In this Agreement, InboundMuse Ltd. referred to as ‘InboundMuse’, is a registered company (C69375) with its main office situated at Level 4, SmartCity Ricasoli, Kalkara, SCM 1001. ‘The Client’ means the person who signed the Celery Service Offering (Appendix I) and the company on whose behalf the Client is using the ‘Product’ and ‘Service/s’, if applicable. Hereinafter, InboundMuse and the Client will be jointly referred to as ‘the Parties’.
InboundMuse has developed and owns "Celery", the Software-as-a-Service for Restaurants and Hotels, hereinafter referred to as ‘the Product’;
InboundMuse is hereby offering the use of the Product to the Client in a version cosmetically adapted to its needs; The Client is also engaging InboundMuse to provide ongoing support and/or systems maintenance services; Thus, the Parties have entered into the Agreement as herein defined, comprising a series of documents among which are included the general T&Cs below.
The Parties are hereby agreeing that the following words shall have these respective definitions;
‘Agreement’ shall mean this Principal Agreement entered into by the Parties, including any and all annexes attached hereto and including also the General Terms & Conditions of Service referred to in Clause 4 below as well as any other covenant executed in writing by the Parties and referencing this Principal Agreement as part of the broader Agreement;
“Principal Agreement” shall refer to the provisions of the present document as executed by the Parties, including any and all annexes attached hereto;
‘Deployment Date’ shall mean the date agreed on for the Client to start using the Product, which will be set during the onboarding process.
’Effective Date’ shall mean the date of signature of the Celery Service Offering (Appendix I).
‘Product’ shall mean any part of the Celery product, a Software-as-a-Service for Restaurants and Hotels, for which use is being offered to the Client by InboundMuse pursuant to this Agreement, together with any other ancillary materials to it.
‘the Brand” shall mean any trademark, trade name, service mark or any other sign or indication, whether registered or unregistered, attracting rights under the law of trademarks or passing off and belonging to the Client.
1. Subscription and Term
a) InboundMuse Ltd shall grant the Client a limited, non-transferable non-exclusive licence to use the Product in the in the country where the company is registered, unless otherwise specified in writing, as a white-label service and any associated software tools (“Licence”), subject to the payment of the fees set out in the Appendices in this Principal Agreement.
b) The term of this agreement is for a minimum of one (1) year from the Effective Date and is renewable annually for one (1) year thereafter.
c) Either party can terminate this Agreement after one (1) year from the Deployment Date, without cause, by providing three (3) months written notice to the other party. If no notice is given the agreement shall automatically renew for another one (1) year.
d) It is agreed that the Product will be the only 'white-label' or branded ordering platform used by The Client and franchisees of subsidiaries of The Client. The Client undertakes to ensure that its franchisees (if any) and subsidiaries (if any) will use the Product and software tools for all online orders with the exception of orders placed on non-white label/aggregator platforms. The Client undertakes to ensure that its franchisees (if any) and subsidiaries (if any) agree to the Fees in the Appendices for the Product; Provided it is understood that the Client shall not sub-license the Product to any franchisee without the prior written approval of InboundMuse.
e) It is agreed that the Product will be the only ordering platform linked to or available on web domains promoting the Brand.
a) The Initial Outlay outlined in the Celery Service Offering shall fall due on the Effective Date.
b) The Successful Order Fee shall fall due on a monthly basis in arrears after InboundMuse issues an invoice detailing the transactions made by means of the Product, and the fee due to him according to the rate stipulated in the "Celery Service Offering" section. The fee may be revised after the conclusion of this Agreement by mutual agreement.
c) The applicable "Service Licence" charge for service tiers LITE, BASIC or PRO, if any, shall fall due on a quarterly or annual basis in advance according to the rate stipulated in the "Celery Service Offering" section.
d) Should the Client default in payment, InboundMuse can deny access to the Product and interests shall commence accruing from Date of Completion until the date of effective payment, at the highest rate of interest allowable at law.
e) All fees indicated in this principal Agreement exclude any and all costs associated with settlement of payment under this Clause 2, including but not limited to transactions fees, payment gateway fees, currency conversion costs, taxes, and other tariffs as well as Value Added Tax.
