Terms and Conditions

Background

A. WorkCast is a Software as a Service Platform having developed software application and platforms which are used by its customers on a licenced basis, to host and deliver live online events.

B. The Customer wishes to use WorkCast’s service in its business operations.

C. WorkCast has agreed to provide and the Customer has agreed to take and pay for WorkCast's service subject to these terms and conditions (Terms).


Agreed terms

1. Interpretation

The definitions and rules of interpretation in this clause apply in these Terms.

"Authorised Users"

those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, which may include, subject to the Services purchased a host user, producer, attendee, content editor or administrator. 

“Affiliate” 

includes, in relation to either party, each and any subsidiary or holding company of that party.

"Business Day"

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Confidential Information"

information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.

“Contract Agreement”

the agreed order form executed by WorkCast and the Customer, incorporating these Terms.

“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures”

as defined in the Data Protection Legislation.

"Customer Data"

the data inputted by the Customer, Authorised Users, or WorkCast on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

“Customer”

the customer whose details appear in the Contract Agreement as well as the Authorised Users.

"Data Protection Legislation"

the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

"Documentation"

the document made available to the Customer by WorkCast  online via https://insite.workcast.com or such other web address notified by WorkCast to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

"Effective Date"
“Event”

the date set out in the Contract Agreement.

a webinar, webcast, virtual event or such other service provided by WorkCast to the Customer via  WorkCast’s Software. 

“Force Majeure Event”


any event listed in clause 15 of these Terms.

"Heightened Cybersecurity Requirements"

any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not WorkCast) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

"Initial Subscription Term"


12 months.

“Intellectual Property”

any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise, including patents, trade marks, design rights and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites.

"Mandatory Policies"

WorkCast's business policies and codes including the Acceptable Use Policy, Privacy Policy, Back-up Policy and Cookie Policy, together with any other policies and codes notified by WorkCast and provided in writing to the Customer with sufficient time and opportunity for the Customer to adequately review the same.   

"Normal Business Hours"


London, United Kingdom   09:00 AM GMT to 10:00 PM (22:00) GMT    
New York, USA                     04:00 AM EST to 7pm (19:00) EST   

"Renewal Period"


the period described in clause 14.1.

"Services"

the subscription services provided by WorkCast to the Customer under the Contract Agreement via workcast.com or any other website or sub-domain notified to the Customer by WorkCast from time to time, as more particularly described in the Documentation or in writing.

"Software"

the online software applications provided by WorkCast as part of the Services.

"Subscription Fees"

the subscription fees payable by the Customer to WorkCast for the User Subscriptions, as set out in the Contract Agreement.

"Subscription Term"

has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

"Support Services Policy"

WorkCast's policy for providing support in relation to the Services as made available at https://insite.workcast.com or such other website address as may be notified to the Customer from time to time.

“System Maintenance”

means any planned update to the WorkCast products which takes place outside Core Hours. For System Maintenance to apply, a WorkCast notification will be set on the https://workcast.statuspage.io/ page at least 24 hours before the update occurs

UK Data Protection Legislation

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.

"User Subscriptions"

the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Terms.

"Virus"

any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

"Vulnerability"



a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

WorkCast

The WorkCast Corporation Limited incorporated and registered in England and Wales with company number 06611950 whose registered office is at Chase House, 4 Mandarin Road, Rainton Bridge, Houghton Le Spring, Tyne and Wear DH4 5RA or its Affiliates.

 

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.

1.3 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.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

15. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract Agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract Agreement under that statute or statutory provision.

1.9 A reference to writing or written includes e-mail but not fax.

1.10 References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.

2. User Subscriptions

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other provisions of these Terms, WorkCast hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:

2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

2.2.3 it will provide reasonable notice of no less than three Business Days to re-assign an Authorised User and shall not allow Authorise Users to be re-assigned more than 3 times per each Subscription Term and each subsequent Renewal Period unless otherwise permitted in writing by WorkCast, at WorkCast’s sole discretion.

2.2.4 each Authorised User shall keep a secure password for their use of the Services and Documentation in accordance with the Customers password management controls which shall be in line with good industry practice;

2.2.5 it shall permit WorkCast or their designated auditor to audit the Services in order to establish the name and password of each Authorised User and to audit compliance with these Terms. Each such audit may be conducted no more than once per quarter, at WorkCast’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to WorkCast’s other rights, WorkCast shall disable such passwords and WorkCast shall not issue any new passwords to any such individual and the Customer shall be liable for the reasonable costs of the audit; and

2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to WorkCast, then without prejudice to WorkCast’s other rights, the Customer shall pay, if demanded by WorkCast, an amount equal to such underpayment as calculated in accordance with the prices set out in the Contract Agreement or in the alternative such applicable rate per User in effect at the time of the audit and payment shall be made within 10 Business Days of the date of the relevant audit.


