WEQUAL GLOBAL LTD (company number 12564670 and registered office at Crown House, 27 Old Gloucester Street, London, United Kingdom, WC1N 3AX) (“WeQual“) and its Affiliates (together the “WeQual Group“) own or control the WeQual Global Membership Platform (as defined below).
You wish to use the WeQual Global Membership Platform in connection with your business and WeQual is willing to make the WeQual Global Membership Platform available to you on the following terms and conditions.
1. RIGHTS
1.1 By the Contract, You acquire the right to use such elements of the WeQual Global Membership Platform and associated Documentation as WeQual agrees with You for Your own business purposes and no other rights, title or interest in, to or under the WeQual Group IP. For the avoidance of doubt, as between WeQual and You, all rights in the WeQual Group IP are and shall remain the sole property of the WeQual Group.,
2. Suitability of the WeQual Global Membership platform
2.1 It is Your responsibility to determine whether the WeQual Global Membership Platform is appropriate to achieve Your intended results, aims and goals. WeQual disclaims all liability for any recommendations or advice that it or its Affiliates, Employees, representatives, agents, resellers, distributors or sub-contractors provide to You relating to the suitability of the WeQual Global Membership Platform for Your needs and You hereby irrevocably waive any claim arising from or relating to or otherwise in connection with any such recommendation or advice.
3. Grant of license
3.1 Subject to the full and prompt payment of the Fees and Your full and satisfactory compliance with these terms and conditions, WeQual grants You a limited, non-assignable, non-exclusive, revocable licence, (the “Licence“) for the Term to make such of the WeQual Global Membership Platform as you have paid for (together with the associated Documentation) available to such number of Authorised Users as is agreed with WeQual and paid for by You.
3.2 The Licence granted under condition 3.1 excludes any sublicensing right (notwithstanding the Licence granted to You to permit the Authorised Users to utilise the WeQual Global Membership Platform) and excludes the acts prohibited under condition 4.1 below.
4. Restrictions
4.1 You shall not, at any time during or after the expiry of the Term, without WeQual’s prior written consent, do any of the following:
4.1.A use or permit the use of the WeQual Global Membership Platform other than in Your business and for the benefit of Authorised Users;
4.1.B lend, lease, sub-licence or make the WeQual Global Membership Platform available to any third party;
4.1.C cause or permit any use, display, assignment, transfer of possession, sublicensing, publication, distribution, sale, lease, rent, charging or other dealing with or encumbering of the WeQual Global Membership Platform, or other dissemination of the WeQual Global Membership Platform, in whole or in part, to or by any third party (and You shall take all steps to prevent the WeQual Global Membership Platform being so used or dealt with by any third party);
4.1.D cause or permit any change to be made to the WeQual Global Membership Platform;
4.1.E remove or change any proprietary or copyright notices, trademarks or trading names or other indications of source or ownership (of the WeQual Group or any third party) that are included in the WeQual Global Membership Platform;
4.1.F use or permit use of the WeQual Global Membership Platform or otherwise exploit the WeQual Group IP in any way other than as expressly authorised by these terms and conditions;
4.1.G use the WeQual Global Membership Platform as a vehicle through which to recruit.
5. Fees and payments
5.1 Unless otherwise agreed in writing with WeQual, you shall pay the Fees in the amounts and in accordance with these terms and conditions.
5.2 Without prejudice to any other right or remedy available to WeQual under these terms and conditions or otherwise, if You fail to pay any amount due to WeQual, then:
5.2.A You shall be liable to pay interest to WeQual on the outstanding amounts at an annual rate equal to the three-month London Interbank Offered Rate (LIBOR) denominated in British pounds plus 8 per cent, calculated on a daily basis, from the date on which the payment originally fell due until the date of receipt of payment in cleared funds; and
5.2.B WeQual may suspend Your (and Your Authorised Users’) access to the WeQual Global Membership Platform.
5.3 All amounts shall be paid in full without any withholding or deduction on account of any taxes, duties, levies or charges, unless You are required by law to make such deduction or withholding. If any such withholding or deduction is required, You shall make the withholding or deduction as required by law and shall, when making the payment to which the withholding or deduction relates, pay to WeQual such additional amounts as will ensure that WeQual receives the equivalent total amount that it would have been entitled to receive if no such withholding or deduction had been required.
