opportunity to opt out of or terminate the Agreement.  By using the Services after the effective date of the Changes, Client agrees to the revised Terms of Service.  Client agrees that Fevo may modify, delete, and make additions to its guides, statements, policies, and notices, with or without notice to Client, and for similar guides, statements, policies, and notices applicable to Client’s use of the Services by posting an updated version on the applicable webpage.  In most instances, Client may subscribe to these webpages using an authorized email in order to receive certain updates to policies and notices.

12.3 No Reliance.  Each party acknowledges to the other that it has not been induced to enter into the Agreement by nor has it relied upon any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in the Agreement.  Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of the Agreement shall be for breach of contract under the terms of the Agreement. Nothing in the Agreement shall exclude liability for fraud or fraudulent misrepresentation.

12.4 Waiver.  The failure of either party to enforce its rights under the Agreement at any time for any period will not be construed as a waiver of such rights.  

12.5 Severability.  If any provision of the Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.

12.6 Counterparts.  The Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.  A signed copy (including via electronic signature) of the Order Form transmitted by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of the Agreement for all purposes.

12.7 Governing Law.  The Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

12.8 Remedies.  Except as otherwise stated in these Terms of Service, the rights and remedies of each party under the Agreement are in addition to any other rights or remedies under the Agreement or the general law, and may be waived only in writing and specifically.  Delay in exercising or non-exercise of any right or a partial exercise of any right under the Agreement is not a waiver of that or any other right under the Agreement. Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.

12.9 Publicity.  During the Term of the Agreement, Fevo may use Client’s name and logo on the Fevo Website and in other promotional materials such as customer lists and other promotional and marketing materials.  

12.10 Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under the Agreement (except payment obligations) due to any cause beyond its reasonable control (a “Force Majeure Event”), including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, transportation failures, failures of the Internet, communication outages, natural disasters, extreme weather, fires, explosions, war, terrorism, riots acts of God, epidemics and pandemics, including Covid-19 the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

12.11 Notices.  Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognised express delivery courier or certified or registered mail, prepaid and return receipt requested.  Notices to Client shall be delivered to the address provided in the Order Form.  Notices to Fevo shall be delivered to the following address:

Fevo Global Limited
5 New Street Square, London, United Kingdom EC4A 3TW

with a copy (which shall not constitute notice) to: fevo-uk-notices@fevo.com.  Either party may update its notice address by providing written notice thereof to the other party.  All notices shall be in English, effective upon receipt.

12.12 Assignment.  The Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by the Client without Fevo’s prior written consent, not to be unreasonably withheld.  However, without consent, Fevo may freely assign the Agreement to an Affiliate or to any successor to all or substantially all of its business that concerns the Agreement (whether by sale of assets or equity, merger, consolidation or otherwise).  Any assignment in violation of this Section 12.12 shall be deemed null and void ab initio.  Fevo may use contractors and other third-party service providers in performing the Services.  The Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

12.13 Rights of third parties.  A person who is not a party to the Order Form has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the Agreement.

12.14 Independent Contractors.  The parties shall be independent contractors under the Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

12.15 Headings; Construction.  The headings contained herein are for the convenience of reference only and are not intended to define, limit, expand or describe the scope or intent of any provision of the Agreement.  Whenever the words “include”, “includes”, “including”, “in particular” or “such as” are used, they are deemed to be followed by the words “without limitation”.

Exhibit A

Country Addendum

Reference is made to an order form (the “Order Form”), effective as of [ ], 202[ ], between Fevo Global Limited and [ ]. Capitalised terms used but not otherwise defined herein shall have the meanings ascribed to them in the Order Form.

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1. Territory:

The parties hereby agree that the Territory will include the following countries commencing as of the date(s) set forth below: [INSERT NAME OF COUNTRY], commencing [INSERT COUNTRY LAUNCH DATE].
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2. Special Terms:

[INSERT ANY TERMS REQUIRED BY APPLICABLE LAW IN THE NEW TERRITORY/TERRITORIES]
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Fevo Global Limited
By:
Name:
Title:
Date:

Client:
By:
Name:
Title:

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Exhibit B

Data Protection Addendum

1. GENERAL

1.1 For the purposes of this Exhibit B, “controller”, “data subject”, “personal data”, “personal data breach”, “processor”, and “processing” shall be interpreted in accordance with Data Protection Legislation and “Data Protection Legislation” means as applicable to the processing of personal data, the General Data Protection Regulation ((EU) 2016/679) as retained as law in England and Wales by the European Union (Withdrawal) Act 2018 (“GDPR”), the UK Data Protection Act 2018 and the UK Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), and in each case, any applicable successor legislation.

1.2 To the extent that Fevo processes Processed Data (as defined in Section 2.1 of this Exhibit B) on Client’s behalf under the Agreement, for the purposes of the Data Protection Legislation, it is the parties’ intention that Client is the controller and Fevo is the processor of such Processed Data, and that this Exhibit B shall apply to such processing.  For other processing under the Agreement including the processing of Relationship Data and Usage Data the parties agree and acknowledge that Fevo and Client will be independent controllers.

