This agreement is made between Earn It Ltd Limited (with registered office at The Harley Building, 77 New Cavendish Street, London W1W6XB and company number 14689604) (“EarnIt Ltd”), and the Customer (defined below).
BACKGROUND
(A) Earn It Ltd creates, sells and supplies the Earn It Service which is a health engagement programme for a customer’s employees.
(B) The Customer wishes to offer the Earn It Service to its employees, all on the terms set out below.
This agreement consists of Orders, the following Terms and Conditions and the Annexes to the Terms and Conditions. By signing this agreement below, both parties confirm they have read and understood the terms of this agreement and that they agree to be bound by the terms and conditions set out in the agreement.
Terms and Conditions below we give a specific meaning to certain capitalised terms used in the agreement.
Each of Earn It Ltd and Customer may be referenced as a “Party” and together the “Parties”.
TERMS AND CONDITIONS
1. Definitions and Interpretation.
1.1 Definitions. The following definitions and rules of interpretation apply in this agreement in addition to those shown above.
“Account” means each account registered in a User’s name under clause 3.2.
“Active User” means each User that logs into their Account in any given calendar month during the Term.
“Affected Service” means those of the Earn It Services which have not achieved the required Service Levels in any particular month and on which Service credits are due in accordance with Annex 2. For the avoidance of doubt other Earn It Services which have achieved the required Service Levels in such month shall not be an Affected Service.
“Affiliate” means, with respect to each Party, an entity that is controlled by, controls or is under common control with that Party, whereby “control” means the power to direct the management of a company by means of owning a controlling share of the voting securities in such company, by means of board membership, by contractual rights, or by other legal authority.
“Corporate Dashboard” means an enhanced reporting dashboard for a Customer reporting usage statistics of the Users of that Customer.
“Customer” means the customer as detailed above.
“Customer Content” means any content provided to Earn It Ltd by a Customer for use in the Earn It Services on behalf of their Users, whether a logo or trade mark, or other company related information.
“Customisations” means bespoke modifications to the Platform developed by Earn It Ltd for Customer under this agreement.
"Data Protection Law" means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Data Sharing Agreement” means the agreement governing the sharing of any data between the Parties entered into on or before the Effective Date.
“Documentation” means the user, operations and training manuals and any other specifications provided or made available by Earn It Ltd concerning the Platform or any portion thereof.
“EarnIt Services“ means provision of the Platform (and associated health and wellbeing services available via the Platform) to a Customer and its Users, together with the services defined in clause Error! Reference source not found. of this Agreement as applicable.
“Effective Date” means the date of the first Order.
“Fees” means the fees payable by Customer to Earn It Ltd in connection with the supply of the EarnIt Services, as set out in this Agreement.
“Good Industry Practice” means that exercise of skill, care, prudence, foresight, efficiency and timeliness as would be reasonably expected from a skilled and experienced operator engaged in the provision of IT services which are the same as or substantially similar to the EarnIt Services with standards that fall within the upper quartile for the provision of such EarnIt Services having regard to factors such as the nature and size of the parties, the Service Levels, the term, the pricing structure and any other relevant factors.
“Initial Term” means 12 months from the date of the first Earn It Service to go live, unless stated otherwise in the Order.
“Intellectual Property Rights” means all inventions (whether patentable or not), patents, designs (both registered and unregistered), copyright and related rights, domain names, database rights, trade and service marks (both registered and unregistered), together with all applications for, rights to the grant of and extensions of the same, and all other intellectual and industrial property including all similar or analogous rights throughout the world, in each case for the full term of the relevant right.
“Order” means a signed quotation for Earn It Services or other form of order agreed between the Parties and accepted by Earn It Ltd. Each Order incorporates these Terms and Conditions, together with any agreed additional terms and conditions related to an individual Order as set out in such Order.
“Platform” means the platform offering the Earn It Services through its web and mobile applications (including all updates and any Customisations thereto), made available as a standalone product to the Customer.
“Premium Content” means content provided by Earn It Ltd through the Platform for which Customer, Customer Affiliates, Customer and/or Users are paying supplementary Fees for the right to utilise such content.
“Products for Purchase” means Products relating to the health engagement programme available on the Platform which Users may purchase either directly or through earning full or partial subsidies provided by Customer’s payment of the Fees, as applicable, towards the purchase of any such Product by achieving certain activity goals and/or health related goals.
“Renewal Term” means each 12 month renewal period, following the Initial Term under clause 15.2.
“Service Levels” means those levels of service set out in Annex 2 to be supplied by Earn It Ltd in delivering the EarnIt Services in accordance with the terms of this Agreement.
“Subscription” means Customer’s subscription to the Earn It Services.
“Support Services” means services to support any Customisations or Premium Content and also for the Platform.
“Term” means the Initial Term and each subsequent Renewal Term before the agreement expires or is terminated under clause 15.
“Top Up Payments” means the amounts which Customer will pay to Earn It Ltd each month in respect of each individual User (the monthly user allowance) to bring each Users’ User Account Balance to the agreed level at the end of each month. For avoidance of doubt Top Up Payments are pre-payments of EarnIt Services which may be consumed by the Users of the Customer and no amounts paid to Earn It Ltd as Top Up Payments are refundable to the Customer.
“User” means each individual associated with Customer (whether as an employee, consultant or otherwise) who is authorised to use the Platform through their Account in accordance with clause 3.2.
“User Account Balance” means amounts paid to Earn It Ltd by Customer in respect of each individual User which the User and/or Customer has not spent on Earn It Services.
1.1 Interpretation.
(a) Clause, annex and paragraph headings shall not affect the interretation of the agreement.
