Atlantic Online Media Ltd, is a company incorporated in England and Wales with registered number 07733854 whose registered office is at 4 St Giles Street, Northampton NN1 1JA United Kingdom
(“Atlantic Online Media”); and ‘Customer’ as identified herein, for the provision of employee perks services by Atlantic Online Media Ltd, its corporate affiliates, and its Perk Providers.
(A) Atlantic Online Media carries on the business of developing and providing specialist employee perks solutions for its Customers.
(B) Customer has commissioned Atlantic Online Media to develop and launch a package of Perks for its Employees as more particularly described in the first Schedule here as (“Perks of my Job”) and to provide the Services set forth in the second Schedule hereto (the ” Services”).
(C) Atlantic Online Media has agreed to develop and launch the Perks of my Job Programme and to provide the Services upon the terms and subject to the conditions of this Agreement.
Now Therefore It Is Hereby Agreed As Follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:- ‘Employee’ means any employee, agent or sub-contractor of Customer; “Perk” means any of the individual Perks comprised in the Perks of my Job Programme as further shown on perksofmyjob.com “Perk Provider” means the provider of any Perk in the Programme; “Commencement Date” means the date of this Agreement; “Confidential Information” means any information of a secret, confidential or private nature in any form concerning either of the Parties which has been obtained in contemplation or during the course of this Agreement that relates to current business activities and current and future plans relating to development, production or sales, marketing strategies and tactics, costings, profit margins, discounts, rebates and other financial information, customers and details of their particular requirements, suppliers and their production or delivery capabilities, pricing, credit policies, credit procedures or systems, or information relating to the Parties’ employees, members, consultants, affiliates or officers or to their businesses generally; “Fees” means the fees set forth in the Perks of my job here to be paid by Customer to Atlantic Online Media. “Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor seeking to comply with its contractual obligations, complying with all applicable laws and regulations and engaged in the same type of undertaking and under the same or similar circumstances and conditions as Atlantic Online Media; “Intellectual Property Rights” means any and all patents, patent applications, know-how, trademarks, trademark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights; “Indicia” means Customer’s logos, emblems, symbols, service marks (whether registered or unregistered), get-up, trade or business names, trademarks (whether registered or unregistered), or any other indicia that identify Customer for use in connection with the Perks Programme; ‘Non-Real Time’ shall refer to a communication that is not made in the course of a personal visit, telephone conversation or other interactive dialogue. ‘Order Form’ is the form received by the end user along with this Agreement which specifies the number of users, the pricing agreed and the Term for the Agreement “Parties” means the parties to this Agreement; ‘Regulated Activities’ refers to those activities named in the regulated activity orders as issued from time to time and which are activities which are prohibited by section 19 of the FSMA unless the firm/person is authorised or exempt. ‘Perks Programme’ has the meaning given to that expression in Schedule 1; ‘Services’ has the meaning given to that expression in Schedule 2; ‘Service Levels’ means the service levels set forth in the Schedule 3; ‘Staff’ means any employees, agents or sub-contractors of Atlantic Online Media engaged or involved in the development of the Perks Programme and/or the provision of the Services; ‘Term’ means the Term means the term as described in the Order Form subject to a minimum period of 12 months (should the Order Form not specify a specific term) ‘Working Day’ means a day other than a Saturday, Sunday or public holiday in England or Wales.
1.2 In this Agreement unless or to the extent the context otherwise requires:
1.2.1 The Clause, Schedule and other headings are inserted for convenience only and do not affect its interpretation;
1.2.2 The Recitals and Schedules form part of this Agreement and have the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement shall include the Recitals and the Schedules.
1.2.3 A reference to a Clause, Recital or Schedule is a reference to a Clause of or Recital or Schedule to this Agreement;
1.2.4 Words importing the masculine gender only shall include the feminine and neuter and vice versa;
1.2.5 Words importing the singular number only shall include the plural number and vice versa;
1.2.6 A reference to a person includes a reference to a firm, a body corporate, an unincorporated association or authority;
1.2.8 References to any statutes or statutory provisions include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other sub-ordinate legislation made under the relevant statute or statutory provision;
1.2.9 No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties;
1.2.10 If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
1.2.11 Any consent, approval or notice given under this Agreement shall only take effect if given in writing.
2. DEVELOPMENT AND LAUNCH OF THE PERKS PROGRAMME AND PROVISION OF THE SERVICES
In consideration of Customer’s agreement to pay the Fees over the Term, Atlantic online Media hereby agrees to develop and launch the Perks of my Job Programme and to provide the Services for the duration of the Term.
