- CURVE ROYALTY SYSTEMS LTD (a company registered in England and Wales, with number 10121597) whose registered office is at 7 Bell Yard, London, WC2A 2JR ("Curve"); and
- The "Customer"
- Curve has developed certain software applications and platforms which it makes available to subscribers via the internet for the purpose of royalty processing and making royalty payments.
- The Customer wishes to use Curve's services in its business operations.
- Curve has agreed to provide, and the Customer has agreed to take and pay for, Curve's services subject to the terms and conditions of this Agreement.
Definitions and interpretation
In this Agreement the following terms have the following meanings:
has the meaning given in clause 15;
in England and Wales, any and all applicable laws, regulations and industry standards or guidance (including any applicable British Standard) and any applicable and binding judgment of a relevant court of law;
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.1;
a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business;
08:00 to 18:00 on a Business Day;
"Change of Control"
shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly, and controls, controlled and the expression change of control shall be construed accordingly.
the date of this Agreement;
has the meaning given in clause 10;
the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company and the expression "Change of Control" shall be construed accordingly;
the personnel including subcontractors engaged by Curve in the provision of the Services;
the data inputted by the Customer, Authorised Users, or Curve on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services including Customer Personal Data;
the documentation made available to the Customer by Curve online at www.curveroyaltysystems.com or such other web address notified by Curve to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
"Force Majeure Event"
has the meaning given in clause 15;
has the meaning given in clause 14.2.4;
"Intellectual Property Rights"
patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) 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;
all damages, losses, liabilities, claims, actions, costs, expenses (including reasonable fees and disbursements for legal or professional services), proceedings, judgments, consensual settlements, penalties, fines, demands, interest and charges whether arising under statute, contract or at common law;
any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition or any libraries or code licensed from time to time under the General Public Licence, or anything similar;
the subscription services provided by Curve to the Customer under this Agreement via www.curveroyaltysystems.com or any other website notified to the Customer by Curve from time to time, as more particularly described in the Documentation;
the online software applications provided by Curve as part of the Services;
the fees payable by the Customer to Curve for the User Subscriptions as set out and calculated in accordance with clause 8 and schedule 1;
has the meaning given to it in clause 14.1;
the support service provided by Curve in relation to the Services in accordance with the support services policy as made available at www.curveroyaltysystems.com or such other website address as may be notified to the Customer from time to time;
the user subscriptions purchased by the Customer pursuant to clause 2 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement;
value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;
any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
a period of 12 months from and including the Commencement Date or an anniversary of the Commencement Date provided that, where this Agreement is terminated part way through such a 12-month period, a reference to a Year shall include the period from the end of the last Year completed until the date of termination.
References to "clauses" and "schedules" are to the clauses and schedules of this Agreement. Clause, schedule, and paragraph headings shall not affect the interpretation of this Agreement. The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to "this Agreement" includes the schedules.
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.
Unless the context otherwise requires, words in the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
A reference to a statute or statutory provision or to Applicable Law:
shall include all subordinate legislation made from time to time under the same; and
is a reference to the same as amended, extended, superseded or consolidated from time to time.
A reference to "writing" or "written" includes fax and email (including all attachments) but not communication by SMS or similar text messaging facilities.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
Any reference to a time of day is to that time in the United Kingdom.
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 generality of the related general words.
Subject to the Customer purchasing the User Subscriptions in accordance with this Agreement, Curve hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
In relation to the Authorised Users, the Customer undertakes that:
it shall permit Curve to inspect and have access to any premises (and to the computer equipment located there) at or on which the Services are being used, and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that Curve provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times; and
if any of the audits referred to in clause 2.2 reveal that the Customer has underpaid Subscription Fees to Curve, then without prejudice to Curve's other rights, the Customer shall pay to Curve an amount equal to such underpayment as calculated in accordance with schedule 1 within  Business Days of the date of the relevant audit.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its receipt and use of the Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, or disability; or
is otherwise illegal or causes damage or injury to any person or property;
and Curve reserves the right, without liability or prejudice to its other rights or remedies, to disable the Customer's access to any material that breaches the provisions of this clause.
The Customer shall not:
except as may be allowed by Applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, including any software made available as part of the Services and/or Documentation (as applicable) in any form or media or by any means;
attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of any software made available as part of the Services;
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services;
use the Services and/or Documentation to provide services to third parties;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
attempt to obtain, or assist third parties to obtain, access to the Services and/or Documentation, other than as provided under this clause 2.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Curve.
The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary, holding company or other group company of the Customer.
