Version: IB1-2023-01-01
Terms Version Effective Date — 2023-01-01
This Agreement is made on the Service Effective Date between You (“You”, “Your”), and Icebreaker One Limited, 16 Wapping High Street, London E1W 1NG (“Icebreaker”, “Us”, “We”, “Our”)
DEFINITIONS
Contributions include but are not limited to expertise, use cases and/or case studies; developing joint funding proposals that address collective-action challenges; promoting Our mission, values, activities and/or outputs; communication and dissemination of Materials.
Events include but are not limited to roundtables, workshops, meetups, conferences and related gatherings.
Materials include data, information, content, media, communications and other materials in physical or digital form.
Membership Term is twelve (12) months.
Services may include but are not limited to the development of: open standards, innovation vehicles, accreditation & certification services, research, communication, training, Events and the production of Materials.
1. CONTEXT
1.1 Your usage of Our Services constitutes Your acknowledgement to be bound by this Agreement.
1.2 We may revise and update these Terms & Conditions and the scope of Service from time to time at Our sole discretion.
1.3 Any changes are effective from the Terms Version Effective Date as notified herein. Any material changes shall be communicated to You by Us. Your continued use of the Service means that You accept and agree to the changes.
2. COMMENCEMENT / DURATION OF SERVICES
2.1 The Services will commence on the Service Effective Date and continue for the Membership Term.
2.2 The Service will be automatically renewed after each Membership Term for an equal period.
2.3 Such renewal shall reset the Service Effective Date to the renewal date.
2.4 Such renewal process shall continue until terminated in accordance with the Terms & Conditions herein.
3. BRANDING, EVENTS, NETWORKING AND COLLABORATION
3.1 You will be recognised as a Member of Icebreaker One.
3.2 All Members shall be entitled to non-exclusive brand placement and recognition on Our Materials and at Events.
3.3 You must supply Us with relevant branding collateral in a timely manner.
3.4 You may nominate a speaker for Our flagship Events. While such nominations shall be considered by Us, acceptance of speakers to present is at our sole discretion.
3.5 You may send up to two (2) representatives to Our Events.
3.6 Subject to mutual agreement, You may be invited to nominate one of Your representatives to serve on specialist advisory boards.
3.7 You will participate in the development of Events and/or Materials through one or more Contributions.
4. FEES AND EXPENSES
4.1 Unless otherwise agreed, fees will be payable annually in advance.
4.2 Unless otherwise agreed, payment must be made within 30 days of the invoice date. Payments must be made electronically to the account detailed on Our invoices.
4.3 We reserve the right to charge interest on overdue accounts at the statutory rate in accordance with the UK Late Payment of Commercial Debts (Interest) Act 1998, from the due date until payment is received by Us. If applied, interest shall accrue on a daily basis on such due amounts that are not the subject of a good faith dispute at an annual rate equal to 3% over the then current base lending rate of Our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
4.4 Fees are exclusive of UK VAT. UK VAT will be charged where applicable.
4.5 All amounts and fees are non-cancellable and non-refundable.
5. CONTRIBUTION IN-KIND (CiK) AND CASH CONTRIBUTION (CC)
5.1 You may nominate a CC and CiK value upon subscribing.
5.2 The combined CC and CiK value shall be no less than the Service Fee.
5.3 Unless otherwise agreed in writing in advance the CC value must be no less than 50% of the Service Fee.
5.4 The CC and CiK values may be reviewed on an annual basis.
5.5 The CiK value must be documented in writing within each Membership Term. This must be recorded as a commercial Credit Note or equivalent auditable financial records.
5.6 We shall assess and review Your CiK within 60 days of the end of each Membership Term.
5.7 We reserve the right to invoice You for any amount not documented as CiK up to the value declared against Your Membership Tier based on this review.
5.8 Should the CiK value be disputed by either party an independent auditor, which shall be agreed by both Parties, shall be appointed to assess its value and the audited value of the CiK shall be deemed the amount liable.
6. STANDARD OF CARE
6.1 We will exercise reasonable skill, care and diligence in the performance of the Services in accordance with generally recognised commercial practices and standards.
7. INTELLECTUAL PROPERTY
7.1 Unless otherwise noted in writing, copyright in all and any outputs including, but not limited to Materials, drawings, reports, documents, software, data and prepared by Us will remain the property of Us.
7.2 Where legally and commercially relevant and appropriate, We will licence outputs under open licenses (for example Creative Commons Attributions, CC-BY). Such open licenses may be applied with a time delay to maintain commercial continuity.
