• DEFINITIONS

The following definitions and rules of interpretation apply in this Agreement.

Broker’s Terms of Use: means the terms of use which govern the Provider’s use and engagement with the Platform, as shall be agreed separately between the Parties.  

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

Commencement Date: the date of this Agreement or if undated on the date when it has been signed by all the Parties.

Commission: means the commission payable by the Provider to the Broker where a Prospective Customer enters into a Relevant Contract, as calculated in accordance with clause 6.

Confidential Information: all information disclosed by or on behalf of a Party (in whatever medium including in written, oral, visual or electronic form) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information.

Data Protection Laws: all applicable law in any jurisdiction relating to the processing or protection of personal data and privacy, including the Data Protection Act 2018, the UK General Data Protection Regulation (as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) and any laws that replace or amend any of them from time to time (and “Data Controller” and “Personal Data” shall bear the respective meanings given to them in Data Protection Laws).

Insolvency Event: means in relation to either Party, that it becomes insolvent or unable to pay its debts as they fall due or becomes subject to, or itself takes any steps to invoke, any law, proceedings, procedure or third party action preliminary or relating to its insolvency, winding-up, liquidation, administration or receivership (or any analogous proceedings in any jurisdiction) or any enforcement of any security against it, or to a rescheduling, composition or arrangement in respect of any of its debts.

Intellectual Property Rights: means all inventions (whether patentable or not), patents, utility models, designs (both registered and unregistered), copyright, database rights, trade and service marks (both registered and unregistered) together with all applications for (and associated rights to claim priority), rights to the grant of and extensions of the same, and all other intellectual and industrial property including but not limited to all similar or analogous rights throughout the world, in each case for the full term of the relevant right.

    Introduction: the provision to the Provider by the Broker, via the Platform, of the identity and Proposed Deal details of a Prospective Customer. Introduce, Introduces, and Introduced shall be interpreted accordingly.

    Platform: the Broker’s platform which contains data relating to data centre providers and Prospective Customers and generates options for Prospective Customers of appropriate data centre providers based on the Prospective Customer’s criteria for data centre services.

    Proposed Deal: the package of information generated by the Platform relating to a Prospective Customer once the Prospective Customer has selected the Provider as its chosen option. Such package shall include the Prospective Customer’s requirements; the identity of the Prospective Customer; acceptance by the Prospective Customer of the Provider’s terms of business and such other documentation from the Prospective Customer that the Provider may have requested the Platform to obtain.

    Prospective Customer: a person or company, who has registered with the Broker to use the Platform for the purpose of searching for and engaging with data centre providers, whether or not such person or company has previously entered into an agreement with the Provider or is already known to or has any relationship with the Provider.

    Provider Materials: information on the Provider’s company, marketing materials and information, details of the Provider’s data centre services including pricing information, terms and conditions applying to such data centre services, and general relevant information about the Provider that is required for Prospective Customers to sign up for Relevant Contracts.

    Relevant Contract: a contract for the provision of data centre services between the Provider and a Prospective Customer that was Introduced by the Broker.

