Eazi-Apps Licensee Service Terms

Introduction

These Services Terms (“Terms”) apply to all services provided by EB to you that enable you to provide your Services to Your Clients or that EB performs on your behalf as a sub-contractor.

EB in these Terms refers to your licensor company, Eazi-Business Ltd, a company registered in England and Wales with registered number 08364226 and registered office at The Old School House, 65A London Rd, Oadby, Leicester LE2 5DN, UK.

1. The Services And Timing

1.1. You enter each Client Contract directly with Your Client for services that you offer at your discretion for fees and on terms at your discretion. These Terms relate to the separate legal relationship between you and EB in relation to services to you from EB that enable your services to Your Client or that are performed by EB for you as a sub-contract of Your Client Contract. You acknowledge that:

a) you and you alone are responsible to Your Client for all services including the Services and any App or related artwork or other items;
b) your legal relationship with Your Client is governed by Your Client Contract;
c) when you give EB Forms, instructions, decisions or contact or access details related to the App, the Services or the Developer Account, you represent to EB (and EB may assume) that all of these are given with the authority and consent of Your Client and that they are binding and authorised without the requirement for further input;
d) references to “you” in these Terms (including in relation to responsibilities and liabilities) are based on these Terms being between you and EB but do not exclude (between you and Your Client) you passing on similar responsibilities and liabilities to Your Client, for example in the Client Contract, at your discretion.

1.2. Clauses or parts of clauses in the Standard Client Terms that set out acknowledgements from Your Client or limit your liability or responsibility in relation to Services or the App, or potential Future Changes for example relating to Vulnerabilities and all the rights, privileges, options and protections that you have in Your Client Contract (or in the Standard Client Terms even if you chose to use another contract or terms) in each case apply from EB to you. EB shall have all these rights and protections as if repeated in full in these Terms except that the defined terms “EA” and “you” in the Standard Client Terms are deemed to refer respectively to EB and to you in these Terms.

1.3. EB will provide the following services subject to and conditional on the provisions of these Terms and your compliance with them and with the NMA:

a) the Initial Services as specified in any submitted Initial Services Form(if any, for each App) up to the Launch Date;
b) the Ongoing Services from the Launch Date to the extent set out in the NMA.

1.4. Initial Services as defined in these Terms are not included in the ongoing fees under the NMA. They are optional for any App and you will pay Fees if you decide at your discretion to request Initial Services for any App from EB.

1.5. EB will commence the Initial Services (if any) for an App after receipt from you of any Forms and Client Materials required and receipt of Fees in accordance with the Payment Terms.

1.6. EB will only provide Services and the App and any documents, correspondence or materials in English unless agreed otherwise.

1.7. For all Services, EB will use reasonable endeavours to provide services within indicative or agreed timescales starting from when you send to EB the Form and all materials or images required by EB. EB is not responsible for any delay caused by factors not controlled by EB. Time is not of the essence for the delivery of any Services.

2. Your Responsibilities

2.1. You acknowledge that EB's ability to provide the Services depends on your full and timely co-operation (which you will provide), as well as the accuracy and completeness of information and data you provide to EB. You will:

a) provide EB with access to, and use of, information, data, images and documentation reasonably required by EB for the performance of its obligations under these Terms;

b) provide timely decisions, instructions and approvals requested by EB, as examples including only in relation to images, themes, colours, design, functions, testing, acceptance or anything needed to produce or amend the Specification, the Services or Future Changes;

c) provide Client Materials to EB to the extent and by the deadlines and in the formats agreed or specified by EB to enable EB to provide the Services.

2.2. You are responsible to EB for the completeness and accuracy of Client Materials in accordance with clause 5.

2.3. You will arrange (to the extent applicable depending on where the App is to be published) for Your Client to have its own Developer Accounts and to comply with App Store Owners’ legal terms and pay directly for the Developer Account and for publishing the App in App Stores. EB may assist you with registration and relationships with App Store Owners, but you or Your Client (and not EB) are responsible for compliance with the App Store Owners’ rules and terms and conditions.

2.4. You or Your Client are responsible for all business, legal, tax, accounting and other aspects of Your Client’s business, Client Materials and of any Contents or anything offered or marketed through the App or anywhere that the App links to or is associated with. EB’s Services are limited to technical set up and hosting services in each case to the extent agreed as part of the Services and as instructed by you. EB does not take any responsibility for the compliance of the App with any legislation nor with any business requirements other than as set out explicitly in these Terms.