5.4 If a dispute arises in relation to all or any element of an amount payable, You shall pay the undisputed part in accordance with these terms and conditions.
6. Terms and termination
6.1 The Contract shall commence on the Commencement Date and shall continue in full force and effect (unless terminated earlier under this condition 6 or otherwise under these terms and conditions) for the Term in accordance with condition 5.
6.2 WeQual may terminate the Contract at any time on written notice with immediate effect, if You (or any Authorised User):
6.2.A is in material or persistent breach of these terms and conditions (or any of them) and either the breach is incapable of remedy, or You fail to remedy the breach within 30 days after receiving written notice requiring You to remedy the breach; or
6.2.B is unable to pay Your debts when they become due, or become insolvent, or are subject to an order or a resolution for Your liquidation, administration, winding-up or dissolution (other than for the purposes of a solvent amalgamation or reconstruction), or have an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of Your assets, or enter into or propose any composition or arrangement with Your creditors generally, or are subject to any analogous event or proceeding in any applicable jurisdiction; or
6.2.C challenge, oppose or seek to invalidate or revoke any of the WeQual Group IP or make or threaten any claims relating to, or deny WeQual’s title or entitlement or licensed rights to the WeQual Group IP, or assist another person to do any of the foregoing.
7. Effect of termination
7.1 Upon the expiry or termination of the Contract:
7.1.A the Licence granted to You under condition 3 shall terminate with immediate effect, and You shall not do any act which, in the absence of such licence, would constitute an infringement of the WeQual Group IP;
7.1.B You shall immediately pay to WeQual any sums due to WeQual;
7.1.C You shall cease any use of the WeQual Global Membership Platform.
7.2 You shall procure that all Authorised Users who had access to the WeQual Global Membership Platform or the Documentation comply with the obligations under condition 7.1.
7.3 The termination or expiry of these terms and conditions shall not affect any accrued rights or liabilities of any Party.
8. Intellectual property rights
8.1 You agree and acknowledge that, except for the Licence expressly granted to You under condition 3, You shall not acquire any right, title, interest or licence in or under any of the WeQual Group IP.
8.2 If any claim is brought or threatened by a third party against You, alleging that the WeQual Global Membership Platform (or any part thereof) infringes such third party’s Intellectual Property Rights (an “IP Claim”) You shall immediately notify WeQual in writing giving detailed particulars of the IP Claim. You shall not make any comment or admission to any third party in respect of any IP Claim without the prior written consent of WeQual (except, insofar as urgently necessary to maintain Your legal position, to deny the claim).
8.3 WeQual shall have the right (but not the obligation) to defend and to assume control of the defence of any IP Claim, including the right to settle such claim on Your behalf. You shall provide to WeQual such assistance and cooperation as may be reasonably required in connection with the defence or settlement of the IP Claim.
8.4 WeQual may share any content uploaded to or shared within the WeQual Global Membership Platform (whether through online platforms or attendance at events) and You hereby assign any rights in such content to WeQual for such purposes.
9. Warranties and representations
9.1 You warrant, covenant and represent to WeQual that:
9.1.A You have the right, power and authority and have taken all action necessary to execute, deliver and exercise Your rights, and perform Your obligations, under the Contract;
9.1.B You have not stopped or suspended payment of Your debts, become unable to pay Your debts or otherwise become insolvent in any relevant jurisdiction.
9.2 The warranties in condition 9.1 shall continue to have effect throughout the Term and shall expire automatically upon the expiry or termination of these terms and conditions.
10. Indemnity
10.1 You hereby indemnify WeQual, its Affiliates, officers, directors, employees, agents and sub-contractors (the “Indemnified Parties”), and You shall keep the Indemnified Parties indemnified on demand against any loss, cost, damage, liability or expense (including reasonable legal costs) arising to the Indemnified Parties out of any claim, threatened claim or action, proceedings or allegations brought by a third party arising out of (i) the use by You of the WeQual Global Membership Platform other than in accordance with the Contract.
