INTRODUCTION

This Agreement sets out the terms and conditions upon which AREX and the Service Partner have agreed to work together to offer access to and use of the AREX Service to Prospective Users.

1. Definitions and interpretation

1.1 In this Agreement the following words have the following meanings:

(a) Agreement means the agreement between AREX and the Service Partner which is comprised of these terms and conditions and the AREX online application form completed by the Service Partner.

(b) AREX means AREX European Market Limited, a company incorporated in accordance with the laws of the Republic of Ireland (Company Number 545426) whose registered office is at The Black Church, St. Mary’s Place, Dublin 7, Republic of Ireland.

c) AREX End User Agreement means the standard form end user agreement of AREX from time to time in force (the current version of which is available from AREX on request) which will be provided to Prospective Users as part of the on-boarding process for use of the AREX Services and which Prospective Users are required to enter into in order to access and use the AREX Service.

(d) AREX IP is as defined in Clause 11.1.

(e) AREX Service means, as at the Commencement Date, the service as more particularly described in AREX End User Agreement, in its appendices and at https://arex.io/, as such service may be amended, varied, extended or reduced by AREX thereafter during the Term in accordance with this Agreement

(f) Business Day means any day which is not a Saturday, Sunday or a bank or other public holiday in the Territory.

(g) Commencement Date means the date that AREX issues written confirmation to the Service Partner (which may be provided via email) that it has accepted the Service Partner’s application made when the Service Partner completed the AREX online application form.

(h) Commission means the commission as detailed in Clause 8 and Schedule 1.

(i) Commission Report is as defined in Clause 8.2.

(j) Confidential Information means, subject to Clause 10.5, all information relating to a party’s business products and services (including operations, plans, market opportunities, customers, know-how (including designs, processes of production and technology), trade secrets and software) and/or any personal data disclosed to the other party whether in writing, orally or by any other medium.

(k) Notice Address means in the case of:

• AREX:
  The Black Church, St. Mary’s Place, Dublin 7, Republic of Ireland
  [email protected]
• SERVICE PARTNER:
  The address and email address provided by the Service Partner on the AREX online application form completed by the Service Partner.

(l) Prospective Users means a business (but not consumer) client of the Service Partner who the Service Partner has:
assessed as being a suitable user for the AREX Service; and
confirmed meets any requirements or criteria for use of the AREX Service as specified in this Agreement or otherwise as specified by AREX from time to time.

(m) Relevant Requirements is as defined in Clause 9.1(a).

(n) Service Partner means the entity as detailed on the AREX online application form which is accepted by AREX in accordance with Clause 2.2.

(o) Service Request means any request submitted by the Service Partner via the AREX Service during the Term for an invoice raised by a Prospective User to be sold via the AREX Service.

(p) Term means the term of this Agreement as detailed in Clause 2.1.

(q) Territory means the territory applied for by the Service Partner and confirmed in writing by AREX (which may be provided via email).

1.2 In this Agreement: headings are inserted for convenience only and shall not affect construction or interpretation; references to Clauses and Schedules are to the clauses and schedules of this Agreement; words denoting the singular shall include the plural and vice versa; words denoting any gender shall include all genders; any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.

1.3 The definitive version of this Agreement is the English language version which shall control and take precedence over any translation into any other language. Any such translation shall be for convenience only. All communications under or in connection with this Agreement shall be in the English language.

2. Commencement and term

2.1 This Agreement shall come into force on the Commencement Date. Subject at all times to any earlier termination in accordance with its provisions, this Agreement shall remain in force thereafter unless and until terminated by either party giving the other party one months’ written notice of termination.

2.2 For the avoidance of doubt, AREX is not obliged to accept any application which may be submitted to it by a potential Service Partner and permitting a potential Service Provider to submit an application does not constitute acceptance by AREX of that application. This Agreement shall only come into force if and when AREX issues written confirmation to the Service Partner (which may be provided via email) that it has accepted the Service Partner’s application and AREX reserves the right, at its discretion, to decline any application without the need to give reason.

