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1. About Us:
Be More Bear Ltd (company number 12156140) (we and us) is a company registered in England and Wales and our registered office is Soho Works, 56 Shoreditch High St, London E1 6JJ.
2. Service Commencement & Duration:
2.1.This agreement shall begin on the earlier of:
a. The agreed Start Date;
b. The initial Payment Date; or
c. when you authorise us to provide the services and shall continue, unless terminated earlier in accordance with this agreement, until expiry of the Initial Term. Thereafter, this agreement shall continue for successive periods (each a Renewal Term) unless either party gives 30 days’ written notice to the other before expiry of the Initial Term or current Renewal Term.
3.2. The Services we provide are subject to the completion of an Onboarding Phase.
The Onboarding Phase shall commence at the Start Date.
3.3. The Service Start Date shall be the first working day after completion of the Onboarding Phase. We shall begin providing the Services on the Service Start Date.
4. Our Obligations:
While we do not warrant or guarantee that your use of our Services shall achieve any given result, we warrant to you that the Services shall be provided using reasonable care and skill. We shall use our reasonable endeavours to meet any performance dates discussed between us, but any such dates are estimates only, and failure to perform the Services by such dates shall not give you the right to terminate the agreement between us.
5. Your Obligations:
It is your responsibility to ensure that:
a. You cooperate with us in all matters relating to the Services;
b. You promptly review and approve any content or media created by us prior to publication (including any legal review of such content or media to ensure that it complies with applicable law and advertising standards);
c. As required for us to provide the Services, you must reply to our communications within 48 hours of deemed service to ensure we do not lose a potential podcast booking for you. Prior to your sign off on sample podcasts, you may, in your reasonable discretion, decline any booking if you believe that the opportunity is inapplicable or inappropriate (not after sign off of sample podcasts)
d. You provide us with such information and materials as we may reasonably require to provide the Services (including, as required for us to provide the Services, any contractual terms and proposal documents) and ensure that such information and materials are complete and accurate in all material respects.
6. Failures Or Delays Caused By You:
6.1. If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation set out in this agreement (Your Default):
a. We shall be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. Your Default may entitle us to terminate our service agreement under clause 16 (Termination);
b. We shall not be responsible for any costs or losses you incur directly or indirectly from our failure or delay in performing the Services; and
c. You shall reimburse us on written demand for any costs or losses we incur directly or indirectly from Your Default.
6.2. In the event an interview opportunity is lost due to a delay in communications from the customer/failure to book in the expected timeframe, the interview will be deducted from the podcast booking target number. (i.e. 20 podcast bookings will reduce to 19 podcast bookings). The same will apply should:
a. A customer fails to attend a podcast booking scheduled without 24hrs prior notice
b. A customer cancels a scheduled podcast booking with no attempt to rearrange
c. The host cancels the interview due to 3 or more customer cancellations
7. Charges
You shall pay the Charges in accordance with this clause 7 and the Payment Terms. Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
8. Invoicing & Payment:
We use Stripe Billing (a service provided by Stripe Payments Europe Ltd and its affiliates) to manage invoicing and payments for our Services. Invoices shall be issued to you automatically when we take your initial payment and each time thereafter. You shall pay all amounts due in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Late Payment:
If you fail to make any payment in accordance with the Payment Terms by the due date, then, without limiting our remedies, you shall have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest shall accrue each day at 4% a year above the Bank of England's base rate in force at any time, but at 4% a year for any period when that base rate is below 0%.
10. Intellectual Property Rights:
All rights in the nature of intellectual property rights arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) shall be owned by us. We hereby grant you a fully paid-up, worldwide, nonexclusive, royalty-free licence to copy and modify any materials created by us for the purpose of receiving and using the Services and using such materials in your business. You hereby grant us a fully paid-up, non-exclusive, royalty-free,
non-transferable licence to copy and modify any materials provided by you to us for the purpose of providing the Services.
11. How We Use Your Personal Information:
We shall use any personal information obtained from or about you to provide the Services, process your payment for the Services, and enforce our rights under
this agreement.
12. Confidentiality:
Each of us shall not, at any time during the term of our agreement and for a
period of five years after its termination, disclose to any person any confidential information concerning the other's business, affairs, customers, prospective customers, market opportunities, products, services, or suppliers. However, each
of us may disclose the other’s confidential information:
a. To such of our respective employees, officers, representatives, subcontractors or
advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under this agreement (and shall each ensure that they comply with this clause); and
b. As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations and exercising our respective rights under this agreement.
13. Data Protection (UK & Europe):
13.1. To the extent that you disclose, or we are required to process, any personal
data when providing the Services which is subject to Regulation (EU) 2016/679
(the General Data Protection Regulation) (GDPR) or any applicable data protection law in the United Kingdom or European Economic Area (Data Protection Laws), you acknowledge that you shall be a controller and we shall be a processor in relation
to such processing.
13.2. All data, including any personal data, generated by us in the course of providing the Services, shall belong to you.