Provision of the Services
Curve shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
Curve shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
planned maintenance where Curve has used reasonable endeavours to notify the Customer in advance; and
unscheduled maintenance performed outside Business Hours, provided that Curve has used reasonable endeavours to give the Customer reasonable notice in advance.
Curve shall provide the Customer with the Support Services during Business Hours.
Curve shall use reasonable endeavours to meet any performance dates set out in this Agreement or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence in this Agreement.
Curve may amend the Services from time to time provided such changes apply to the majority of its clients for the Services and do not materially and negatively impact the functionality, performance, or security of the Services. Curve shall provide the Customer with reasonable notice prior to the implementation of such changes.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all such Customer Data.
The Customer hereby grants to Curve on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to use the Customer Data for the purpose of providing the Services and for any requirements ancillary to the provision of the Services (including any data analytics and service modelling).
Curve shall provide back-up for Customer Data no less than daily in accordance with prevailing industry standards. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Curve to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Curve. Curve shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Curve to perform services related to Customer Data maintenance and back-up).
Curve shall take all reasonable steps as in providing the Services, to protect the privacy and security of the Customer Data.
Third party providers
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Curve makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Curve. Curve recommends that the Customer refers to the third party's website terms and conditions and Privacy Notice prior to using the relevant third-party website. Curve does not endorse or approve any third-party website nor the content or compliance of any of the third-party website made available via the Services.
Curve shall perform the Services in all material respects in accordance with the Documentation and with reasonable care and skill. This obligation shall not apply to the extent that any non-compliance is caused by the Customer's use of the Services contrary to the Documentation or Curve's instructions, or by modification or alteration of the Services by any party other than Curve or Curve's duly authorised representatives, contractors, or agents.
does not warrant that the Customer's use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
If Curve fails to comply with any of the warranties set out in this clause 6, it shall use its reasonable endeavours to rectify such failure as soon as reasonably practicable. Curve's obligations under this clause 6.3 shall be the Customer’s sole and exclusive remedy in respect of a breach of any of the warranties set out in clause 6.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
This Agreement shall not prevent Curve from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.
The Customer shall:
co-operate with Curve in all matters relating to the Services;
provide such information, including Customer Data, to Curve as Curve may reasonably request for the purpose of providing the Services, security access information and configuration services and ensure that such information is accurate in all material respects;
obtain and maintain all necessary licences, permissions and consents which may be required before the Commencement Date;
ensure that its network and systems comply with the relevant specifications provided by Curve from time to time;
be responsible for procuring, maintaining, and securing its network connections and telecommunications links from its systems to Curve's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
comply with all Applicable Law with respect to its activities under this Agreement; and
ensure that the Authorised Users use the Services and the Documentation in accordance with this Agreement and shall be responsible for any Authorised User's breach of this Agreement and shall notify Curve of such breach or alleged breach.
If Curve's performance of any of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
Curve shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default;
Curve shall not be liable for any losses sustained or incurred by the Customer arising directly or indirectly from Curve's failure or delay to perform any of its obligations; and
the Customer shall indemnify Curve on demand for any Losses sustained or incurred by Curve arising directly or indirectly from the Customer Default.
Charges and payment
In consideration of Curve's provision of the Services in accordance with this Agreement, the Customer shall pay the Subscription Fees in accordance with this clause 8 and schedule 1.
The Customer shall on the Commencement Date provide to Curve valid, up-to-date, and approved purchase order information acceptable to Curve and any other relevant valid, up-to-date and complete contact and billing details.
The Subscription Fees exclude amounts in respect of VAT, which the Customer shall additionally be liable to pay to Curve at the prevailing rate, subject to the receipt of a valid VAT invoice.
Curve reserves the right to increase the Subscription Fees once in any Year. Curve shall give the Customer written notice of any such increase six months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Curve in writing within eight weeks of the date of Curve's notice and Curve shall have the right without limiting its other rights or remedies to terminate this Agreement by giving twelve weeks' written notice to the Customer.
Curve shall submit invoices at the intervals set out in schedule 1.
The Customer shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Curve. Time of payment is of the essence.
If the Customer fails to make any payment due to Curve by the due date for payment, and without prejudice to any other rights and remedies of Curve:
Curve may, without liability to the Customer, disable the Customer's password, account and access to the Services or any part of the Services;
Curve shall be under no obligation to provide any part of the Services while any invoice is not paid in accordance with clause 8.6;
the Customer shall pay interest on the overdue amount at the rate of 2% above the base rate of the Bank of England from time to time in force. 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 Customer shall pay the interest together with the overdue amount. The Customer shall indemnify, keep indemnified and hold harmless Curve in respect of any Losses suffered or incurred by Curve in recovering any unpaid and overdue sums.