    BACKGROUND

    Agreed terms

    1. Interpretation
      1. Clause or other headings in this Agreement are included for convenience only and shall have no effect on interpretation.
      1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
      1. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
      1. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and such reference shall include all subordinate legislation made from time to time under that legislation or legislative provision.
      1. A reference to writing or written includes e-mail but excludes texts, communications via instant messaging or social media and business media platforms.
      1. Any words following the terms includes, including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    2. Introductions by the Broker
      1. The Provider may use the Platform in order for Prospective Customers to be Introduced to the Provider on the terms of this Agreement.
      1. The Provider shall (i) register for use of the Platform; (ii) agree to, and comply with, the Broker’s Terms of Use; and (iii) supply the Provider Materials and the licence to use such materials as set out in clause 7.3. The Provider acknowledges and agrees that the Broker’s obligations under this Agreement are contingent upon the Provider complying with (i) – (iii) and if the Provider fails to comply with these obligations, and following notice from the Broker of such failure fails to remedy such non-compliance, the Broker shall have the right to terminate this Agreement with immediate effect without liability to the Provider.
      1. The Broker shall have the right to promote, market, and facilitate the sale of the Provider’s data centre services to Prospective Customers seeking such services by means of the Platform. The Broker shall have no responsibility or liability for the content of any information uploaded on the Platform relating to the Provider including the Provider Materials.
    3. Broker’s obligations and the Platform
      1. The Broker shall use reasonable endeavours to promote registration by Prospective Customers on the Platform so that they can be Introduced to data centre providers, including the Provider, pursuant to clause 2.1. Notwithstanding this, the Provider acknowledges and agrees that the Broker cannot guarantee, nor shall it be under any obligation to make, a certain number of Introductions. The Platform uses the criteria provided by the Prospective Customers to generate options of data centre providers for the Prospective Customers and the Prospective Customer will then select the desired data centre provider; Introductions are therefore outside of the Brokers direct control.
      1. The Broker, except by facilitating the conclusion of Relevant Contracts on the Platform, shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind the Provider in any way and shall not do any act which might reasonably create the impression that the Broker is so authorised.
      1. The Broker, except by facilitating the conclusion of Relevant Contracts on the Platform, shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Provider. The Provider acknowledges and agrees that the Broker shall have no liability whatsoever, to the Provider or a Prospective Customer, in respect of any Relevant Contract and the Provider shall be solely responsible for complying with clause 4.1.8.
      1. The Broker, except as set out in the Provider Materials, shall not, without the Provider’s prior written consent, make or give any representations, warranties or other promises concerning the benefits of entering into a Relevant Contract with the Provider.
      1. The Provider acknowledges and agrees that during the term of this Agreement the Broker shall perform duties similar to making Introductions on behalf of other persons who provide services similar to the Provider and the Platform will make visible such other data centre providers in addition to the Provider.
      1. The Broker shall use the Platform to present the Provider’s data centre services to Prospective Customers and shall use its reasonable endeavours to update the Platform with any new Provider Materials that may be supplied by the Provider.
        1. The Provider acknowledges and agrees that the responsibility for updating and maintaining accurate information, including the Provider Materials, on the Platform lies solely with it.
        1. The Broker undertakes to protect such information which has been uploaded to the Platform, in accordance with good industry practice.  
    4. Obligations of the Provider
      1. The Provider shall:
        1. at all material times act in good faith towards the Broker and shall not bring the Broker or the Broker’s business into disrepute;
        1. at all material times keep an up to date and accurate version of the Provider Material’s, that the Broker requires to perform its obligations under this Agreement on the Provider’s Platform;
        1. provide the Broker with electronic versions of the Provider’s logo and other trademarks for use on the Platform and for any marketing of the Provider’s services to the Prospective Customers by the broker;
        1. inform the Broker immediately if the Provider suspends or ceases to perform the data centre services;
        1. act in good faith in relation to any Introduction;
        1. not seek in any way to directly or indirectly by-pass, avoid or circumvent the Broker in relation to any relationship with or concerning a Prospective Customer;
        1. not conclude any Relevant Contract except by means of, and in accordance with, the processes provided by the Platform, unless otherwise agreed in writing with the Broker and in such circumstances the Provider shall comply with clause 6.1;