3. DURATION AND EXTENSION OF THE TERM
3.1 This Agreement shall continue for the duration of the Term and automatically renew for further 12 month periods unless either Party terminates the Agreement with 30 days notice or unless the Agreement is terminated in accordance with the provisions of Clause 15.
4. OBLIGATIONS OF Atlantic online Media Ltd
4.1 Atlantic online media Ltd represents, confirms and undertakes to Customer that it:
4.1.1 has full power and authority to enter into this Agreement and to perform its obligations hereunder;
4.1.2 Will offer the Perks Programme as available on perksofmyjob.com to the Customer in accordance with Good Industry Practice; and
4.1.3 will perform the Services in accordance with Good Industry Practice and that the same shall be carried out by suitably qualified, trained, skilled and experienced Staff and be performed in a timely and professional manner.
4.2 Atlantic Online Media Ltd makes no warranty or representation as to the ability or suitability of any Perk Provider to provide any particular Perk or service to Employees. Atlantic Online Media Ltd will not be liable for any act or omission committed by any Perk Provider in connection with the development of the Perks Programme or the provision of the Perks thereunder which could give rise to any claim, liability or loss incurred or suffered by Customer or any of its Employees. Employees’ statutory rights with respect to Perk Providers shall be unaffected.
4.3 Atlantic Online Media Ltd agrees to perform its hosting, management and delivery of the Perks Programme in accordance with Good Industry Practice, and that the same shall be carried out by suitably qualified, trained, skilled and experienced Staff and be performed in a timely and professional manner, and subject to reasonable requests from Atlantic Online Media Ltd.
5. OBLIGATIONS OF CUSTOMER
5.1 Customer represents, confirms and undertakes to Atlantic Online Media Ltd that it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
5.2 Customer agrees to notify Atlantic Online Media Ltd of any changes to operating procedures or other factors, which could have an impact on the performance of the Services by Atlantic Online Media Ltd or any activities likely to generate a dramatic increase in the volume of enquiries to that of normal operations.
5.3 Customer will ensure that its Employees will follow the End User Terms and Conditions.
6. FEES AND PAYMENTS
6.1 Customer shall pay Atlantic Online Media Ltd the Fees in the amounts as agreed in the Invoice by Atlantic Online Media Ltd.
6.2 All Fees payable shall be exclusive of Value Added Tax and any other similar taxes, duties or levies or other deductions or withholdings, which taxes shall be charged at the rate and in the manner prescribed by law subject to receipt of relevant documentation required by law.
6.3 No reduction in fees or refunds are available if the customer is not able to add as many employees as originally specified in the Order Form/ invoice when the Programme is first launched and within 30 days thereafter.
6.4 Fees for each member are to paid annually, no refunds or reduction in Fees are available for any reduction in active Employees using the platform during the Term. Should the number of active employees on the platform reduce, spare memberships for the remainder of the term will be made available.
6.5 All memberships purchased will be billed on an Anual basis and paid for upfront, any subsequent memberships added through the dashboard will be subject to a pro rata payment for the remainder of the term.
6.6 All payments made through Paypal will be subject to the third parties Terms & Conditions. Any payment issues should be directed to the third party.
6.7 Should the Customer wish to cancel this Agreement before the expiration of the Term, they are not liable to a partial refund for the complete Fees paid.
6.8 Should Atlantic Online Media Ltd observe patterns of abuse from the Customer, it has the right to terminate the Agreement with immediate effect and the Customer will be liable to pay the Fees for the remainder of the Term.
7. APPROPRIATE REGULATOR RULES AND FSMA STATUS
7.1 Customer shall pay Atlantic Online Media Ltd the Fees in the amounts as agreed in the Order Form by Atlantic Online Media Ltd.
8. PERK PROVIDERS
8.1 Atlantic Online Media Ltd shall retain full and final control over which Perk Providers shall provide Perks under the Perks Programme to the extent permitted by law.
9.1 Atlantic Online Media Ltd is authorised by Customer to do anything which, in the opinion of Atlantic Online Media Ltd, is reasonable and necessary in order to perform its obligations under this Agreement or to act in accordance with any applicable laws, rules, regulations, authorisations, consents or practice as may reasonably be appropriate. Customer agrees that it shall approve and confirm everything reasonably and lawfully done by Atlantic Online Media Ltd in the exercise of such discretion.
9.2 Atlantic Online Media Ltd shall not be responsible for providing specialist advice in any circumstances where Customer has agreed to procure, or would usually procure, such advice from others (for example, accounting, regulatory, legal, pensions or taxation matters) and Atlantic Online Media Ltd shall not be liable in relation to any advice or services provided to Customer by persons other than Atlantic Online Media Ltd.
