This Agreement (as defined below) is made and entered into by and between:
(1) BC Music Media Limited t/a Instrumental (company number: 08275462), whose registered office is at 1 Hammersmith Broadway, London, W6 9DL and its principal place of business is at Unit C, Taper Studios, The Leather Market, 120 Weston Street, London SE1 4GS (“Instrumental”, “we”, “ours”, “us”); and
(2) The individual or entity who signs up for Instrumental’s services via an Order Form as defined below (the “Subscriber”, “you”, “your”),
Each a “party” and together the “parties”.
This Agreement outlines how you are able to access our services.
THE PARTIES AGREE THE FOLLOWING:
The following definitions shall apply in this Agreement:
1.1 “Agreement” means these terms and conditions and the Order Form between the Parties and any other document incorporated therein;
1.2 “Account” means a unique account created for the Subscriber to access the Subscription Services.
1.3 “Add-On Services” means additional services as specified in the applicable Order Form that may be added to the Subscription Services including API access.
1.4 “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
1.5 “Beta Service(s)” means services that are either in beta form, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.
1.6 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party of its Representative (as defined below) to the other party and that party’s Representatives whether before or after the Effective Date in connection with this Agreement, including but not limited to: the terms of this Agreement, any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party or any member of the group of companies to which the disclosing party belongs and the operations, processes, product information, know-how, designs, and trade secrets or software of the disclosing party (or any member of the group of companies to which the disclosing party belongs.
1.7 “Effective Date” means the date where both Parties have signed the first Order Form.
1.8 “Professional Services” means any professional services provided by Instrumental and as specified in the applicable Order Form.
1.9 “Scope Limitations” means the limitations on the Subscriber’s use of the Subscription Services specified in one or more applicable Order Form. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of users, or such other limits as are set forth in the Order Form.
1.10 “Order Form” means a document setting out the specific details of one or more specific Instrumental Services to be provided to the Subscriber, which is agreed upon and signed by both parties.
1.11 “Output Data” means the data collected and/or generated via the Instrumental Services for and on behalf of the Subscriber;
1.12 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claims priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.13 “Instrumental Services” means, collectively, Subscription Services, Add-On Services and Professional Services.
1.14 “Renewal” means each time a Subscriber’s subscription for any or all of the Instrumental Services is renewed in accordance with Clause 6.6 below.
1.15 “Representatives” means, in relation to a party, its employees, officers, representatives and advisers.
1.16 “Subscription Services” means the subscription services provided by Instrumental to the Subscriber, as identified in one or more Order Form. The Subscription Services include the use of web and mobile based applications, Talent AI tool, technical support, and documentation such as user manuals and online help files.
1.17 “Talent AI” means Instrumental’s software platform which allows the Subscriber to search for artists via external sources.
2. Order Form
2.1 Once executed by both parties, each Order Form shall be a unique agreement that incorporates these terms and conditions and stands alone with respect to all other Order Forms.
2.2 If there is a conflict between the terms and conditions and the terms of an Order Form, the terms of the Order Form shall prevail.
2.3 Instrumental shall provide, and the Subscriber shall pay for, all Instrumental Services set out in each Order Form, subject to the terms of the Order Form and these terms and conditions.
3. Beta Services
3.1 From time to time, we may invite you to try Beta Services which may be subject to additional terms and conditions.
3.2 You may accept or decline any such Beta Services trial in your sole discretion.
3.3 Beta Services are for evaluation (non-production) purposes only and are not part of the Instrumental Services.
3.4 Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that the Beta Services becomes generally available.
3.5 We may discontinue Beta Services at any time for any reason in our sole and absolute discretion.
3.6 We have no obligation to make any Beta Service available and shall not be liable for failure to do so.
3.7 We will have no liability for any harm or damage arising out of or in connection with your use of any Beta Service.
4. Use of the Instrumental Services
4.1 Access and Users. We will provide you with a unique username and password to access the Services. You are not allowed to share your username and password with anyone without our prior express consent.