(b) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
(c) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
(d) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
(e) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of thisAgreement under that statute or statutory provision.
(f) A reference to writing or written includes e-mail but not fax.
(g) Any phrase in the agreement introduced by the term “include”, “including”, “in particular” or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term.
(h) References to clauses and annexes are to the clauses and appendices of the agreement; references to paragraphs are to paragraphs of the relevant annex to the agreement.
(i) Reference to “Earn It Ltd”includes its employees, agents and subcontractors.
(j) In the event of any conflict between the these Terms and Conditions, Orders and the Annexes, the order of precedence is as follows: (1) the Order (in respect of that Order only and not in respect of other Orders) (2) the Terms and Conditions and (3) the Annexes.
1. Earn It Services.
1.1 Services Provided. Subject to the terms and conditions of this agreement, Earn It Ltd shall provide Customer and the Users with some or all of the following paid for EarnIt Services, as requested in the Order(s), during the Term: Subscriptions; Corporate Dashboard; Customisations; Products for Purchase;Premium Content and Support Services.
Further details of theseEarnIt Services and the Fees associated with each is given on the Order.
1.2 Ordering of Earn It Services. EarnIt Services shall be ordered by Customer or aCustomer Affiliate via an Order form in accordance with clause 4.
1.3 Performance. Earn ItLtd shall provide the EarnIt Services in accordance with this agreement and in accordance with Good Industry Practice and shall use all reasonable commercial endeavours to provide the EarnIt Services so as to achieve and/or exceed theService Levels.
2. Use of the Platform and EarnIt Services.
2.1 Subscription. Subject to the terms and conditions of this agreement, Earn It Ltd shall provide Customer with the Earn It Ltd Services during the Term. Earn It Ltd hereby grants to Customer a personal, non-exclusive, non-transferable right, without the right to grant sub-licences, to use the Platform during the Term, solely for Customer’s internal business operations including promoting the Platform to Users who may then set up an Account (defined below) to use the Platform also.
2.2 Users. The maximum number of Users shall not, unless otherwise agreed by EarnIt Ltd, exceed the permitted number of Users specified in each Order. Each User who uses the Platform from will be required to register for an Earn It Ltd account on the Platform (“Account”) and, if applicable, submit Customer’s unique identifier code (as notified by Customer to Earn It Ltd) in order to allow Earn It Ltd to verify they are associated with Customer. Each User will also be required to accept Earn It Ltd’s then current terms of use and privacy policy (“EULA”) in order to register for and access their Account. Customer acknowledges that if any User refuses to accept such EULA, they will not be granted access to their Account or the Platform. Customer acknowledges that the EULA forms a direct contract between Earn It Ltd and the User. Use of the Platform will also be governed by the terms and conditions of the relevant app store from where the Users download the Platform.
1.1 Permitted Use. Customer acknowledges and agrees that it shall be responsible for any misuse of, or unauthorised access to, the Platform and any Account, directly arising fromCustomer’s breach of this agreement. Customer shall not: (a) use the Platform in any way that breaches applicable law or regulation or is unlawful; or (b)knowingly transmit any data, send or upload any material to the Platform that contains viruses or any other harmful code.
1.2 Customer Data. Customer shall ensure that any and all information inputted into the Platform by Customer and/or by Earn It Ltd on Customer’s behalf (“Customer Data”), is true, accurate and up-to-date and Customer shall promptly notify Earn It Ltd in the event of any changes to such Customer Data. Earn It Ltd shall have no responsibility for the accuracy, completeness or authenticity of such Customer Data and shall have no obligation to audit, check or verify that Customer Data.
1.3 Content Standards. Customer shall not upload or distribute any material (including Customer Data and Customer Content) during its use of the Platform that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity;(iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (vi) infringes any copyright, database right or trade mark of any other person; or (vii) otherwise causes damage or distress to any person or property.Earn It Ltd reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to any material that breaches the provisions of this clause 1.3.
1.1 Restrictions. Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, and except to the extent expressly permitted under the agreement: (i) attempt to copy, modify, alter, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute or make any adaptations of or to all or any portion of thePlatform in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; (iii) access all or any part of the Platform in order to build a product or service which competes with thePlatform; (iv) unless with the specific written approval ofEarn It Ltd use the Platform to provide services to third parties; (v)remove ay titles, trade marks, trade names, copyright, restricted rights and other proprietary notices of Earn It Ltd from materials downloaded from thePlatform; (vi) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party except the Users; or (vii) attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 3.
1.1 Support. Earn It Ltd will, as part of the Earn It Ltd Services and at no additional cost to Customer, provide Customer with its standard support services.
1.2 Updates. From time to time Earn It Ltd may automatically update the Platform to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively Earn It Ltd may ask Users to update the Platform for these reasons. If any User chooses not to install such updates or if Users opt out of automatic updates, Customer acknowledges such Users may not be able to continue using the Platform and the Earn It Ltd Services.
1.3 Correction. The undertakings in clause 3. shall not apply to the extent of any non-conformance which is caused by use of thePlatform contrary to Earn It Ltd’s instructions, or modification or alteration of the Platform by any party other than Earn It Ltd or Earn It Ltd’s duly authorised contractors or agents or by any failure to update the Platform in accordance with clause 3.8. If the Platform does not conform with the under takings at this clause 3, Earn ItLtd will, at its expense, use reasonable efforts to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the under takings set out in this clause 3.