3. Support Services
a) InboundMuse is hereby offering the following services to the Client after the Deployment Date;
The provision of an initial onboarding session (Max 3hrs) to not more than a total of five (5) members of the Client’s staff, representatives or other individuals as the Client may indicate to InboundMuse, on the workings of the Product;
Technical support in relation to the Product.
The hosting and maintaining of the Product on InboundMuse’s servers onsite, or offsite through third-party hosting, as InboundMuse may deem fit.
Online documentation is made accessible after the Deployment Date, free of charge, through InboundMuse’s website.
b) For the provision of services mentioned in Clause 3a(ii), InboundMuse, at its discretion, may grant the Client three (3) hours of complimentary Live-Chat support service in relation to the Product. The Client must submit a ticket via email by writing to firstname.lastname@example.org. Support not requested via email shall not constitute a request and may thus be ignored. InboundMuse will offer this support on a 9am - 5pm basis from Monday to Friday. Should the Client have paid for Live-Chat Support License according to the rate stipulated in the Celery Service Offering, then support will be accessible anytime through the Help Section within the Product.
g) The above services shall start immediately after the Deployment Date, provided that the Client has effected payment to InboundMuse for the Product, according to the signed Celery Service Offering.
h) Upon the depletion of the complimentary support service hours mentioned in (b), InboundMuse shall no longer be required to provide further support service hours
4. General Terms & Conditions of Service
The Client hereby agrees to the General Terms & Conditions of Service at the following link (link here), and accepts that the General Terms & Conditions below, together with this Principal Agreement constitute parts of the same Agreement. Provided that should there be any contradiction between the General Terms & Conditions of Service and this Principal Agreement, the provisions of this Principal Agreement will prevail.
Appendix I: Celery Service Offering
The agreement which was signed by the Client.
All InboundMuse services are subject to the following General Terms and Conditions of Service ("T&Cs"), and the Client agrees to be bound by these T&Cs upon entering into a principal agreement with InboundMuse (hereinafter “the Principal Agreement”) which shall stipulate the type of services which InboundMuse shall provide to the Client and which shall also incorporate, by reference, the provisions of other agreements of InboundMuse. The Principal Agreement and these T&Cs shall thus be read, understood and interpreted as one document. Merely for purposes of clarity, any and all references to T&Cs in this document shall likewise be deemed to be references to the Principal Agreement and vice-versa.
The following definitions and rules of interpretation apply in these T&Cs:
Agreement shall mean this present T&Cs read in conjunction with the Principal Agreement, as executed by the Parties, including any annexes attached thereto or subsequent addendums.
Applicable Law: Unless otherwise provided, this shall refer to the laws of the Republic of Malta.
Business Day: Any day other than a Saturday, Sunday, public holiday or national holiday in Malta.
InboundMuse Employee: The employee(s), agent(s) or subcontractor(s) used by InboundMuse for the provision of the Services.
InboundMuse Representative: Means any person so identified by InboundMuse in the Principal Agreement.
Client Representative: Means the person identified by the Client in the Principal Agreement in the signing provisions.
Confidential Information: Information that is proprietary or confidential and is either clearly labelled or identified as such, or otherwise clearly acknowledged by any Party as being Confidential Information. For the avoidance of doubt, Confidential Information shall be interpreted broadly and shall include, but is not limited to, the contents of the Principal Agreement and of the Services, the business affairs and/or business operations, business plans, contracts, customers (including customer lists), drawings (technical or otherwise), inventions (irrespective of whether the foregoing are patented), know-how, machinery, presentations of information, methods of doing business, methods of manufacturing, organisation, suppliers, trade secrets of either of the Parties.