2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.2 intentionally facilitates illegal activity;

2.3.3 depicts sexually explicit images;

2.3.4 promotes unlawful violence;

2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;

2.3.6 is otherwise illegal or causes damage or injury to any person or property;

2.3.7 infringes any third party’s intellectual property rights, other proprietary rights or rights of privacy; or

2.3.8 violates any law, statute, ordinance or regulation in the United Kingdom,

and WorkCast reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause. The Customer acknowledges that WorkCast does not screen or review content on the Services to determine whether amongst other things, it contains content which contravenes clause 2.3, and shall indemnify WorkCast against any third-party claim that such infringing content caused direct loss or damage to such third party as a result of it appearing on the Services.


2.4 The Customer shall not:

2.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

2.4.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

2.4.3 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;

2.4.4 subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users;

2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or

2.4.6 introduce or permit the introduction of, any Virus or Vulnerability into WorkCast's network and information systems.


2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify WorkCast.

2.6 The rights provided under this clause 2 are granted to the Customer and their Affiliates only, provided strictly that the Customer shall remain fully liable in accordance with these Terms for any acts or omissions of an Affiliate that is in breach of these Terms.

3. Additional user subscriptions

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Contract Agreement and WorkCast shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Terms.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify WorkCast in writing. WorkCast shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).

3.3 If WorkCast approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of WorkCast’s invoice, pay to WorkCast the relevant fees in accordance with the Contract Agreement for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by WorkCast for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4. Services

4.1 WorkCast shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Terms.

4.2 WorkCast shall use reasonable commercial endeavours to make the Services available for 99% of the time, measured over a three month period, except for:

4.2.1 planned System Maintenance;

4.2.1 urgent unscheduled maintenance performed outside Normal Business Hours, provided that where possible WorkCast has used reasonable endeavours to give the Customer at least 24 clear hours’ notice in advance; and

4.2.3 any Force Majeure Event

4.3 WorkCast reserves the right to implement urgent unscheduled maintenance where necessary to address urgent issues relating to the stability or security of the Services and/or the platform on which they are hosted. WorkCast will use reasonable endeavours to keep the impact levels as low as possible, but some minor disruption to system availability may occur which cannot be avoided.

4.4 WorkCast will, as part of the Services, provide the Customer with the support applicable to the Services and in accordance with the WorkCast’s Support Services Policy in effect at the time that the Services are provided. 

4.5 WorkCast may amend the Support Services Policy in its sole and absolute discretion from time to time.

5. Customer Data

5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

5.2 WorkCast shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy as may be amended by WorkCast in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against WorkCast shall be for WorkCast to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by WorkCast in accordance with the archiving procedure described in its Back-Up Policy. WorkCast 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 WorkCast to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.9).

5.3 WorkCast shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data as may be amended from time to time by WorkCast in its sole discretion.

5.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

5.5 The parties acknowledge that:

5.5.1 if WorkCast processes any personal data on the Customer's behalf when performing its obligations under these Terms, the Customer is the controller and WorkCast is the processor for the purposes of the Data Protection Legislation; and

5.5.2 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and WorkCast’s other obligations under these Terms.

5.6 Without prejudice to the generality of clause 5.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to WorkCast for the duration and purposes of these Terms so that WorkCast may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer's behalf.

5.7 Without prejudice to the generality of clause 5.4, WorkCast shall, in relation to any personal data processed in connection with the performance by WorkCast of its obligations under these Terms:

5.7.1 process that personal data only on the documented written instructions of the Customer unless WorkCast is required by the laws of any member of the European Union or by the laws of the European Union applicable to WorkCast and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where WorkCast is relying on Applicable Laws as the basis for processing personal data, WorkCast shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit WorkCast from so notifying the Customer;

5.7.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(a) the Customer or WorkCast has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) WorkCast complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) WorkCast complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

5.7.3 Provide reasonable assistance to the Customer, in responding to any request from a data subject unless any such request becomes manifestly unreasonable and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

5.7.4 notify the Customer without undue delay on becoming aware of a personal data breach;

5.7.5 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and

5.7.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of WorkCast, an instruction infringes the Data Protection Legislation.


5.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

5.9 The Customer consents to WorkCast appointing AWS and Mailgun as third-party processors of personal data under these Terms. WorkCast may appoint further third-party processors, subject to providing the Customer with reasonable opportunity to object to the appointment. WorkCast confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business and in either case, which WorkCast confirms substantially reflect and will continue to substantially reflect the requirements of the Data Protection Legislation. As between the Customer and WorkCast, WorkCast shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 5.

