Subscription Terms & Conditions
The Myndstream service is provided by Mynd Group Limited, a company registered in England and Wales under number 13419314, whose registered office is at Unit 9 Westworks, White City Place, 195 Wood Lane, London, London, United Kingdom, W12 7FQ (“Supplier”, “we”, “us”, “our”). If you have any questions about your subscription or our Services, including billing, please contact our customer support team by sending an e-mail to email@example.com
Thank you for choosing Myndstream as your business’ audio streaming solution. We have developed the Myndstream service, including any related features such as support functionality or user manuals or documentation (“Services”), to provide business users with easy streaming access to certain music and soundtracks, currently accessible via the following websites (which may be updated from time-to-time at Supplier’s discretion) (the “Platform”): https://play.myndstream.com/
The Platform is not Customer specific and we may update the Platform from time to time.
If you are accessing or using the Service in connection with your employment or on behalf of your company (or any other legal entity), you warrant to us that: (i) you bind such entity to this Agreement; and (ii) you are authorised to do so. Any references in this Agreement to “Customer”, “you” or “your” refers to the relevant legal entity.
We will provide you with the benefits of one of the subscription packages, set out below (each a “Subscription Package”), that you select at checkout subject to any specific requirements that you agree at check out (such as number of locations) (your “Subscription”), with effect from the date of purchase (or as soon as practicable thereafter) (“Effective Date”).
Your Subscription will auto-renew for the duration of the relevant Subscription Package selected, as set out in the Terms and Conditions. Please get in touch with us if you do not wish your Subscription to auto-renew.
AVAILABLE SUBSCRIPTION PACKAGE(S)
Package 1 (Essential Unlimited & additional locations)
|Territory:||Worldwide, or as specified at checkout.|
|Number of Authorised Users:||Unlimited**subject to you acting reasonably: for more information see Clause 1.5(iii) of our Terms and Conditions.|
|Number of Locations:||as specified at check-out|
|Subscription Term:||one (1) calendar year, starting from the Effective Date (“Contract Year”).|
|Subscription Fee:||$250 plus Taxes (if any) and payment processing fee(s) per Location per Contract Year for the first Location; and$150 (USD) plus Taxes (if any) and payment processing fee(s) per Location per Contract Year for subsequent Locations.|
|Billing Period:||charged annually at the Effective Date and at the start of each Renewal Period.|
You can now try Myndstream risk-free.
You have the right to cancel your Subscription within the first 14 days of your Subscription Term. Please contact us if you wish to cancel your Subscription, and we will issue a refund to you (less any applicable Taxes or payment processing fee(s)). For more information, please see Clause 8.10 of our Terms and Conditions.
MYNDSTREAM SUBSCRIPTION TERMS AND CONDITIONS
Please read these Terms and Conditions carefully, in particular the provisions relating to automatic renewal (Clause 13) and limitations of liability (Clause 12).
These terms and conditions are entered into and take effect by the Customer on the Effective Date. Defined terms in this Agreement have the meaning given to them in Schedule 1.
1. Myndstream Services
Licence and access
1.1 Subject to the terms of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use and access the Services at the specified number of Locations in the Territory during the Subscription Term for the Customer’s commercial (non-personal) use, solely for the purpose of streaming background audio at the Customer’s Location(s). Customer shall not copy, rent, sell, reproduce, publish, republish, post, broadcast, frame or transmit the Services or Content (or any part of them), or authorize or assist anyone else in doing so other than as otherwise explicitly permitted under the terms of this Agreement
1.2 To access or use the Services, the Customer’s Authorised Users will need to register an account as a user (and the Supplier may offer different tools and permissions from time-to-time dependant on the type of account registered). The Customer remains fully liable for all acts and omissions of any person it permits access to the Services or who otherwise accesses via, or in connection with, the Customer’s account.