Intellectual Property Rights: Shall mean all vested, contingent and future intellectual property rights including but not limited to patents, utility models, rights to inventions, mathematical methods, mathematical formulas, mathematical algorithms, copyright and neighbouring and related rights, aesthetic creations, moral rights, sui generis rights (as recognised and protected by the provisions of the Copyright Act – Chapter 415 of the Laws of Malta), trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, design rights (whether registered or unregistered), rights in computer software, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Intellectual Property shall mean all Intellectual Property Rights vesting in the Product, including the programming architecture, as well as, HTML code, program code, graphical code, design, technique, etc, but excluding the technology owned by InboundMuse or licensed to InboundMuse by a third party, and used in the development of the Product.
Product shall mean the software for which use is being offered to the Client by InboundMuse pursuant to this Agreement, together with any other ancillary materials to it.
Product shall mean the software for which use is being offered to the Client by InboundMuse pursuant to this Agreement and, more specifically, the Principal Agreement, together with any other ancillary matter that may be the subject of Intellectual Property Rights.
Service/s: shall be interpreted broadly as to cover any and all types of services which InboundMuse shall provide to the Client, including the making available of the Product specified in the Principal Agreement.
Clauses, schedules and paragraph headings shall not affect the interpretation of these T&Cs.
A ‘person’ shall include an individual, corporate or unincorporated body (whether or not having separate legal personality), and that person’s legal and personal representatives, successors or permitted assignees.
A reference to a ‘company’ shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Principal Agreement.
A reference to ‘in writing’ and/or ‘written’ shall include registered mail and/or electronic mail (e-mail).
References to ‘clauses’ and ‘schedules’ are to the clauses and schedules of these T&Cs.
Any words following the terms “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.
1. Subscription to Services
a) Any License given under the Agreement shall remain in place for the duration of the Agreement and shall be valid for use in only the country where the company is registered, unless otherwise stated in the Principal Agreement;
b) The Client will continue to use the Services for the full term stipulated in the Principal Agreement regardless of a change of ownership or in the event of sale of business to a third party or otherwise.
a) The Parties agree that any Product associated with the Service shall be hosted, maintained and serviced exclusively by InboundMuse and that InboundMuse undertakes to provide the required service in order to maintain the Product in the same level of quality as when first subscribed to, or any other updated versions thereof.
3. Product Versions
a) The Product is being offered to the Client in its current tale quale version, as set up and deployed for the Client’s purposes.
b) InboundMuse may provide updated versions of the Product, at its discretion, according to its technical expertise and planned timelines.
c) InboundMuse, at its discretion, may modify the Product and such modifications shall include but shall not be limited to cosmetic updates, new features, optimisations, new third-party integrations or security updates.
d) Updates and fixes to the subscribed features of the Product may be periodically released by InboundMuse & shall be rendered available to the Client FREE of charge.
4. Deployment of the Product
a) The Client shall be able to commence use of the Product on the Deployment Date once InboundMuse would have set up the Product according to the Client’s brand and obtained written confirmation to go-live.
b) Upon the finalization of Product set-up, the Client shall have the opportunity to test the Product and confirm in writing that it is satisfied with the final product. Any issues must be brought to the attention of InboundMuse within twenty-four (24) hours of testing.
c) Should InboundMuse become aware that the set-up of the Product would not be completed by the Deployment Date for any reason, it shall inform the Client immediately and a new date by which the set-up of the Product should be completed shall be set. InboundMuse shall under no circumstanced be held liable for any damages, direct or indirect, occasioned by delays in deployment of the Product.
d) The timelines around accepting online payments are subject to the Know-Your-Client & onboarding process of the payment gateways.
e) The timelines around issuing fiscal receipts are subject to the onboarding process of the local VAT department.