9.3 Atlantic Online Media Ltd shall be entitled to believe that any information and/or instructions given or purported to be given by an individual or person who is or purports to be and is reasonably believed by Atlantic Online Media Ltd to be a director, duly authorised Employee or authorised agent of Customer have been properly authorised by Customer.
10. PROVISION OF INFORMATION
10.1 Atlantic Online Media Ltd will rely on Customer to ensure that any information made available to Atlantic Online Media Ltd for the purposes of performing its obligations under this Agreement is information that Customer is legally entitled to provide for the purpose for which it is intended to be used and without committing a breach of any obligation owed by Customer to a third person or otherwise infringing any legal, regulatory or equitable rights of any third parties whatsoever and that it is true, fair, complete and accurate and not misleading in any material respect. If Customer subsequently becomes aware that any such information is not correct it will notify Atlantic Online Media Ltd immediately.
10.2. The Customer will not deconstruct and then reconstruct or alter in any way or add to an advertisement so that the resulting advertisement then breaches the Handbook or UK law or the Committee of Advertising Practice (CAP) code. The Customer shall not add to, deduct from, or alter the description of any product or service in any advertisement.
10.3 The Parties agree that since Atlantic Online Media Ltd’s reputation with Perk Providers is reliant on the quality of advertisements and financial promotions that are used, therefore such communications are done in a legal and compliant way.
10.4 Atlantic Online Media Ltd shall be entitled to assume that matters that may be material, for disclosure or otherwise, in the context of this Agreement will be brought to its attention and, furthermore, it will only provide its services on the basis of information disclosed to it.
11. LIMITATION OF LIABILITY
11.1 Atlantic Online Media Ltd shall not in any circumstances be liable (whether in contract, tort or otherwise) for loss or damage howsoever arising and of whatsoever nature (including, without limitation, any indirect or consequential loss or damage, loss of profits, loss of contracts, loss of data, loss of operation time or loss of use of any equipment or process) suffered or incurred by Customer or any of its Employees or any other third party by reason of the carrying out by Atlantic Online Media Ltd of its obligations under this Agreement.
11.2 Where Atlantic Online Media Ltd is held liable for any loss or damage under this Agreement then Atlantic Online Media Ltd’s maximum aggregate liability will be limited to 20% of the value of the revenue generated by Agreement in the preceding 12 months.
11.3 The foregoing limitations of liability shall not in any way affect any rights that Customer may have against a Perk Provider.
11.4 In the event that Customer notifies Atlantic Online Media Ltd of an error or problem with any of the Services provided by Atlantic Online Media Ltd under this Agreement, Atlantic Online Media Ltd will use best efforts to correct such errors or problems but will not be liable for any costs or losses as a result of delays in dealing with issues logged.
12. INTELLECTUAL PROPERTY
Unless agreed otherwise in writing between the Parties:
12.1 Customer shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in the documents or other material and data or other information provided to Atlantic Online Media Ltd for the purpose of performing its obligations under this Agreement. Customer shall be deemed to have granted Atlantic Online Media Ltd a license to use any such Intellectual Property, documents or other material and data or other information for the purposes of performing its obligations under this Agreement.
12.2 Atlantic Online Media Ltd shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in all documents or other material and data or other information and devices or processes provided or created by Atlantic Online Media Ltd in the provision of the Services during the term of this Agreement. For the purposes of this Clause 14.3 Intellectual Property shall include all rights subsisting in relation to the Services, the Perks Programme or the business of Atlantic Online Media Ltd generally.
12.3 Customer agrees that Atlantic Online Media Ltd may use the Indicia for the purpose of performing its obligations under this Agreement, subject to Customer giving its prior approval to the format and use of any document, whether prepared in hard copy or electronically, in which the Indicia are used. Customer warrants that such authorised use will not contravene any Intellectual Property Rights held by any third Party in relation to the Indicia, and that it will indemnify Atlantic Online Media Ltd in relation to any costs, claims, liabilities or charges Atlantic Online Media Ltd may incur as a result of Atlantic Online Media Ltd’s use of the Indicia in accordance with the terms of this Agreement.
13. CONFIDENTIALITY AND ANNOUNCEMENTS
13.1 During the term of this Agreement and at all times after its termination, the Parties will:
13.2 Keep secret all Confidential Information;
13.3 not communicate or disclose any Confidential Information to any person save in relation to any of its officers, employees, agents or sub-contractors who are involved in the provision of the Services;
13.4 not use Confidential Information other than for the purposes of this Agreement; and
13.5 se best endeavours to prevent any unauthorized publication, disclosure or use of any Confidential Information.
