Contract

TERMS AND CONDITIONS:

DEFINITIONS
1. In this Agreement the following definitions shall apply:
  
  Additional Services
  any services provided by BREW which are outside the scope of the Costed Proposal;
  
  Affiliates
  any member of the Customer’s group including divisions (brands) of the Customer or any Affiliate;
  
  Agreement
  this Agreement including the Front Sheet, the Costed Proposal, the User Policy and the Service Level Agreement (if any) which shall be deemed to form and be read and construed as part of this Agreement;
  
  Arising IP
  all (or any part) of the IP written, originated, conceived or made in relation to this Agreement by, or on behalf of, the Customer or BREW or jointly between the Customer and BREW;
  
  Authorised Users
  persons who are authorised by the Customer to use the Services and Service Documentation;
  
  Background IP
  any IP owned or controlled by a party as at the Commencement Date and which is provided by such party for use in relation to this Agreement;
  
  Brew:web
  The proprietary name of the website product owned by Brew Digital Ltd;
  
  Business Day
  any day which is not a Saturday, Sunday or public holiday in the UK;
  
  Business Hours
  BREW’s regular working hours, being 9am to 5pm UK time;
  
  Confidential Information
  any and all information in whatever form given by either party (the Discloser) to the other (the Recipient) about the Discloser’s business and/or acquired by either party about the other party’s business and/or generated by either party from the other party’s Confidential Information;
  
  Costed Proposal
  the order confirmation form provided by BREW to the Customer setting out the Services, Support Services, Software and Fees and appended at Schedule 1;
  
  Customer Data
  the data inputted by the Customer, a consumer, Authorised Users, or BREW on the Customer’s behalf for the purpose of using the Services or the Customer Website or facilitating the Customer’s use of the Services or the Customer Website;
  
  Customer Website
  any website created, hosted, managed on behalf of and/or provided to the Customer by BREW as part of the Services including Brew:web;
  
  Data Controller
  The UK GDPR defines a controller as: the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data. Controllers make decisions about processing activities;
  
  Data Processor
  The UK GDPR defines a processor as: a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller. Processors act on behalf of the relevant controller and under their authority;
  
  Director
  an account director, a managing director or a chief executive officer of BREW;
  
  Fees
  BREW’s fees for providing the Services as set out in the Costed Proposal;
  
  Force Majeure Event
  means any occurrence which hinders, delays or prevents a party in performing any of its obligations under this Agreement which is beyond the control of, and without the fault or negligence of, such party and which by the exercise of reasonable diligence it is unable to prevent or provide against including but not limited to war, civil war, act of God, fires, flood, epidemic, utility disruption, subsidence, strikes, lock-outs, insurrection or riots, embargoes, unavailability of services, , failure by any Third Party provider of services and/or changes to requirements or regulations of any governmental authority;
  
  Front Sheet
  the front page forming part of this Agreement;
  
  Intellectual Property or IP
  all copyrights, patents, design rights, trademarks, service marks, trade secrets, know-how, database rights, moral rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
  
  Legal Basis
  The six legal bases for processing customer data as defined by the Data Protection Act 2018 (DPA 2018) incorporating the UK GDPR;
  
  Platform Code
  any and all codes created or developed by BREW or on its behalf and/or by its Third- Party service providers for the purpose of creating or enhancing a website platform;
  
  RPI
  the UK Retail Prices Index published monthly by the Office for National Statistics;
  
  Services
  the services to be provided by BREW to the Customer described in the Costed Proposal;
  
  Service Documentation
  the document provided to the Customer by BREW (if any) from time to time describing the Services, including any documentation providing the Customer with user instructions for the Services;
  
  Service Level Agreement
  the service level agreement (if any) between BREW and the Customer set out at Schedule 2;
  
  Site
  The Customer Website, any sites used by the Customer for the Services, and any other website or Platform Code owned or operated by BREW at any time.
  
  Software
  any online applications made available to the Customer by BREW described in the Costed Proposal;
  
  Support Services
  the maintenance services (if any) described in the Costed Proposal;
  
  Support Hours
  the hours for which the Support Services are performed;
  
  Third Party
  a third party whose components, services, content or materials are used by the parties in relation to the Services, Software or the Customer Website;
  
  UK Data Protection Legislation
  the UK Data Protection Legislation and any other 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); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
  
  User Policy
  BREW’s user policy appended at Schedule 3.
  