1.3 The Customer hereby represents and warrants that:
(i) it complies with all applicable laws and third party rights and instructions or guidance issues by the Supplier in relation to the Services and the Customer entering into this Agreement does not and shall not violate any applicable law, rule or regulation, or require any conditional consent by any person or entity;
(ii) it will not access or use the Service, or otherwise stream Content outside of the allowed Territories;
(iii) it will only use the Service to provide foreground or background music media at its physical Location(s) and will not amplify, transmit or retransmit the broadcast of Content so as to be accessible, audible or visible outside of the Location(s) (beyond ordinary patio or other outdoor speaker usage), or transmit Content outside of the Customer’s physical Locations;
(iv) it will not use Content, the Supplier’s brand, know-how or any other intellectual property rights associated with the Platform or Services in connection with any advertising, sponsorship, or commercial messaging, including but not limited to using the Content in any manner which suggests an endorsement, affiliation, cooperation or relationship between the Customer and any artist, band, label or other entity;
(v) it will not use the Service at any entertainment or other public event at any location for which an admission fee is charged;
(vi) it will not use of the Content as an accompaniment to musicians, singers, dancers, any other entertainers actually present and performing;
(vii) it acknowledges and agrees that any Content and any other rights, title, and know-how (including any and all intellectual property rights) owned or controlled by third party rights holders shall be deemed the property of such rights holders, with all right, title, and interest in and to such works, including any programming and and compilations provided on or through the Services, vesting exclusively in the applicable rights holders; and
(viii) it acknowledges and agrees that the Supplier is entitled to provide, and that third party rights holders are permitted to receive, record, report and monitor usage of Content for purposes of reporting and managing licensing activity as well as compliance, directly or through Performing Rights Organisations. The owners of Content are intended beneficiaries of this Agreement and shall have the right to enforce this Agreement against you.
1.4 The Supplier confirms that it has obtained all necessary music rights and licenses, including rights related to public performance, for the use of the Content through the Service by the Customer in accordance with this Agreement, provided all use, Authorised Users and Locations are located within the Territory and all such use is strictly in accordance with the licences granted herein. This confirmation, and any licence granted by this Agreement, does not cover the Customer performing any music, Content or related content outside of the Platform.
1.5 In relation to Authorised Users, the Customer undertakes that:
(i) each Authorised User accessing the Services in connection with the Customer’s Subscription will create their own Authorised User account to access the Services;
(ii) it will not allow or suffer: (a) the number of Authorised Users set out in the relevant Subscription Package to be exceeded (b) where the permitted number of Authorised Users is “unlimited”, the number of Authorised Users to exceed a commercially reasonable number, in any event not exceeding the number of employees or staff of the Customer; (c) Authorised Users to allow other persons access to the Services via their log-in credentials; or (d) any person to access or use the Services in excess of the agreed number of Locations;
(iii) each Authorised User shall keep their password confidential and update their password frequently and each Authorised User shall comply with all other reasonable security, account set-up and account verification requirements of the Supplier, as implemented from time-to-time;
(iv) it shall maintain a written, up to date list of current Authorised Users and Locations and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times; and
(v) it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name relevant details of each Authorised User, Location and the Customer’s data processing facilities to audit compliance with this Agreement.
1.6 If any of the audits referred to in Clause 1.5(v) above reveal that the Customer has exceed the relevant Subscription Package, and as such has underpaid Subscription Fees to the Supplier then, without prejudice to the Supplier’s other rights or remedies, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Confirmation or other documentation of the Supplier within 14 days of the date of the relevant audit.
1.7 During the course of its use of the Services, the Customer shall not introduce (or permit the introduction of), access, store, distribute or transmit into the Services, Programme or Supplier’s network and information systems any: (i) Viruses; (ii) Vulnerability; or (iii) material that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to Services.
1.8 The Customer shall not:
(i) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform, Services or Content (as applicable) in any form or media or by any means (for the avoidance of doubt, excluding the Content which the Customer is permitted to stream in its place of business pursuant to its Subscription and the terms of this Agreement); or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
(ii) access all or any part of the Services in order to build a product or service which competes with the Services;
(iii) use the Services to provide competing services to third parties;
(iv) subject to Clause 14.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party except the Authorised Users; or
(v) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause.
1.9 The Customer shall prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2. Changes to Customer’s Subscription
2.1 The Customer may, from time to time during the Subscription Term, request to purchase additional or supplemental Subscription Packages, on the terms set out in this Agreement. Where the Supplier approves the request, the Supplier shall use reasonable endeavours to activate the additional or supplemental Subscription Package(s) within a reasonably prompt time frame, in which case the Customer shall pay to the Supplier the relevant additional Subscription Fees on the payment terms set out in these Terms and Conditions.
