Terms and Conditions

BACKGROUND

WorkCast is a leading provider of a range of intuitive technology-based solutions, including webinars, webcasts, e-learning and bespoke media channels for websites. The WorkCast Products include, among other things, the ability for Authorised Users to record, upload, manage, distribute and transmit recorded content.

The Client wishes to use the WorkCast Products that WorkCast has agreed to provide, and the Client has agreed to take and pay for the WorkCast Package, subject to the terms of this Agreement.

Agreed terms

1 INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Agreement means the Contract Agreement, together with these Conditions, and any documents incorporated by reference herein or annexed hereto, and this Agreement shall be construed accordingly.

Authorised Users means those employees, agents and independent contractors of the Client who hold a WorkCast Account.

Back-Up Policy means WorkCast’s policy for backing up Client Data

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

Charges means the charges payable by the Client to WorkCast for the provision of the WorkCast Products, as set out in the Contract Agreement.

Conditions means the terms and conditions set out below.

Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5.

Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and controls, controlled and the expression change of control shall be construed accordingly.

Client means the Client whose details appear in the Contract Agreement.

Client Data means the data inputted by the Client, Authorised Users, or WorkCast on the Client's behalf for the purpose of using the WorkCast Products or facilitating the Client's use of the WorkCast Packages

Documentation means any user instructions which WorkCast makes available to the Client in connection with the WorkCast Products.

WorkCast Contract Term means contractually bound to pay for 12 months within Contract agreement, unless otherwise agreed prior to signature.

Live Event means an online webinar, webcast Live Event means an online webinar, webcast, job fair, virtual event, seminar, conference or meeting that is intended to be broadcast live. (Following the live broadcast, Live Events may also be stored for later viewing).

Normal Business Hours means 9.00 am to 5.00 pm local UK time, each Business Day.

Renewal Period means the period described in clause 12.1.

Contract Agreement means the agreement order form executed by WorkCast and the Client, incorporating these Conditions.

Software means any software applications provided by WorkCast as part of the WorkCast Packages.

Target Availability has the meaning given to that term in paragraph 2 of Schedule 1.

Virus means anything 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, 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.

WorkCast Account means a user account set up in accordance with clause 2.

WorkCast Policies means WorkCast’s Acceptable Use Policy, Privacy Policy, Back-up Policy and Cookie Policy, each available on request from WorkCast, together with any other policies notified by WorkCast to the Client.

WorkCast Products means the products offered by WorkCast, as set out in the Contract Agreement.

WorkCast Contract Start Date means the date set out in the Contract Agreement.

WorkCast Contract Term has the meaning given in clause 12.1 (being the Initial WorkCast Services Term together with any subsequent Renewal Periods).

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

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.

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

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

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

1.8 A reference to writing or written includes faxes but not e-mail.

2 SETTING UP A WORKCAST ACCOUNT

2.1 The Client shall nominate one or more Authorised Users. Prior to utilising the WorkCast Products, each Authorised User must set up a WorkCast Account by completing the registration process set out by WorkCast.

2.2 By creating a WorkCast Account, the Client represent and warrants that:

2.2.1 all information submitted to WorkCast is true, accurate, current, and complete (apart from optional items) as required by the registration process; and

2.2.2 the Client will maintain and promptly update Client Data to keep it true, accurate, current and complete.

3 WORKCAST'S OBLIGATIONS

3.1 WorkCast shall, during the WorkCast Contract Term, provide the WorkCast Products and make available the Documentation to the Client on and subject to the terms of this Agreement.

3.2 WorkCast shall:

3.2.1 provide the WorkCast Packages in accordance with the Documentation and with reasonable skill and care; and

3.2.2 use commercially reasonable endeavours to make the Live Events available in accordance with the Target Availability.

3.3 The WorkCast Policies are incorporated into this Agreement by reference, and WorkCast and the Client shall have the rights, and comply with the obligations, set out in the WorkCast Policies.