  VAT
  value added tax chargeable in the UK
2. The term “and/or” means either or both of the alternative.
3. Any reference in this Agreement to a Clause or Schedule is to a clause or schedule of this Agreement and any reference to a paragraph is to the paragraph of the Schedule in which the reference is made unless otherwise stated.
4. The headings of this Agreement shall not affect its construction or interpretation.
5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
6. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
BASIS OF CONTRACT
1. If there is any conflict between any of the terms of this Agreement then the parts of this Agreement shall prevail and take priority in the following order:
  1. the Costed Proposal;
  2. the Front sheet;
  3. the Service Level Agreement;
  4. the User Policy;
  5. the Schedules; and
  6. the main body of this Agreement.
2. If there is a conflict between any of the terms of this Agreement and the terms of a non-disclosure agreement between BREW and the Customer (if any) then this Agreement shall prevail and take priority.
1. This Agreement shall govern the arrangement between BREW and the Customer to the exclusion of any other terms or conditions.
2. Any request for Services placed by the Customer and/or any Affiliate leading to a contract which is not expressed to be subject to this Agreement shall still be subject to them.
3. BREW’s employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning Services unless confirmed by a Director of BREW in writing.
4. No oral warranties or representations shall bind BREW (unless given by a Director of BREW).
5. The Customer acknowledges that it does not rely on any representation and/or warranty which is not contained in this Agreement.
6. Details and/or specifications in brochures and price lists and/or on any website produced by BREW are intended as a guide only and only give a general approximation of Services. The Customer agrees that it has not relied upon such details and/or specifications unless they are repeated in the Costed Proposal.
7. Where the Customer enters into this Agreement on its own behalf and also on behalf of any Affiliate, the Customer shall remain fully liable to BREW (including for all Fees due from the Affiliate to BREW) for any and all acts and/or omissions of the Affiliate as if they were the Customer’s acts and/or omissions under this Agreement.
DURATION
This Agreement takes effect from the Commencement Date and shall remain in force for the Initial Term and then continue in force unless terminated in accordance with the terms of this Agreement or by BREW serving at least 30 days’ notice on the Customer. The Customer may terminate this agreement by serving at least 90 days’ notice on BREW to expire on each anniversary of the expiry of the Initial Term.
SERVICES
1. BREW shall provide the Services, the Support Services, Software and any Additional Services in accordance with this Agreement and the Costed Proposal and shall provide the Support Services (if agreed to in the Costed Proposal) in accordance with the Service Level Agreement.
2. BREW shall not be obliged to provide any Services if the Customer’s use is contrary to the instructions of BREW or the Services are modified or altered by any party other than BREW and/or if the Customer or any person using the Services on the Customer’s behalf fails to comply with the User Policy.
3. BREW will use its reasonable commercial efforts to perform the Services by the date set out in the Costed Proposal, but each such date is to be treated as an estimate only and time shall also not be of the essence for any extension of time for performance agreed to by the Customer.
4. BREW gives no warranty that the Software will be available at all times, in particular the Software will not be available when:
  1. planned maintenance is needed and the Customer is given as much notice as reasonably practicable of the maintenance; and
  2. unscheduled maintenance needs to be performed outside of BREW’s Business Hours.
5. BREW gives no warranty in relation to any Third-Party elements of the Services and/or Software and/or Customer Website. BREW shall not be liable to the Customer for any loss or damage arising from Third Party actions.
6. BREW shall not be obliged to rectify or resolve any actions by a Third-Party or any changes made by a Third Party which have an adverse effect on BREW’s provision of and/or the Customer’s use of the Services, Software and/or Customer Website.
7. The Customer shall pay all additional costs and all expenses incurred by BREW arising from or connected with the Third Party’s adverse actions or changes if BREW agrees (at its option) to rectify or resolve the Third Party’s adverse actions.
THE CUSTOMER’S OBLIGATIONS
1. The Customer shall provide BREW with:
  1. all necessary co-operation in relation to this Agreement;
  2. all necessary access to such information as may be reasonably required by BREW in order to render the Services, including but not limited to Customer Data, security access information and configuration services; and
  3. comply with all applicable laws and regulations with respect to its activities under this Agreement.
2. The Customer shall carry out all its obligations under this Agreement in a timely and efficient manner. If there are any delays in the Customer complying with its obligations under this Agreement, BREW has the right to adjust any agreed timetable or delivery schedule as reasonably necessary. The Customer shall keep indemnified BREW for any costs incurred as a result of the delay.