1.4 Exclusions.Notwithstanding clause 1.3: (i) Earn It Ltd does not warrant that use of the Platform will be uninterrupted, error-free, free from viruses or other harmful code, or that thePlatform and/or the information obtained therefrom, will meet Customer’s requirements; (ii) Customer acknowledges that it is solely responsible for any reliance placed on the information obtained by Customer through the Earn It LtdServices; and (iii) Earn It Ltd is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
1.5 Corporate Dashboard. Earn It Ltd will input User data for a Customer into their Corporate Dashboard which key employees of Customer will be able to access (although not Users). The Corporate Dashboard will contain information enabling Customer to understand the uptake in the Earn It Services, and the activity levels for theirUsers, all on an anonymised, aggregated basis.
1. Orders and Change Requirements
1.1 Orders.
(a) Customer will apply to receive the EarnIt Services via the Platform or via a link provided by Earn ItLtd or via email to Earn It Ltd.
(b) Following receipt ofCustomer’s request for EarnIt Services under clause 1.1 (a), Earn It Ltd shall, within a reasonable time, confirm the Order either by email or on the Platform to Customer detailing (without limitation):
(i) the likely timeframes required to implement the request;
(ii) the associated Fees;
(iii) a description of the applicable Earn It Services; and
(iv) any applicable Customisation.
(c) If Customer wishesEarn It Ltd to proceed with the request Customer shall sign the Order via thePlatform or confirm the Order by replying to the email or by returning a signedOrder to Earn It Ltd confirming its acceptance of the terms on which Earn ItLtd will provide the applicable EarnIt Services. An Order enters into force or is legally binding at the earlier of:
(i) being signed by an authorised representative of Earn It Ltd and Customer or a Customer Affiliate; or
(ii) Earn It Ltd delivering the EarnIt Services specified on a draft Order to Customer or a CustomerAffiliate and these EarnIt Services being accepted by Customer or a Customer Affiliate.
1.1 Change Requirement. Customer may at anytime during the term of this Agreement, request either in writing or verbally:
(a) provision of additional Earn It Services;
(b) development of Customisations; and/or
(c) for any Affiliate ofCustomer to receive and benefit from the EarnIt Services. For the purposes of such Orders, Customer shall procure such Affiliate’s compliance with the terms and conditions of the agreement and Customer shall indemnify Earn It Ltd again stall liabilities, costs, expenses (including legal expenses), damages and losses suffered or incurred by Earn It Ltd arising out of or in connection with any breach by such Affiliate of the agreement.
1.2 Order Precedence. Each Order issued under the agreement shall form part of this agreement. If any of the terms or conditions of this agreement conflict with any of the terms or conditions of any Order, unless otherwise provided here in, the terms or conditions of such Order will take precedence with respect to the subject matter of that Order only.
1. Fees and Payment.
1.1 Fees.
Customer shall pay the applicable Fees and Top Up Payments to Earn It Ltd for the EarnIt Services, in accordance with this clause 1 and each Order.
1.2 Subscription Fees. Customer shall pay for the Subscription Fees monthly in advance. Customer acknowledges that: (i) theSubscription Fees are based on the number of Users permitted to access thePlatform within each month of the Term; and (ii) the number of Users actively using the Platform within such month may be less than the permitted number, and in such circumstances no refund of the Subscription Fees is payable to Customer to account for the shortfall.
1.3 Top Up Payments. (i) If Customer is on a direct debit arrangement Earn It Limited take the total of the Top Up Payments due following each month end and shall submit a statement to the Customer within 20 working days of each month end showing what has been spent by the each User on EarnIt Services in the previous month and the Top Up Payment taken (the “Top Up Statement”). (ii) If the Customer is not on a direct debit arrangement Customer shall pay the Top Up Payments toEarn It Limited within 30 days of receiving the Top Up Statement. In either case Earn It Limited will submit an invoice to Customer for each month’s Top UpPayments within 10 working days following the sending of the Top Up Statement.
1.4 Other Fees. Customer shall pay Earn It Ltd the applicable Fees for other Earn It Ltd Services(including any Customisations and/or Premium Content) rendered under the agreement as detailed in, and in accordance with the payment terms set out in, an Order or as otherwise agreed between the Parties in writing. In the absence of such terms or agreement, Earn It Ltd will invoice Customer for such Fees:(i) monthly in advance where regular or recurring Fees; (ii) monthly in arrears for variable Fees; (iii) monthly in arrears for Services sold on a time and material basis at Earn It Ltd’s standard rates then in force; and (iv) on acceptance of Order for any non-recurring or set-up Fees.
1.1 Payment. Earn It Ltd shall send an invoice to Customer for its services in accordance with the payment terms set out in clauses 5.2, 5.3 and 5.4. IfEarn It Ltd has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Earn It Ltd: (i) Earn ItLtd shall issue a written notice to Customer detailing the amounts outstanding, requesting payment of them and stating that it has the right to suspend some or all of the Earn It Services in the event that payment is not received within ten (10) working days of Customer receipt of the written notice. In the event that payment is not received within this period Earn It may, without liability to Customer, disable Customer’s (and all Users’) password, account and access to all or part of the Platform and Earn It Ltd shall be under no obligation to provide any or all of the Earn It Services while the invoice(s) concerned remain unpaid; and (ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Earn It Ltd’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
1.2 Suspension of Earn It Services. Suspension of Earn It Services under clause5.5 (i) above shall not prevent Fees in respect of the Earn It Services continuing to be due during any period of suspension.
1.3 Offset. Earn It Ltd may, at its sole discretion, offset any amounts it owes to Customer or amounts it is holding which are due to theCustomer against the Fees such that a net payment is made.
1.4 Taxes and Shipping. All amounts and fees stated or referred to in the agreement: (i) shall be payable in pounds sterling; (ii) are exclusive of value added tax and other charges and duties which shall be added to Earn It Ltd’s invoice(s) at the appropriate rate; and(iii) unless stated in the Order, are exclusive of delivery, packaging, packing, shipping, carriage, insurance charges.