2.2 The Supplier is permitted to monitor the usage of the Services by the Customer. Should the usage of the Services exceed the permitted usage set out in the Customer’s Subscription the Supplier (at its sole discretion) shall be permitted to charge additional Subscription Fees pursuant to the most relevant Subscription Package to the Customer’s use. This includes if the Customer: (i) exceeds the number of permitted Locations, (ii) exceeds the number of permitted Authorised Users, or (iii) accesses the Services outside of the Territory.
2.3 The Supplier may, in its sole discretion, require the Customer to reduce its usage of the Services if the Customer’s usage is in excess of the permitted usage per the Customer’s Subscription and/or detriments the use of services provided by the Supplier to third parties.
3.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week (or as set out in the Order Confirmation), except for planned or unplanned maintenance. The Supplier will use reasonable commercial endeavours to give the Customer reasonable notice of planned maintenance works in advance. Certain technical difficulties or maintenance may, from time to time, result in interruptions, unavailability or delays. Customer hereby acknowledges and agrees that it is not entitled to any compensation for such interruptions.
3.2 The Supplier will, as part of the Services, provide the Customer with access to the Supplier’s standard customer support services. The Supplier may amend any support services it offers in its sole and absolute discretion from time to time.
3.3 Supplier may make changes, updates, amendments, modifications or improvements to the Platform, the Services or any part thereof on an ongoing basis, including without limitation, to the “look and feel” of the Platform, in each case at any time at its sole discretion.
3.4 The Content which is available in the Service at any point in time may vary. The Supplier makes no representation or warranty that any such Content will be available on the Service, and the Supplier has no liability for any claim arising out of the unavailability of any such content. The Content may be subject to the rights of third parties.
4. Data Protection
4.2 The parties acknowledge that this Agreement does not involve either party, acting as controller, appointing the other party as its processor in respect of Personal Data.
4.3 The Customer will ensure that it has all necessary and appropriate permissions, consents, licences and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier and/or lawful collection of the same by the Supplier, including where one of its Authorised Users creates an account or otherwise provides Customer Personal Data to access the Services or a feature thereof, for the duration and purposes of this Agreement.
5. Third Party Providers
6. Supplier’s Obligations
6.1 The Supplier undertakes that the Services will be performed substantially with reasonable skill and care.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will (at its election) either: (i) at its expense, use reasonable commercial endeavours to correct any such non-conformance as soon as reasonably practicable, or (ii) provide the Customer with an alternative means of accomplishing the desired performance, or (iii) provide the Customer with a refund of the applicable portion of the Subscription Fees. Such correction or substitution or refund constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 6.1.
6.3 Whilst the Supplier will use reasonable endeavours to maintain the Platform, the nature of the Services means the Supplier cannot and does not warrant that: (a) the Customer’s use of the Services will be uninterrupted or error-free; (b) the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or (c) the Platform or the Services will be free from Vulnerabilities or Viruses. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Similarly, the Supplier has no responsibility for any issues, interruptions, defects or any other failure caused or related to the Customer’s hardware, software or other equipment or connectivity solutions, including where such items do not meet the minimum requirements to access to Platform.
6.4 For the avoidance of doubt, this Agreement shall not prevent the Supplier 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.
6.5 The Supplier cannot and does not guarantee that it will be able to restore or retrieve Customer Data. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up, for which it shall remain fully liable). The Supplier shall be entitled to delete any copies of the Customer Data that it controls after a reasonable period of inactivity, in accordance with the Supplier’s retention policy.
7. Customer’s Obligations
7.1 The Customer shall:
(i) provide the Supplier with: (a) all necessary co-operation in relation to this Agreement; and (b) all necessary access to such information as may be required by the Supplier, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(ii) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(iii) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
(iv) ensure that the Authorised Users use the Services in accordance with: (i) this Agreement, and (ii) any other terms that relate to the Authorised User’s use of the Platform, and the Customer shall be responsible for any Authorised User’s breach of the same;
(v) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(vi) ensure that its network and systems comply with the relevant specifications necessary to access the Platform, which are available here: [LINK] (or such other location as provided by the Supplier from time-to-time), which may be updated or amended by the Supplier from time to time; and
(vii) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its hardware, network connections and telecommunications links (including all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet).