3. The Customer shall ensure that any material uploaded to the Customer Website, either by BREW on the Customer’s behalf or directly by the Customer, is not in breach of any third party’s Intellectual Property rights and complies with the User Policy.
4. The Customer shall ensure that any material uploaded to the Customer Website, either by BREW on the Customer’s behalf or directly by the Customer, is not in breach of any third party’s Intellectual Property rights and complies with the User Policy.
CHANGE CONTROL AND PURCHASE OF ADDITIONAL SERVICES
1. At any time during this Agreement, the Customer may request to purchase Additional Services which are outside the scope of the Costed Proposal. Upon receiving a request for Additional Services from the Customer, BREW shall provide the Customer with an updated Costed Proposal setting out the scope of the Additional Services and the Fees payable. If agreed to by the Customer, the parties will sign the updated Costed Proposal which will then form the Costed Proposal for the purposes of this Agreement. BREW has no obligation to provide Additional Services unless and until an updated Costed Proposal which includes them is agreed to and signed by both parties.
2. The Customer has the right to request changes to the specification of the Costed Proposal by issuing a change request to BREW.
3. No change requested by the Customer shall be effective or binding on BREW unless requested following the change process set out in this Clause 6 and agreed in writing by BREW at BREW’s sole discretion.
4. Upon receipt of a change request from the Customer under Clause 6.2, then:
  1. BREW shall submit an updated Costed Proposal to the Customer and notify the Customer of any increase in Fees payable and any delay to the timescales;
  2. the Customer shall have 5 Business Days from the date of receipt of the updated Costed Proposal to confirm its acceptance; or
  3. if the Customer does not confirm its acceptance in accordance with Clause 6.4.2, BREW may refuse the change request and continue to perform this Agreement on its existing terms.
5. If a change request is agreed between the parties, the Customer shall pay all adjusted costs and all expenses incurred by BREW arising from or connected with any change in the specification from the date specified in the updated Costs Proposal.
SERVICE LEVEL AGREEMENT
1. The Support Services will be provided by BREW to the Customer at the levels stated in the Service Level Agreement.
2. BREW shall use its reasonable commercial efforts to pass the benefit of any warranty, guarantee or service level agreement given by a Third Party to the Customer in respect of any Third-Party services/products provided by BREW as part of the Services to the extent BREW is able to do so.
FEES
1. BREW shall invoice the Customer from the Commencement Date for the Fees in accordance with the payment terms in the Costed Proposal.
2. BREW may adjust the Fees not more than once in each 12-month period. The adjustment to the Fees may include but is not limited to any increase in the RPI during the previous year. Any adjustment to the Fees shall take effect from 1 January each year.
3. Any Additional Services to be provided by BREW will be invoiced as agreed in the updated Costed Proposal relating to such the Additional Services signed by the parties in accordance with Clause 6.1.
4. Save as otherwise agreed in writing, the Customer will pay the Fees to BREW within 30 days of the date of invoice.
5. Failure by the Customer to pay any Fees in full in accordance with this Clause 8 shall entitle BREW to suspend performance of any of the Services pending payment, including disabling the Customer’s password, user account and access to all or part of the Services or Software, or to treat the Agreement as repudiated by the Customer.
6. All prices are exclusive of VAT and any other sales taxes and duties unless expressed to be otherwise.
CUSTOMER DATA
1. Each party shall ensure that it complies with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including, without limitation, the Data Protection Act 2018 (DPA 2018) including the UK-GDPR.
2. The Customer undertakes to BREW that, where Customer Data includes personal data (as defined in the Data Protection Act 2018 including the UKGDPR) the disclosure and provision of any such Customer Data to BREW shall be performed only where the relevant customer has indicated consent to the disclosure of its personal data to BREW.
3. The Customer undertakes to BREW that it has provided its customers with a privacy policy which includes a provision that the customer is subject to the appropriate Data Protection Act 2018 including UK GDPR ‘legal bases’ to the processing of the Customer Data with BREW.
4. BREW shall have no liability to the Customer for any loss or damage to the Customer Data however caused. If the Customer Data is lost or damaged BREW will use reasonable endeavours to restore the lost or damaged Customer Data, if possible using the Support Services.
5. If a Data Subject wishes to amend the legal basis on which the processing of their personal date relies, rectify its Personal Data or makes a subject access request under the Data Protection Act 2018 or the UK GDPR for any Personal Data which the other party is in possession of and/or processes under this Agreement, each party undertakes to:
  1. notify the other party as soon as reasonably practicable after it becomes aware of such a request under this clause 9.5;