        1. upon receipt of the Proposed Deal, conduct its own checks and due diligence in relation to any Prospective Customer prior to signing the Relevant Contract; and
        1. comply at all times with Broker’s Terms of Use.
      1. The Provider shall have no authority, and shall not represent itself, or permit any person to represent itself, or otherwise create the impression that it is authorised to bind the Broker in any way and shall not do any act which might reasonably create the impression that the Provider is so authorised.
      1. The Provider shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Broker.
      1. If the Provider breaches 4.1.6 the Broker shall be entitled to:
        1. Commission under any agreement the Provider enters into with a Prospective Customer in relation to such circumvention as if the Provider had entered into a Relevant Contract with the Prospective Customer in accordance with this Agreement;
        1. recover all costs incurred by the Broker in investigating, discovering, remedying or mitigating the breach; and
        1. charge interest on the overdue amount in accordance with the provisions of clause 6.
    5. Removal of Provider from the Platform
      1. The Broker reserves the right at any time to remove the Provider and/or the Provider Materials from the Platform at its sole discretion and provide written notice to the Provider within 5 business days.
      1. The Brokers right pursuant to clause 5.1 to remove the Provider and/or the Provider Materials from the Platform may be exercised (but shall not be limited to) in the following circumstances:
        1. if the Provider fails to update or maintain accurate information regarding the data centre services or contract terms on the Platform for a period exceeding six (6) months;
        1. if the information provided by the Provider does not accurately reflect the reality of their offered data centre services or if it is found to be misleading or inaccurate;
        1. if the Provider ceases its business operations or is no longer able to provide the services as advertised;
        1. if the Provider fails to comply with the Broker’s Terms of Use;
        1. if the Provider engages in any behaviour or activity that might bring or tend to bring the Broker into disrepute;
        1. if a right for the Broker to terminate this Agreement pursuant to clauses 12.1 or 12.2 arises; or
        1. if the Provider repeatedly refuses to enter into Relevant Contracts with Prospective Customer introduced by the Broker without reasonable grounds within the Provider’s control.
      1. Where the Broker has exercised its right to remove the Provider and/or the Provider Materials from the Platform pursuant to clause 5.1, if the Broker has exercised this right as a result of a circumstance listed in clauses 5.2.1 to 5.2.7 the Broker shall first disable the Provider and/or the Provider Materials, provide written notice to the Provider specifying the reason(s) for the removal from the Platform. The Provider shall, following receipt of such notice, have 30 days to rectify the situation or provide a valid explanation. If the Provider is unable to rectify the situation, within the notice period, the Broker will remove the Provider and/or Provider Materials, from the platform without further notice. The Broker shall at its discretion provide the Provider with reasonable assistance in rectifying the situation and restore the Provider and/or Provider Materials to the Platform.
      1. Either through removal or disabling, the Provider’s services will no longer be visible or made available through the Platform.
    6. Commission and Payment
      1. Where the Provider and Prospective Customer have entered into the Relevant Contract outside of the means provided by the Platform, the Provider shall no later than 5 Business Days after it enters into such Relevant Contract notify the Broker in writing of the following:
        1. the date it enters into a Relevant Contract; and
        1. the Total Contract Value of the Relevant Contract, calculated as provided below.
      1. The Broker shall be entitled to the Commission if a Prospective Customer Introduced by the Broker enters into a Relevant Contract.
    7. [OPTION 1[1] – Total Contract Value one off payment at contract commencement
      1. The Commission payable by the Provider to the Broker shall be 10% of Total Contract Value (as defined below) of the Relevant Contract.
      1. For this purpose, Total Contract Value of the Relevant Contract means the total of all sums payable by the Prospective Customer to the Provider as can be determined from the provisions of the Relevant Contract as at the date of execution of the Relevant Contract (Total Contract Value).
      1. The Commission shall be invoiced in full by the Broker and paid by the Provider following execution by the Prospective Customer and the Provider of the Relevant Contract (or where such contract is not signed, upon the Provider commencing the provision of services under such Relevant Contract). The due date for payment by the Provider of such Commission shall be 90 days from the date of the invoice or 30 days from the service start date, whichever is later.
      1. The Parties acknowledge and agree that termination of a Relevant Contract shall not affect the Broker’s right to receive the total Commission; the Commission shall remain payable to the Broker by the Provider notwithstanding that the Relevant Contract has been terminated, prior to the Commission being paid in full.]
    8. [OPTION 2 – Total Contract Value paid quarterly in arrears