4.2 Technical Support Services. Provided you have paid, and are continuing to pay, the relevant fees specified in the applicable Order Form, we shall provide you with technical support services relating to the Instrumental Services from 10am-5.30pm GMT, Monday through Friday, excluding U.K. public holidays – you can contact our support team at email@example.com or by telephone on 0203 176 7647.
4.3 Service Levels. We shall use commercially reasonable efforts to make access to the Instrumental Services portal available twenty-four (24) hours per day, seven (7) days a week with a minimum uptime level of fifty percent (50%) measured on an aggregate monthly basis. Such service availability does not, however, include regularly scheduled maintenance or any unscheduled downtime due to failures beyond Instrumental’s control (such as errors or malfunctions due to your computer systems, local networks or internet connectivity). This Clause specifically excludes the Beta Services.
4.4 Use Restrictions, Usage and Quotas. You may use the Instrumental Services solely for your own internal business operations. You may not (a) resell the Instrumental Services to any third parties; (b) rent, lease, or otherwise permit third parties to use the Instrumental Services; (c) use the Instrumental Services to provide services to third parties (e.g., as a service bureau); (d) circumvent or disable any security or other technological features or measures of the Instrumental Services; (e) reverse engineer any element of the Instrumental Service, or use the Instrumental Services or any of Instrumental’s Confidential Information to create a product that competes with the Instrumental Services.
We also reserve the right, at our discretion, to impose restrictions and limitations on the number and frequency of calls made by your app to the Instrumental API. You must not attempt to circumvent any restrictions or limitations that we impose. Presently, API calls are limited to 15,000 per client per day.
API overage charge price and product information. If your organization exceeds the above allocation in a given month, you are billed at the rate below for API Requests consumed over the allocation amount. This charge is applied to Instrumental customers who exceed their API request allocation. API overage charge is billed at the price below per request over the allowance. (price in UK GBP pence per call) UK – 0.007 US – 0.007 EU – 0.007 ROW – 0.009
4.5 Compliance with Laws. You shall use the Instrumental Services in compliance with all applicable laws and regulations and in a manner that does not infringe the rights of any third party (including our rights).
4.6 Protection Against Unauthorised Use. You shall use reasonable efforts to prevent any unauthorised use of the Instrumental Services and promptly notify Instrumental in writing of any unauthorised use that it becomes aware of. If there is unauthorised use by anyone who obtained access to the Instrumental Services directly or indirectly through you, you shall take all steps reasonably necessary to terminate the unauthorised use. You shall cooperate and assist with any requests or actions taken by us to prevent or terminate such unauthorised use of the Instrumental Services. We shall have no liability whatsoever with respect to any loss or damage to your Account due to unauthorised access of your Account.
4.7 Right to Suspend Services. We may suspend your use of the Instrumental Services if we reasonably and in good faith believe such suspension is necessary to prevent unauthorised use of the Instrumental Services or to prevent an ongoing violation of any applicable laws or regulations. We shall use commercially reasonable efforts to notify you at least twenty-four (24) hours prior to any such suspension and will only suspend the Instrumental Services to the extent necessary to prevent such unauthorised use or violation. In addition, if you fail to pay any fees by the relevant due date per the Order Form, we may, without limitation to any of our other rights or remedies, suspend performance of the Instrumental Services until we receive all amounts due.
4.8 Reservation of Rights. We hereby grant to you a limited, worldwide, non-exclusive, non-transferable right during the term of the Order Form(s) to use the Instrumental Services set out therein. Your right to use the Instrumental Services is subject to the Scope Limitations and contingent upon your compliance with the Scope Limitations, the terms of the Order Form and these terms and conditions. You shall not have any rights to the Instrumental Services except as expressly granted in this Agreement. We reserve, on our own behalf and on behalf of our licensors, all rights to the Instrumental Services not expressly granted to you in accordance with this Agreement.