3. Appointment and limited licence

3.1 AREX hereby grants to the Service Partner for the Term only a non-exclusive, royalty free, personal, non-transferable and non-exclusive licence to offer access to and use of the AREX Service to Prospective Users and to submit Service Requests in each case, in accordance with and subject to the terms and conditions of this Agreement.

3.2 The Service Partner shall not proactively solicit potential users of the AREX Service from outside of the Territory. Should the Service Partner receive any enquiry regarding the AREX Service from any potential user outside of the Territory the Service Partner shall promptly refer that enquiry to AREX although for the avoidance of doubt, no Commission shall be due from AREX under this Agreement with respect to any such out of Territory referral.

3.3 AREX may:

(a) exploit the AREX Service (whether inside and/or outside of the Territory) by such other means as it sees fit from time to time including through the appointment of other service partners, introducers and/or the direct promotion and provision of the AREX Service; and/or

(b) unilaterally amend, vary, extend or reduce the AREX Service from time to time (on notice in the case of any change which might reasonably be considered to be materially detrimental to the Service Partner). The Service Partner acknowledges that should it not wish to accept any such change then its sole remedy shall be to terminate this Agreement in accordance with Clause 2.1

4. Status of the parties

4.1 The parties are with respect to each other independent contractors and nothing in this Agreement and no actions taken by the parties under it nor terminology used by the parties in connection with this Agreement and any arrangements under it shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties nor any relationship of employer and employee or employer and worker. Without prejudice to the generality of the foregoing each party acknowledges that it does not intend use of the expression “Service Partner” to imply or create any legal partnership between the parties.

4.2 Save only as may be specifically provided for otherwise under this Agreement, neither party has any authority to make any statements, give any representations and/or enter into any legally binding commitments on the behalf of the other party and shall not hold itself out as having any such authority.

4.3 Without prejudice to the generality of Clause 4.2, the Service Partner acknowledges that it is granted no authority (whether one-off, continuing or otherwise) to enter into any contract (whether with a Prospective User or otherwise) on the behalf of AREX (whether to provide the AREX Service or otherwise). In particular, in accordance with Clause 5.1 Service Requests may only be accepted or declined by AREX at its discretion.

4.4 Subject to the foregoing provisions of this Clause 4 during the Term:

(a) the Service Partner may describe itself as an “Authorised Service Partner”, ”Authorised Introducer” or “Authorised Reseller” of AREX for the AREX Service; and

(b) Arex may for marketing and promotional purposes refer to the Service Partner being an “Authorised Service Partner”, ”Authorised Introducer” or “Authorised Reseller” of AREX.

5. Service requests

5.1 AREX reserves the right at its discretion to accept or decline any Service Request. Where AREX declines any Service Request it shall not be required to provide any reason for doing so. A Service Request shall only be deemed accepted by AREX in accordance with the AREX End User Agreement and once a unique ID for that Service Request has been issued via the AREX Service.

5.2 It is a condition of this Agreement that prior to submitting any Service Request the Service Partner has:

(a) successfully completed any and all identity verification, “know your customer”, anti-money laundering or similar checks in respect of the Prospective User in question as required from time to time under any applicable law, regulation, statute, statutory instrument and codes of practice (including those of any regulator to whom the Service Partner is subject to) and is able to provide substantiating evidence of the same to AREX on request;

(b) confirmed that the Prospective User in question wishes to use the AREX Service, understands and accepts the costs of using the AREX Service and that in order to use the AREX Service that Prospective User must enter into the AREX End User Agreement as part of the on-boarding process for the AREX Service; and

(c) made any disclosure to the Prospective User in question to the to the extent required from time to time under any applicable law, regulation, statute, statutory instrument and codes of practice (including those of any regulator to whom the Service Partner is subject to) regarding the arrangements in place between AREX and the Service Partner for the promotion of the AREX Service and in particular, if required, disclosure that the Service Partner will receive Commission for Service Requests which are accepted by AREX.