5. InboundMuse Obligations
a). In providing the Services, InboundMuse shall:
- Perform the Services diligently in accordance with the standard practices in InboundMuse's industry, profession or trade.
Manage the Services, and the various parts thereof within the time scales and costs indicated in the Agreement subject to any reviews and adjustments which may be necessitated by instructions issued by the Client Representative or circumstances outside the reasonable direct control of InboundMuse. The Parties agree that InboundMuse shall not be held responsible in the event of departures from the Services caused as a direct result of the acts and/or omissions of third parties engaged by the Client.
Ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations under the Agreement, provided that InboundMuse shall not be responsible for the infringement of any Third Party rights alleged against the Client as a consequence of the latter’s use of any Product or Service.
Observe all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.
b) InboundMuse is hereby granted full authority to act on behalf of the Client, for the purpose of carrying out the Services, provided that InboundMuse shall not, without the approval of the Client:
appoint or determine the appointment of any third-party consultant or contractor of the Client;
execute a document on behalf of the Client;
knowingly, and without good cause, do anything which would unreasonably delay the execution of the Services;
except in an emergency, and without good cause, knowingly do anything which would unreasonably increase the costs of the Services.
6. Client Obligations
a) The Client shall:
- Cooperate fully with InboundMuse in all matters relating to the Services in order to enable InboundMuse to perform its obligations in terms of the Principal Agreement.
Generally remain responsible for all of the decisions, instructions and directions taken during the performance of the Services.
Supply to InboundMuse, within a reasonable time, any request, any approvals, responses, instructions or directions required by the Agreement and any relevant data and information in the possession of the Client or which may only be obtained by the Client and which is necessary for the performance of the Services.
Ensure such access to premises, servers and data, and such office accommodation and other facilities as may reasonably be requested by InboundMuse for the purposes of providing the Services.
Ensure that InboundMuse is provided with such information (including but not limited to documentation, manuals, forms or guides) as InboundMuse may reasonably request the Client in order to carry out the Services in a timely manner.
Without prejudice to the foregoing, provide InboundMuse with copies of all contracts between the Client and any third party where these are relevant or may have a bearing on the provision of the Services. InboundMuse shall review said contracts and if necessary advise the Client if in the opinion of InboundMuse any of these contracts should be amended. In the event that the Client agrees to amendments, InboundMuse shall provide reasonable support to the Client in negotiating these amendments which support shall be considered to be part of the Services.
Inform InboundMuse of all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.
b) The Client hereby warrants and declares that;
It shall not use the Product for any purpose which is not legitimate;
It shall not use the Product in any other way except the manner in which it was intended to be used, and strictly within the license terms as spelled out in the Principal Agreement;
It shall not allow third-parties or anyone else which is not InboundMuse, to inspect, to amend, alter or modify the Product software in any way;
It shall provide any information requested by InboundMuse under this clause in a timely manner;
It shall be the sole user of the version of the Product it subscribed for, with the logical exception of Client customers who will be using the Product in the manner for which the Product was designed.
c) For the avoidance of doubt, the Client shall be held liable for any damages occasioned by a breach of any of the provisions under sub-article (b) of this clause 6.
7. Intellectual Property Rights
a) Save as otherwise provided in the Principal Agreement, any license offered to the Client over the Product by InboundMuse shall be a limited, non-exclusive, non-transferable, non-sub-licensable right and license for the use of the Intellectual Property, solely to apply the Product in the manner and for the purpose for which it was designed, namely for the Client’s limited purposes as defined in the Principal Agreement.
b) The license referred to in Clause 7(a) above shall also be limited in effect to the territory of Malta unless otherwise provided in the Principal Agreement.
c) Subject to the rights granted to the Client under this Agreement, it is agreed InboundMuse shall retain ownership of any and all Intellectual Property.
d) Any new Intellectual Property Rights created in direct connection with this Agreement shall be the property of InboundMuse, regardless of any participation of the Client in the creation of said Intellectual Property Rights, this including but not limited to any new software code, bug fixes or app features connected with the Product, whether these be of a technical, functional or aesthetic nature.