  2. provide all information reasonably requested by the other party; and
  3. undertake the necessary action if required under the Data Protection Act 1998 or including the UK GDPR and if so requested by the Data Subject; and
  4. provide written confirmation that it has complied with its obligations under this clause 9
6. In this clause 9, the following definitions and provisions will also apply
  1. Data Controller: has the meaning set out in Article 4(7) of the UK GDPR
  2. Data Processor: has the meaning set out in Article 4(8) of UK GDPR Data Subject: an individual who is the subject of Personal Data.
  3. Personal Data: has the meaning set out in Article 4(1) of the UK GDPR and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which BREW is providing the Services under this Agreement.
7. Processing and process: has the meaning set out in Article 4(2) of the UK GDPR BREW and the Customer acknowledge that for the purposes of the UK GDPR, the Customer is the Data Controller and BREW is the Data Processor in respect of any Personal Data.
8. Each party undertakes to process the Personal Data in compliance with all applicable laws including (without limitation) the UK GDPR and all enactments, regulations, orders, standards and other similar instruments.
9. The Customer warrants that, to the extent that the Customer Data consists of Personal Data, the disclosure, provision, and use of any Customer Data to BREW under this Agreement shall be performed only where the Customer can demonstrate the Data Subject has been served sufficient documentation so as to establish a valid Legal Basis for processing their data in accordance with the requirements of the UK GDPR The Customer may instruct a sub-contractor, agent or consultant to perform all or part of the Services provided that, to the extent that the UK GDPR applies:
  1. the Customer procures that such sub-contractor, agent or consultant complies with its obligations under the UK GDPR; and
  2. the sub-contractor’s contract is on terms which are substantially the same as those set out in this clause 9
10. If BREW appoints a sub-contractor, agent or consultant to perform all or part of the Services, to the extent that the UK GDPR applies:
  1. BREW shall ensure that the sub-contractor, agent or consultant is on terms which are substantially the same as set out in this clause 9; and
  2. The Customer shall ensure that Data Subject has been served sufficient documentation so as to establish a valid Legal Basis for processing their data in accordance with the requirements of the UK GDPR for such Personal Data to be disclosed to the sub-contractor and the Customer shall remain fully liable for any act or omission of the sub-contractor, agent or consultant from any breach of the UK GDPR in accordance with clause 9.10.
11. The Customer agrees to indemnify, and keep indemnified, BREW against all costs, demands, claims, liabilities, damages or expenses incurred (whether direct, indirect or consequential) by BREW or for which BREW may become liable due to any failure of the Customer or its employees, agents or sub-contractors, howsoever arising to comply with any of its obligations under this clause 9. This clause 9 shall survive termination of this Agreement howsoever arising.
12. The Customer shall own all rights, 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 the Customer Data.
13. In accordance with clause 14, BREW shall have no liability to the Customer for any loss or damage to the Customer Data however caused. If the Customer Data is lost or damaged BREW will use reasonable endeavours to restore the lost or damaged Customer Data, if possible using the Support Services.
CONFIDENTIALITY OBLIGATIONS
1. Each party agrees and undertakes:
  1. to keep all Confidential Information of the other party secret and confidential;
  2. not to disclose any part of the other party’s Confidential Information to any other person without the Discloser’s prior written consent; and
  3. not to directly or indirectly use or disclose the other party’s Confidential Information except in the proper performance of this Agreement.
2. Notwithstanding Clause 10.1, the Recipient may disclose the Confidential Information to its officers and employees who are bound by a written agreement to protect the confidentiality of the Confidential Information.
3. Each party will be liable under this Agreement for the acts and/or omissions of any agent, employee or subcontractors as if they were its own acts and/or omissions under this Agreement.
4. Clause 9 does not apply to Confidential Information which:
  1. is already in the Recipient’s possession and at its free disclosure prior to this Agreement, and is not subject to any obligation of confidentiality;
  2. the Recipient can prove was independently developed by it without any reference to the Confidential Information;
  3. is or becomes generally available to the public through no default or omission on the part of the Recipient; and
  4. is required to be disclosed by any law, regulation or request of a competent authority on the condition that the Discloser is given at least 7 Business Days advance notice of such disclosure.
INTELLECTUAL PROPERTY RIGHTS
1. Save as otherwise expressly set out in the Costed Proposal and subject to Clause 11.2, all IP under this Agreement shall be owned between the parties as follows:
  1. all Background IP used in connection with this Agreement shall remain the property of the party introducing it;