6. Service partner obligations

6.1 The Service Partner shall:

(a) when describing and promoting the AREX Service to Prospective Users utilise only the latest version of any promotional materials from time to time:

• (i) provided to it by AREX; and/or
• (ii) prepared by the Service Partner in accordance with the requirements of Clause 7.1 and approved by AREX in advance,

(b) to the extent that any materials referred to in Clause 6.1(a)(ii) incorporate any AREX IP, utilise such AREX IP strictly in accordance with any directions and guidelines of AREX from time to time (and in any event, including an appropriate acknowledgement as to the ownership of that AREX IP);

(c) not make any addition or amendment to any materials as referred to in Clause 6.1(a) without the prior written consent of AREX;

(d) cease further use and distribution of any materials as referred to in Clause 6.1(a) at the request of AREX;

(e) not make any statement, representation, commitment or guarantee regarding AREX and/or the AREX Service other than those which are consistent with the then current version of any materials as referred to in Clause 6.1(a) or which have otherwise been approved by AREX in advance in writing;

(f) promptly notify AREX of any complaint (or other expression of dissatisfaction) regarding AREX and/or the AREX Service received from any Prospective User or other third party and (other than to acknowledge receipt of the complaint in question) not respond to or otherwise deal with that complaint other than as agreed in advance with AREX;

(g) maintain in strict confidence at all times any user names, access codes or other authorisations for the AREX Service which may be provided or allocated to it by AREX from time to time together with any associated passwords (and, where the Service Partner is responsible for setting its own passwords shall ensure that those are sufficiently robust in accordance with generally accepted password security recommendations in the IT industry from time to time) and shall not disclose the same to any other person;

(h) immediately inform AREX of any actual or suspected loss, theft, publication or disclosure of any such user names, access codes, other authorisations or passwords and/or of any actual or suspected unauthorised access to or use of the AREX Service via the access granted to the Service Partner of which the Service Partner becomes aware;

(i) provide:

• (i) the documentation and information as detailed in Schedule 2 in accordance with that Schedule 2; and
• (ii) such support, information, co-operation and assistance as AREX may reasonably request from time to time in connection with the operation and administration of this Agreement and/or the provision of the AREX Service to Prospective Users.

6.2 AREX undertakes to deal with any complaints (or other expressions of dissatisfaction) referred to it under Clause 6.1(f) in accordance with Clause 7.1 and the terms and conditions of any applicable AREX End User Agreement

6.3 Any approval given by AREX under Clause 6.1(a)(ii) shall not be deemed to constitute any confirmation on the part of AREX that the materials in question meet the requirements of Clause 7.1, it being acknowledged that the Service Partner shall be solely responsible for ensuring that any such materials meet the requirements of Clause 7.1.

7. Performance standards

7.1 Each party shall discharge its obligations and carry out its activities under or in connection with this Agreement:

(a) using all reasonable skill, care and diligence;

(b) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;

(c) in accordance with:

• (i) all applicable laws, regulations, statutes, statutory instruments and codes of practice (including those of any regulator to whom the applicable party is subject to);
• (ii) any deadlines or time periods for performance as specified in this Agreement or otherwise agreed between the parties or, where no specific deadline or time period is specified or has been agreed, in any event in a timely manner;
• (iii) the terms and requirements of any certifications, licences, authorisations or registrations held by the applicable party (and each party shall at all times maintain in place and shall not breach any certifications, licenses, authorisations or registrations which are required to be held by it from time to time in order to be able to lawfully conduct its business); and
• (iv) its own established policies and procedures (to the extent that such policies and procedures are not inconsistent or contradictory with the terms and conditions of this Agreement in which case, the terms and conditions of this Agreement shall control and take precedence).