Provided that this clause 7(d) shall not include the assignment of the Client’s rights in any signs or indications which would be deemed protected under the law of registered trademarks.
Provided further that the Client agrees it shall hold InboundMuse harmless for any damages associated with any alleged infringement of the Client’s aforementioned rights in any signs or indications protected in terms of the law of registered and unregistered trademarks as a consequence of the use, application or sale of any InboundMuse Product or Service by or to any third party. The Client likewise agrees that it will not dispute or attempt to take any legal or judicial action against InboundMuse in connection with any Intellectual Property Rights accruing to InboundMuse under this Clause 7, whether acquired by assignment or license.
e) Furthermore, the Client shall immediately notify InboundMuse in writing, giving full particulars, if any of the following matters come to its attention:
- any actual, suspected or threatened infringement of InboundMuse’s Intellectual Property;
any actual, suspected or threatened unauthorised disclosure, misappropriation or misuse of any Confidential Information or know-how relating to any Product or Service broadly;
any claim made or threatened that exploitation of any Product or Service infringes the rights of any third party;
any other form of attack, charge or claim to which any Product or Service of InboundMuse may be subject.
f) In respect of any of the matters listed in clause 7(e):
- InboundMuse shall, in its absolute discretion, decide what action, if any, to take;
if InboundMuse decides, in its absolute discretion, to institute proceedings, it may do so in its name alone or in the name of InboundMuse and the Client;
InboundMuse shall have exclusive control over, and conduct of, all claims and proceedings;
The Client shall not make any admissions other than to InboundMuse and shall provide InboundMuse with all assistance that it may reasonably require in the conduct of any claims or proceedings; and
InboundMuse shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
g) The Parties may, by mutual consent in writing, agree to different actions to be taken jointly or otherwise in response to any of the matters listed in Clause 7(e) above.
h) For the avoidance of doubt that the Client shall accept full responsibility and shall indemnify and hold InboundMuse harmless for any damages connected with the infringement or alleged infringement of any third party Intellectual Property Rights as a consequence of the use or application any logos, animation or image created or otherwise proffered by the Client in connection with the Services.
i) The parties agree that notwithstanding that the Product was configured for the Client, InboundMuse is the author of the Product and therefore InboundMuse shall retain the rights and ownership over its Intellectual Property, with the exclusion of any brands, logos, animations, photos or other images provided by the Client and falling within the purview of the law of copyright or the law of registered trademarks.
8. Product Performance and InboundMuse Liability
a) InboundMuse cannot guarantee that the Product or Service shall increase the Client’s revenue, generate more sales and/income or give any other financial guarantees. InboundMuse shall not be held liable for any unfavourable changes in sales.
b) The Client shall be responsible for its own marketing and advertising campaigns independently of those provided within the Product itself and InboundMuse is hereby granting the conditional use of the Product, subject to approval, in the said marketing and advertising campaigns.
c) Should the Product malfunction or the Product shuts down or is required to be shut down for any reason beyond InboundMuse’s control, InboundMuse shall not be held responsible for any losses or damages including loss of data or profit of the Client.
a) InboundMuse may choose to sub-contract the setting up, deployment or service of the Product to third parties and the Client shall not to object to InboundMuse doing so.
b) Should InboundMuse choose to sub-contract its obligations to third parties in terms of sub-clause (a) above, InboundMuse shall still be bound by this Agreement and its terms and conditions and shall, in turn, bind the third-party sub-contractor with the same conditions.