      1. The Commission payable by the Provider to the Broker shall be 15% of Total Contract Value (as defined below) of the Relevant Contract.
      1. For this purpose, Total Contract Value of the Relevant Contract means the total of all sums payable by the Prospective Customer to the Provider as can be determined from the provisions of the Relevant Contract as at the date of the Relevant Contract (Total Contract Value).
      1. The Commission shall be invoiced by the Broker and paid by the Provider, following execution by the Prospective Customer and the Provider of the Relevant Contract (or where such contract is not signed upon the Provider commencing the provision of services under such Relevant Contract), quarterly in arrears (in respect of sums payable by the Prospective Customer in that quarter) from the Relevant Contract start date. The due date for payment by the Provider of such Commission shall be 30 days from the date of the invoice.
      1. The Parties acknowledge and agree that termination of a Relevant Contract shall not affect the Broker’s right to receive the total Commission; the Commission shall remain payable to the Broker by the Provider notwithstanding that the Relevant Contract has been terminated prior to the Commission being paid in full.]
    • All sums payable under this Agreement:
      • are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question;
      • shall be paid in full without any deductions (including deductions in respect of items such as income, corporation, or other taxes, charges and/or duties) except where the payer is required by law to deduct withholding tax from sums payable to the payee. If the payer is required by law to deduct withholding tax, then the payer and the payee shall co-operate in all respects and take all reasonable steps necessary to:
        • lawfully avoid making any such deductions; or
        • enable the payee to obtain a tax credit in respect of the amount withheld.
      • If the Provider fails to make any payment due to the Broker under this Agreement by the due date for payment, then the Provider shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate for the period in question. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Provider shall pay the interest together with the overdue amount.
      • If any dispute arises, as to the amount of Commission payable by the Provider to the Broker, the parties will endeavour to resolve the dispute between the parties. Failing this, the same shall be referred to independent auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.
      • Termination of this Agreement, howsoever arising, or failure by the Prospective Customer to make payments in accordance with the Relevant Contract, shall not affect the continuation in force of this clause 6 and the Provider’s obligation to pay the Commission to the Broker in accordance with it.
    1. Subject to clauses 10.1 and 10.2 the total and aggregate liability of both Parties in respect of all actions, claims, liability, loss, damage, cost or expense arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000.
      1. Subject to clauses 10.1 and 10.2 above, neither Party shall be liable to the other for any indirect, special or consequential loss or damage.
      1. Except as expressly set out in this Agreement, all representations, warranties, guarantees, indemnities, terms or conditions, including any given prior to the date of this Agreement, and whether expressed or implied by statute, common law, trade practice or otherwise, are excluded to the fullest extent permitted by law. 
      1. The Parties agree that the limitations contained in this Agreement are reasonable in light of their relationship and the availability of insurance against relevant risks. 
    2. Commencement And Duration
      1. This Agreement shall commence on the Commencement Date and shall continue (unless terminated earlier in accordance with the provisions of this Agreement) until the earlier of:
        1. the Provider’s right to use the Platform expiring or being removed in accordance with clause 5 or the Broker’s Terms of Use, or as otherwise agreed between the Parties; or
        1. either Party giving to the other not less than 30 days notice.
    3. Termination
      1. 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:
        1. the other Party commits a material breach of any term of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
        1. the other Party suffers an Insolvency Event.
      1. The Broker may terminate this Agreement with immediate effect on giving written notice to the Provider:
        1. if the Broker considers that the Provider has directly or indirectly circumvented the Broker and engaged with a Prospective Customer without paying the Commission due to the Broker;
        1. if the Provider repeatedly breaches the terms of this Agreement in such a manner as to reasonably justify the opinion that the Provider’s conduct is inconsistent with the Provider having the intention or ability to give effect to the terms of this Agreement;
        1. if the Provider has failed to sign a Relevant Contract with at least 3 Prospective Customers following an Introduction;
        1. if the Provider engages in any behaviour or activity that might bring or tend to bring the Broker into disrepute; or
        1. if there occurs any change in control (as defined in section 1124 of the Corporation Tax Act 2010) of the Provider.
    4. Consequences Of Termination
      1. Termination of this Agreement shall not affect 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 the Agreement which shall remain in full force and effect.