13.3. In such circumstances, we shall:
a. Only process personal data in line with your documented instructions;
b. Promptly notify you if we’re required by any applicable law to process personal data otherwise than in line with your instructions (unless applicable law prohibits us from doing so);
c. Immediately notify you if, in our opinion, any instruction given by you infringes the Data Protection Laws;
d. Ensure that anyone with access to personal data is subject to binding confidentiality obligations;
e. Considering the factors set out in the Data Protection Laws, implement appropriate technical and organisational measures to ensure an appropriate level of security when processing personal data;
f. Not engage any other processor without your prior written consent;
g. Where you have consented to us engaging another processor, ensure that our contract with that processor contains terms substantially similar to, and not less onerous than, the terms set out in this clause and remain liable to you for the acts and omissions of such processors;
h. Considering the nature of the processing, assist you by appropriate technical
And organisational measures, as far as possible, for the fulfilment of your obligation to respond to requests by data subjects to exercise their rights under
data protection law;
i. Considering the nature of the processing and information available to us, assist you in ensuring compliance with your obligations under data protection law;
j. At your choice, delete or return all personal data to you after we have ceased providing our services relating to the processing, and delete any existing copies (unless applicable law or our regulatory requirements prohibits us from doing so);
k. Make available to you all information necessary to demonstrate compliance with our obligations as a processor and, subject to agreement on scope and timing, allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you; and
l. Notify you without undue delay if we become aware of a personal data breach.
13.4. In this clause, the terms controller, processor, personal data, data subject, process (or any similar term) and personal data breach have the meanings set out in the Data Protection Laws.
14.Data Protection (California):
To the extent that you disclose or we are required to process personal information subject to the California Consumer Privacy Act (Cal. Civ. Code § 1798.100 et seq.) (CCPA) when providing the Services: (a) as a service provider we shall not retain, use, or disclose such personal information for any purpose other than as set out in this agreement or permitted by the CCPA; (b) you shall not instruct us to disclose or otherwise process such personal information for any purpose other than as set out in this agreement or otherwise agreed in writing with us; we shall not sell such personal information in our role as a service provider; and (c) we shall not release, disclose, disseminate, make available, transfer or otherwise communicate such personal information to any third party, except to our service providers that are bound by terms substantially consistent with those set out in this clause. In this clause the terms personal information and service provider shall have the meanings given in the CCPA.
15. Our Liability To You:
15.1. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
a. Death or personal injury caused by negligence;
b. Fraud or fraudulent misrepresentation; and
c. Any other liability which cannot be excluded or limited by law.
15.2. Subject to clause 15.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of use or corruption of software, data or information;
f. loss of or damage to good shall; and
g. any indirect or consequential loss.
15.3. Subject to clause 15.1, our total liability to you arising under or in connection with our agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to 100% of the total Charges paid during the preceding six months from the date on which breach giving rise to any claim arose.
15.4. This clause 15 shall survive termination of our agreement.
16. Termination:
16.1. Without limiting any of our other rights, we may suspend the performance of the Services, or terminate our agreement with immediate effect by giving written notice to you if:
a. You fail to pay any amount on the due date for payment;
b. You take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
c. you suspend, threaten to suspend, cease or threaten to cease to carry on all ora
substantial part of your business. Termination of this agreement shall not affect your or our rights and remedies that have accrued as at termination. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
17. TUPE:
We shall ensure that any of our personnel involved in providing the Services are not an organised grouping of employees for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) such that the termination of this agreement would constitute a relevant transfer under TUPE. If, for whatever reason, TUPE does apply, we agree to indemnify you for any reasonable costs, expenses or liabilities incurred in relation to any claim by any person employed or engaged by us pursuant to TUPE. Liability under this indemnity is limited under clause 15.3.
18. Non-Solicitation:
To protect our legitimate business interests, for a period of 12 months after the termination of our agreement (Restricted Period) you shall not, either directly or indirectly, by yourself or through your affiliate, agent or otherwise, solicit, entice or induce, or endeavour to solicit, entice or induce any person employed or engaged by us who has or had material contact with or dealings with you (Restricted Person), with a view to employing or engaging the Restricted Person. In the event of a breach of this clause which results in a Restricted Person leaving us and being employed or engaged by you, you shall pay to us an amount equivalent to 30% of
the Restricted Person’s first year’s salary. You shall provide us with such information as we may request for the purposes of calculating such an amount.
19. Communications:
When we refer to written or in writing in our agreement, this includes email and any other electronic method used by us, such as Slack. You can communicate with us via either of these channels at any time, however any notice required to be given under our agreement must be made by email and such emails shall be deemed to have been received at 9am on the next working day (in England) after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
20. Assignment & Transfer:
We may at any time assign, subcontract or transfer our rights and obligations under our agreement to any other person or entity without your consent, but shall remain liable to you for the acts and omissions of any subcontractors.
21. Conflict:
If there is any inconsistency between these terms and any Special Terms, the Special Terms prevail.
22. Variation:
No variation of our agreement shall have any effect unless made in writing and signed by you and us (or our respective authorised representatives).
23. Waiver:
If we do not insist that you perform any of your obligations under this agreement, or if we do not enforce our rights against you, or if we delay in doing so, that shall not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we waive any rights, we shall only do so in writing, and that shall not mean that we shall automatically waive any right related to any later default by you.
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24. Severance:
Each paragraph of this agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs shall remain in full force and effect.
25. 3rd Party Rights:
Our agreement is between you and us. No other person has any rights to enforce any of its terms.
26. Disputes:
If any dispute arises in relation to our agreement, either party may serve written notice on the other describing the nature of the dispute in reasonable detail (Dispute Notice). In the first instance, the Customer Representative and Fame Representative shall negotiate in good faith to resolve the dispute. If the dispute has not been resolved within 30 days from the date of the Dispute Notice, the parties agree to refer the matter to mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. Unless the right to issue proceedings would be prejudiced by a delay, no party may commence any court proceedings in relation to any dispute until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation.
27. Governing Law & Jurisdiction:
Our agreement as set out in these Terms is governed by English law and, subject to clause 25. We each irrevocably agree to submit all disputes arising out of or in connection with this agreement to the exclusive jurisdiction of the English courts (except that we may recover any amounts owed to us through the courts of any relevant jurisdiction).