2.5. EB’s Services relate to provision of the App but not its contents other than to the extent explicitly agreed otherwise in the Specification. You or Your Client will provide and be responsible for Your Client’s own contents, business and legal documents (including as examples only any terms of use for the App or data protection or privacy or cookies policies or copyright notices). If you instruct EB to include any of these, you must provide them to EB as part of Client Materials. All legal risk or non-compliance with legislation from any wording that you provide, or from failure to instruct EB to create pages for any such documents, or failure to provide the wording to EB, is (between you and EB) yours alone.

2.6. It is your responsibility, factoring in the limitations and exclusions of liability in these Terms, to take out and maintain insurance to the extent appropriate to cover any potential liability arising from the App or the Services including as examples only any liability that may arise as a result of Vulnerabilities, Contents or Client Materials or from any products or services that Your Client offers or sells from the App.

2.7. You will comply and will require Your Client to comply with all applicable international, national, regional or locallegislation, laws and legal requirements including as examples only regulations, directives, laws, statutes, statutory regulations and byelaws, legal controls, legally applicable emergency or alarm measures in each case applying to the App, Services, Client Materials or to any Contents or anything that Your Client offers or markets on or through the App.

2.8. You will comply with and will require your Client to comply with the terms (if any) of licence and use and any website terms, acceptable use policy or other policies in relation to any Online Tools as notified by EB or referred to in the Online Tools or any related website.

3. Development And Approval Of Your App

3.1. Sub-clauses 3.2 to 3.5 inclusive only apply for any App if you have submitted to EB an Initial Services Form for that App and only to the extent set out and for the Services set out in that Initial Services Form. The procedures in those sub-clauses will be repeated as needed following any Edits or Future Changes.

3.2. Once EB has completed the Initial Services to the extent set out in the Specification, it will send to you files or a test version of the App for approval and testing. You are responsible for testing functionality, links and material compliance of the test app with the Specification and approving the design, structure, colours and any other aspect of the App or artwork (the “Approval Tests”) and notifying EB of any issues or otherwise of your approval.

3.3. After receiving the test version of the App or artwork as referred to in sub-clause 3.1, you may instruct any Edits up to a maximum of three “back and forth” Edits and EB will repeat the submission to you for approval. Any further Edits are subject to further Fees payable to EB.

3.4. If you do not send a response about any approval within 5 Working Days (or longer if you agree this with EB) then the Approval Tests are deemed to have been passed and you are deemed to have approved the design and the compliance of the test app with the Specification.

3.5. If any failure to pass the Approval Tests results from a defect which is caused by your or Your Client’s act or omission, or by any factor or person for whom EB has no responsibility (“Non-EB Defect”), the App or artwork will be deemed to have passed the Approval Tests despite the Non-EB Defect. Where able to do so, EB will provide help or services reasonably requested by you to help to remedy any Non-EB Defect as Future Changes at your cost.

3.6. “Acceptance” of the App, artwork and of any Future Changes will be deemed to take place at the earliest of the following:

a) (if applicable) the Approval Tests are passed by you;
b) (if applicable) the Approval Tests are deemed to have been passed in accordance with sub-clause 3.4 or 3.5;
c) you or anyone else publishes or uses any part of the App(or the App with Future Changes if applicable) for any marketing or revenue-earning purposes or to offer or provide any services or goods to third parties other than for test purposes;
d) you submit any Ongoing Services Form to EB.

4. Ongoing Services

4.1. After Acceptance in accordance with sub-clause 3.6, you authorise EB to proceed without further notice to submit the App to the App Stores for approval (if needed) and publication by the App Store Owners and to the third-party provider for hosting. You will provide any access details needed by EB to assist you with this process as part of the Services. These access details are subject to the confidentiality obligations on EB in these Terms. You give permission for EB(and confirm that you have consent to the extent needed legally and instructions from Your Client to give permission to EB) to access and manage the approval and publication process on your behalf.

5. App Contents And Client Materials

5.1. EB will include in the App or incorporate Client Materials and EB Materials as instructed by you but only to the extent (if at all) included explicitly in the Specification and / or the Initial Services Form as agreed by EB.