If Curve has not received payment within 60 days after the due date, and without prejudice to any other rights and remedies of Curve, Curve shall have the right without further notice to delete Customer Data.
If, at any time whilst using the Services, the Customer exceeds the amount of thresholds of tracks and/or contracts as specified in the Documentation, Curve shall charge the Customer, the applicable higher priced subscription as set out in schedule 1.
The Customer shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by Applicable Law). Curve may at any time, without limiting any other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Curve to the Customer.
Intellectual Property Rights
The Customer acknowledges and agrees that:
Curve and/or its licensors own all Intellectual Property Rights in the Services, including any software made available via the Services and the Documentation; and
the Services comprise Open-Source Software which is subject to the MIT License. See the MIT License (available at https://opensource.org/licenses/MIT) for more details.
The Customer shall indemnify Curve against all Losses suffered or incurred by Curve as a result of any claim made against Curve for infringement of a third party's Intellectual Property Rights arising out of or in connection with compliance with any specifications supplied by the Customer.
Subject to clause 10.2, each party (the "Recipient") shall keep the other party's (the "Discloser") confidential information concerning the business, affairs, customers, clients, or suppliers of the Discloser, including Customer Data, ("Confidential Information") confidential and:
use such Confidential Information solely for the performance and/or use of the Services in accordance with this Agreement or as permitted by clause 4.2; and
not, without the Discloser's prior written consent, disclose it to any other person.
The provisions of clause 10.1 shall not apply to any Confidential Information that:
is already in the public domain or comes into the public domain in the same or substantially the same form in which it has been disclosed in connection with this Agreement without breach of this Agreement; or
is required to be disclosed under Applicable Law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required),
provided that a particular disclosed or discovered use, combination, analysis, form or collection of information will not be in the public domain simply because it could be re-created using information in the public domain.
The Recipient shall give the Discloser as much notice of any disclosure required under clause 10.2.1 as is reasonable and lawful in the circumstances (if any) and shall provide reasonable assistance to the Discloser in avoiding or limiting the required disclosure.
If and to the extent that Curve processes any Personal Data on the Customer's behalf when performing its obligations under this Agreement and providing the Services, the parties record their intention that the Customer shall be the Controller and Curve shall be a Processor of such Personal Data, other than for audit, legal and marketing reasons, where the parties acknowledge Curve shall be acting as an independent controller.
Curve shall only Process Customer Personal Data for the purpose of performing the Data Processing Services on reasonable written instructions that the Customer may give to Curve from time to time concerning such Processing. Curve shall process Customer Personal Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
The Customer shall ensure all instructions given by it to Curve in respect of Customer Personal Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws. If Curve believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws, it shall first inform the Customer, and it shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
Notwithstanding any provision to the contrary within this clause 11, Curve may take any steps that Curve (acting reasonably and in good faith) determines are necessary in order for it to comply with Data Protection Laws. This shall include Curve having the right to notify any relevant Supervisory Authority of any circumstance that has arisen in relation to the Processing of Personal Data under this Agreement to the extent that Curve (acting reasonably and in good faith) believes that this is necessary in order to comply with Data Protection Laws.
The Customer warrants and represents that:
all Customer Personal Data which it transmits to Curve is transmitted in accordance with Applicable Law; and
it has and shall maintain throughout the term of this Agreement all appropriate, lawful bases to use such Customer Personal Data in accordance with this Agreement, including ensuring the provision of appropriate Privacy Notices to any relevant Data Subjects covering the Processing of such Personal Data by Curve pursuant to this Agreement.
Curve shall only process (and shall ensure its personnel and suppliers only process) the Customer Personal Data in accordance with schedule 1 and the other terms of this Agreement (including when making any transfer to which clause 11.10 relates), except to the extent:
that alternative processing instructions are agreed between the parties in writing; or
otherwise required by Applicable Law (and Curve shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
Taking into account the state of technical development and the nature of processing, Curve shall implement and maintain appropriate technical and organisational measures to protect Customer Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access, which shall be determined by Curve from time to time. The Customer acknowledges that Curve offers the Services to all of its customers and clients and that specific changes to these measures may not always be possible or may incur specific additional charges where it is possible.
not permit any processing of Customer Personal Data by any agent, subcontractor or other third party (except for those organisations set out in schedule 2, as well as its or its Sub-Processors' own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to Customer Personal Data) without the written authorisation of the Customer which may be either a general authorisation for third parties or a specific authorisation for a specific third party;
prior to the relevant Sub-Processor carrying out any processing activities in respect of the Customer Personal Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 11 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by Curve and ensure each such Sub-Processor complies with all such obligations;
remain fully liable to the Customer under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
ensure that all persons authorised by Curve or any Sub-Processor to process Customer Personal Data are subject to a binding written contractual obligation to keep the Customer Personal Data confidential.