4.9 Instrumental IP Ownership. Any and all Intellectual Property Rights in, to or arising from the Instrumental Services and all software and other technologies embodied in or used to provide the Instrumental Services are and shall remain our, or our licensors, exclusive property (the “Instrumental IP”).
4.10 Intellectual Property Licence. We hereby grant to you a non-exclusive, revocable licence that is limited to the duration of this Agreement to use the Instrumental IP for the sole purpose of receiving the Instrumental Services and for no other purposes whatsoever (the “Instrumental IP Licence”).
4.11 Output Data. Any and all Intellectual Property Rights in, to or arising from the Output Data shall, subject to any third party data agreements and/or rights, remain your exclusive property (the “Subscriber IP”).
4.12 Output Data Licence. You hereby grant to us a non-exclusive, revocable licence that is limited to the duration of this Agreement to use the Subscriber IP for the sole purpose of providing the Instrumental Services and for no other purposes whatsoever.
API Caching and Downloading. Your app must not include file-save functionality, or otherwise designed to cache, download or persistently store any User Content. Your app may employ session-based caching, but only to the extent reasonably necessary for the operation of your app during that session, and any cached content must cease to be available, accessible or playable within your app at the end of that session
5. Fees and payment
5.1 Fees. You shall pay us the fees specified in each applicable Order Form by the due dates specified in the applicable Order Form or, if no such dates are specified, in accordance with Clause 5.3 below. If you order additional Instrumental Services or change the Instrumental Services you are receiving, the fees for such additional or changed services shall commence on the activation date listed in the new Order Form and will be reflected on your future invoice(s). Partial months shall be prorated and you shall not be liable to pay us for the full month you receive any or all of the Instrumental Services. All amounts payable under this Agreement are denominated in British pounds, and you shall pay all such amounts in British pounds unless otherwise agreed on the Order Form.
5.2 Renewal Fees. For each Renewal, you shall pay for the Instrumental Services consistent with the subscription-fee rates specified in the Order Form or, if applicable, such other rates as we may establish by written notice to you at least thirty (30) calendar days prior to the Renewal.
5.3 Payment Terms. Unless otherwise specified in the applicable Order Form, you shall pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that you notify us of any such dispute in writing prior to the date such amounts would otherwise be due, and that you cooperate with us in promptly resolving such dispute. Any undisputed amount not paid when due will be subject to late interest charges equal to 8% a year above the Bank of England’s base rate from time to time, but 8% a year for any period when that base rate is below 0%, of the outstanding amount which shall accrue on a daily basis until payment of the overdue sum, whether before or after judgment. You shall reimburse us for any costs or expenses (including, but not limited to, legal fees on a full indemnity basis) incurred by us when collecting any amount that is not paid when due including without limitation any and all third party collection agencies fees. You are not allowed to set-off any fees with any amounts that we may owe you.
5.4 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, GST, use or withholding taxes, assessable by any jurisdiction whatsoever in relation to your purchases under this Agreement (collectively, the “Taxes”). You are solely responsible for paying all Taxes associated with your purchases hereunder. If we have a legal obligation to pay or collect Taxes for which you are responsible for under this Clause 5.4, we shall invoice you and you shall pay that amount to us unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority. We shall calculate applicable Taxes based on your billing address as detailed on the relevant Order Form (it is your duty to inform us if Taxes should be assessed on a different address). You shall promptly notify us of any changes to any of your addresses specified in an Order Form. Taxes shall not be deducted from or set-off against the fees in the applicable Order Form.
6. Term and termination
6.1 Agreement Term. This Agreement commences on the Effective Date and shall remain in effect until the expiry of the last Order Form.
6.2 Order Form Term. Each Order Form shall be valid for the term specified on the Order Form.
6.3 Termination without Cause. We may terminate an Order Form or this Agreement by giving you at least a thirty (30) day notice period for any reason and at any time.