5.2. To the extent not explicitly included in the Services, you or Your Client will populate, upload, control, monitor, update, add to, change or modify Client Materials and the Contents of the App using the Online Tools.

5.3. EB’s Services relate to design and technical services but not to operation or Contents of the App. You, and not EB, are responsible for ensuring that Client Materials and the Contents of the App do not contain Vulnerabilities and do not infringe applicable laws, regulations or third party rights nor include material which is obscene, indecent, pornographic, seditious, offensive, defamatory, liable to incite racial hatred or terrorism, threatening, menacing, blasphemous or in breach of any third party Intellectual Property Rights or in breach of any site use policy on the website of the Online Tools or referred to from their terms (“Inappropriate Content”).

5.4. You will indemnify EB against all damages, losses and expenses arising from any action or claim relating to Client Materials or Contents being Inappropriate Content.

5.5. You will fully indemnify EB (except in respect of death or personal injury to the extent that it results from EB’s negligence) in respect of all EB’s losses, costs, liabilities, fees, expenses, and of damages awarded to any third party in contract or in tort (including negligence) arising directly or indirectly from any claims against EB (or any of its related companies or individuals) by third parties (including Your Clients, suppliers or personnel) that relate to your business, the Services, the App or its use or to Client Materials.

5.6. EB may include the statement "Designed by Eazi-Apps" on the App unless agreed otherwise.

6. Edits And Future Changes

6.1. If you wish EB to change the Specification, design, pages, structure, functionality, features or any other aspect of an App or related documentation or to add further services related to the App after submission of any Initial Services Form (or if none then after submission of any Ongoing Services Form), you will notify any such change (“Future Change”) to EB in writing. This clause also applies to any changes suggested by EB to you for any reason, which are always subject to your decision and instruction.

6.2. EB will notify you if it cannot perform or deliver the Future Change (which may be for technical or business reasons).

6.3. For any accepted Future Change that falls within the definition of being an Edit, EB will confirm in writing if it is included within the Specification or Services at the time of request. If EB does not confirm this or for any Future Changes that do not fall within the definition of being an Edit, you will pay additional fees to EB for the services to deliver the Future Change.

6.4. At EB’s discretion, any Future Changes may be subject to a new contract and Initial Services Form for services, especially for extensive changes. If not, the Specification for the App will be deemed to include the Future Changes from the date that EB accepts the request. All clauses of these Terms that applied to the Initial Services (as examples only including those relating to design, approvals, acceptance tests and payment) will also apply to Future Changes. The definition of Ongoing Services is also deemed to include any amended ongoing services.

6.5. The additional Fees for Future Changes and for any related changes to the Ongoing Services will be as agreed by you and EB. If you instruct EB to proceed with the Future Changes without having agreed explicit fees for them, then the fees will be at the Day Rate set out in the NMA.

7. Fees And Payment

7.1. You will pay to EB the Fees for the Services in accordance with the Payment Terms.

7.2. The Fees do not include fees due to App Stores nor for any Third Party Products unless specifically set out otherwise in the NMA. You or Your Client must pay any such fees directly to the third party or reimburse them to EB on demand or in advance if agreed to be paid by EB on behalf of you or Your Client.

7.3. All price lists, fees and amounts (including Fees) may be amended by EB by notice or by change to the price details in the EB Materials. Any such changes will not affect Initial Services ordered by you prior to the change.

7.4. All amounts, fees and charges referred to in these Terms and in any prices or fees for supplies or services from time to time from EB are exclusive of Sales Tax unless stated otherwise. You must in addition pay any applicable Sales Tax at the then prevailing rate.

7.5. All sums due to EB must be paid in pounds sterling or the legal currency at the time in England, if different. All sums due must be paid in a quantity such that the net sum received by EB is equal to the sums receivable from a client or licensee in England, even if in fact you have to deduct any withholding taxes or other sums.

7.6. You will not withhold or make any deductions from or set off any sums against any amounts due to EB on any grounds other than any set off arising directly from EB’s intentional breach of these Terms, fraud or undisputed liquidated sums owing from EB to you. You acknowledge that this restriction on deduction or set off is reasonable in the context of the parties’ commercial relationship.