7.2 Whilst AREX undertakes to provide the AREX Service in accordance with the requirements of Clause 7.1, the Service Partner acknowledges and agrees that AREX makes no representation and gives no warranty as to the availability of the AREX Service nor that the AREX Service will operate continually or be error free. To the fullest extent lawfully permitted AREX hereby excludes all warranties, conditions and commitments which might otherwise be implied into this Agreement regarding the quality, fitness for purpose and/or availability of the AREX Service.

8. Commission, payment and costs

8.1 In respect of any Service Request submitted by the Service Partner during the Term and accepted by AREX, AREX shall pay to the Service Partner the applicable Commission which shall accrue and be calculated in accordance with Schedule 1. Commission shall be calculated and paid in the same currency which was applicable for the transaction underlying the Service Request in question.

8.2 As soon as reasonably possible following the end of each calendar month AREX shall submit to the Service Partner via email a report summarising the Commission (if any) which has accrued to be paid to the Service Partner during the preceding month (each a Commission Report).

8.3 Following receipt of each Commission Report the Service Partner may submit, via such means from time to time specified by AREX, an invoice for the applicable amount of Commission (if any) as detailed in the Commission Report in question. Correctly specified and submitted invoices shall then be paid by AREX by the 15th day of the month following the month in which that invoice was received by AREX.

8.4 If the Service Partner has not correctly specified and submitted an invoice for Commission within 180 days of the date on which the Service Partner received the applicable Commission Report then the Service Partner shall be deemed to have irrevocably waived its right to receive payment of the Commission in question.

8.5 Invoices shall be paid by AREX by electronic transfer to a bank account from time to time nominated by the Service Partner. Such account must be held in the name of the Service Partner and located in the same territory in which the Service Partner is established.

8.6 Commission is stated exclusive of any value added/sales tax from time to applicable which shall be paid by AREX in addition subject to the applicable invoice submitted by the Service Partner being valid for value added/sales tax purposes.

8.7 If AREX fails to pay any invoice by the due date under this Agreement then the Service Partner may charge interest on the overdue amount both before and after any judgment at two per cent per annum over the Bank of England base rate from time to time from the due date until up to and including the date that payment is made in full and such interest shall be compounded and accrue on a daily basis. The Service Partner agrees that such interest is a substantial remedy and that it may not claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8.8 AREX may from time to time unilaterally vary the Commission on notice to the Service Partner. The Service Partner acknowledges that should it not wish to accept any such varied Commission then its sole remedy shall be to terminate this Agreement in accordance with Clause 2.1.

8.9 Commission, if any, is the only amount payable by AREX to the Service Partner under or in connection with this Agreement. Accordingly the Service Partner shall not be entitled to receive any other or additional payment from AREX in respect of any costs and expenses incurred by the Service Partner from time to time in performing this Agreement.

8.10 Without prejudice to the generality of Clause 8.9, the Service Partner shall be responsible for deduction and payment of all tax, National Insurance contributions and other levies in respect of persons employed or engaged by the Service Partner and shall indemnify AREX on demand against all liability to make such statutory payments in respect of persons employed or engaged by the Service Partner that may nevertheless be suffered or incurred by AREX. AREX may, at its discretion, off-set any such liability of the Service Partner to AREX against Commission payments from AREX under this Agreement.

8.11 The Service Partner acknowledges that AREX makes no representation and gives no warranty as to the level of business which will be generated for the Service Partner as a result of this Agreement and accordingly as to the amount of Commission (if any) which will become payable to the Service Partner under this Agreement.

8.12 For the avoidance of doubt:

(a) this Clause 8 shall survive termination of this Agreement and in particular, for the purpose of the reporting and payment of any Commission which has accrued but not yet been paid as at the date of termination and/or in respect of any outstanding Service Request submitted by the Service Partner prior to the date of termination; and

(b) Commission shall only accrue and be payable in respect of Service Requests submitted by the Service Partner during the Term and accepted by AREX however, the Service Partner shall not be entitled to receive any Commission (or other payment) in respect of any use of the AREX Service after termination or expiry of this Agreement by any Prospective User who was originally introduced to AREX by the Service Partner under this Agreement.