13.6 The restrictions in Clause 14.1 will not apply to:
13.7 any disclosure required for the proper performance of the Parties’ obligations in the course of this Agreement;
13.8 any disclosure made to any person or third party authorised by both Parties to possess the relevant information;
13.9 information or knowledge that was known to either Party prior to the date of this Agreement; and
14. INFORMATION THAT IS IN THE PUBLIC DOMAIN OTHER THAN THROUGH THE FAULT OR DEFAULT OF EITHER PARTY
14.1 Customer accepts that the Perks as negotiated by Atlantic Online Media Ltd with the Perk Providers constitute Confidential Information and are proprietary to Atlantic Online Media Ltd. Customer shall not approach the Perk Providers directly with a view to offering the Perks during the term of this Agreement.
15. TERMINATION AND EFFECTS OF TERMINATION
15.1 Subject to Clause 16, if either Party commits:
15.1.1 a material breach of this Agreement and, in the case of such a breach which is capable of remedy, fails to remedy the breach within 14 days (or such longer period as both Parties may agree in writing) of written notice to do so; or
15.1.2 commits a series of breaches which, taken together, are material in their effect, then, without prejudice to any other rights or remedies, the non-defaulting Party shall have the right to terminate this Agreement. In respect of this clause and for the avoidance of doubt a breach specifically includes (but is not limited to) a breach of a term of this Agreement, and a breach in following the law in respect of any advertisement, financial promotion or regulated activity.
15.2 Without prejudice to any other rights or remedies it may have, either Party may terminate this Agreement with immediate effect if:
18.104.22.168 The other Party becomes bankrupt or insolvent or has a receiving order made against it other than for the purposes of reconstruction or amalgamation;
15.2.2 The other Party makes any voluntary arrangement with, or any assignment in favour of, its creditors or becomes subject to an administration order;
15.2.3 A court makes any composition in satisfaction of the debts of, or a Perks Programme of arrangement of the other Party’s affairs;
15.2.4 An encumbrancer takes possession of, or a receiver is appointed over, any of the other Party’s property or assets;
15.2.5 The other Party ceases, or threatens to cease, to carry on business;
15.2.6 Or any event analogous to any of the foregoing under the law of any jurisdiction occurs in respect of the other Party.
15.3 Any termination of this Agreement (howsoever occasioned) shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination or which shall survive the expiration or termination of this Agreement.
15.4 The Term of the Agreement shall be as per the Term described in the Order Form.
16. NO PARTNERSHIP, AGENCY OR EMPLOYMENT
Save as provided for in Paragraph 11.1, nothing in this Agreement or any arrangement contemplated by it shall constitute a Party a partner, agent, fiduciary or employee of the other Party and the execution, completion and performance of this Agreement shall not confer on any Party any power to bind or impose any obligations to any third parties on the other Party or to pledge the credit of the other Party.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person other than the Parties shall have the right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999. For the avoidance of doubt, the application of the Contracts (Rights of Third Parties) Act 1999 is specifically excluded from this Agreement, although this does not affect any right or remedy of any third party that exists or is available apart from that Act.
18. ENTIRE AGREEMENT
18.1 This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the Parties and supersede any previous agreement between the Parties relating to the subject matter of this Agreement but without prejudice to the rights and liabilities of the Parties accrued before the date of this Agreement.
18.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Agreement.
18.3 Nothing in this Clause 18 shall operate to limit or exclude any liability for fraud.
19.1 If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced
20.1 No failure to exercise or any delay in exercising any right or remedy under this Agreement shall operate as a waiver of it or of any other right or remedy under it. No single or partial exercise of any such right or remedy shall prevent any further or other exercise of it or the exercise of any other right or remedy.
20.2 Any waiver given by either Party must be in writing and expressly stated by an authorised employee of the other Party to be a waiver. Such a waiver will only apply to the specific events to which it is stated to relate and not to any other events, whether past or future.
20.3 The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.
21. GOVERNING LAW AND JURISDICTION
21.1 This Agreement is governed by and shall be construed in accordance with the laws of England and Wales.
21.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement (or any documents entered into in accordance with its provisions) and, for such purposes, irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
Schedule 1: The Perks Programme A web-based service offering Employees of Customer access to various useful Perks (see below) as negotiated by Atlantic Online Media Ltd with Perk Providers. Customer shall ensure that the Perks Programme is readily and easily accessible to all its Employees.
Schedule 2: The Services The negotiation of the Perks with the Perk Providers. The Perks may be subject to amendment or removal, or, subject to Customer’s approval, replacement or addition during the Term The handling of any issues or complaints from Employees relating to the Perks Programme or any of the Perk Providers within it The provision of approved copy to Customer for use in promotions to raise Employee awareness and usage of the Perks of my Job Programme. Customer shall use reasonable endeavours to promote a wide spectrum of the Perks to its current and new Employees within the Perks of my Job Programme each year