7.2 The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data. The Customer hereby grants to the Supplier for the duration of the Term a non-exclusive, worldwide, royalty-free licence to distribute, modify, edit, publish, transfer, alter, reproduce, copy, adapt, and otherwise use Customer Data for the purposes of providing, maintaining and improving the platform and the Services and as otherwise reasonably necessary in order to perform Supplier’s obligations and exercise Supplier’s rights under this Agreement.
8. Charges and Payment
8.1 The Customer shall pay the Subscription Fees to the Supplier in accordance with this Clause 8, the Order Confirmation and the online ordering process.
8.2 All amounts and Subscription Fees stated or referred to in this Agreement:
(i) shall be payable in the Currency;
(ii) are non-cancellable and non-refundable (save as otherwise set out in this Agreement); and
(iii) are exclusive of Taxes which shall, where applicable, be charged in accordance with the Order Confirmation, as specified at check-out or as they become due.
8.3 When you order a Subscription online, you may select a payment method as part of the ordering process, subject to any additional terms and conditions that may be applicable to such a payment method (such as territory restrictions, bank restrictions or charges (including a payment processing fee), spend limits, third party service provider terms and charges), each an “Authorised Payment Method”.
8.4 All orders by the Customer are final. The Supplier shall charge the Customer’s Authorised Payment Method on the Effective Date the Subscription Fees, and thereafter shall charge the Customer’s Authorised Payment Method at the start of each Billing Period.
8.5 Supplier reserves the right to change any and all prices for any Subscription Packages at any time, for any reason. For the avoidance of doubt, such changes will take effect from the start of the Customer’s next Renewal Period and/or in respect of any new or updated Subscription entered into by the Customer. In the event that Customer requests to use a payment method other than an Authorized Payment Method, Supplier may in its discretion add a reasonable administrative fee.
8.6 It is the Customer’s sole responsibility to ensure that all data in respect of their Authorised Payment Method is accurate and up to date, including if such data changes during the Term. If a transaction has been declined due to issues with the Customer’s Authorised Payment Method, the Customer shall submit another Authorised Payment Method. Customer shall promptly pay all amounts due upon demand by Supplier.
8.7 If the Supplier does not receive valid payment at the Effective Date the Supplier may, without liability to the Customer, disable the Customer’s and/or any Authorised User’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the amounts concerned remain unpaid.
8.8 All amounts owed that are not paid when due will be subject to an interest rate of eight percent (8%) per annum, accruing daily, or the maximum rate permitted by law (whichever is less) in addition to any costs, fees or expenses incurred by us in connection with our payment reminders and collection activities.
8.9 The Customer warrants that no purchase order or further details are required for the Customer to provide a valid payment authorisation.
8.10 Regardless of the Subscription Term of your Subscription Package, the Customer is permitted a fourteen (14) day cooling-off period. The Customer will notify the Supplier if it wishes to cancel its Subscription in writing. Upon receiving such notice within the first fourteen (14) days of the Subscription Term, the Supplier shall cease to provide the Customer with access to the Services and/or Platform and shall refund to the Customer the Subscription Fees (less any applicable Taxes, fees (including payment processing fee(s)) or charges) within a commercially reasonable time period.
8.11 Supplier has the right (at its discretion) to suspend access to and use of the Services and/or Platform (or any part thereof) at any time for any reason and for any period, including in the event of Customer’s actual or suspected unauthorized use of the Service, non-payment or dispute of any fees or charges (howsoever occurring), or non-compliance with this Agreement or other terms applicable to the Services, in each case without liability to the Customer (save that, the event the Supplier exercises its right under this Clause 8.11 for convenience (in the absence of an act or omission by the Customer), it shall issue a pro-rata refund of the Subscription Fees (less any applicable third party fees, charges, payment processing fee(s) or Taxes), which shall be the Customer’s sole and exclusive remedy).