11. Limitations on liability
11.1 You acknowledge, agree and understand that by entering into the Contract, save as expressly set out in these terms and conditions, You do not rely on any representations (whether written or oral) made by WeQual, its Affiliates, representatives, resellers or distributors, or any other person acting on its behalf, relating to the Licence or the WeQual Global Membership Platform and, subject only to condition 11.6, You irrevocably waive any claims in respect of any such representations.
11.2 Subject to condition 11.6 and except as expressly provided in these terms and conditions, WeQual shall not be liable on behalf of itself, and You and Your Affiliates hereby irrevocably waive any claim, threatened claim or allegation against WeQual or its Affiliates, employees, officers, agents, representatives, distributors, resellers or subcontractors, whether for breach of contract, misrepresentation, negligence or under any implied warranties or covenants, relating to or arising out of or otherwise in connection with the use of the WeQual Global Membership Platform by You including:
11.2.A the matters referred to in condition 11.1;
11.2.B breaches of software security, interception of electronic communications, and any unauthorised access to or misuse of computer systems; or
11.2.C damage caused by computer viruses, trojans, worms and other disabling or harmful devices or malicious code that may affect You or Your Affiliates, subcontractors or service providers’ computer systems as a result of the use of or access to the WeQual Global Membership Platform.
11.3 If the performance of WeQual’s obligations hereunder is prevented or delayed by any act or omission of Yours, any Authorised User, Your employees, agents, subcontractors or any person connected to You, subject to condition 11.6, WeQual shall not be liable, and You hereby waive any claim against WeQual or its Affiliates, Employees, agents, representatives, resellers, distributors or subcontractors for any costs, charges, expenses or any loss arising from such prevention or delay.
11.4 Subject to condition 11.6, in no event shall a Party be liable to the other under the Contract or in connection with its performance or breach, or in connection with any express or implied warranties or covenants, including as a result of misrepresentation or negligence: (i) for any indirect, incidental, consequential or special damages, including any loss of profits or savings or anticipated profits or savings, loss of data, loss of opportunity, loss or reputation, goodwill or business; or (ii) for damages of any kind in connection with any claim arising out of the delivery, performance, use or inability to use the WeQual Global Membership Platform, or as a result of the exercise or inability by You to exercise the rights granted hereunder, or as a result of the termination or expiry of the Contract; in each case, even if the other Party has been advised of the possibility of such damages in advance.
11.5 Subject to condition 11.6 and save for a claim for the payment of Fees or interest thereon, each Party’s maximum aggregate liability for any single event (or a series of related events) giving rise to a claim in connection with these terms and conditions either for breach of contract, misrepresentation or negligence (excluding the indemnity given in condition 10) shall be limited to the following: (i) where the Licence is granted for a one-off payment, a sum equal to the Fee paid by You to WeQual under the Contract, or (ii) where Fees are paid on a periodical basis, a sum equal to the Fees paid by You to WeQual in the 12 (twelve) month period before the occurrence of such event (or if less than 12 (twelve) months have elapsed, an amount equal to the fees payable for the first 12 (twelve) months of these terms and conditions).
11.6 Notwithstanding anything to the contrary in these terms and conditions, nothing in these terms and conditions shall operate to exclude or restrict a Party’s liability for:
11.6.A death or personal injury resulting from such Party’s negligence;
11.6.B fraud or fraudulent misrepresentation, or;
11.6.C any liability that cannot be limited or excluded by law.
12. Data protection
12.1 You shall comply with all the obligations imposed on a controller under the Data Protection Legislation in relation to the Shared Personal Data.
12.2 WeQual shall comply with all the obligations imposed on a processor under the Data Protection Legislation in relation to the Shared Personal Data, including the following:
12.2.A to only process the Shared Personal Data in order to fulfil its obligations under the Contract;
12.2.B to ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Shared Personal Data and against accidental loss or destruction of, or damage to, the Shared Personal Data.
12.3 Each Party shall assist the other in complying with all applicable requirements of the Data Protection Legislation in relation to the Shared Personal Data and in particular, each Party shall:
12.3.A assist the other in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators; and
12.3.B notify the other Party without undue delay on becoming aware of any breach of the Data Protection Legislation.