      1. Termination of this Agreement shall not affect 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.
      1. On termination of this Agreement the Broker shall cease to promote, market or advertise on behalf of the Provider and the Broker shall remove the Provider and the Provider Materials from the Platform.
    5. Confidentiality
      1. Each Party undertakes that it shall keep the Confidential Information confidential and not make or release copies of it and shall not at any time during this Agreement, and for a period of three years after termination of this Agreement, disclose to any person any Confidential Information of the other Party, except as permitted by clause 14.2.
      1. Each Party may disclose the other Party’s Confidential Information:
        1. to its employees, officers, representatives, subcontractors or advisers who need to know that information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14.2.1; and
        1. as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
      1. The Provider acknowledges and agrees that whilst the Provider Materials (or parts thereof) may be deemed to be Confidential Information, the Broker may display such Provider Materials on the Platform and disclose the information to Prospective Customer, to the extent necessary for the proper functioning of the Platform and to comply with its obligations under, and to give effect to, this Agreement.
      1. No Party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement and shall not use the Confidential Information so as to procure any commercial advantage over either Party.
      1. The Provider acknowledges and agrees that the broker may aggregate and anonymize the data provided by the Provider, and that said data is not part of Confidential Information. The Broker warrants that any aggregated and anonymized data will not knowingly contain any information that could identify the Provider, or give insights into the Provider in particular.
    6. Notices
      1. All notices between the Parties with respect to this Agreement shall be in writing and signed by or on behalf of the Party giving it. In the case of any notice served by email, the notice shall state that it is served as a notice under this Agreement and an email so marked shall be deemed to be signed for the purposes of this clause 15 if the name of the sender appears in a signature position after the body of the email and has not been added automatically by the sender’s email server.
      1. Any notice referred in this clause 15 may be served:
        1. by delivering it by hand or courier at the Party’s business address as set out in the Schedule; or
        1. by first class pre-paid post or recorded delivery to the Party’s business address as set out in the Schedule; or
        1. by email, provided that a copy is also sent by post as provided in sub-clause 15.2.2 immediately above to the relevant email address as set out in the Schedule.
      1. Notices shall be deemed to have been received:
        1. if delivered by hand or courier, on the day of delivery;
        1. if sent by first class pre-paid post or recorded delivery, two Business Days after posting, exclusive of the day of posting;
        1. if sent by email, at the time of transmission unless sent after 17:00 in the place of receipt in which case it shall be deemed to have been received on the next Business Day in the place of receipt.
    7. General
      1. For the purposes of verifying the information provided by the Provider in relation to this Agreement and confirming the Provider’s compliance with good industry standards:
        1. the Provider shall promptly on request by the Broker provide to the Broker, or permit the duly appointed representatives of the Broker at all reasonable times upon at least 1 month’s prior written notice, and no more than once in any 12-month period, to inspect, copies of any such accounts and records as the Broker may reasonably request. For the avoidance of doubt, all rights in such records (including database right and copyright) shall belong to the Provider, and
        1. allow the Broker, or the Broker’s authorised representatives or agents, to have access to the Broker’s premises, on prior written notice and on a Business Day.
      1. Neither Party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for a period of 60 days, either Party may terminate this Agreement by giving 30 days’ written notice to the other Party.
      1. Neither Party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed).
      1. Save to the extent otherwise specified in this Agreement, each Party shall bear and be responsible for its own costs in respect of the preparation, execution, enforcement and performance of this Agreement.
      1. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
      1. No variation of this Agreement shall be effective unless it is in writing and signed and dated by the Parties (or their authorised representatives).
      1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not (a) waive that or any other right or remedy; or (b) prevent or restrict the further exercise of that or any other right or remedy.
      1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.8 shall not affect the validity and enforceability of the rest of this Agreement.
      1. No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce or rely upon any of its terms.
      1. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England and Wales.
      1. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

    [1] Please review and ensure only one option is retained. The other option should be removed for this agreement to be valid.