9. Proprietary Rights
The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights (and any other relevant rights or licences) in respect of the Platform and the Services, including any and all patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), associated branding, know-how, goodwill and Content (“Supplier’s Rights”). The Customer holds any additional goodwill generated in respect of the Supplier’s Rights or the Supplier’s business as bare trustee for the Supplier. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any of the Supplier’s Rights, and does not limit, dilute or otherwise modify in any way any of the Supplier’s Rights or remedies in respect of the same. The Customer hereby warrants and represents that, throughout the Subscription Term and at all time thereafter, it will not, and will not assist, cause or permit any other person to: (a) do anything which may damage or endanger the Supplier’s Rights (or the Supplier’s or its licensor’s rights or remedies therein), (b) play, disseminate, sample, adapt, amend, exploit, frame, reproduce, distribute or otherwise use in any way the Supplier’s Rights save as expressly permitted by this Agreement, (c) interfere with, in any manner, or attempt to prohibit, the use or registration of any trade name, brand, logo, get-up or trade mark of the Supplier’s, or any similar name or designation by any licensor of the Supplier’s nor use any mark similar to, or capable of being confused with, the same; or (d) tamper with any markings or other indication of the source of origin of the Supplier’s Rights which may be placed by the Supplier on or in relation to the Services and/or Platform.
10.1 At all times, the Customer (being the “Receiving Party”) shall, and shall use reasonable endeavours to procure that the Receiving Party’s Authorised Users, officers, employees, suppliers, professional advisers, consultants, agents and sub-contractors shall, keep confidential the financial terms and other material provisions of this Agreement, together with all confidential information (now and in the future) concerning the business or affairs or customers, clients or suppliers of the Supplier or of the Supplier’s affiliates, and shall not: (a) without the Supplier’s prior written consent, use such information for any purpose other than to perform the Receiving Party’s obligations, and exercise its rights, under this Agreement; or (b) disclose such information except: (i) to the Receiving Party’s personnel (if bound by equivalent obligations of confidence); or (ii) as may be required by law or by a court, regulatory authority or other competent authority; or (iii) to the extent that such information is in the public domain otherwise than as a result of a breach of this clause or law; or (iv) as may be necessary for the purpose of fulfilling the Receiving Party’s obligations, or exercising its rights, under this Agreement; or (v) as may be specifically agreed between the parties.
10.2 The above provisions of this Clause 10 shall continue to apply after termination or expiry of this Agreement.
11.1 The Customer shall defend, indemnify and hold harmless the Supplier, its officers, directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or any actual or alleged breach of any of the terms of this Agreement.
11.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services by anyone other than the Supplier; (b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; (c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority; (d) the legality, reliability, integrity, accuracy or quality of any Customer Data; (e) the Supplier executing specific instructions given by the Customer and/or Authorised Users; or (f) any acts or omissions of a Third Party Service Provider related to or arising in connection with this Agreement and/or the Services and/or the Platform.
11.4 The foregoing and Clause 12.3(ii) state the Customer’s sole and exclusive rights and remedies as against the Supplier (including the Supplier’s employees’, agents’ and sub-contractors’) in respect of the Supplier’s entire obligations and liability under this Agreement.
12. Limitation of Liability
12.1 Except as expressly and specifically provided in this Agreement:
(i) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
(ii) 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; AND
(iii) THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS.
12.2 Nothing in this Agreement excludes liability for: (a) death or personal injury caused by negligence; (b) for fraud or fraudulent misrepresentation; or (c) any other liability that is not legally capable of being excluded pursuant to applicable law relevant to this Agreement.
12.3 Subject to Clause 12.1 and Clause 12.2:
(i) the Supplier 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
(ii) the Supplier’s total aggregate liability in contract (including in respect of any indemnity provided by the Supplier), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with this Agreement shall be limited to the total Subscription Fees paid by the Customer and actually received by the Supplier during the 12 months immediately preceding the date on which the claim arose.
12.4 Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
13. Term and Termination
13.1 This Agreement shall, unless otherwise terminated as provided in this Clause 13, commence on the Effective Date and shall continue for the Term.
13.2 This Agreement shall be automatically renewed for successive periods equal to the initial Subscription Term (each a “Renewal Period”), unless:
(i) either party provides the other party with written notice of termination, which must be received (subject to Clause 14.3) by the other party earlier than thirty (30) days before the end of the initial Subscription Term or the Renewal Period (as applicable), in which case this Agreement shall terminate upon the expiry of the Subscription Term; or
(ii) otherwise terminated in accordance with the provisions of this Agreement.