7.7. Without prejudice to any other rights of EB, if you do not pay any sum due to EB on time you will pay to EB compensation and interest on the overdue unpaid sums at the statutory rates set out for late payments in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 in England, as amended and supplemented by subsequent regulations. These rates apply whether or not that law would otherwise apply to you or to the debt.

7.8. Until EB receives any overdue payment from you, EB may also without notice at its sole discretion suspend its Services under these Terms and / or access to the Online Tools and / or provision or arrangement of services or supplies to you or Your Clients including (as an example) the publishing or hosting of the App. Any such suspension will be without any liability from EB to you or any third party (including Your Clients or users of Apps). You will be solely liable for the consequences of any such suspension.

8. Confidentiality

8.1. You and EB will comply with the confidentiality provisions in the NMA.

8.2. You undertake to EB that you have the right to pass on to EB for use in the Services Your Client’s confidential information (including any log-in or access details and any information relating to Your Client’s business or its App) and have obtained any consents or permissions from Your Client for these purposes to the extent required by law.

8.3. You and EB will only use Your Client’s confidential information and data for purposes related to the Services and will maintain it in confidence and stored securely. You and EB will comply with any confidentiality policies Specified by EB and with the confidentiality obligations set out in the NMA and any confidentiality agreement.

8.4. This clause 8appliesat all times(or, for any information, until it ceases to be confidential information). Despite this clause 8, you or EB may disclose the following if disclosure is limited to what is strictly necessary and the other party is given as much prior notice as legally possible:

a) information that the party is legally required to disclose by applicable law or authority of competent jurisdiction or whose disclosure is protected by law;
b) information properly in the party’s possession (with full right to disclose) prior to receipt from the other party;
c) information received from a third party permitted to disclose it;
d) information that is in the public domain other than by breach of these Terms or other legal agreement.

9. Warranties And Exclusions

9.1. EB will perform Services with reasonable care and skill.

9.2. If the Initial Services include EB building any App:

a) EB will use reasonable endeavours to ensure that to the best of its knowledge the App at Launch Date does not contain Vulnerabilities.
b) EB warrants that the App will perform substantially in accordance with the Specification for a period until the Initial Period End Date or, if sooner, the date that you or the Client make changes to the App other than content changes. If the App does not so perform, EB will, for no additional charge, carry out the work necessary to ensure that the App substantially complies with the Specification. This warranty shall not apply to the extent that any failure of the App to perform in accordance with the Specification is caused directly or indirectly by you, Your Client or by any Client Materials or Contents or by third parties outside the control of EB.

9.3. These Terms sets out the full extent of EB's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are expressly excluded.

9.4. EB does not warrant that:

a) You or Your Client’s(or their users’) use of the Services or the App will be uninterrupted or error-free;
b) the Services or the App will be free from Vulnerabilities;
c) the Services or the App will comply with any specific cybersecurity requirements requested by you or Your Client or resulting from legal or other requirements as a result of the nature of Your Client’s business;
d) the App or its Contents will comply with legislation (this is you or Your Client’s responsibility subject to its own legal advice and must be factored into the Specification).

10. Limitation Of Liability And Third Party Products

10.1. Nothing in these Terms operates to exclude or limit EB's liability for any liability which cannot be excluded or limited under applicable law including liability for death or personal injury caused by its negligence or for fraud.

10.2. EB has no responsibility or liability for the Services or App to Your Client or, other than as required explicitly by law, to any third party other than you.

10.3. You will notify to EB as soon as possible any complaint or dispute with Your Client that is not resolved within a short period of time that relates to the Services.

10.4. EB has no responsibility or liability for Third Party Products including as an example the services of the App Stores or of the host for hosting any App. EB acts only as an agent in arranging for you or Your Client to use or receive Third Party Products. The suppliers of any such products or services, have sole responsibility to you or Your Client for their products or services and for any downtime or unavailability of these. You acknowledge and agree that they are responsible and not EB.

10.5. Third Party Products are supplied in accordance with the supplier’s standard terms, available on their website.

10.6. EB has no responsibility or liability for the failure of any links in the App to websites or applications, nor for any third party applications, services, software or databases that have been integrated into the App.