5.10 WorkCast may at any time revise and modify this clause 5 provided it notifies the Customer of any changes it makes.

6. Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. WorkCast makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not WorkCast. WorkCast recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. WorkCast does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.


7. WorkCast's Obligations

7.1 WorkCast undertakes that the Services will be performed with reasonable skill and care and substantially in accordance with the Documentation.

7.2 WorkCast shall reasonably endeavour to provide Services at the time the Customer requires but for the avoidance of doubt, time shall not be of the essence for delivery of the Services.

7.3 WorkCast shall use reasonable endeavours to provide Services or an Event in the desired format but does not provide any guarantee in this regard and where reasonably required may deliver the Service or Event in an alternative format.

7.4 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to WorkCast's instructions, or modification or alteration of the Services by any party other than WorkCast or WorkCast’s duly authorised contractors or agents.

7.5 WorkCast:

7.5.1 does not warrant that:
(a) the Customer's use (or an Authorised User’s use) of the Services will be uninterrupted or error-free; or
(b) the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(c) the Software or the Services will be free from Vulnerabilities; or
(d) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.

7.5.2 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 the Customer acknowledges that the Services and Documentation may be subject to reasonably accepted limitations, delays and other problems inherent in the use of such communications facilities. Notwithstanding the previous sentence, WorkCast remains liable for deliberate actions, negligence, errors or omissions.


7.6 This Agreement shall not prevent WorkCast 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 these Terms.

7.7 WorkCast warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.

8. Customer's Obligations

8.1 The Customer shall:

8.1.1 provide WorkCast with:
(a) all necessary co-operation in relation to these Terms; and
(b) all necessary access to such information as may be required by WorkCast;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

8.1.2 without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;

8.1.3 carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, WorkCast may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms and shall be responsible for any Authorised User's breach of these Terms;

8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for WorkCast, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;

8.1.6 ensure that its network and systems including connection speed and hardware are sufficient and in accordance with Documentation provided by WorkCast from time to time; and

8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to WorkCast’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet, Customer technology or Authorised User technology

9. Charges and payment

9.1 The Customer shall pay the Subscription Fees to WorkCast for the User Subscriptions in accordance with this clause 9 and the Contract Agreement,

9.2 The Customer shall prior to the Effective Date provide to WorkCast valid, up-to-date and complete credit card details or approved purchase order information acceptable to WorkCast and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

9.2.1 its credit card details to WorkCast, the Customer hereby authorises WorkCast to bill such credit card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period and/or monthly until the expiration of the Contract Agreement, as appropriate and as agreed between the parties in writing;

9.2.2 its approved purchase order information to WorkCast, WorkCast shall invoice the Customer:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.


9.3 If WorkCast has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of WorkCast:

9.3.1 WorkCast may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and WorkCast shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of WorkCast’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.


9.4 All amounts and fees stated or referred to in these Terms:

9.4.1 shall be payable in pounds sterling;

9.4.2 are, non-cancellable and non-refundable;

9.4.3 are exclusive of value added tax, which shall be added to WorkCast’s invoice(s) at the appropriate rate.

9.5 WorkCast shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, at the start of each Renewal Period on at least 30 days’ notice to the Customer or on earlier renewal of the Contract Agreement by the Customer and the Terms shall be deemed to have been amended accordingly.

9.6 The Customer may, within the Subscription Term, request additional products and/or Services, which may incur additional charges. Those additional products and/or Services shall, for the avoidance of any doubt, be subject to these Terms. WorkCast reserves the right to invoice in full upon request, without additional contract signatory, for any additional products and/or Services delivered under this clause 9.6.

10. Proprietary rights

10.1 The Customer acknowledges and agrees that WorkCast and/or its licensors own all Intellectual Property in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 WorkCast confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.

10.3 The Customer hereby grants a royalty-free, non-exclusive, non-sublicensable, non-transferable licence to host content in accordance with any written instructions provided by the Customer, in an unmodified form for the duration of the Contract Agreement.

11. Confidentiality

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party's Confidential Information shall not be deemed to include information that:

11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2 was in the other party's lawful possession before the disclosure;

11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.


11.2 Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these Terms.

11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms.

11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute WorkCast's Confidential Information.

11.6 WorkCast acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7 No party shall make, or permit any person to make, any public announcement concerning the Contract Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this clause 11 shall survive termination of the Contract Agreement, however arising.