13.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(i) the other party fails to pay any amount due under this Agreement on the due date for payment; or
(ii) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
(iii) if the other party is the subject of an order made or a resolution passed for its winding up, or has a receiver or administrator appointed of the whole or any part of its assets or undertaking (or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitles the court to make a winding-up or administration order), or makes an arrangement with creditors, or is unable to pay its debts as and when they fall due, or is the subject of an event or proceeding under the laws of any applicable jurisdiction that has an equivalent or similar effect to any of foregoing events or proceedings, or suspends or ceases (or proposed to suspend or cease) carrying on all or a substantial part of its business; or
(iv) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
13.4 On termination or expiry of this Agreement for any reason:
(i) all licences granted by the Supplier to the Customer under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
(ii) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession. If the Supplier agrees (in its sole discretion) to return any Customer Data, the Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(iii) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced. For the avoidance of doubt (and without prejudice to the preceding sentence), and save a set out herein, the Supplier shall not issue any refund for Subscription Fees paid or owed to it as a result of termination or expiry of this Agreement.
14. Miscellaneous Provisions
14.1 Assignment. The Customer shall not assign or otherwise dispose of any of such party’s rights or obligations under this Agreement without the Supplier’s prior written consent. The Supplier may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
14.2 Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of such party’s obligations under this Agreement (excluding any payment obligations) caused by any circumstances beyond such party’s reasonable control. The time for performance of such obligations shall be extended accordingly.
14.3 Notices. Any notice under this Agreement shall be in writing and sent by email to the last known email address which one party has communicated with the other in connection with this Agreement. The Customer may also send certain notices to the Supplier via the relevant section of the user account portal, where such notices or expressly provided for within the Platform. In each case, such notice shall be deemed to have been received at the time of successful transmission and receipt, or, if this time falls outside Business Hours, when Business Hours resume. “Business Hours” means 09:00-17:00 on any day, other than a Saturday, Sunday or public holiday in the United Kingdom, when banks are open for business.
14.4 Third Party Rights. The parties agree that the provisions of this Agreement are personal to them and are not intended to confer any rights of enforcement on any other third party, save as otherwise stated herein. The rights provided under this Agreement by the Supplier to the Customer are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
14.5 Taxes. All payments made by Customer to Supplier under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any governmental authority, or any political subdivision or taxing authority thereof (such taxes, levies, imposts, duties, charges, fees, deductions and withholdings being hereinafter called “Taxes”). Customer indemnifies Supplier against all Taxes and if any Taxes are required to be withheld from any amounts payable to Supplier hereunder, the amounts payable to Supplier shall be increased to the extent necessary to ensure that Supplier receives (after payment of all Taxes) the amounts specified in this Agreement. Customer indemnifies Supplier against any incremental taxes, interest or penalties that may become payable as a result of the Customer’s failure to pay any Taxes when due or if Customer fails to remit to Supplier the required receipts or other required documentary evidence.
14.6 Sanctions. Customer hereby warrants and represents that it is not subject to any trade or export restrictions, nor sanction regime applicable in any territory.
14.7 Agreement. This Agreement may be entered by acceptance by the Customer of this Agreement pursuant to the Order Confirmation. The Customer’s order of a Subscription Package shall constitute acceptance of this Agreement, which is fully binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment.
14.8 Entire Agreement. This Agreement embodies all the terms agreed between the parties hereto with respect to the matters to which this Agreement relates and supersedes all previous agreements between the parties with respect to such matter and no oral or other written representations warranties or premises shall be implied as terms of or otherwise affect this Agreement except by a written instrument made hereafter and signed by the parties hereto and the failure or forbearance by any party to insist on any occasion upon the performance of the terms conditions and provisions of this Agreement shall not thereby act as a waiver of such breach or acceptance of any variation. For the avoidance of doubt, this Agreement: (a) applies to the exclusion of any terms and conditions submitted in any way by or on behalf of the Customer (“Customer Conditions”) despite any contrary provisions in any of the Customer Conditions, and the Customer irrevocably waives any right that it otherwise might have to rely on the Customer Conditions; and (b) does not affect any other agreement expressly and specifically entered into between the Supplier and Customer in respect of services other than the Services, such as bespoke services offered by the Supplier to the Customer. Where an agreement as described in (b) exists, such agreement shall supersede this Agreement to the extent of any irreconcilable conflict.