10. Malfunctioning of the Product and Liability
a) The Client is bound to report to InboundMuse any issues with the Product as soon as he gains knowledge of them.
b) InboundMuse will use all commercially reasonable efforts under the circumstances to remedy any issues, interruptions, omissions, mistakes, accidents or errors in the Product and restore the Product to working order, unless the cause is attributable to third parties (Google, Microsoft, TrustPayments, Twilio, etc) or otherwise depending on the nature of the issue.
c) InboundMuse shall not be liable for any loss of data or profit during the time period that the Product would be malfunctioning.
d) InboundMuse cannot be held responsible for any interruption in service should this result from the host or any third-party software being used for the Product’s functionality.
11. Limitation of liability
a) Nothing in the Agreement shall limit or exclude a Party's liability for:
death or personal injury caused by its gross negligence or willful misconduct, or that of its employees, agents or subcontractors; or
fraud or fraudulent misrepresentation;
b) Save as otherwise provided in the Agreement neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Services or the use or application of the Product for the purpose for which it was designed.
c) Save as otherwise provided in the Agreement, InboundMuse’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Services and/or the Agreement shall be limited to and shall not exceed an amount equivalent to one percent (1%) of the total fees invoiced and paid by the Client for the Services over either the period of twelve (12) months preceding the claim, or over the whole duration of the Principal Agreement where this is less than twelve (12) months.
d) Furthermore, to the extent limited by the Applicable Law, the Client hereto agrees to indemnify and hold harmless InboundMuse in respect to any and all claims, liabilities, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court expenses and reasonable legal fees) arising out of or in connection with the Services and/or the Principal Agreement, and any ensuing obligations entered into pursuant thereto, except to the extent that such claims, liabilities, actions, proceedings, losses, damages, expenses and costs arise from the gross negligence or wilful misconduct of InboundMuse.
e) In addition, the Client shall at all times indemnify InboundMuse, its officers, directors, agents, employees or authorised representatives, and hold them harmless against any and all claims, liabilities, damages and costs that InboundMuse may incur by virtue of the Client’s negligence, whether gross or otherwise, wilful misconduct, or the non-performance of any of its obligations under or in connection with the Services and/or the Principal Agreement whether in contract, tort (including negligence) or breach of statutory duty in respect of each and every claim for which the Client has a legal liability.
12. Force Majeure
Neither Party shall be in breach of the Agreement, nor shall they be liable for delay in performing, or failure to perform, any of their obligations entered into pursuant to the same, if such delay or failure results from acts, events, omissions or accidents beyond its control, or are reasonably considered to be an irresistible force, fortuitous event or unforeseen circumstance, provided that the other Party is notified of the above and its expected duration. However, if the period of delay or non-performance continues for one (1) month, the Party against which the force majeure event is invoked may terminate the Agreement by giving fourteen (14) days’ written notice to the other Party.
a) Each Party to the Principal Agreement may be given access to Confidential Information from the other Party in order to perform its obligations arising under or in connection with the Principal Agreement. A Party’s Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving Party;
is lawfully disclosed to the receiving Party by a third party without restrictions on disclosure;
is independently developed by the receiving Party, which independent development can be shown by written evidence; or
is required to be disclosed by law, or by any court of competent jurisdiction or by any regulatory or administrative body.
b) In line with the definition given in the first part of these T&Cs to the term “Confidential Information”, each Party shall hold the other Party’s Confidential Information in confidence and shall keep secret all information marked “confidential” or which may reasonably be supposed to be confidential and, unless required by law, not make the other Party’s Confidential Information available to any third party, or make use thereof for any purpose other than the implementation of the Principal Agreement.
c) Each Party shall hold the other Party’s Confidential Information with the same degree of care as it employs with regards to its own Confidential Information of a like nature and in any event in accordance with the best current commercial and industry security practices.
d) Notwithstanding this, each Party may disclose the other Party's Confidential Information to its employees, officers, representatives or advisers who strictly need to know such information for the purposes of exercising the Party's rights or carrying out its obligations arising under or in connection with the Principal Agreement. Each Party shall ensure that its employees (which includes, where applicable, the InboundMuse Employee concerned), officers, representatives or advisers to whom it discloses the other Party's Confidential Information comply with this clause.
e) Should the Client need to disclose any Confidential Information pertaining to InboundMuse to any of the Client’s clients in the execution of the Services, then the Client undertakes to obtain from its client/s, in advance of any disclosure, a written undertaking which protects InboundMuse’s Confidential Information which is no less onerous than the confidentiality obligations contained in these T&Cs. Any such disclosure shall be limited to that specific information which is necessary and required for the Services in question to be performed in line with the provisions of the Principal Agreement.