Curve shall (at the Customer's cost):
assist the Customer in ensuring compliance with the Customer's obligations pursuant to articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Curve, and report any Personal Data Breaches as soon as is reasonably practicable; and
taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer's obligations to respond to requests for exercising the Data Subjects' rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Customer Personal Data.
Curve shall not process Customer Personal Data outside the European Economic Area without the Customer's prior authorisation (which may be by email). For the purposes of this clause, the European Economic Area shall be deemed to include the United Kingdom even if the United Kingdom leaves the EEA.
Curve shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Curve's compliance with the obligations placed on it under this clause 11 and to demonstrate compliance with the obligations on each party imposed by article 28 of the GDPR (and under any equivalent Data Protection Laws), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period), and Curve may offer its own audits or assessments for satisfying this purpose.
On the end of the provision of the Services relating to the processing of Customer Personal Data, at the Customer's cost and the Customer's option, Curve shall either:
maintain the Customer Personal Data as part of its archive service;
return all of the Customer Personal Data to the Customer; or
securely dispose of the Customer Personal Data (and thereafter promptly delete all existing copies of it), all of those except to the extent that any Applicable Law requires Curve to store such Customer Personal Data. This clause 11.12 shall survive termination or expiry of this Agreement.
Data Protection Indemnity
The Customer shall indemnify Curve against all Losses suffered or incurred by Curve arising out of, or in connection with, its compliance with the Customer's instructions in relation to Personal Data and/or any breach by the Customer of its obligations under this clause 11.
Data Protection Definitions
For the purpose of this clause 11 only the following definitions apply:
"Controller, Data Subject, International Organisation, Personal Data, Personal Data Breach, Processor and processing"
shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly);
"Customer Personal Data"
the data inputted by the Customer, Authorised Users, or Curve on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services;
means Personal Data received or generated from or on behalf of the Customer in connection with the performance of Curve's obligations under this Agreement.
"Data Processing Services"
the services described in schedule 2;
"Data Protection Directive"
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
"Data Protection Laws"
all applicable data protection, marketing and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and any other legislation and regulatory requirements in force from time to time relating to the use of Personal Data by a party;
the information notice required to be supplied to Data Subjects under Data Protection Laws detailing the relevant Processing and provided at a time, in a form and at all times containing content, which is compliant with the requirements of Data Protection Law and relevant guidance issued by the Article 29 Working Party/European Data Protection Board and/or the Information Commissioner's Office;
means any agent, subcontractor or other third party (excluding its employees) engaged by Curve for carrying out any processing activities on behalf of the Customer in respect of the Customer Personal Data; and
has the meaning given in the General Data Protection Regulation.
The Customer shall defend, indemnify, and hold harmless Curve and Curve's assignees, directors, partners, officers, employees and agents against any and all Losses arising out of or in connection with the Customer's or the Authorised Users use of the Services in breach of this Agreement or any reasonable instructions from Curve.
Neither party limits nor excludes its liability for:
death or personal injury caused by its negligence or that of its employees, agents, or sub-contractors;
fraud or fraudulent misrepresentation by it or its employees;
breach of any warranty as to title implied by Applicable Law; or
any other act or omission, liability for which may not be excluded or limited under Applicable Law.
Subject to clause 13.1 Curve shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
any indirect, special, consequential or pure economic loss or damage;
any loss of profits, anticipated profits, revenue or business opportunities; or
damage to goodwill or reputation,
in each case arising as a direct or indirect result of the relevant claim.
The Customer shall have sole responsibility for all results obtained from the Customer's use of the Services and the Documentation and any decision or action taken by the Customer as a result of such use.
Curve shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Curve by the Customer in connection with the Services, or any actions taken by Curve at the Customer's direction.
Subject to clause 13.1, the total aggregate liability of Curve to the Customer under or in relation to this Agreement, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence) or breach of statutory duty, shall in no event exceed the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement and the Services and the Documentation are provided to the Customer on an "as is" basis.
Term and termination
This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Commencement Date and shall continue until the Customer gives no less than thirty (30) days’ notice to Curve such notice to expire on the last day of the calendar month (the "Subscription Term").
Without limiting its other rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:
fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
commits any continuing or material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy the same within 30 days of receipt of written notice giving full particulars of the breach and the action required to remedy such breach a material breach;
repeatedly breaches any of the terms of this Agreement in a manner inconsistent with an intention or ability to give effect to the terms of this Agreement;
makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, scheme of arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts when due or otherwise becomes or suffers or is the subject of a distraint, writ of control or warrant of control, event of insolvency or any similar process or event, whether in the United Kingdom or otherwise (an "Insolvency Event"); or
ceases or threatens to cease to carry on all or substantially the whole of its business.