1.3 Client is responsible for ensuring that: (a) it has a lawful basis under the GDPR for the provision of any personal data it provides to Fevo, and for Fevo’s collection and processing of Customer personal data to perform the Services; and (b) its instructions comply with Data Protection Legislation.  Where Fevo provides Client with the ability to use and display the Fevo Platform on the Client Properties, Client shall ensure that it complies with its obligations under PECR (and equivalent laws and regulations) in relation to the storage of cookies and similar technologies on Customers’ terminals.

1.4 The subject-matter and purpose of the processing is the operation of the Services (which for the avoidance of doubt includes the personal data processing activities described in Section 2.4 of this Exhibit B) in accordance with the Terms of Service, and the processing will be carried out for the Term. Personal data will be subject to automated and manual processing operations by Fevo, including access, collection, use, analysis, transfer, storage, and erasure.  The types of personal data that Fevo processes on Client’s behalf and the categories of data subjects whose personal data are processed (“Processed Data”) are as follows:

(a) Categories of data subject: (i) Customers; and (ii) Authorised Users.

(b) Categories of personal data: (i) [name, address, email, phone number, photo, and behavioral, demographic and marketing information relating to Customers [Note: list to be reviewed for the Client engagement]]; and (ii) business contact information relating to Authorised Users (including name, title, email address and phone number).

(c) Special categories of personal data: Not applicable.

2. PROCESSOR

2.1 In respect of any processing of Processed Data under the Agreement, Fevo shall:

(a) process that Processed Data only on Client’s written instructions unless Fevo is required by any applicable laws to otherwise process that Processed Data;

(b) implement appropriate technical and organisational security measures to ensure a level of security appropriate to the risks that are presented by the processing and the nature of the Processed Data to be protected;

(c) ensure that all personnel who have access to and/or process Processed Data to perform the Services are obliged to keep the Processed Data confidential;

(d) not transfer any Processed Data outside of the United Kingdom, unless such transfer either directly or via onward transfer, is (i) made to a jurisdiction that is deemed under Data Protection Legislation to offer an adequate level of protection for Processed Data transferred to it; or (ii) is covered by a framework recognised by the relevant authorities or courts as providing an adequate level of protection for Processed Data, including but not limited to Standard Contractual Clauses;

(e) assist Client in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;

(f) notify Client without undue delay on becoming aware of a personal data breach impacting Processed Data;

(g) at Client’s written direction and where technically feasible, delete or return Processed Data and copies thereof to Client on termination of the Agreement unless required by applicable law to store the Processed Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this Exhibit B.

2.2 The Client hereby provides a general authorization to Fevo to appoint a sub-processor in connection with the provision of the Services provided Fevo enters into a written agreement with the sub-processor incorporating terms which are substantially similar to those set out in this Exhibit B.  Fevo shall make available to the Client the current list of sub-processors on request and provide notification of a new sub-processor to the Client before authorizing any new sub-processor to process the Processed Data. The Client may reasonably object to Fevo’s use of a new sub-processor by notifying Fevo promptly in writing within thirty (30) days after receipt of Fevo’s notice.  In the event the Client objects to a new sub-processor, Fevo will use commercially reasonable efforts to avoid the processing of the Processed Data by the objected-to new sub-processor.  If Fevo is unable to accommodate the objection within thirty (30) days after receipt, Fevo will thereafter not permit the objected-to new sub-processor to process the Client personal data.  As between Client and Fevo, Fevo shall remain liable for all acts or omissions of any sub-processor appointed by it pursuant to the Agreement.

2.3 At the Client’s cost and with prior written notice of thirty (30) days, Fevo shall: (a) make available to the Client information reasonably necessary to demonstrate Fevo’s compliance with its obligations under Exhibit B; and (b) allow for and contribute to, audits (including inspections) conducted by the Client or another auditor mandated by the Client or under Data Protection Legislation for the purpose of auditing Fevo’s compliance with its obligations under this Exhibit B once every twelve (12) months, where a supervisory authority requires this under Data Protection Legislation, or following a personal data breach impacting Processed Data, provided that Fevo shall notify the Client in writing if it believes in good faith that the exercise of rights under this paragraph 2.3 would infringe Data Protection Legislation.  Such audits shall not be duplicative of any additional audit right provided in these Terms of Service.  If the audit is to be performed by a third party on the Client’s behalf, such third party shall execute a confidentiality and non-disclosure agreement as presented by and for the benefit of the parties.

2.4 Notwithstanding any other provision of the Agreement, Client acknowledges and agrees that Fevo may use Processed Data to create aggregated and anonymous data, which shall not specifically identify any Customer (“Analytics Data”), for the purpose of conducting its own analytics, generating insights and making improvements to its business for its own independent purposes.  The Client acknowledges and agrees that the anonymisation of such Processed Data for these purposes falls within scope of the processing activities covered under this Exhibit B and the Client’s instructions to Fevo.

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