  2. any IP owned by any Third-Party service provider of BREW, will continue to be owned by that Third Party;
  3. any Arising IP (both existing and future) in the content (look and feel) of any Customer Website and in any bespoke code (but not any Platform Code or any code relating to the Platform Code) used to build the Customer Website shall vest in the Customer and is hereby assigned by BREW upon payment of all Fees to the Customer with full title guarantee;
  4. any Arising IP (both existing and future) in any code not created solely for the Customer and in any Platform Code or any code relating to the Platform Code used and/or created by BREW in connection with this Agreement shall vest in BREW and to the extent the Customer and/or any Affiliate has any interest in it, the Customer hereby assigns it or shall procure its assignment by way of future assignment to BREW with full title guarantee; and
  5. any other Arising IP (both existing and future) which is not covered by the Costed Proposal or under this Clause shall vest in BREW and to the extent the Customer and/or any Affiliate has any interest in it, the Customer hereby assigns it or shall procure its assignment by way of future assignment to BREW with full title guarantee.
2. The Customer shall not be entitled to any ownership or rights in any of the IP set out in this Clause unless and until it has paid in full all Fees.
3. To the extent that any of the rights assigned under this Clause are not wholly and/or validly assigned, the Customer shall hold them (or, where held by an Affiliate, the Customer shall procure that the Affiliate holds them) upon a bare trust for the full and exclusive benefit of BREW.
4. BREW may, at its sole discretion and cost, apply for patent or other IP protection in BREW’s name for any Arising IP. The Customer shall, and shall procure that all Affiliates, cooperate with BREW in executing such documents and providing such assistance as may be reasonably required in the prosecution of such application(s) and to ensure that such application(s) will cover, to the best of the Customer’s reasonable knowledge, all items of commercial interest and importance.
5. The Customer shall, and shall procure that all Affiliates, at the request of BREW and the entire cost of BREW:
  1. execute any further documents and/or deeds and do any such things as BREW may require to enable BREW to secure the delivery of information and the benefit of the rights assigned or held in trust in accordance with this Clause 11; and/or
  2. take such action as BREW may reasonably require to assist BREW in bringing or defending any proceedings relating to any Arising IP.
TERMINATION
1. BREW may terminate this Agreement upon 10 days’ notice if the Customer (or any Affiliate) fails to pay any Fees on time.
2. BREW may terminate this Agreement with immediate effect without liability to the Customer whatsoever by giving notice in writing to the Customer if the Customer commits a breach of any of its obligations in clause 9 or its User Policy
3. Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of this Agreement and if remediable the breach has not been remedied within 14 days of receiving notice requiring it to be remedied, save where the breach is by BREW of a service level under the Service Level Agreement in which case the provisions of the Service Level Agreement shall apply;
  2. the other party is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or any other person in respect of any of these circumstances); or
  3. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4. Upon and following termination of this Agreement:
  1. The Customer shall pay all sums incurred by BREW for which BREW is entitled to raise an invoice under Clause 8;
  2. Clauses 8, 10, 11 and 12 shall continue to apply; and
  3. BREW shall promptly return all materials, documents and other Customer Data supplied by the Customer.
5. Unless either party terminates this Agreement upon at least 30 days written notice in the manner permitted under Clause 3, BREW shall be entitled to raise an invoice (either before or after the termination of this Agreement) for all costs reasonably incurred by BREW in terminating this Agreement, including:
  1. the cost of terminating and handing over BREW’s provision of the Services to the Customer, including returning the Customer Data to the Customer;
  2. any unbilled work in progress for the Services; and
  3. any costs payable to a Third Party relating to the Services, including costs due under the remainder of a contract with any Third Party relating to the Services.
6. The Customer shall pay any invoice raised under Clause 12.4 in accordance with Clause 8.
7. Termination of this Agreement will not affect either party’s accrued rights as at the date of termination.
WARRANTIES
1. BREW warrants that the Services will be performed:
  1. in accordance with the terms of this Agreement;
  2. with reasonable skill and care;
  3. without infringement of any third-party IP by BREW; and
  4. in accordance with the Costed Proposal and any Service Level Agreement.
2. BREW shall not be liable under Clause 13.1 if the Services have not been used in accordance with BREW’s instructions or have been modified, customised or altered by any third party or other cause outside the control of BREW.
3. BREW shall not be liable for any of the Customer’s actions in either uploading material to any authorised web space of BREW, or to any other web space on any server.
LIMIT ON LIABILITY