9. Anti-bribery and corruption/anti-money laundering

9.1 In respect of the performance of this Agreement and the operation of its business and activities generally the Service Partner shall (and shall procure that persons associated with it and/or other persons who are performing services for it in connection with this Agreement shall):

(a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption (including the UK Bribery Act 2010); prevention of money laundering and/or terrorist financing; and international sanctions (including the UK Sanctions and Anti-Money Laundering Act 2018) (collectively the Relevant ABC Requirements);

(b) without prejudice to the generality of Clause 9.1(a), not:

• (i) engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the UK Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and/or
• (ii) do, or omit to do, any act that will cause or lead AREX to be in breach of any of the Relevant Requirements;

(c) promptly notify AREX in writing if it becomes aware of or suspects any breach of this Clause 9 and/or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage;

(d) have and shall maintain in place its own policies and procedures, including adequate procedures under the UK Bribery Act 2010 and any procedures as required under the UK Sanctions and Anti-Money Laundering Act 2018, to ensure compliance with the Relevant Requirements; and

(e) at the request of AREX from time to time (whether during or after the Term):

• (i) promptly certify to AREX in writing signed by a senior officer compliance with this Clause 9; and
• (ii) provide such supporting evidence of such compliance as AREX may reasonably request.

9.2 The Service Partner shall grant to AREX and/or its authorised representatives on request both during the Term and for six years thereafter access to the Service Partner’s records, premises and personnel for the purpose of allowing AREX and/or its authorised representatives to audit the Service Partner’s compliance with this Clause 9 and/or to investigate any actual or suspected breach of this Clause 9.

10. Confidentiality

10.1 Each party shall maintain in confidence any Confidential Information of the other party and shall not use or disclose that Confidential Information other than as necessary to perform its obligations under this Agreement or as otherwise authorised under this Agreement.

10.2 Without prejudice to any specific or additional obligations set out in this Agreement, each party shall as a minimum apply the same degree of care and security to the Confidential Information of the other party as it applies to its own Confidential Information.

10.3 Each party shall be entitled to disclose the Confidential Information of the other party to such of the other members of its corporate group, its employees, authorised sub-contractors, agents, representatives, professional advisors, potential purchasers, investors or funders who have a need to know the same for the purposes of the implementation and operation of this Agreement (or, in the case of potential purchasers, investors or funders for the purposes of carrying out due diligence on the business of the party in question) but not otherwise or further.
Each party shall be liable for the acts or omissions of any person to whom it discloses any Confidential Information of the other party (regardless of whether or not the disclosure in question was authorised under Clause 10.3) and, prior to the disclosure of any Confidential Information of the other party to any such person, the disclosing party shall first make that person aware of their duties of confidentiality in respect of the Confidential Information of the other party to be disclosed to them.

10.5 The provisions of this Clause 10 shall apply throughout the Term and thereafter without limit in time but shall cease to apply in respect of any Confidential Information of a party which:

(a) is or becomes public knowledge or enters the public domain other than as result of any breach by the other party of its obligations under this Clause 10 or a as a result of breach by any third party who owes a duty of confidence to the disclosing party in respect of the Confidential Information in question;

(b) is lawfully in the possession of the other party without restriction on disclosure prior to the date of its disclosure under this Agreement;

(c) is independently developed by the other party without reference to any Confidential Information of the first party;

(d) is provided to the other party by a third party who lawfully acquired it and is under no obligation further restricting its disclosure;

(e) the other party:

• (i) is required to disclose pursuant to any legal, judicial, arbitral and/or regulatory action or proceeding by any competent authority in any competent jurisdiction provided that where permitted, prior to any such disclosure that other party shall provide the first party with notice of the request to disclosure its Confidential Information and shall provide the first party with the opportunity to object to that disclosure and shall provide the first party with such reasonable support and assistance as it may request to assist it making its objection; or
• (ii) discloses to any law enforcement authority in connection with the good faith reporting of any suspected criminality.