1.5 Fee Increases. Earn It Ltd shall be entitled to increase itsSubscription Fees at the start of each Renewal Term by the lower of: 5% or the Consumer Price Index (CPI) for the preceeding 12 months. In addition,Earn It Ltd shall be entitled to increase its Fees for any Earn It Service(including its Subscription Fees) at the start of each Renewal Term on providing 90 days’ prior notice to Customer and the Orders shall be deemed to have been amended accordingly.
2. Data.
Security. Earn It Ltd shall maintain, in accordance with GoodIndustry Practice, appropriate administrative, physical and technical safeguards calculated to ensure the protection, security, confidentiality and integrity of the Customer Data and shall perform a daily back-up of theCustomer Data in accordance with Good Industry Practice (“Security Standards”). EarnIt Ltd represents and warrants that it will promptly notify Customer of: (i) any material deficiencies in Earn It Ltd’s compliance with the SecurityStandards in connection with the agreement; and/or (ii) changes to the Earn It Services or Earn It Ltd’s performance or provision thereof which results inEarn It Ltd’s inability to comply with the Security Standards
1.1 Data Loss. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy against Earn It Ltd shall be for Earn It Ltd to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Earn It Ltd in accordance with the archiving procedure described in clause 6.1. Earn It Ltd shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Earn It Ltd to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
1.2 User Data. Customer acknowledges that, save for personal data and Customer Data, Earn It Ltd shall own and have exclusive control of all data collected and/or produced by Earn ItLtd in connection with the use of the Platform by the Users, and all Intellectual Property Rights protecting the same. Personal Data. With respect to the processing of personal data, the following provisions shall apply:
(a) The Parties acknowledge that the factual arrangement between them dictates the classification of each party as a controller or processor (each as defined in the applicable Data Protection Law).
(a) To the extent that Earn It Ltd acts as a processor to Customer as controller, or as a sub-process or to Customer as a processor, the Parties shall comply at all times with the terms and conditions set forth in Annex 1: Data Protection.
(b)To the extent that Earn It Ltd acts as a controller with respect to any personal data processed pursuant to this Agreement, each Party shall comply at all times withData Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law and personal data processed by Earn It Ltd in connection with the Platform shall be governed by the terms of the EULA.
(c)The Parties shall enter into the Data Sharing Agreement with each other to govern the terms and conditions of any processing of any personal data under this agreement.
2. Intellectual Property.
2.1 The Platform and Customisations. Customer acknowledges and agrees that Earn It Ltd and/or its licensors own all Intellectual Property Rights in the Platform and its content (except in connection with Customer Content where the terms of clause 2.2 shall prevail), the Earn It Ltd Services, the Documentation, any Customisations and/or Premium Content. Except as expressly stated herein, the agreement does not grant Customer any IntellectualProperty Rights to, under or in, or any other rights or licences in respect of, the same. Furthermore, all Intellectual Property Rights in the formatting, presentation, methodologies, processes, techniques, applications or systems used in connection with the Platform, shall belong to Earn It Ltd at all times.
2.2 Customer Content. Customer or the owner of the Customer Content will own the copyright in the Customer Content, but by submitting it via the Earn It LtdServices, Customer hereby grants Earn It Ltd an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, worldwide licence during theTerm to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Earn It LtdServices and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit the Customer Content in any format on the Platform.
1. Intellectual Property Indemnity.
1.1 Indemnity.
(a) Earn It Ltd undertakes to defend Customer from and against any claim or action that use of the Platform (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold harmless Customer from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Customer as a result of, or in connection with, any such Claim.
(b) Customer undertakes to defend Earn It Ltd from and against any claim or action that use of the Customer Content (or any part thereof) infringes the Intellectual Property Rights of a third party and shall fully indemnify and hold harmless Earn It Ltd from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Earn It Ltd as a result of, or in connection with, any such claim.
1.2 Procedure. If any third party makes a Claim, or notifies an intention to make a Claim against Customer, Customer shall: (i) as soon as reasonably practicable, give written notice of the Claim to Earn It Ltd, specifying the nature of the Claim in reasonable detail; (ii) give Earn It Ltd sole authority and conduct of the Claim; (iii) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Earn It Ltd (such consent not to be unreasonably conditioned, withheld or delayed); and (iv)provide Earn It Ltd and its professional advisers with all reasonable co-operation to Earn It Ltd in the defence and settlement of such claim, at Earn It Ltd’s expense.
1.3 Remedies. Without prejudice to clause 1.1, if any Claim is made, or in Earn It Ltd’s reasonable opinion is likely to be made, against Customer, Earn It Ltd may, at its sole option and expense:(i) procure for Customer the right to continue using the Platform (or any part thereof) in accordance with the terms of the agreement; (ii) modify thePlatform so that it ceases to be infringing; or (iii) if such remedies are not reasonably available, terminate the Order on two (2) business days’ notice toCustomer and Earn It Ltd shall repay to Customer all sums which Customer has paid to Earn It Ltd under the Order for the infringing part.
1.4 Exclusions. In no event shall Earn It Ltd, its employees, agents and sub-contractors be liable to Customer to the extent that any Claim is based on: (i) a modification of thePlatform by anyone other than Earn It Ltd; (ii) Customer’s (or any User’s) use of the Platform in a manner contrary to the instructions given by Earn It Ltd; (iii) any Customisation or any feature of bespoke development which was specified by Customer in connection with the EarnIt Services; (iv) Customer’s (or any User’s) use of the Platform after notice of the alleged or actual infringement from Earn It Ltd or any appropriate authority.