7.3 Unless otherwise noted in writing, copyright in all and any Materials provided by You as such remain the property of You.
8. PERSONNEL
8.1 Both parties agree that during the term of the Appointment and for an additional period of three months after termination, neither party shall directly or indirectly canvas with a view to offering or providing employment to, offer contract with, or entice to leave any employee of or contractor to the other party.
9. LIABILITY, INSURANCE, WARRANTIES
9.1 You agree to hold Us, Our affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of Your use of the Our Service.
9.2 We maintain professional indemnity insurance and will use our reasonable endeavours to maintain such insurance for so long as it has any liability under the Agreement. We will have no liability to You whether in contract or in tort except to the extent that such liability is covered by professional indemnity insurance and We shall, in any event, have no liability to You for any indirect or consequential loss suffered by You including, but not limited to, loss of profits.
9.3 You are entirely liable for activities conducted by Your use of Our Service. If You are dissatisfied with the Material or Our Service or with these Terms of Use, Your sole and exclusive remedy is to stop using the Material and Our Services.
9.4 We do not warrant the accuracy, completeness, currentness or other characteristics of any Material available on or through Our Service. We will also not be liable for any loss or injury resulting directly or indirectly from Our Service, whether or not caused in whole or in part by our negligence or by contingencies within or beyond Our control.
9.5 Our Service is provided “as is” and “as available”. We make no representation or warranty of any kind express or implied. We expressly disclaim any warranties of merchantability or fitness for a particular purpose or use.
10. CONFIDENTIALITY
10.1 If the parties have concluded a confidentiality agreement or non-disclosure agreement then such agreement shall continue to apply in accordance with its terms.
10.2 We will keep confidential and will institute, implement and maintain at all times during the Membership Term reasonably appropriate and proportionate information security measures designed to keep confidential, any confidential information which You supply to Us in connection with Services and You must do the same in relation to any confidential information which We supply to You. Such measures shall be no less than the measures We use to protect Our own confidential information. Confidential information includes all information marked as being confidential and any other information which would reasonably be assumed to be confidential including (without limitation) any information relating to any other members, information relating to marketing or promotion of any product, unpublished research, financial information, business policies or practices. The obligations as to confidentiality in these terms will not apply to any information which:
(a) is available to the public other than because of any breach of these terms;
(b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
(c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
(d) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure or any other type of governmental request.
10.2 Both parties undertake to disclose confidential information only to those of its associated and other parties to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated by these terms. We shall only use Your confidential information for purposes of performing the Services.
11 TERMINATION & CANCELLATION
11.1 This Agreement shall continue unless terminated by either party on not less than 90 days written notice prior to renewal.
11.2 Unless otherwise agreed in writing by Us, Termination prior to the end of the Membership Term shall result in no refund or reduction in fees due.
11.3 Upon termination You will immediately pay Us all fees due.
11.4 Either party may terminate this Agreement at any time by giving notice to the other if the other: commits a material breach of any of the Terms agreed herein and does not remedy them within 14 days of such notice; ceases to trade; is guilty of gross misconduct; materially misrepresents the other.
11.5 Termination will not prejudice the accrued rights and liabilities of the parties.
11.6 Upon termination both parties shall each remove the brand of the other from relevant Materials (e.g. website Membership page).
12. INDEMNITIES
12.1 You shall indemnify and hold harmless Us in relation to all costs, damages, expenses, losses and, to the extent that it is lawful under applicable law, fines and penalties relating to:
(a) any claim that Our use of Your Materials in accordance with this Agreement in performing the Services infringes any copyright, trade mark, database right or right of confidentiality; and
(b) any Materials that are not relevant or appropriate to the Service including but not limited to malicious code and/or Materials that are discriminatory, unlawful or cause damage.
In relation to (a) above, We shall:
(d) give You prompt notice of any such claim;
(e) provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
(f) give You sole authority to defend or settle the claim.
12.2 We shall defend and hold harmless the Member against any claim that Your or Your proper use of the Services in accordance with this Agreement infringes any copyright, trade mark, database right or right of confidentiality, and, subject to Limitations and Exclusions herein, shall indemnify You in relation to all costs, damages, expenses, losses relating to breach of this Agreement and for any amounts awarded against You in judgement or settlement of any such claims, provided that:
(a) We are given notice of any such claim;
(b) You provide reasonable co-operation to Us in the defence and settlement of such claim, at Our expense; and
(c) We are given sole authority to defend or settle the claim.