3.4 The undertaking at clause 3.1 shall not apply to the extent of any non-conformance which is caused by use of the WorkCast Products contrary to WorkCast's instructions, or modification or alteration of the WorkCast Packages by any party other than WorkCast or WorkCast's duly authorised contractors or agents. If the WorkCast Products do not conform to the foregoing undertaking, WorkCast will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 3.1. Notwithstanding the foregoing, WorkCast:

3.4.1 does not warrant that the Client's use of the WorkCast Products will be uninterrupted or error-free; or that the WorkCast Services, Documentation and/or the information obtained by the Client through the WorkCast Packages will meet the Client's requirements; and

3.4.2 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 Client acknowledges that the WorkCast Products and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

3.5 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 this Agreement.

3.6 WorkCast warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

4 CLIENT'S OBLIGATIONS

4.1 The Client shall:

4.1.1 provide WorkCast with:

(a) all necessary co-operation in relation to this Agreement; and

(b) all necessary access to such information as may be required by WorkCast to fulfil the contract;

in order for WorkCast to provide the WorkCast Products, including but not limited to Client Data, security access information and configuration services;

4.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;

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

4.1.4 ensure that the Authorised Users use the WorkCast Products and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;

4.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for WorkCast, its contractors and agents to perform their obligations under this Agreement, including without limitation the WorkCast Products;

4.1.6 ensure that its network and systems comply with the relevant specifications provided by WorkCast from time to time; and

4.1.7 be solely responsible for procuring and maintaining 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 Client's network connections or telecommunications links or caused by the internet.

4.2 The Client shall, during the course of its use of the WorkCast Products, comply with the Acceptable Use Policy, and the Client warrants to WorkCast that it shall not access, store, distribute or transmit any Viruses, or any material that:

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

4.2.2 facilitates illegal activity;

4.2.3 depicts sexually explicit images;

4.2.4 promotes unlawful violence;

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

4.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;

4.2.7 infringes any third party's intellectual property rights, other proprietary rights or rights of privacy;

4.2.8 does not comply with relevant advertising standard codes and guidance; or

4.2.9 violates any law, statute, ordinance or regulation in the UK,

and WorkCast reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause. The Client acknowledge that WorkCast does not screen or review content on the WorkCast Products to determine whether amongst other things, it contains content which contravenes this clause 4.2, and shall indemnify WorkCast against any third party claim in connection with any such content appearing on the WorkCast Products or otherwise being made available.

4.3 The Client shall not:

4.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the WorkCast Products (including any Software) and/or Documentation (as applicable) in any form or media or by any means; or

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

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

4.3.3 remove, obscure, interfere with or modify the presentation or functionality of any aspect of the WorkCast Products;

4.3.4 subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the WorkCast Products and/or Documentation available to any third party except the Authorised Users (provided that this shall not prevent the Client from making certain services, such as webcast, webinar or e-learning services, available to their intended audience, as agreed between the Client and WorkCast); or

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

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

4.5 The rights provided under this clause are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

5 CLIENT DATA

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

5.2 WorkCast shall follow its archiving procedures for Client Data as set out in its Back-Up Policy, as such document may be amended by WorkCast in its sole discretion on occassion. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy shall be for WorkCast to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client 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 Client Data caused by any third party.

5.3 If WorkCast processes any personal data on the Client's behalf when performing its obligations under this Agreement, the parties record their intention that the Client shall be the data controller and WorkCast shall be a data processor and in any such case:

5.3.1 the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the WorkCast Services and WorkCast's other obligations under this Agreement;

5.3.2 the Client shall ensure that the Client is entitled to transfer the relevant personal data to WorkCast so that WorkCast may lawfully use, process and transfer the personal data in accordance with this Agreement on the Client's behalf;

5.3.3 the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.3.4 WorkCast shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Client from time to time; and

5.3.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6 THIRD PARTY PROVIDERS

The Client acknowledges that the WorkCast Products may enable or assist it to access the website content or, 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 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 Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not WorkCast. WorkCast recommends that the Client 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 WorkCast Products.