10.6 Save only to the extent reasonably required to enable each party to comply with its obligations under this Agreement, to exercise any of its rights under this Agreement and/or as may be expressly permitted under this Agreement neither party shall make any announcement concerning this Agreement nor otherwise publicise the existence of this Agreement without the prior written consent of the other party and then, only using such form of words as approved by that other party.

11. Intellectual property

11.1 The AREX Service, any software or materials relating to the AREX Service (including any promotional materials from time to time made available by AREX), any software, materials or other items utilised by AREX in connection with the performance of the AREX Service (including any website operated by or on the behalf of AREX) and/or created during the course or as a result of the performance of any AREX Service, the name of AREX, any domain names or trademarks used by AREX and any intellectual property rights therein or relating thereto (collectively the AREX IP) are and shall remain the property of AREX or its licensors (as appropriate).

11.2 No provision of this Agreement shall act so as to transfer ownership of any AREX IP to the Service Partner, any Prospective User and/or any third party it being acknowledged by the Service Partner that it’s only interest in and to any AREX IP is the extent of the limited licences granted to the Service Partner under this Agreement.

11.3 Any goodwill generated as a result of the Service Partner’s use of any AREX IP, the AREX name and/or any AREX trademarks (including as a result of the operation of Clause 4.4 and/or the incorporation of any AREX IP into any Service Partner generated materials as referred to in Clause 6.1(a)(ii)) shall accrue to AREX. The Service Partner shall, whether during the Term or thereafter, execute any confirmatory assignment of any such goodwill as may be requested by AREX from time to time.

11.4 Should the Service Partner make any suggestion or recommendation regarding possible further developments of, or additions to, the AREX Service then AREX shall be free to further investigate, develop or implement the same at its discretion and without any payment being due from AREX to the Service Partner.

11.5 Without prejudice to the right of the Service Partner or any third party to challenge the validity of any AREX IP, the Service Partner shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any AREX IP and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

11.6 AREX warrants that as at the Commencement Date it is not aware of any claim or allegation that any AREX IP infringes the intellectual property rights of any third party in the Territory. Subject to the foregoing, AREX makes no representation or warranty as to the validity or enforceability of any AREX IP nor as to whether the same infringe on any rights of any third party.

11.7 The Service Partner shall promptly give notice in writing to AREX in the event that it becomes aware of any:

(a) infringement or suspected infringement of any AREX IP; and/or

(b) claim that any AREX IP infringes the rights of any third party.

11.8 In the case of any matter falling within:

(a) Clause 11.7(a), AREX shall:

• (i) in its absolute discretion, determine what action if any shall be taken in respect of the matter;
• (ii) have sole control over and shall conduct any consequent action as it shall deem necessary; and
• (iii) pay all costs in connection with any such action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action.

(b) Clause 11.7(b), AREX shall defend the Service Partner against any claims that the marketing, advertising, provision or use of the AREX Service in the Territory by the Service Partner in accordance with this Agreement infringes any intellectual property right of a third party and shall indemnify the Service Partner for and against any amounts awarded against the Service Partner in judgment or settlement of such claims provided that the Service Partner:

• (i) as soon as reasonably practicable, gives written notice of any claim or potential claim to AREX, specifying the nature of the claim or potential claim in reasonable detail;
• (ii) does not make any admission of liability, agreement or compromise in relation to the claim or potential claim without the prior written consent of AREX;
• (iii) gives AREX and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Service Partner, so as to enable AREX and its professional advisers to examine them and to take copies (at the expense of AREX) for the purpose of assessing the claim or potential claim;
• (iv) subject to AREX providing reasonable security to the Service Partner to the Service Partner’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as AREX may reasonably request (including being joined as a party to any relevant proceedings) to avoid, dispute, compromise or defend the claim or potential claim; and
• (v) uses its reasonable endeavours to mitigate any amounts which may be incurred by the Service Partner and recoverable from AREX (whether under this indemnity or otherwise).