10.7. EB will not be liable to you or to Your Client for any damage to software, services or devices nor damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

10.8. EB’s total liability for the Services or any App will not exceed the lowest liability of the following:

a) the liability to you for the Services as set out and limited in these Terms;
b) your liability to Your Client for the Services under Your Client Contract;
c) your liability to Your Client for the Services if you had used the Standard Client Terms;
d) (in relation to Third Party Services) the liability of the Third Party to EB for the relevant matter.

10.9. Unless you notify EB in writing that you intend to make a claim in respect of any Services within 12 months of performance of those Services (or that date that you become aware or ought reasonably to have become aware of the grounds for making a claim), EB shall have no liability for the circumstances leading to the claim.

10.10. Subject to clause 10.1 and in view of available insurance for Apps, EB's aggregate liability in respect of claims based on events in any 12 calendar months arising out of or in connection with these Terms or any collateral contract, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed the total Fees payable by you to EB under these Terms for the Services in those12 calendar months.

11. Intellectual Property Rights

11.1. All Intellectual Property Rights in Client Materials are and will remain (as between you and EB) entirely owned by and the property of you (or Your Client).You warrant to EB that you have the right and are authorised and licensed by your Client to license the Client Materials as set out in these Terms as required for the Services or the App.

11.2. Other than in relation to Client Materials, all Intellectual Property Rights in the Online Tools, the EB Materials, the App and any related documentation or training materials including all rights in source code, design, functionality, contents, related software, macros or executables are and will remain entirely owned by and the property of EB or its licensor (if any) including in relation to anything created or developed under your instructions.

11.3. If any rights referred to as being owned by one party under sub-clauses 11.1 or 11.2(the “Owned IPRs”) at any time are deemed to be owned by the other party, the other party will on demand promptly do all such acts and execute all such documents necessary to transfer such rights absolutely to the original party or to anyone specified by that original party.

11.4. Each party grants the other party a non-exclusive licence of its Owned IPRs in order to provide the Services and to operate the App and to sub-license Your Client to operate the App in each case subject to compliance with these Terms. These rights and licences are not transferable or extendable even within group companies other than in accordance with clause 14.

11.5. Each party will indemnify the other party (the “Indemnitee”) against all direct damages, losses and expenses arising as a result of any action or claim against the Indemnitee that the indemnifier’s Owned IPRs (or in your case, any Contents of the App) infringe any Intellectual Property Rights of a third party, other than infringements referred to in sub-clause 11.7.

11.6. The indemnities in clause 11.5 are subject to the following conditions:

a) the Indemnitee promptly notifies the indemnifier in writing of the claim;
b) the Indemnitee makes no admissions or settlements without the indemnifier's prior written consent;
c) the Indemnitee gives the indemnifier all information and assistance that the indemnifier reasonably requests;
d) the Indemnitee allows the indemnifier control over any litigation, proceedings, disputes and settlement of any action or claim.

11.7. The indemnities in clause 11.5 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the Indemnitee.

11.8. If in either party’s opinion it becomes advisable at any time to modify, discontinue use or replace any item, material, content, code or functionality due to any potential risk of infringement of Intellectual Property Rights of any third party, then the other party will co-operate to implement any resulting changes as quickly as reasonably possible after notification.

12. Data Protection

12.1. You and EB will control and process personal data relating to or arising from the Services, these Terms or the App in compliance with Data Protection Requirements. EB’s Privacy Policy sets out details of EB’s use of data and the rights of anyone whose data EB processes.

12.2. You and EB will use all reasonable efforts to assist each other to comply with Data Protection Requirements in relation to the Services or the App.

12.3. Both you and EB will arrange and maintain registration at all times with any data protection or privacy authority or body (as an example in the UK being the information commissioner) legally required for the creation, processing, use or transfer of personal data.

12.4. You and EB acknowledge that for the purposes of the Data Protection Requirements in relation to any personal data obtained via the App and processed by EB, you are the data controller and EB is the data processor (in each case as defined in the Data Protection Requirements).

12.5. You will maintain and communicate to individuals any related notices, policies and information required by Data Protection Requirements. As part of this, you will inform any individuals where applicable whose data may be processed by EB that their data may be passed to and used by EB or its sub-contractors. You will, so far as possible, obtain all individuals’ consent to use their data for the purposes set out in these Terms but only to the extent that the consent is required by law.