14. Termination of Contract
a) Either party may terminate the Agreement by giving ninety (90) days’ written notice to the other party.
b) InboundMuse may terminate the Agreement at any time with immediate effect if the Client breaches any of the obligations under this Agreement and fails to remedy such breach within seven (7) days of notice in writing being given by InboundMuse to the Client informing them of the breach.
c) This Agreement shall also be considered to be terminated if one of the parties ceases to exist.
15. Consequences of termination
On termination of the Principal Agreement:
any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim and receive payment and the right to claim and receive damages in respect of any breach of the Principal Agreement which existed at or before the date of termination shall not be affected;
the Client, within the payment periods stipulated in the Principal Agreement, after submission of InboundMuse’s invoice, pay InboundMuse any sums which have accrued and which are due to InboundMuse up to the date of termination of the Agreement; and
the following clauses shall continue to remain in force between the Parties: any rules concerning the interpretation of the present Agreement, Clause 10 on Limitation of Liability, Clause 12 on Force Majeure, Clause 13 on Confidentiality, Clause 15 on the Consequences of Termination, Clause 18 on Non-Solicitation, Clause 29 concerning the Governing law of this Agreement and Clause 30 on the applicable Jurisdiction in the event of a dispute between the parties.
a) Each Party shall defend, indemnify, protect and hold harmless the other Party, and each of its collaborators, employees and agents from and against any and all losses, demands, legal fees, expenses, costs, damages, judgments, liabilities, causes of action, obligations or suits instituted by any third party and resulting from;
any negligent act or omission or wilful misconduct of the Party, its personnel or approved collaborators;
the breach of any provision of this Agreement by any Party or its personnel or any approved collaborators;
any claim that Intellectual Property provided by the Parties under this Agreement infringes or misappropriates any third-party Intellectual Property Rights, or;
any claim regarding breach of Data Protection Regulations.
17. Data Protection
The Parties undertake to comply with the provisions of the General Data Protection Regulation (EU) 2016/679 and any related legislation under Maltese and EU law in so far as the same relates to the provisions and obligations of the Principal Agreement. In this regard the Client hereby undertakes to sign and execute any data protection agreement which InboundMuse will provide to the Client and which is required to be put in place by the above-indicated legislation.
The Client undertakes that during (i) the entire term of the Principal Agreement and (ii) for the period of two (2) years after the expiration, termination or conclusion of the Principal Agreement or of the Services (for whatever reason) whichever is the later, it shall not, without the prior written and explicit consent of InboundMuse, attempt to solicit or entice away from InboundMuse or engage or employ, or procure the engagement or employment of, any InboundMuse Employee, the InboundMuse Representative or of any person who at the date of expiration, termination or conclusion of the Principal Agreement or of the Services was an employee or consultant of InboundMuse.
No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
a) A waiver of any right or remedy under the Agreement is only effective if given in writing and it only applies to the Party to whom the waiver to whom it is addressed and to the circumstances for which it is given.
b) A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
c) Unless specifically provided otherwise, rights arising under the Principal Agreement are cumulative and do not exclude rights arising at law.
21. Entire agreement
a) The Principal Agreement together with these T&Cs and any other agreements referenced by the Principal Agreement or which reference the Principal Agreement as part of the collective Agreement shall constitute 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.
b) Each of the Parties agrees and acknowledges that in signing the Principal Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warrant or understanding (whether in writing or verbal) of any person (whether a Party to the Principal Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
22. Assignment and other dealings
a) The Client shall not, without the prior written consent of InboundMuse, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement.
b) InboundMuse may, at any time, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement, provided that it gives prior written notice of such dealing to the Client.