7 CHARGES AND PAYMENT

7.1 WorkCast shall issue invoices in respect of the Charges, and the Client shall pay to WorkCast the Charges set out in WorkCast’s invoices within 30 Business Days of the date of WorkCast’s invoice. The Charges are payable:

7.1.1 Annually in advance in respect of fixed fees; or

7.1.2 Monthly in advance in respect of fixed 1/12 of annual agreed charge.

7.1.3 Where payments are made by credit card an invoice will only be issued where specifically requested by the client to finance@workcast.com

7.2 If WorkCast has not received payment within 30 Business Days of the due date, and without prejudice to any other rights and remedies of WorkCast:

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

7.2.2 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 Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.2.3 The full value (in conjunction with clause 7.3.3) of the contract in place still remains payable due to a commitment to purchase the product sold.

7.3 All amounts and fees stated or referred to in this Agreement:

7.3.1 shall be payable in the currency of the invoice issued & contract signed.

7.3.2 shall be made by electronic transfer to the bank details contained in the invoice or via WorldPay online;

7.3.3 are, subject to clause 7.4, non-cancellable and non-refundable;

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

7.4 If the Client and WorkCast have agreed that a Live Event will take place on a certain date, and the Client wishes to cancel such Live Event prior to that date, then the following rules shall apply:

7.4.1 the Client shall notify WorkCast of such intended cancellation, giving full details, including any steps WorkCast should take to inform registered attendees; and

7.4.2 if, at the time of such notification, WorkCast has commenced preparatory work in relation to such Live Event (including, but not limited to design work, event configuration, registration page, attendee registration workflow) then:

(a) if such notification is received by WorkCast with more than 24 hours until scheduled commencement of the Live Event, the Client shall pay a cancellation of event fee equating to 30% of the Charges associated with the Live Event (as identified in the Contract Agreement), together with any irrecoverable third party costs which WorkCast has committed to; and

(b) if such notification is received by WorkCast less than 24 hours until scheduled commencement of the Live Event, the Client shall pay all Charges associated with such Live Event (and any rescheduling of such Live Event shall be deemed a new Live Event for charging purposes).

8 PROPRIETARY RIGHTS

8.1 The Client acknowledges and agrees that WorkCast and/or its licensors own all intellectual property rights in the WorkCast Contract and the Documentation. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the WorkCast Contract or the Documentation.

8.2 WorkCast confirms that it has all the rights in relation to the WorkCast Contract and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

9 CONFIDENTIALITY

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

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

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

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

9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or

9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, 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 this Agreement.

9.3 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 the terms of this Agreement.

9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.5 The Client acknowledges that details of the WorkCast Contract, and the results of any performance tests of the WorkCast Products, constitute WorkCast's Confidential Information.

9.6 WorkCast acknowledges that the Client Data is the Confidential Information of the Client.

9.7 This clause 9 shall survive termination of this Agreement, however arising.

9.8 No party shall make, or permit any person to make, any public announcement concerning this 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.

10 INDEMNITY

10.1 The Client shall defend, indemnify and hold harmless WorkCast 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 Client's use of the WorkCast Products and/or Documentation, provided that:

10.1.1 the Client is given prompt notice of any such claim;

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

10.1.3 the Client is given sole authority to defend or settle the claim.

10.2 Subject to clause 10.3, WorkCast shall defend the Client, its officers, directors and employees against any claim that the WorkCast Products or Documentation infringes any United Kingdom patent effective as of the WorkCast Contract Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

10.2.1 WorkCast is given prompt notice of any such claim;

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

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

10.3 Clause 10.2 shall not apply in respect of any open source software contained in software utilised in the WorkCast Products.

10.4 In the defence or settlement of any claim, WorkCast may procure the right for the Client to continue using the WorkCast Products, replace or modify the WorkCast Products so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

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

10.5.1 a modification of the WorkCast Products or Documentation by anyone other than WorkCast; or

10.5.2 the Client's use of the WorkCast Products or Documentation in a manner contrary to the instructions given to the Client by WorkCast; or

10.5.3 the Client's use of the WorkCast Products or Documentation after notice of the alleged or actual infringement from WorkCast or any appropriate authority.