However, AREX shall not in any circumstances have any liability (whether under this indemnity or otherwise) if any alleged infringement is wholly or materially based on:

(c) any modification of any AREX IP and/or combination of the AREX IP with other materials by or on the behalf of the Service Partner which was not specifically authorised in advance in writing by AREX; and/or

(d) any breach of this Agreement by the Service Partner.

11.9 Clause 11.8(b) represents the Service Partner’s sole and exclusive rights and remedies, and the entire obligations and liability of AREX in the case of any matter falling under Clause 11.7(b).

12. Data protection

12.1 In this Clause 12 the following words have the following meanings:

(a) Agreed Purposes means the operation and administration of this Agreement and the arrangements to be put in place under it and in particular, the offering and provision of the AREX Service to Prospective Users.

(b) Data Discloser means the party that discloses Shared Personal Data to the other party.

(c) Data Protection Legislation means all data protection and privacy legislation from time to time in force and applicable to either or both parties and/or the Agreed Purposes including the General Data Protection Regulation ((EU) 2016/679).

(d) Permitted Recipients means the parties, any members of the same corporate group as the parties, the employees, agents and representatives of each party and/or any members of that party’s corporate group and any third parties engaged to perform obligations or activities or to provide services in connection with this Agreement.

(e) Shared Personal Data means the personal data to be shared between the parties under Clause 12.3 which shall be confined to the following categories of information relevant to the following categories of data subject:

• (i) Data Subjects: officers, employees and other representatives of Prospective Users.
• (ii) Categories of Information: names, address, email addresses, telephone numbers and other contact details.

12.2 In this Clause 12 expressions such as controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meanings as set out in the Data Protection Legislation.

12.3 This Clause 12 sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that the other party acting in its capacity as a Data Discloser will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

12.4 Each party shall comply with all the obligations imposed on a controller under any applicable Data Protection Legislation.

12.5 Without prejudice to the generality of Clause 12.4 each party shall:

(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

(c) process the Shared Personal Data only for the Agreed Purposes;

(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;

(f) have in place appropriate technical and organisational measures, reviewed to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;

(g) not transfer any personal data received from the Data Discloser outside the European Economic Area and/or the United Kingdom unless the transferor:

• (i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
• (ii) ensures that (i) the transfer is to a country approved by any applicable authority as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.

12.6 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

(b) promptly inform the other party about the receipt of any data subject access request;

(c) provide the other party with reasonable assistance in complying with any data subject access request;

(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;

(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;

(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data;

(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;

(i) maintain complete and accurate records and information to demonstrate its compliance with this Clause 12; and

(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

13. Termination and post termination

13.1 Either party may terminate this Agreement immediately at any-time by giving the other party written notice if that other party:

(a) commits any material breach of this Agreement that is not capable of remedy;

(b) becomes bankrupt or goes into liquidation (whether voluntary or compulsory), becomes insolvent, is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of that party or the other party suffers any similar process in any applicable jurisdiction; and/or

(c) ceases or threatens to cease carrying on its business, operations or activities.

13.2 Termination of this Agreement shall not of itself give rise to any liability on the part of AREX to pay any compensation to the Service Partner for loss of profits or income (or anticipated future profits or income), loss of or damage to reputation or goodwill and/or to reimburse the Service Partner for any costs relating to or resulting from termination or for any other loss, cost, investment or damage.