13. Confidential information
13.1 Each Party shall, during the Term and for five years thereafter, keep confidential all information (whether or not specifically marked as confidential) received from the other Party or which may be obtained in connection with the performance of the Contract and which relates to the other Party, its business, financial, commercial and other affairs (“Confidential Information”) and shall not use any Confidential Information for its own purposes, or disclose it to any third party except as permitted in this condition 12 or with the prior written consent of the other Party.
13.2 A Party shall be entitled to use the Confidential Information insofar as necessary to exercise its rights under the Contract and shall be entitled to disclose it, solely for such purpose, to its Employees and Affiliates (in this condition 13.2, the “Recipients”), provided that such Recipients are made aware of the confidentiality of the Confidential Information disclosed to them and that they agree to keep it confidential in accordance with the provisions hereof.
13.3 The requirements of conditions 13.1 and 13.2 shall not apply:
13.3.A to any information to the extent that it is generally available to the public (other than as a result of a breach of any obligation of confidentiality); however, the information shall not be deemed to be generally available to the public by reason only that it is known to a limited number of persons, whether or not such persons are bound by duties of confidentiality;;
13.3.B to any information to the extent that it was held (not under a duty of confidence) before the date hereof or to the extent it is independently received (not under a duty of confidence) from a third party who is free to disclose such information without breaching any duty of confidence; or
13.3.C to any disclosure of information required by operation of law or any binding judgment or order of a court of law, or by any requirement of any competent authority or governmental regulatory agency, subject where possible to reasonable prior consultation with the other Party and provided that in the event that such disclosure is required, reasonable steps are taken to protect the confidentiality of the information and to limit the disclosure as much as possible.
13.4 Where a Party is subject to a duty of confidentiality under this condition 13, it shall:
13.4.A procure that all Recipients observe the provisions of this condition 13 as fully as if they were parties to the Contract; and
13.4.B apply such standards of confidentiality in relation to the Confidential Information as it applies generally in relation to its own confidential information.
14. Assignment
14.1 The Contract and the rights and obligations thereunder are personal to the Parties. Except as provided in this condition 14, neither Party may assign or transfer any of its rights or obligations under the Contract whether in whole or in part without the prior written consent of the other Party.
14.2 WeQual may, without requiring Your consent, transfer its rights and delegate its obligations under the Contract to its Affiliates or assign its rights and obligations under these terms and conditions as part of a sale of all or substantially all its relevant business, provided that the person acquiring such business (in this condition, the “Buyer”) is willing to sign an agreement with WeQual and You by which the rights and obligations of WeQual under these terms and conditions shall be novated to the Buyer. Upon the request of WeQual, You shall enter into such novation agreement with WeQual and the Buyer.
15. Notices
15.1 A notice under or in connection with these terms and conditions (a “Notice”):
15.1.A shall be in writing;
15.1.B may be delivered personally or sent by first class post prepaid recorded delivery (and air mail if overseas) to the Party due to receive the Notice;
15.1.C by email (if to WeQual, sent to: directors@wequal.com).
15.2 Unless there is evidence that it was received earlier, a Notice is deemed given:
15.2.A if delivered personally, when left at the address referred to in condition 15.1.2;
15.2.B if sent by post, except for airmail, two Business Days after posting it;
15.2.C if sent by airmail, six Business Days after posting it;
15.2.D if sent by email, the next Business Day after transmission.
16. General
16.1 No Partnership or Joint Venture: Nothing in the Contract shall create, or be deemed to create, a partnership or joint venture between the Parties. Neither the Contract nor these terms and conditions shall be construed as giving rise to the relationship of principal and agent. You shall not use WeQual’s name or WeQual branding for any purpose without the prior written consent of WeQual. WeQual shall not use Your name for any purpose without Your prior written consent (except to indicate that You are using the WeQual Global Membership Platform under licence from WeQual).
16.2 Severance: If at any time any provision of these terms and conditions or the Contract is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction or any other jurisdiction of any other provision of these terms and conditions or as the case may be the Contract.
16.3 Third Party Rights: A person who is not a party to the Contract shall have no rights to enforce the provisions of the Contract under the Contracts (Rights of Third Parties) Act 1999.