10.6 The foregoing states the Client'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.

11 LIMITATION OF LIABILITY

11.1 This clause 11 sets out the entire financial liability of WorkCast (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

11.1.1 arising under or in connection with this Agreement;

11.1.2 in respect of any use made by the Client of the WorkCast Products and Documentation or any part of them; and

11.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2 Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

11.3 Nothing in this Agreement excludes the liability of WorkCast:

11.3.1 for death or personal injury caused by WorkCast's negligence; or

11.3.2 for fraud or fraudulent misrepresentation;

11.3.3 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

11.3.4 any other liability which cannot be excluded or limited under applicable law.

11.4 Subject to clause 11.2 and clause 11.3:

11.4.1 WorkCast shall not 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 this Agreement; and

11.4.2 WorkCast's total aggregate liability in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 100% (one hundred per cent) of the total Charges paid or payable by the Client.

12 TERM AND TERMINATION

12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the WorkCast Contract Start Date and shall continue for the Initial WorkCast Contract Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months, unless:

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

12.1.2 otherwise terminated in accordance with the provisions of this Agreement;

and the Initial WorkCast Contract Term together with any subsequent Renewal Periods shall constitute the extension of WorkCast Contracted Term.

12.2 Without affecting any other right or remedy available to it:

12.2.1 either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any other term of this Agreement 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;

(b) 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;

(c) 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;

(d) 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;

(e) 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;

(f) 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;

(g) 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;

(h) 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;

(i) 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 12.2.1(b) to clause 12.2.1(h) (inclusive); or

(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and

12.2.2 WorkCast party may terminate this Agreement with immediate effect by giving written notice to the Client:

(a) if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 Business Days after being notified in writing to make such payment;

(b) without having to specify a reason (in which case WorkCast shall refund any prepaid amounts to the Client within 30 days of termination);

12.3 On termination of this Agreement for any reason:

12.3.1 all licences granted under this Agreement shall immediately terminate;

12.3.2 the Client shall cease all use of the WorkCast Products and Documentation;

12.3.3 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;

12.3.4 WorkCast may destroy or otherwise dispose of any of the Client Data in its possession unless WorkCast receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. WorkCast shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client 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 Client shall pay all reasonable expenses incurred by WorkCast in returning or disposing of Client Data; and

12.3.5 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

13 FORCE MAJEURE

WorkCast shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 WorkCast or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

14 CONFLICT

If there is an inconsistency between these Conditions and the Contract Agreement, the provisions in the Conditions shall prevail.

15 VARIATION

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16 WAIVER

No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.

17 RIGHTS AND REMEDIES

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

18 SEVERANCE

18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19 ENTIRE AGREEMENT

19.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

20 ASSIGNMENT

20.1 The Client 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 this Agreement.

20.2 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 this Agreement.

21 NO PARTNERSHIP OR AGENCY

Nothing in this Agreement 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).

22 THIRD PARTY RIGHTS

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

23 NOTICES

23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.

23.2 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

24 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.

25 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).


Schedule 1
SUPPORT AND AVAILABILITY COMMITMENTS

1.1 The following definitions and rules of interpretation apply in this Schedule.

Available means the Live Event is available at WorkCast’s (or its subcontractor’s) data centres, up to the point where such data centre connects to the internet, and Availability and non-Availability shall be construed accordingly.

Commercially Reasonable Efforts means the same degree of priority and diligence with which WorkCast meets the support needs of its other similar clients.

Contact List means a current list of WorkCast contacts and telephone numbers to enable the Client to escalate its Support Requests, including:

(a) the first person to contact; and

(b) the persons in successively more qualified or experienced positions to provide the support sought.

Fault means any non-Availability of the WorkCast Products or problem with the WorkCast Products.

Help Desk Support means any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to WorkCast Services.

Higher-level Support means any higher-level support provided by an individual on the Contact List.