1.5 Exclusive. Therefore going states Customer’s sole and exclusive rights and remedies, and Earn It Ltd’s entire obligations and liability, for infringement of any Intellectual Property Rights.
2. Earn It Ltd Obligations.
2.1 Warranties. Earn It Ltd warrants that it: (i) will comply with all applicable laws and regulations with respect to its activities under the agreement; and (ii) has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the agreement.
1.1 Non-exclusive. The Agreement shall not prevent Earn It Ltd from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the agreement.
2. Customer Obligations.
2.1 Cooperation. Customer shall provide Earn It Ltd with (i) all necessary co-operation in relation to the agreement; and (ii) all necessary access to such information as may be required by Earn It Ltd, in order to provide the Earn It Services (as applicable), including but not limited to Customer Content, Customer Data and security access information.
2.2 Assistance. Customer shall: (i) without affecting its other obligations under the agreement, comply with all applicable laws and regulations with respect to its activities under the agreement; and (ii) carry out all other Customer responsibilities set out in the agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the Parties, Earn It Ltd may adjust any agreed timetable or delivery schedule as reasonably necessary to account for such delay; (iii) obtain and shall maintain all necessary licences, consents, and permissions necessary for Earn It Ltd to perform its obligations under the agreement, including without limitation the Earn It Services; (iv) ensure that its network and systems comply with the relevant Documentation; and (v) be solely responsible for procuring and maintaining its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.
2.3 CustomerContent Indemnity. You agree to defend, indemnify, and hold harmless Earn It Ltd, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents and advisors from any and all claims, liabilities, costs, and expenses, including, but not limited to, legal fees and expenses, arising out of a breach by you of clause 3.5 of these Terms and Conditions.
1. Employee Benefits.
1.1 No Advice. To the extent any Users are employees of Customer (“Employee Users”), Customer acknowledges that: (i) it has been advised that the provision of the Earn It Ltd Services does not include any advice as to the taxation consequences and legal requirements of Customer or the Employee Users receiving the benefit of thePlatform; and (ii) it has been advised by Earn It Ltd that it must, prior to the Effective Date, obtain independent advice from a suitably qualified tax and legal advisor in respect of the same.
1.2 Responsibility. Customer will, at all times, be solely responsible for making: (i) any applicable deductions from the Employee Users’ remuneration (and for obtaining the Employee Users’ consent to make such deductions) to take into account any benefits received as a result of such Employee Users’ access to the Platform; and (ii) all emoluments, outgoings and obligations (including all salaries, wages, commissions, bonuses, incentives, benefits in kind, holiday pay(including payment for accrued but untaken holiday), sick pay, expenses taxation (including income tax deductible under PAYE), national insurance contributions, social security, pension contributions, and any and all other employment costs payable) in respect of the Employee Users.
2. Confidentiality.
2.1 Restrictions.Each Party shall hold the other’s Confidential Information in confidence and only use the Confidential Information of the other Party disclosed to it (by whoever disclosed) for the proper performance of its duties under the agreement and shall not without the disclosing Party’s written consent disclose or permit the disclosure of the Confidential Information except in confidence for the proper performance of its duties under the agreement to those of its employees, officers and professional advisers who need to have access to it. Each Party shall take all reasonable precautions (and at least as great as those it takes to safeguard its own confidential information) to safeguard every part of the Confidential Information.
2.2 Exclusions. The provisions of clause 2.1 shall not apply to ConfidentialInformation that: (i) the receiving Party can prove was known to the receivingParty or in its possession before that information was acquired from, or from some person on behalf of, the disclosing Party; (ii) is in or enters the public domain through no wrongful default of the receiving Party or any person on its behalf, provided that this paragraph (ii) shall only apply from the date that the relevant Confidential Information enters the public domain; (iii) the receiving Party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence; or (iv) is required to be disclosed by any applicable law or by order of any Court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure.
1.1 Return or Destruction. Within 3 days of receipt of a request to do so made at any time and in any event if the agreement is terminated, the receiving Party shall promptly return or destroy (at the option of the disclosing Party) all Confidential Information of the disclosing Party.
2. No Other Warranties. Except as expressly and specifically provided in the agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the agreement.
3. Limitation of Liability.
3.1 No exclusion. Nothing in the agreement excludes the liability of either Party for: (i) death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability to the extent it cannot be limited or excluded bylaw.
3.2 Exclusions. Subject to clause 3.1, Neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the agreement including: (i) loss of business; (ii) loss of profits; (iii) loss of trade; (iv) loss of margin; (v) depletion of goodwill and/or similar losses; (vi) loss or corruption of data or information; or (vii) pure economic loss.
3.3 Limitations. Earn It Ltd’s total aggregate liability in contract (including in respect of the indemnity at clause 8.1.), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Earn It Ltd Services and any other performance or contemplated performance of the agreement, the Subscription Fees paid by Customer during the 12 months immediately preceding the date on which the claim (or series of connected claims) arose.
4. Term and Termination.
4.1 Agreement. The Agreement shall commence on the Effective Date and shall continue for the Term unless terminated in accordance with its terms.
4.2 Orders. Subject to the remainder of this clause 4.2, each Order shall commence on the date set out in such Order, and shall continue for the Term set out therein unless terminated by either Party under these Terms and Conditions. The Subscription shall continue for theTerm and thereafter shall automatically renew for successive Renewal Terms unless and until terminated by either Party under clause 4.3 or by giving to the other at least sixty (60) days’ written notice to expire at the end of the Initial Term or the then current Renewal Period.