16.4 Modification: No modification, alteration or waiver of any of the provisions of the Contract shall be effective unless in writing and signed on behalf of each of the Parties.
16.5 Waiver: No omission or delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any right or remedies provided by law.
16.6 Entire Agreement: These terms and conditions and any purchase order, and other documents signed (online or otherwise) by the Parties in conjunction or connection with the Contract (“Ancillary Documents”) constitute the entire agreement between the Parties and supersede all other agreements, statements, letters and other arrangements between the Parties in relation to the subject matter hereof. Each Party acknowledges that it has not relied on or been induced to enter these terms and conditions by a representation other than those expressly set out in these terms and conditions or in the Ancillary Documents. This condition 16.6 does not affect a Party’s liability in respect of fraudulent misrepresentation.
16.7 Governing Law and Jurisdiction: The Contract, including any non-contractual claims relating to its subject matter is governed by English law, and the Parties submit to the non-exclusive jurisdiction of the courts of England in relation to any dispute between them arising out of the subject matter of these terms and conditions including as to its formation, interpretation and effect.
17. Interpretations
17.1 In these terms and conditions and in the recitals, the following words and expressions shall, unless the context otherwise requires, have the meaning given to them in this Condition 17.1:
“Affiliate” means a holding or subsidiary company of a party or a subsidiary of the holding company, each having the meaning assigned to them by section 1159 of the Companies Act 2006.
“Authorised User” means an Employee of You who is authorised to access and use the WeQual Global Membership Platform in accordance with the Contract and the Quotation.
“Business Day” means a day other than Saturday or Sunday which is not a public holiday in England.
“Commencement Date“ means the date on which WeQual first grants You and/or Authorised Users access to the WeQual Global Membership Platform.
“Confidential Information“ has the meaning given to it in condition 12.
“Contract” means the contract between WeQual and You incorporating these terms and conditions.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Documentation” means any information provided to You by WeQual (whether online or in printed form) in connection with the WeQual Global Membership Platform as amended or replaced by WeQual from time to time.
“Employees” means individuals who are engaged by You under a contract of or for service during the Term, including Your officers and directors.
“Fees” means the fees payable by You to WeQual in consideration of the licence granted hereunder as set out in the Quotation or as otherwise agreed in writing by the Parties.
“Group” means any person and its Affiliates from time to time.
“Intellectual Property Rights” means all industrial and intellectual property rights including patents, petty patents, utility models, copyright, database rights, design rights, registered and unregistered designs, design patents, trademarks, trading names, internet domain names, rights in the get-up of products (including the screens and user interfaces of software products) and other signs and indications of origin, and rights in technical know-how, data and confidential information, in each case whether registered or not and including pending applications and the right to apply for any of the foregoing and other rights of the same or similar effect anywhere in the world.
“IP Claim” is defined in condition 8.2.
“Licence” is defined in condition 3.1.
“Parties” means WeQual and You, and “Party” means either one of them.
“Quotation” means WeQual’s written quotation provided to You.
“Shared Personal Data” the personal data to be shared by You with WeQual under the Contract.
“Term” means, subject always to condition 3.1, the term detailed in the Quotation.
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“WeQual Group IP” means any Intellectual Property Rights in or relating to the WeQual Global Membership Platform and/or the Documentation.
“WeQual Global Membership Platform” means the WeQual Global membership platform comprising hub.wequal.com, smart phone-based app, attendance at WeQual events, access to WeQual Global resource library (including but not limited to post-event reports, event recordings, and articles) as may be varied, superseded, replaced or amended from time to time at WeQual’s discretion.
17.2 A reference in these terms and conditions to:
17.2.A a “condition” or the “preamble”, unless the context otherwise requires, are reference to conditions or to the preamble to these terms and conditions.
17.2.B a “person” shall include bodies corporate an unincorporated associations, partnerships and individuals.
17.2.C “include” or “including” shall be construed without limitation.
17.2.D a document, agreement, statute, statutory provision, statutory instrument, European directive or other law, regulation or order is a reference to that document, agreement, statute, statutory provision or statutory instrument, European directive or other law, regulation or order as it may be amended, modified, re-enacted or replaced from time to time.
17.3 The headings in these terms and conditions do not affect its interpretation.