12. Indemnity

12.1 The Customer shall defend, indemnify and hold harmless WorkCast and its Affiliates against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:

12.1.1 the Customer is given prompt notice of any such claim;

12.1.2 WorkCast provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

12.1.3 the Customer is given sole authority to defend or settle the claim.


12.2 WorkCast shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with these Terms infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

12.2.1 WorkCast is given prompt notice of any such claim;

12.2.2 the Customer provides reasonable co-operation to WorkCast in the defence and settlement of such claim, at WorkCast’s expense; and

12.2.3 WorkCast is given sole authority to defend or settle the claim.


12.3 In the defence or settlement of any claim, WorkCast may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract Agreement on 2 Business Days' notice to the Customer and return any Customer Data (to the extent reasonably practicable) without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall WorkCast, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12.4.1 a modification of the Services or Documentation by anyone other than WorkCast; or

12.4.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by WorkCast; or

12.4.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from WorkCast or any appropriate authority.


12.5 The foregoing and clause 13.3.2 state the Customer's sole and exclusive rights and remedies, and WorkCast’s (including WorkCast’s employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. Limitation of liability

13.1 Except as expressly and specifically provided in these Terms:

13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. WorkCast shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to WorkCast by the Customer in connection with the Services, or any actions taken by WorkCast at the Customer's direction;

13.1.2 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 these Terms; and

13.1.3 the Services and the Documentation are provided to the Customer on an "as is" basis.


13.2 Nothing in these Terms excludes the liability of WorkCast:

13.2.1 for death or personal injury caused by WorkCast’s negligence; or

13.2.2 for fraud or fraudulent misrepresentation.


13.3 Subject to clause 13.1 and clause 13.2:

13.3.1 WorkCast shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and

13.3.2 subject to clause 13.2, and except in relation to any indemnities given by either party under these Terms or any caveat for Intellectual Property, WorkCast’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

14. Term and termination

14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Contract Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

14.1.1 either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

14.1.2 otherwise terminated in accordance with the provisions of these Terms;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.


14.2 WorkCast has the right to suspend provision of the Services if the Customer fails to pay any amount due under these Terms. Provision of the Services will resume as soon as such amounts have been paid to WorkCast. If the Customer remains in default not less than 28 days after being notified in writing to make such payment then, without affecting any other right or remedy available to it, WorkCast may terminate the Contract Agreement with immediate effect by giving written notice to the Customer.

14.3 Without affecting any other right or remedy available to it, either party may terminate the Contract Agreement with immediate effect by giving written notice to the other party if:

14.3.1 the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

14.3.2 the other party repeatedly breaches any of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms;

14.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

14.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.3.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

14.3.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

14.3.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

14.3.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

14.3.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3.3 to clause 14.3.9 (inclusive); or

14.3.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.


14.4 On termination of the Contract Agreement for any reason:

14.4.1 all licences granted under these Terms shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

14.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.4.3 WorkCast may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.7.5, unless WorkCast receives, no later than ten days after the effective date of the termination of the Contract Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. WorkCast shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by WorkCast in returning or disposing of Customer Data; and

14.4.4 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.

15. Force majeure

The parties shall have no liability under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of each party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, epidemic, pandemic or disease. compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.

16. Conflict

16.1 If there is an inconsistency between any of the provisions in the main body of these Terms and the Schedules, the provisions in the main body of these Terms shall prevail.

16.2 If there is an inconsistence between these Terms and the Contract Agreement, the provisions of these Terms shall prevail.

17. Variation

WorkCast reserves the right to vary any provisions of these Terms and will notify the Customer in writing of any such variation.

18. Waiver

No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19. Rights and remedies

Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

20. Severance

20.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.

20.2 If any provision or part-provision of these Terms is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

21. Entire agreement

21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2 Each party acknowledges that in entering into the Contract Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.

21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.

21.4 Nothing in this clause shall limit or exclude any liability for fraud.

22. Assignment

22.1 The Customer shall not, without the prior written consent of WorkCast, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

22.2 WorkCast may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

23. No partnership or agency

Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24. Third party rights

This Agreement does not confer any rights on any person or party (other than the parties to the Contract Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25. Notices

25.1 Any notice required to be given under these Terms 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 such address as may be notified by that party for such purposes, or sent by e-mail to the other party's e-mail address as may be notified by that party for such purposes.

25.2 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 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. A notice sent by e-mail shall be deemed to have been received at the time of transmission.

26. Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

27. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract Agreement and/or these Terms or their subject matter or formation (including non-contractual disputes or claims).

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Terms and Conditions
Version 3
Approved: 1 July 2020, 00:00 GMT