If the Customer undergoes a Change of Control:
the Customer shall notify Curve of such change within 5 Business Days of the Change of Control taking place; and
if the Change of Control results in Control passing to a competitor of Curve, Curve shall have the right to terminate this Agreement immediately upon written notice.
Without limiting its other rights or remedies, Curve may:
terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and fails to pay all outstanding amounts within 30 days after being given written notice to do so; or
suspend provision of the Services under this Agreement if Curve reasonably believes that the Customer is about to become subject to an Insolvency Event, or if the Customer fails to pay any amount due to Curve on the due date for payment.
Upon expiry or termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate;
the Customer shall stop using the Services and the Documentation;
Curve may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 11. The Customer shall pay Curve's reasonable expenses incurred in returning or disposing of Customer Data;
the Customer shall immediately pay to Curve all of Curve's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Curve shall submit an invoice, which the Customer shall pay immediately on receipt;
the parties' rights and remedies that have accrued as at termination shall be unaffected; and
clauses that expressly or by implication survive termination shall continue in full force and effect.
If a party (an "Affected Party") is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the Affected Party shall not be in breach of contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
A "Force Majeure Event" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure or interruption of energy sources, failure of any other utility service or transport or telecommunications network or the internet, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
If the period of delay or non-performance continues for three months or more, the party not affected by the Force Majeure Event may terminate this Agreement by giving 30 Business Days' written notice to the Affected Party.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the schedules, the provisions in the main body of this Agreement shall prevail.
Subject to clause 17.2, variation of this Agreement shall not be effective unless it is in writing and signed by the parties (or their authorised representatives).
If the Customer wishes Curve to proceed with any proposed variation, Curve has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Subscription Fees and any other relevant terms of this Agreement to take account of the change.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of or prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This Agreement constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.
Each party acknowledges that, in entering into this Agreement, it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature (together, "Pre-Contractual Statements"), other than those which are set out expressly in this Agreement.
Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for clause 21.2.
Nothing in this clause 21 shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
Assignment and subcontracting
Curve may at any time assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate, or deal in any other manner with any or all of its rights or obligations under this Agreement without the Customer's prior written consent.
The Customer shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate, or deal in any other manner with any or all of its rights or obligations under this Agreement without Curve's prior written consent.
No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise 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 and the exercise of any right or power).
A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or by a signed-for next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
sent by fax to its main fax number; or
sent by email to Customer users, with a status of ‘Admin’.
Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address;
if sent by pre-paid first-class post, at 09:00 on the first Business Day after posting;
if sent by a signed-for next working day delivery service, at the time recorded by the delivery service; and
if sent by fax or email, at 09:00 on the next Business Day after transmission.
This clause 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.
Curve may use the Customer's name as a reference or in any advertising or promotional materials, press release, tender, proposal, speech, article or other similar material in accordance with the Customer's reasonable instructions (if any) from time to time.
Each party shall promptly at the other party's request and expense execute and deliver such documents and perform such acts as may be reasonably required for the purpose of giving full effect to this Agreement and shall use all reasonable endeavours to procure that any necessary third party shall promptly do the same.
This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute a single agreement.
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 law of England and Wales.
The Customer 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). Nothing in this clause shall limit Curve's right to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdictions.
In witness whereof this Agreement has been entered into on the date first stated above.
Subscription Fees and Payment
- Curve Lite AND PRO
- Customer shall pay monthly Subscription Fees as defined within the billing area of the Software, and as advertised on the Curve Website.
- Payment will be taken on a monthly basis from the debit or credit card entered into the Software
Processing of the Customer Personal Data by Curve under this Agreement shall be for the duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this schedule.
- Duration of the processing:
For the duration of the Services.
- Nature and purpose of the processing:
In certain circumstances in the course of the Services, certain Personal Data may be provided at the discretion of the Customer in order to populate statements and invoices. Curve may also capture user email addresses as part of its log-in protocol, and other personal data as required to provide the Services.
Names, postal addresses, email addresses and bank details, contact information and details to be able to provide the Services.
- Categories of Data Subjects:
Performing artists (including Customer’s end clients), employees of music labels, producers and other relevant third parties.
Sub-processor – entity and registration details
Amazon – AWS
Hosting of Application and all traffic
Hosting of Sales and Calculated Data
Hosting of Main Application Database
Automated sending of email to client’s designated 3rd parties to notify of availability of statements