4.3 Termination of Orders.Either Party may terminate an Order with immediate effect by giving written notice to the other Party if the other Party commits a material breach of any term of such Order which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so. In addition, Earn It Ltd may terminate an Order on at least 10 days’ written notice to Customer in the event it is unable to continue to provide the EarnIt Services as a result of any third party ceasing to perform its obligations to Earn It Ltd. Termination of an Order will not affect the existence of the agreement or any other Orders then still in force.
4.4 Termination of Agreement. Either Party may terminate the agreement with immediate effect by giving written notice to the other Party: (i) at any time following termination or expiry of all Orders then in force; (ii) if the other Party commits a material breach of any other term of the agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or (iii) if the other Party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent or bankrupt or is subject to an order or are solution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
1.1 Effects of Termination.On termination of the agreement: (i) save where terminated in accordance with clause 15.4. (i), all Orders then in force shall automatically terminate with immediate effect; (ii) save as set out in clause 1.3, all licences granted under the agreement shall immediately terminate andCustomer shall immediately cease all use of the Earn It Services; (iii) Users will, subject to their continued compliance with the EULA, be permitted to use the Platform, but Customer acknowledges that certain features and/or functionality(including Customisations) may no longer be available to such Users; (iv) each Party shall return and make no further use of any materials, documentation and other items (and all copies of them) belonging to the other Party; (v) EarnIt Ltd shall no longer distribute any Customer Content on the Platform and, on request of Customer, delete any Customer Content from the Platform; (vi) Customer shall immediately pay to Earn It Ltd all of Earn It Ltd’s outstanding unpaid invoices and interest and, in respect of EarnIt Services supplied but for which no invoice has been submitted, Earn It Ltd may submit an invoice, which shall be payable immediately on receipt.
1.2 Rights Reserved. On termination of the agreement for any reason, any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
1.3 Survival. Notwithstanding any provision of the agreement to the contrary, the provisions of clauses 3.5, 4.3, 5, 7, 8,10.3, 11, 12, 14, 16.5, 16.8, 16.10, 16.12 and 16.13 and any other clauses which expressly or impliedly survive termination of the agreement for any reason whatsoever shall continue in full force and effect after termination.
2. General Provisions.
2.1 Credit Check. Customer hereby authorises Earn It Ltd to inquire into its credit history, including requesting credit reporting agencies and any other references for Customer’s credit information. Earn It Ltd reserves the right, in its sole discretion, to refuse to grant Customer aSubscription based on its credit worthiness, or in the alternative to require a security deposit that will ultimately be refunded upon termination of the agreement provided all amounts owed or due to Earn It Ltd under the agreement have been paid in full.
2.2 Force Majeure. No delay or default in performance of any obligation by either Party, excepting all obligations to make payments hereunder, shall constitute a breach of the agreement to the extent such default or delay is caused, directly or indirectly, by an event beyond the reasonable control of the Party unable to perform, including fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, failure of theInternet or strikes, lockouts or labour difficulties. Time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for60 days or more, the Party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate the agreement by giving 14days written notice of such termination to the other Party.
2.3 Amendments. Changes to the agreement (including these Terms and Conditions and any Order) are only binding if made in writing and signed by an authorised representative of each Party.
1.1 Waivers and Remedies. Except as otherwise stated in the agreement, the rights and remedies of eachParty under the agreement: (i) are in addition to and not exclusive of any other rights or remedies under the agreement or the general law; and (ii) maybe waived only in writing and specifically. Delay in exercising or non-exercise of any right under the agreement is not a waiver of that or any other right. Partial exercise of any right under the agreement shall not preclude any further or other exercise of that right or any other right under the agreement. Waiver of a breach of any term of the agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
1.2 Severability. If any particular provision of the agreement is held to be invalid or unenforceable, the Parties intend for that provision to be interpreted in the manner that most closely reflects the Parties’ original intent while rendering it enforceable, and the remaining provisions of the agreement shall remain in full force and effect.
1.3 Assignment. The agreement may not be assigned, sublicensed or otherwise transferred, in whole or in part, by Customer, whether by operation of law or otherwise, without Earn It Ltd’s prior written consent.Any attempted assignment in violation of this clause will be void. Earn It Ltd may perform its obligations through its Affiliates and/or through subcontractors selected by Earn It Ltd; provided, however, that Earn It Ltd shall not be relieved of its obligations under the agreement by use of such Affiliates or subcontractors.
1.4 No Partnership. EarnIt Ltd acts and shall act at all times as independent contractor. Nothing in the agreement shall be construed or is intended to create an agency, partnership, employer and employee relationship or any form of fiduciary relationship between Customer and Earn It Ltd or between a Party and any officer or employee of the other Party. NeitherParty shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
1.5 Third Party Rights. A person who is not a Party has no rights under the Contracts (Rights ofThird Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
1.6 Publicity. Each Party shall obtain the other’s written consent before publicly using any advertising, written sales promotion, press releases or other publicity matters relating to the agreement or in which the other’s name is used or may reasonably be inferred; provided, however, that Earn It Ltd shall have the right, at its own expense to refer to Customer and a factual description of the EarnIt Services provided under the agreement and reproduce, publicly display, and otherwise use Customer’s logo(s) in one press release announcing Customer as an Earn It Ltd customer and in Earn It Ltd’s list of references, promotional materials (including on EarnIt Ltd’s website), internal business planning documents, annual report to stockholders and whenever necessary to comply with generally accepted accounting principles or applicable laws.