6.4 Termination for Cause. Either party may terminate an Order Form or this Agreement immediately upon written notice to the other party if the other party (i) commits a material breach of its obligations under this Agreement and fails to remedy such material breach within thirty (30) calendar days of being notified of such breach by the other party, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.5 Post-Termination Obligations. If this Agreement or an Order Form is terminated for any reason: (a) you shall pay to us any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination shall survive, (c) you shall immediately discontinue all use of the Instrumental Services, and (d) we shall delete any of your data in our systems in accordance with our internal policies. All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) shall remain in effect.
6.6 Automatic Renewal. Subject always to clause 5.2, the terms of each Order Form shall automatically renew for a subsequent period of twelve (12) months at the end of the term specified in the Order Form, or at the end of any extended period (as the case may be) unless either Party has provided at least 60 days notice period of its intention not to renew before the end of the term specified in the Order Form or the end of any extended period (as the case may be). A ten percent (10%) increase in the then-current annual subscription fee shall be added to the subscription fees due for each Renewal.
7.1 Exclusions. The confidentiality obligations in this Clause 7 shall not apply to Confidential Information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
7.2 Protection of Confidential Information. Each party agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except (i) as mandated by law and (ii) to those of its Representatives who have a reasonable need to access such information subject to those Representatives being made aware of the duties of confidentiality under this Agreement and the receiving party remaining liable to the disclosing party should any of the receiving party’s Representatives breach the confidential obligations under this Clause 7; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care.
7.3 Survival of this Clause 7. The confidentiality obligations contained in this Clause 7 shall survive termination of this Agreement. If a party is required by law to disclose the other party’s Confidential Information, it shall promptly notify the other party (providing notice prior to disclosure if permitted by law) and provide reasonable assistance in seeking protection of such Confidential Information at the other party’s expense.
8. Warranties and disclaimer
8.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorisation or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
8.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS CLAUSE 8, INSTRUMENTAL MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. INSTRUMENTAL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. INSTRUMENTAL RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE INSTRUMENTAL SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE INSTRUMENTAL SERVICES OR THIRD PARTY DATA SOURCES WILL ALWAYS BE AVAILABLE.
9. Intellectual property infringement
9.1 We shall, at our expense and subject to the subsequent sentences in this Clause 9, either defend you from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against you alleging that your use of the Instrumental Services in accordance with this Agreement infringe or misappropriate any patent, copyright, trade secret, trade mark, or right of any third party. Instrumental’s obligation under this Clause 9.1 is contingent on (a) the Subscriber giving Instrumental prompt written notice of the Claim; (b) the Subscriber granting Instrumental full and complete control over the defence and settlement of the Claim; and (c) the Subscriber providing assistance in connection with the defence and settlement of the Claim as Instrumental may reasonably request, at Instrumental’s cost. You shall not defend or settle any Claim under this Clause 9.1 without our prior written consent.
9.2 Infringement Remedy. If you are prohibited from using the Instrumental Services or a portion thereof based on an allegation that the Instrumental Services violate any third party intellectual property right (including a Claim), or if we reasonably determine that such prohibition is likely, then we will, at our sole expense and option: (a) obtain for you the right to use the allegedly infringing portions of the Instrumental Services; (b) modify the allegedly infringing portions of the Instrumental Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Instrumental Services with non-infringing items of substantially similar functionality. If Instrumental determines that the foregoing remedies are not commercially reasonable, then Instrumental may terminate the impacted Order Form, or portion thereof, and will promptly provide a prorated refund to you for any prepaid fees received by us for any Instrumental Services that have not yet been performed at the time of termination.