14.9 Publicity. The Supplier may disclose the fact that the Customer is a client of Supplier for marketing purposes. Where commercially feasible, the Customer will provide its customers with the following notice (or such notice as Supplier may direct from time-to-time) in a reasonably accessible and legible (or audible) format (such as via the Customer’s booking portal, website, app, or via a hard copy notice in the waiting area or other communal area of the Location(s)):
The music and background audio at this location is made available in partnership with Myndstream. All rights in the audio at this location are reserved. Please do not record or otherwise use the audio outside of this location. For more information, please visit: https://myndstream.com/
Other than as required by the preceding sentence, the Customer shall not make, or permit any person to make, any press or other public announcement of any kind in relation to this Agreement or the Services without the Supplier’s prior written approval.
14.10 Variation. No variation of this Agreement shall be effective unless it is in writing and is duly executed by or on behalf of each of the parties.
14.11 Severability. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
14.12 Survival. All terms, Clauses, Paragraphs and Schedules of this Agreement which may reasonably be required to survive termination of this Agreement in order to give effect to their intended purpose shall do so.
14.13 No partnership or agency. Nothing in this Agreement shall constitute a partnership, joint venture, relationship of agency or contract of employment between the parties.
14.14 Governing law and jurisdiction. This Agreement (including any non-contractual matters and/or claims relating thereto) shall be governed by the laws of England and Wales and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.
1. The following terms shall have the following meanings in this Agreement where the context so admits:
“Agreement” has the meaning given to it in the Order Confirmation.
“Authorised Payment Method” has the meaning given to it in Clause 8.3.
“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in Clause 1.5.
“Applicable Data Protection Laws” means: (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
“Billing Period” means the period that the Supplier shall take payment of the relevant Subscription Fees, pursuant to the relevant Subscription Package and as indicated in the Order Confirmation.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the United Kingdom when banks are open for business.
“Change of Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
“Content” means the content hosted on the Platform and made available to the Customer as a result of the Services, including digital audio content.
“Contract Year” has the meaning given to it in the Order Confirmation.
“Currency” means the currency relevant to the applicable Subscription Package, as set out in the Order Confirmation.
“Customer” has the meaning given to it in the Order Confirmation.
“Customer Data” means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Customer Personal Data” means any Customer Data that constitutes personal data, which the Supplier processes in connection with this agreement.
“Effective Date” has the meaning given to it in the Order Confirmation.
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Location” means a single physical premises which the Customer conducts business from.
“Order Confirmation” means the order confirmation agreed to by the Customer as part of this Agreement.
“Platform” has the meaning given to it in the Order Confirmation.
“Renewal Period” means the period described in Clause 13.2.
“Services” has the meaning given to it in the Order Confirmation.
“Subscription” means the subscription(s) purchased by the Customer pursuant to the Order Confirmation and the terms of this Agreement, which entitles Authorised Users to access and use the Services in accordance with this Agreement. “Subscription Fees” means the amount due from the Customer to the Supplier in the Currency in respect of the Subscription, as set out in the Order Confirmation (including any additional Subscription Fees incurred as a result of the Customer’s use of the Services, pursuant to this Agreement, plus any applicable taxes, fees or additional charges).
“Subscription Package” has the meaning given to it in the Order Confirmation.
“Subscription Term” means the subscription term provided for in the relevant Subscription package, together with any subsequent Renewal Periods.
“Supplier” has the meaning given to it in the Order Confirmation.
“Taxes” means any applicable sales taxes, such as value-added tax in the United Kingdom, and any other taxes or any other payments required to be deducted, withheld and/or paid in relation to the Services or this Agreement under any applicable guidance, law or governmental rule or regulation, issued by any government, regulator or other applicable industry or regulatory body.
“Term” means the period from the Effective Date the final day of the Subscription Term.
“Terms and Conditions” means the Supplier’s terms and conditions, as supplied by the Supplier to the Customer from time-to-time and incorporated into this Agreement as such.
“Territory” means the territory set out in the relevant Subscription Package in the Order Confirmation, or as set out at check-out, as applicable.
“Third Party Service Provider” means a third party providing services to the Customer on or via the Services, or whose services otherwise interrelate in any way with those to be provided by the Supplier under this Agreement.
“UK GDPR” has the meaning given to it in the Data Protection Act 2018.
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
2. Clause and Schedule headings shall not affect the interpretation of this Agreement. References to Clauses and Schedules are to the Clauses and Schedules of these Conditions and to references to Paragraphs are to the paragraphs of the relevant Schedule.
3. This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
4. Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
5. A reference to writing or written excludes fax but includes email.
6. Any words following the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.