1. If the Customer ticked No on the Front Sheet in respect of entering into this Agreement on behalf of the Affiliates, BREW’s total liability to the Customer under this Agreement shall not exceed the amount paid by the Customer to BREW in any relevant 12-month period under this Agreement. For the purposes of this Agreement, relevant 12-month period means the 12 months immediately preceding a claim.
2. If the Customer ticked Yes on the Front Sheet in respect of entering into this Agreement on behalf of the Affiliates then:
  1. Subject to Clause 14.2.2, BREW’s total liability to the Customer under this Agreement in relation to each Affiliate shall not exceed the amount paid by the relevant Affiliate to BREW in any relevant 12-month period under this Agreement; and
  2. BREW’s total liability to the Customer under this Agreement is limited to the amount paid by the Customer in any relevant 12-month period, save that in addition, BREW shall not be liable to pay anything to the Customer to the extent that BREW have already made a payment to an Affiliate in respect of any liability under this Agreement.
3. BREW shall have no liability to the Customer for any:
  1. expenses, loss of profits and/or damage to goodwill;
  2. pure economic and/or other similar losses;
  3. loss of and loss of use of and/or corruption of data;
  4. loss of and loss of use of Software;
  5. security breach by any third party in relation to any communications network;
  6. business interruption, loss of business, loss of contracts, loss of opportunity and/or production; and/or
  7. consequential losses and/or indirect losses.
4. Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of:
  1. liability in contract (including fundamental breach);
  2. liability in tort (including negligence);
  3. liability for breach of statutory duty; and
  4. liability for breach of Common Law and/or under any other legal basis;
5. except that the Clause above placing a financial cap on BREW’s liability shall apply once in respect of all of the said types of liability.
6. BREW shall have no liability to the Customer if the Fees have not been paid in full by the due date for payment.
7. The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer.
8. The Customer shall give BREW a reasonable opportunity to remedy any matter for which BREW is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so, BREW shall have no liability to the Customer in relation to that matter.
9. Nothing in this Agreement shall exclude or limit a party’s liability for death or personal injury due to its negligence or any liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
10. All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
FORCE MAJEURE
1. Neither party shall be liable for any delay or failure in performing its obligations under this Agreement as a result of a Force Majeure Event or reasons beyond its reasonable control.
2. If the event causing such delay or failure continues for in excess of 1 month this Agreement may be terminated immediately on written notice at the option of the party not affected by the event.
NOTICES
1. Any notice under this Agreement or any communication between the parties with respect to any of the provisions of this Agreement shall be in writing and shall be deemed to be given if delivered to the address of the party receiving such notice as set out at the head of the Agreement or as notified between the parties for the purpose of this Clause.
2. Any notice or other communication shall be deemed to be given to and received by the addressee:
  1. at the time the same is left at the address of or handed to a representative of the party to be served if on a Business Day, and if not on the next Business Day; and/or
  2. by post on the second Business Day following the date of posting.
3. In proving the receipt of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted.
4. For the avoidance of doubt, notice given under this Agreement shall not be validly served if sent by fax or email.
VARIATION
No purported variation of this Agreement shall take effect unless made in writing and signed by an authorised representative of each party.
ILLEGALITY
The invalidity, illegality or unenforceability of any of the provisions of this Agreement shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement.
ASSIGNMENT
Neither party may assign its interest in this Agreement (or any part) without the prior written consent of the other party ((such consent not to be unreasonably withheld or delayed).
THIRD PARTY RIGHTS
1. Except as otherwise expressly provided by this Agreement, none of the terms of this Agreement shall be enforceable by any person who is not a party to it and the parties may vary this Agreement without any third party’s consent, including the Affiliates.
2. The Customer shall indemnify and keep indemnified BREW against all costs and expenses incurred by BREW and arising from the performance of Services by BREW for an Affiliate(s) under this Agreement.
ENTIRE AGREEMENT
Each party acknowledges that this Agreement contains the whole agreement between the parties in respect of its subject matter and supersedes all prior arrangements, agreements, promises, statements, representations, assurances, warranties and understandings between them relating to the subject matter.
WAIVER
No waiver by either party of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
GOVERNING LAW
This Agreement shall be governed by the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.