1.7 Notices. All notices between the Parties with respect to the agreement shall be in writing and signed by or on behalf of the Party giving it. In the case of any notice given by email, the notice shall state that it is given as a notice under the agreement and an email so marked shall be deemed to be signed for the purposes of this clause. A notice given by email shall be deemed to be signed for the purposes of this clause if the name of the sender appears in a signature position after the body of the email. Any notice referred in this clause may be given: (i) by delivering it by hand; (ii) by first class pre-paid post or recorded delivery; or (iii) by email, provided that a copy is also sent by post as provided for above. Notices shall be sent:
To Customer, at the postal and email address set forth on the first page of this agreement.
To Earn It Ltd, Attn: CFO, to its registered office as given at the time at Companies House and legal@youearnit.com.
If no address for Customer is set forth above, then its address for the purposes of this clause shall be its registered office address. Either Party may substitute its address for notice purposes by giving notice in accordance with this clause. Notices shall be deemed to have been received: (i) if delivered by hand, on the day of delivery;(ii) if sent by first class pre-paid post or recorded delivery, two business days after posting, exclusive of the day of posting; and (iii) if sent by email, at the time of transmission unless sent after 17.00 in the place of receipt in which case they shall be deemed to have been received on the next business day in the place of receipt (provided that a copy has also been sent by post as set out in clause 16.10).
1.1 Photocopies, Duplicates. These Terms andConditions may be incorporated directly into any mutually accepted Order, and no separate document containing these Terms and Conditions needs to be signed in order for these Terms and Conditions to be effective and binding, provided that an Order or other instrument that incorporates these Terms and Conditions is itself accepted in a contractually binding manner. However, if the Parties do sign any printed copy of these Terms and Conditions, they may sign multiple copies hereof, and/or they may sign multiple copies of any particular Order, and in any such event they intend that all of those copies will be considered original copies, but together all of those copies represent only one contract. Any reproduction of an executed copy of the agreement (including a Order) made by reliable means (for example, photocopy or email) is considered an original, unless prohibited by local law; provided, however, that this shall not preclude either Party from requiring the exchange of original signatures.
1.2 Entire Agreement. The Agreement (together with all documents referred to herein) constitutes the entire agreement between the Parties concerning the subject matter of the agreement and supersedes all prior or contemporaneous oral or written proposals, negotiations, conversations and other communications between the Parties relating to the subject matter of the agreement.
1.3 Governing Law; Jurisdiction. The Agreement is made under and will be governed by and construed in accordance with English Law and subject to the exclusive jurisdiction of the courts of England. Except for actions related to the protection of the proprietary rights of Earn It Ltd and its suppliers, neither Party shall bring any legal action against the other relating to the subject matter of the agreement more than 2 years after the cause of action arose. Nothing in the agreement affects any statutory rights that cannot be waived or limited by contract under applicable law.
ANNEX 1 - DATA PROTECTION
1. Data Processing
1.1 Definitions. For the purposes of this Annex “personal data”, “controller”, “processor”, “data subject”, and “processing” (and other parts of the verb ‘to process’) shall have the meaning set out in the Data Protection Law.
1.2 GeneralObligations.Each Party shall comply at all times with Data Protection Law and shall not perform its obligations under this Annex in such a way as to cause the other to breach any of its applicable obligations under Data Protection Law.The Parties acknowledge that in the context of this Annex and the agreement,Earn It Ltd will act as “processor” to Customer as “controller”, with respect to the personal data in connection with the EarnIt Services. However, Earn ItLtd will also act as an independent controller in respect of personal data in connection with the Users on the Platform, which shall be governed by the terms of the EULA.
1.3 CustomerObligations. Customer represents and warrants to Earn It Ltd that with respect to any personal data processed pursuant to this Annex: (i) all personal data is necessary for the purpose for which it is processed, accurate and up-to-date; (ii) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Customer has implemented appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data; (iii) Customer has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Earn It Ltd and Customer covenants that it shall notifyEarn It Ltd in writing if there are any material changes to these consents or to the personal data that Earn It Ltd processes under this Annex; and (iv) it is not aware of any circumstances likely to, nor will it instruct Earn It Ltd to process the personal data in a manner that is likely to, give rise to a breach of the Data Protection Law (or any other applicable data protection or privacy laws).
1.4 Assessment. Customer acknowledges and agrees that pursuant to its obligation under Article28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Earn It Ltd’s applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to the Annex.
Where Earn It Ltd processes personal data on behalf of Customer, with respect to such processing, the following clauses shall apply.
1.5 Earn It Ltd’s Obligations. Earn It Ltd shall: (i) process the personal data only in accordance with this Annex and the documented instructions of the Customer given from time to time. Customer acknowledges that Earn It Ltd is under no duty to investigate the completeness, accuracy or sufficiency of such instructions; (ii) only permit the personal data to be processed by persons who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Earn It Ltd’s instructions in relation to the processing; and (iii) protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected (and Customer shall notify Earn It Ltd immediately if the nature of such personal data changes in a material way).
1.1 obligations: (a) ensure that the third party is subject to, and contractually bound by, at least the same obligations as Earn It Ltd; and (b) remain fully liable to Customer for all acts and omissions of the third party, and all sub-processors engaged by Earn It Ltd as at the Effective date shall be deemed authorised; and (ii) in addition to the sub-processors engaged pursuant to paragraph (i) above, be entitled to engage additional or replacement sub-processors, subject to: (y) the provisions of paragraph (i)(a) and (i)(b) 1.1being applied; and (z) Earn It Ltd notifying Customer of the additional or replacement sub-processor, and where Customer objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith.
1.2 Breaches and Audits. Earn It Ltd shall: (i) notify Customer without undue delay after becoming aware that it has suffered a personal data breach; and (ii) atCustomer’s cost and not more than once in any 12 month period permit Customer(subject to reasonable and appropriate confidentiality undertakings), to inspect and audit Earn It Ltd’s data processing activities to enable Customer to verify and/or procure that Earn It Ltd is complying with its obligations under this Annex.