Live Event Scheduled Times means the times agreed in writing between WorkCast and the Client, at which the Live Event is to take place. Live Event Scheduled Times are not applicable to viewing a recorded Live Event after the Live Event has taken place.

Permitted Downtime means any periods during Live Event Scheduled Times, during which the Live Event is not Available due to one or more of the following factors: (a) any Client environment issues affecting connectivity, including without limitation, Client’s telecommunications connection or any other Client software or equipment, Client’s firewall software, hardware or security settings, Client’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Client; (b) any third party software, hardware, or telecommunication failures, including internet slow-downs or failures; (c) any event set out in clause 13 (force majeure); (d) issues related to third party domain name system (DNS) errors or failures; and (e) emergency maintenance of the Live Event.

Service Levels means the service level responses and response times referred to in the Service Level Table.

Service Level Table means the table set out in paragraph 5.1.

Solution means either of the following outcomes:

(a) correction of a Fault; or

(b) a workaround in relation to a Fault (including a reversal of any changes to the WorkCast Services if deemed appropriate by WorkCast) that is reasonably acceptable to the Client.

Support Request means request made by the Client in accordance with this schedule for support in relation to the WorkCast Services, including correction of a Fault.

Support Services means the support services described in paragraph 3 of this Schedule 1.

2 Availability during Live Events

2.1 WorkCast shall use Commercially Reasonable Efforts to ensure that the Live Event is Available 98% of the time during Live Event Scheduled Times, subject to Permitted Downtime (Target Availability).

2.2 Subject to Permitted Downtime, if the Availability of a Live Event falls below 98%, WorkCast shall credit the Client with those Charges set out in the Contract Agreement which relate to the Live Event.

2.3 As a worked example, if:

2.3.1 a Live Event is scheduled to last 100 minutes and the Live Event Scheduled Time is 16:00 to 17:40; and

2.3.2 the Charges relating to the Live Event (as identified in the Contract agreement) is £1,000;

2.3.3 the Live Event is not Available for an aggregate duration of 10 minutes during the Live Event Scheduled Time; and

2.3.4 there is 8 minutes of Permitted Downtime during the Live Event Scheduled Time,

then the Live Event shall be deemed to have been non-Available for 2 minutes, and Availability shall be deemed to be 98%.

3 Support Services

3.1 WorkCast shall perform the Support Services during the Core Hours in accordance with the Service Levels.

3.2 As part of the Support Services, WorkCast shall use Commercially Reasonable Efforts to:

3.2.1 provide Help Desk Support by means of the following e-mail address support@workcast.com;

3.2.2 commit appropriate resources to the provision of Higher-Level Support;

3.2.3 where Help Desk Support is not provided within the relevant Service Level response time and the Client escalates its Support Request to an individual of appropriate qualification or experience on the Contact List, provide Higher-Level Support;

3.2.4 use Commercially Reasonable Efforts to correct all Faults notified under paragraph 4.3.1; and

3.2.5 provide technical support for the WorkCast Services in accordance with the Service Levels.

4 Submitting Support Requests and access

4.1 The Client may request Support Services by way of a Support Request.

4.2 Each Support Request shall include a description of the problem and the start time of the incident.

4.3 The Client shall provide WorkCast with:

4.3.1 prompt notice of any Faults; and

4.3.2 such output and other data, documents, information, assistance and (subject to compliance with all Client's security and encryption requirements notified to WorkCast in writing) remote access to the Client’s systems, as are reasonably necessary to assist WorkCast to reproduce operating conditions similar to those present when the Client detected the relevant Fault and to respond to the relevant Support Request.

4.4 The Client acknowledges that, to properly assess and resolve Support Requests, it may be necessary to permit WorkCast direct access at the Client’s premises to the Client’s systems and the Client's files, equipment and personnel.

5 Service Levels

5.1 WorkCast shall use Commercially Reasonable Efforts to:

5.1.1 prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported; and

5.2 WorkCast shall give the Client regular updates of the nature and status of its efforts to correct any Fault and monthly reports as to achievement of Service Levels.