9.3 Exclusions from Obligations. Instrumental’s obligation under this Clause 9 shall not apply to the extent that such Claim arises out of or is based upon (a) use of the Instrumental Services in combination with Instrumental’s other products or services or the products or services of any third party if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Instrumental Services that are provided to comply with designs, requirements, or specifications required by or provided by the Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Instrumental Services by the Subscriber for purposes outside the scope of the license granted to Subscriber; (d) the Subscriber’s failure to use the Instrumental Services in accordance with this Agreement or written instructions provided by Instrumental, if the infringement or misappropriation would not have occurred but for such failure to use the Instrumental Services in accordance with this Agreement or Instrumental’s written instructions; or (e) any modification of the Instrumental Services not made or authorised in writing by Instrumental where such infringement or misappropriation would not have occurred if such modification were not applied to the Instrumental Services.
9.4 Limited Remedy. This Clause 9 states Instrumental’s sole and exclusive liability, and the Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property rights by the Instrumental Services.
10. Subscriber indemnification
The Subscriber hereby indemnifies, and shall keep indemnified, Instrumental from and against any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Instrumental arising out of or in connection with the Subscriber breaching any of the terms contained in Clause 4 above.
11. Limitations of liability
11.1 Disclaimer of Indirect Damages. EXCEPT FOR LIABILITY ARISING OUT OF A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11.2 Cap on Liability. EXCEPT FOR LIABILITY ARISING OUT OF THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER CLAUSES 9 AND 10, VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO INSTRUMENTAL UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
11.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY INSTRUMENTAL TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS CLAUSE 11 SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.1 Press Releases. Instrumental has the right upon signing the Order form to issue a press release or similar publicity regarding the parties’ relationship under this Agreement.
12.2 Identification of Subscriber. Instrumental may identify the Subscriber, by name and by logo, as a subscriber of the Instrumental Services on Instrumental’s website and other marketing materials without the Subscriber’s prior written consent.
12.3 Case Study. Provided the Subscriber is satisfied with the Instrumental Services, Instrumental may develop a case study for public dissemination and marketing use by Instrumental describing the benefits the Subscriber has derived from the Instrumental Services. The Subscriber shall reasonably cooperate with such case study. Publishing of the case study shall be subject to the Subscriber’s prior written approval, not to be unreasonably withheld.
13.1 Relationship. This Agreement shall not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or entering into any agreements with any third party.
13.2 Export Compliance and Anti-Corruption. The Instrumental Services may be subject to export laws and regulations of the United Kingdom and other jurisdictions. Each party represents that it is not named on any U.K. government denied-party list. The Subscriber shall not permit users to access or use the Instrumental Services in any U.K embargoed country or in violation of any U.K. export law or regulation.
13.3 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfil all of the assigning party’s obligations under this Agreement.
13.4 Subcontractors. Instrumental may utilise a subcontractor or other third party to perform its duties under this Agreement without the Subscriber’s consent so long as Instrumental remains responsible for all of its obligations under this Agreement.
13.5 Notices. Any notice required or permitted to be given in accordance with this Agreement shall be effective if it is in writing and sent by e-mail, UK mail, or courier, return receipt requested, to the appropriate party at the address set forth on the latest Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Clause 13. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery by a courier or sending an email or fax.
13.6 Force Majeure. Neither party shall be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.7 Governing Law. The Agreement and these Conditions shall be governed by and construed in accordance with the laws of England and Wales.
13.8 Jurisdiction. The Parties hereby submit to the exclusive jurisdiction of the courts of England.
13.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Instrumental Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Instrumental Services will immediately terminate.
13.11 Entire Agreement. This Agreement, including the applicable Order Form, is the final and complete expression of the agreement between these parties regarding the Subscriber’s use of the Instrumental Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to Professional Services outside the scope of this Agreement.
13.12 Instrumental may update these terms and conditions from time to time on its website and will indicate that these have been updated by changing the “Last Updated” date. Continued use of the Instrumental Services following the posting of the updated terms and conditions shall constitute your acceptance of the new terms and conditions.
Last updated on 13 November 2019