12.3 In no event shall We, Our employees, agents and subcontractors be liable to You to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Us or Our agent; or
(b) Your use of the Services or Output in a manner contrary to the written instructions given to You by Us; or
(c) Your use of the Services or Output after written notice of the alleged or actual infringement from Us or any appropriate authority.
12.4 The foregoing states the parties’ sole and exclusive rights and remedy, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
13. LIMITS AND EXCLUSIONS OF LIABILITY
13.1 Except as expressly and specifically provided in this Agreement:
(a) You assume sole responsibility for results obtained from the use of the Services and the Output by You, and for conclusions drawn from such use;
(b) the Services and the Output are provided to You on an “as is” basis.
13.2 Neither party’s liability:
(a) for death or personal injury caused by its negligence or the negligence of its employees or agents;
(b) for fraudulent misrepresentation; or
(c) for anything else that cannot under applicable law be excluded or limited;
is excluded or limited by these terms, even if any other term would otherwise suggest that this might be the case. Your liability to pay the Fees and under Your indemnities is not limited or excluded.
13.3 Subject to clause 13.2, neither party shall be liable (whether for breach of contract, negligence or for any other reason) to the other party for any:
(a) loss of profits;
(b) loss of sales;
(c) loss of revenue;
(d) loss of any software or data (or data corruption) or loss of use of hardware, software or data arising as a result of the malicious acts of third parties;
(e) loss or waste of management or staff time; or
(f) indirect, consequential or special loss.
13.4 Subject to clauses 13.2 and 13.3, Our total liability under this Agreement and in relation to anything which it may have done or not done under or in connection with this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an amount equal to 30% of the Membership Fees paid or payable by You under this Agreement in the year preceding the events giving rise to the claim (such amount to be calculated at the time when the relevant amount comes to be assessed).
13.5 Subject to clauses 13.2 and 13.3, Your total liability under this Agreement and in relation to anything which it may have done or not done under or in connection with this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an amount equal to 100% of the Membership Fees paid or payable by You under this Agreement in the year preceding the events giving rise to the claim (such amount to be calculated at the time when the relevant amount comes to be assessed).
14. GENERAL
14.1 No party’s failure to enforce any of these terms shall be deemed a waiver or limitation of such party’s right to subsequently enforce and compel strict compliance with all of these terms.
14.2 If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of these terms and this Agreement shall continue in full force and effect.
14.3 Neither Party will be liable for any breach of these terms or this Agreement which arises because of any circumstances, acts, events, omissions or accidents beyond its reasonable control. Such circumstances, acts, events, omissions or accidents beyond a Party’s reasonable control, include, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of a Party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
14.4 Subject to clause 13.2, and unless otherwise expressly stated, this Agreement constitutes the entire agreement between Us and You and except for any misrepresentation or breach of warranty which constitutes fraud (i) these terms supersede and extinguish all previous agreements between Us and You relating to the subject matter hereof and any representations and warranties previously given or made other than those contained in this Agreement; and (ii) You acknowledge to Us (and We are concluding this Agreement in reliance on such acknowledgement) that You have not been induced to enter into this Agreement by, nor relied upon, any representation or warranty other than the representations and/or warranties contained in this Agreement and (iii) You irrevocably and unconditionally waives any right it may have to claim damages or to rescind this Agreement by reason of any misrepresentation and/or warranty not set out in terms.
14.5 None of the terms of this Agreement are enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
14.6 In the event of any conflict or inconsistency between these Standard Terms and the contents of any Form then these terms will prevail and take precedence unless otherwise expressly stated in the Form.
14.7 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.8 Neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, provided, however, that either party shall have the right to assign this Agreement without the consent of the other party to an affiliate or as part of a sale of all or substantially all of its assets or its merger with or into a third party. Any assignment in conflict with this Agreement shall be void ab initio.
14.9 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, with a copy addressed to the attention of the General Counsel, or such other address as may have been notified by that party for such purposes.
14.10 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Normal Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
15. LAW
15.1 This agreement between the parties is governed by English law.
15.2 This agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else and any person who is not a party to this Agreement.
15.3 As a condition precedent to any dispute or difference being decided by the Courts, You and Us agree to attempt an amicable settlement by embarking upon an Alternative Dispute Resolution (ADR) procedure as recommended by the Centre for Dispute Resolution London.