12.6. EB will, in relation to any personal data processed on your behalf in connection with the performance by EB of its obligations under these Terms:

a) process that Personal Data only on your written instructions unless legally required to do otherwise;
b) comply with EB’s Privacy Policy (covering EB’s role as a processor, security and other requirements);
c) place similar obligations on any third-party processor or sub-contractor to the obligations on EB in this clause 12.

12.7. Where EB processes personal data on your behalf, you consent to EB appointing other licensees of EB as a third-party processor or sub-contractor. Between you and EB, EB will remain liable for all acts or omissions of any such third-party processor of personal data appointed by it.

12.8. Either party may, on not less than 30 days’ notice, add to the Data Protection Requirements or revise this clause 12by replacing parts of it with standard clauses or similar terms forming part of a certification scheme recognised by applicable data protection legislation.

13. Termination

13.1. These Terms no longer apply to any App for which Your Client Contract has terminated. In such circumstances, you will ensure that Your Client ceases to use the Online Tools and you will remove Your Client’s access.

13.2. These Terms will apply and be enforceable throughout the Term as defined in the NMA but will terminate with effect from the termination or expiry of the NMA. From the date of termination or expiry of the NMA for any reason:

a) you will cease using the Online Tools;
b) you will comply with provisions in the NMA that apply on termination or expiry, including in relation to handover of any client contracts if applicable;
c) all licences granted by EB and Services provided by EB under these Terms terminate immediately;
d) you will pay to EB all sums owing to EB together with any accrued interest.

13.3. All provisions of these Terms stated or intended to continue in effect after the end of the Term will continue to do so, for example clause8.

14. Assignment And Sub-Contracting

14.1. EB may sub-contract, assign or novate these Terms or any or all of its rights and obligations under these Terms. For assignment, EB will notify you and the assignee will take over EB’s obligations under these Terms from the assignment date, after which EB will be discharged from all obligations under these Terms. You will sign any novation agreement as specified by EB (that will not change your obligations under this EB) to replace the definition of EB in these Terms to refer to the assignee.

14.2. You may not assign these Terms, your orders for Services or any of your rights or obligations under them other than to a buyer or transferee of your business as part of an agreed sale or transfer of your business in accordance with the terms of the NMA.

15. Notices

15.1. All parties will send any notice, consent or demand under these Terms in writing in English. The recipient may assume it was sent with authority of the sender. If a communication is received on a day that is not a Working Day, it is deemed received on the next Working Day.

15.2. In addition to any means authorised by law any communication in writing may be given by:

a) personally serving it on a party or hand-delivering it to the party’s current address for service (deemed received on service or hand-delivery);

b) sending it to the party’s address for service by signed-for delivery (deemed received when receipt is signed by or on behalf of the recipient); or

c) sending it by an electronic method that includes a valid digital or electronic signature (deemed received 24 hours after transmission or, if earlier, when the recipient received and opened it).

d) emailing it with a system for delivery receipt notification to the recipient’s designated email address for notices at the relevant time (deemed received when the sender receives a delivery receipt for the email).

15.3. The valid address for service and other contact details for notices for the parties are as set out in these Terms andthe Form or as updated by notice at any time.

16. Relationship With Other Agreements And Terms

16.1. These Terms refer to the Services and do not affect the NMA or any other agreement or terms between you and EB, which take precedence over these terms in the event of any conflict between them. These Terms are additional to the NMA and not in replacement of it. They are also additional to any other terms, policies or documents between you and EB such as confidentiality agreements, website terms, data protection policies and others communicated or available to you as Specified by EB.

16.2. If there is a conflict between provisions or defined terms, the order of priority and precedence between documents is the following (starting with the highest precedence): NMA, Form, these Terms, Standard Client Terms, other terms and policies.

17. Miscellaneous

17.1. EB may modify or replace these Terms from time to time by notification (which may be by link to a website setting out the replacement terms). No change will apply to any Initial Services ordered prior to the date of the change.

17.2. Other than as referred to in a Form, or in the NMA or in sub-clause 17.1, no variations or modifications to these Terms are effective except by written agreement duly signed by persons authorised on behalf of all parties, which in the case of EB must include a director of EB.

17.3. Either you or EB may in its sole discretion give a whole or partial release, waiver, compound, compromise, indulgence or time (a “Waiver”) in respect of any of the other party’s obligations or liabilities. No Waiver is effective unless in writing and signed by an authorised signatory. No Waiver affects the rights of the party giving the Waiver in respect of other liabilities or obligations or that party’s other rights relating to them.