1.3 Assistance.Earn It Ltd shall: (i) on Customer’s reasonable request and at Customer’s cost, assist Customer to respond to requests from data subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable forEarn It Ltd to do so); (ii) on Customer’s reasonable request and at Customer’s cost, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to Earn It Ltd and any restrictions on disclosing the information, such as confidentiality) Customer to comply withCustomer’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable): (a) notifying a supervisory authority that Customer has suffered a personal data breach; (b) communicating a personal data breach to an affected individual; (c) carrying out an impact assessment; and (d) where required under an impact assessment, engaging in prior consultation with a supervisory authority; and (iii) unless applicable law requires otherwise, upon termination of the agreement delete all personal data provided by Customer to Earn It Ltd (unless this is not technically possible, prohibited by law or would involved is proportionate effort).
ANNEX 2 – SERVICE LEVELS
SUPPORT
Earn It Ltd shall use all reasonable commercial endeavours to ensure that all correspondence will be responded to in accordance with the table below.
A2.1 Earn It Ltd shall provide support desk hours to Customer between 8am to 6pm, Monday to Friday (to support UK & Europe) for P1 and P2 issues and support desk hours toCustomer between 9am to 5pm Monday to Friday for P3 and P4 issues.
A2.2 Earn It Ltd shall (i) respond with the response times; and (ii) save to the extent the fault is caused by a Customer or User, exercise commercially reasonable endeavours to resolve the fault within the target resolution times, in each case as set out in the table below.
Category - P1 – Critical
Response - 1 hour
Target Resolution Time - 4 hour
Definition
· One or more business critical system components is unavailable.
· System is not available for use by a location, affecting 100% of users or for a period of at least 5 mins and operation of the system is seriously degraded/impacted.
· Failure of critical system processes or transactions with critical business impact, affecting multiple users.
Category - P2 – Major
Response - 24 hours
Target Resolution Time - 24 hours
Definition
· Part of the system is unavailable or not operating correctly, affecting several users in a single function (>50%).
· Business operations in this function are not possible/ severely impacted.
Category - P3 – Minor
Response - 72 hours
Target Resolution Time - 72 hours
Definition
· Part of the system is not available or not operating correctly, affecting a single user in a single function.
· Little or no business impact.
Category - P4 – Other
Response - 5 days
Target Resolution Time - 7 days
Definition
· Non-urgent, affecting a single user.
· No impact to Business operations.
· Service Requests including authorisations and queries.
AVAILABILITY AND SERVICE CREDITS
A2.3 The Platform will be available 99% of the time on a monthly basis, excluding scheduled maintenance windows (referred to herein as the “Availability Commitment”).
A2.4 Earn It Ltd will provide at least five (5) business day’s advance notice of any maintenance windows to: (a) Customer and (b) the Users.
AVAILABILITY AND SERVICE CREDITS
A2.3 The Platform will be available 99% of the time on a monthly basis, excluding scheduled maintenance windows (referred to herein as the “Availability Commitment”).
A2.4 Earn It Ltd will provide at least five (5) business day’s advance notice of any maintenance windows to: (a) Customer and (b) the Users.
A2.5 For any emergency maintenance, Earn It Ltd will promptly inform Customer in writing of the nature of the emergency, and Earn It Ltd will apply all reasonable commercial efforts to restore access to Service immediately.
A2.6 The availability percentage for a given month (referred to herein as the “Availability Percentage”) will be calculated according to the following formula: Total minutes for each month =TMQ Total minutes service is unavailable = TMU Total minutes for each month that a Service is unavailable = TMU ((TMQ - TMU) X 100) / TMQ.
A2.7 Earn It Ltd shall deploy a tracking tool to monitor the Earn It Service’s performance and uptime and shall provide Customer with a monthly report describing the Service’s performance and uptime.
A2.8 Where Earn It Ltd has failed to attain any Service Level, save to the extent a failure to attain any Service Level is caused by a Customer or User Cause, Earn It Ltd shall credit Customer with a percentage of the Fees levied in respect of the Affected Service only for the preceding month, such percentage to be calculated in the manner set out below:
SERVICE CREDIT REFUND CHARGES
Performance achieved
99% or greater
% Refund of Preceding Month Fee for Affected Service
No refund
Performance achieved
99% - 95%
% Refund of Preceding Month Fee for Affected Service
5% of Preceding month Fees for Affected Service
Performance achieved
90% - 95%
% Refund of Preceding Month Fee for Affected Service
20% of Preceding month Fees for Affected Service
Performance achieved
below 90%
% Refund of Preceding Month Fee for Affected Service
full refund of Preceding Month Fees for Affected Service
Customer‘s right to such credits shall be in addition to, and not in substitution for, any other rights arising from Earn It Ltd’s failure to provide the Service’s in accordance with the terms of this Agreement.
A2.9 The parties agree that the amount of such credits is proportionate when considering Customer’s legitimate interest to avoid any delay or deficiency in the maintenance of thePlatform.
A2.10 For the avoidance of doubt in the event that Earn It Ltd incurs Service Credits in any three consecutive months will be regarded as a material breach by Earn It Ltd.
Customer or User Cause
A2.11 Customer or User Cause. For the purposes of this Annex 2 a Customer or a User Cause shall mean any of the following causes:
a. Any improper use, misuse or unauthorised alteration of the Platform by Customer or a User;
b. Any use of the Platform by aUser in contravention of the EULA; or
c. Any failure by a User to update the Platform in accordance with clause 3.8.