23. No partnership or agency
Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or authorize either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
24. Third party rights
Except as may otherwise be provided in the Agreement, the Agreement does not confer any rights to any person or party (other than the Parties to the Principal Agreement and, where applicable, their successors and permitted assignees).
a) Any notice required to be given to a Party under or in connection with the Agreement shall be in writing and shall be:
- delivered by hand or sent by registered email to the other party at its address set out in the Principal Agreement, or such other address that may, by notice, be designated from time to time. Delivery of notice in this manner shall be deemed to have occurred within two (2) Business Days from date of postage;
- sent by electronic email (e-mail) to the relevant e-mail address designated in the Principal Agreement; Provided that notification to the other Party must be effected when the e-mail addresses indicated in the Principal Agreement are to be changed by InboundMuse or the Client.
Delivery of notice shall be deemed to have occurred immediately and in any case, within one day.
b) This Clause 25 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Applicability and Severability
a) Should any clause or any part of this contract, for any reason whatsoever, be invalid, unenforceable or illegal, it shall not affect, impair or invalidate the remainder of this contract but shall be confined to the clause or part of this contract and the remainder of this contract shall remain in full force and effect.
b) The Parties will be allowed to come to an agreement and substitute the invalid provision with a similar enforceable term.
27. Miscellaneous Provisions
a) Amendments – Any amendments, modifications or alterations to this Agreement shall be done in writing after being agreed to and signed by both Parties.
b) Independence of Parties - Nothing contained in this Agreement shall be construed as authorizing either party to act as the agent of the other party for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf of or binding upon the other party. The Parties specifically agree that they shall have no power or authority to represent each other in any manner.
c) Data Protection – Parties agree that all personal data supplied by the other Party shall be treated by them in accordance with the General Data Protection Regulations (EU2016/679).
d) Taxes – Each Party shall be responsible for paying any VAT and/or other taxes related to the services being provided save as otherwise provided in the Principal Agreement in particular in connection with the payment of fees by the Client to InboundMuse.
e) Interpretations – should there be any apparent conflict arise between the interpretation of the Principal Agreement or the present T&Cs, the provisions of the Principal Agreement shall prevail over the provisions of the present T&Cs.
28. Assignment of Rights
The Parties agree, that without the prior written consent of the other party, none of the rights or obligations created under this Agreement may be transferred, sold, assigned or otherwise given to third party individuals unless otherwise provided in this Agreement.
29. Governing law
The Principal 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 Applicable Law.
a) Any dispute, controversy or claim arising out of or in relation to the Agreement, including the validity, invalidity, breach or termination thereof, shall be finally settled by arbitration in accordance with the provisions of Part IV (“Domestic Arbitration”) of the Arbitration Act (Chapter 387 of the Laws of Malta) and the Arbitration Rules made thereunder, as in force on the date of commencement of the relevant dispute (such commencement to be established in accordance with such Rules).
b) There shall be one arbitrator, to be appointed by agreement between the Parties or, failing such agreement, by the Chairman of the Malta Arbitration Centre at the request of either Party.
c) The seat of the arbitration shall be such place in Malta as may be agreed by the Parties and, failing such agreement, it shall be in Malta at the premises of the Malta Arbitration Centre. The arbitral proceedings shall be conducted in English language.
d) The existence of a dispute, even if referred to arbitration, will not relieve any Party to the Principal Agreement from honouring its contractual obligations under the Principal Agreement.
31. Payment Details
Registered Name - InboundMuse Ltd.
VAT Number - MT22911921
Bank - BOV plc
IBAN - MT58VALL22013000000040023205538
Swift/BIC - VALLMTMT
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