13.3 The Service Partner shall indemnify AREX against all liabilities arising out of or in connection with any transfer, or deemed or alleged transfer, by operation of law of any of the Service Partner’s employees or workers which, without prejudice to Clause 4.1, occurs as a result of the termination of this Agreement.

13.4 Termination or expiry of this Agreement on whatever basis shall be without prejudice to any rights or obligations of either party which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of this Agreement which, whether expressly or by implication, is to continue in or come into force following expiry or termination.

14. Notices

14.1 Any notice given under this Agreement must be made in writing and signed by or on behalf of the Party giving it and must be served by delivering it by hand or sending it by pre-paid recorded delivery; registered post; or courier service with signature on delivery or by email as an attachment with a delivery receipt requested to the Party due to receive it at its Notice Address (or to such other address and/or email address as last notified in writing by that Party for the service of formal notices in accordance with the requirements of this Clause 14.1).

14.2 Subject to Clause 14.3, notices correctly served in accordance with this Clause 14 shall be deemed to have been received:

(a) if delivered by hand, at the time of actual delivery;

(b) in the case of pre-paid recorded delivery or registered post or courier service, two Business Days after the date of posting; and/or

(c) if sent by email, at the time of issue by the sender’s IT system of a notice of successful delivery,

PROVIDED THAT in each case the sender retains evidence of sending and produces the same on request.

14.3 If deemed receipt under Clause 14.2 occurs before 9.00 on a Business Day, the notice in question shall instead be deemed to have been received at 9.00 on that Business Day. If deemed receipt occurs after 17:00 on a Business Day or on any day which is not a Business Day, the notice in question shall instead be deemed to have been received at 9.00 on the next Business Day. All references to time in this Clause 14.3 are to the local time in the location where the notice in question is addressed.

14.4 Whilst the parties may make operational communications concerning this Agreement via fax, formal notice may not be served via fax.

15. General

15.1 This Agreement together with any documents referred to or incorporated into it in accordance with its terms represents the entire agreement between the parties relating to its subject matter and supersedes all previous presentations made and/or agreements, negotiations and discussions between the parties relating to the same. Nothing in this Clause 15.1 shall though limit or exclude any liability of either party for fraud or fraudulent misrepresentation.

15.2 Save only to the extent as may be specifically provided for otherwise under this Agreement, no variation or amendment of this Agreement shall be binding unless made in writing and:

(a) signed by or on the behalf of each of the parties; or

(b) confirmed by each of the parties by an exchange of emails which specifically reference that the variation or amendment in question is to be considered binding for the purposes of this Clause 15.2.

15.3 The Service Partner may not assign, novate or transfer any of its rights and/or obligations under this Agreement without the prior written consent of AREX.

15.4 AREX may assign, novate or transfer any of its rights and/or obligations under this Agreement.

15.5 The Service Partner may not sub-contract the performance of any or all of its obligations under this Agreement without the prior written consent of AREX. The Service Partner shall at all times remain primarily liable to AREX for the acts and omissions of any sub-contractors as if those were the acts or omissions of the Service Partner itself under this Agreement and regardless of whether or not the sub-contracting in question was approved by AREX as required under this Clause 15.5.

15.6 If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect. If any such invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

15.7 Save only in each case to the extent specifically provided for otherwise under this Agreement:

(a) the failure to exercise or delay in exercising any right or remedy (whether under this Agreement or otherwise) shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies;

(b) no single or partial exercise of any right or remedy (whether under this Agreement or otherwise) shall prevent any further exercise of the right or remedy or of any other right or remedy (whether under this Agreement or otherwise); and

(c) any waiver shall only be valid if made in writing and signed on the behalf of the party giving it.

15.8 A person who is not a party to this Agreement shall have not right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

15.9 This Agreement and any dispute or claim arising out of or in connection it or its subject matter or formation (including any non-contractual disputes or claims) shall be governed by English law and, save in respect of the enforcement of any judgment, the parties agree to submit to the exclusive jurisdiction of the English courts.