17.4. Nothing in these Terms makes you or EB an agent, partner, employee or representative of the other party. Neither you nor EB will represent or hold itself out as being any of these nor as having power or authority to incur obligations on behalf of or pledge the credit of the other party.

17.5. If any provision or wording within any provision of these Terms is illegal, invalid, void, voidable or unenforceable in any jurisdiction, the affected wording will be deemed to be deleted in that jurisdiction but the enforceability of the Terms in any other jurisdiction will not be affected and nor will the validity or enforceability of any other provision, wording or part of these Terms.

17.6. No party to these Terms will be liable for any delay or failure to meet obligations (other than a payment obligation) due to any cause outside its reasonable control (“force majeure”)for example government controls or emergency measures, terrorist action, flood, fire, riots, war or epidemics, which it must notify to the other party as soon as possible. This sub-clause also applies if there are reasonable grounds to believe that such a situation is imminent even if it has not yet occurred.

17.7. These Terms do not create any benefit or rights enforceable by anyone not a party to it (including Your Clients) except that a transferee, assignee or successor in accordance with these Terms is deemed to be a party.

17.8. Any other information provided to you prior to or with these Terms was for marketing and illustrative purposes only and has no legal effect in relation to the Services. You acknowledge that in relation to the Services you are not relying on anything not set out or explicitly incorporated into these Terms.

17.9. Other than where explicitly incorporating all or parts of other documents that are defined in these Terms, these Terms contain the entire agreement and understanding of the parties with respect to their subject matter.

18. Interpretation And Governing Law

18.1. In these Terms, except where the context requires otherwise or unless stated otherwise in these Terms: defined terms are indicated by use of initial capital letters; words or phrases defined anywhere in these Terms(or in a Form) have the same meaning throughout these Terms; words or phrases defined in the Standard Client Terms or in the NMA but not in these Terms have the same meaning in these Terms; references to legislation, statutory provisions or regulations include any replacements, modifications, additions, consolidations or re-enactments in force at the relevant time whether before or after the date of these Terms and include any applicable legislative provision having similar effect both in England, UK and in your location, if different; words denoting any gender include all genders; words denoting the singular include the plural and vice versa; references to clauses, sub-clauses, component parts or Schedules are to those in these Terms; headings are for convenience and do not affect interpretation; if there is more than one of you then each reference to you and each obligation on you shall apply jointly and severally to each of you.

18.2. Any reference to a prohibited action or restriction on any party also includes an obligation on that party not to permit, authorise or license anyone else to carry out the prohibited action or break the restriction. All obligations, prohibitions, restrictions and provisions of these Terms are to be interpreted as meaning “to the extent permitted by and in accordance with all applicable legislation”.

18.3. If these Terms have been translated into any language other than English, in the event of any uncertainty or conflict in interpretation or otherwise, the English language version of these Terms shall prevail in all circumstances.

18.4. These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms, any Form, the Services or their subject matter or formation shall be read, construed and governed by the laws of England and Wales and are subject to the exclusive jurisdiction of the English Courts.

18.5. In these Terms, unless the context requires otherwise:

“App Store Owner” means each and any provider of any App Store who controls and manages publication in the App Store (or in the case of a Progressive Web App means the provider of the location where it is held for use);

“App Store” means each and any app store or website or online location from which users download, install or use apps including the External App Stores (or any replacement for those from time to time) listed in the Form for a particular App and also any location holding the version of that App in Progressive Web App format (if any);

“App” means each and any mobile application to be created for Your Client;

“Client Materials” means materials (that are not EB Materials) in any format that you or Your Client provide for incorporation in the App;

“Contents” means all words, images, logos, documents and downloadable items or other contents on the App (which may include some or all of Client Materials) whether originating from you or from any third party or user;

“Data Protection Requirements” means all applicable data protection legislation in England, United Kingdom and also includes the Privacy Policy and any other data protection or privacy policy of EB communicated to you plus (for you only, not for EB, all applicable data protection or privacy legislation in your location and that of Your Client);

“Developer Account” means (if applicable to the format of the App) a developer account or similar account with an App Store Owner giving access to publish apps in the App Store and access its developer tools and materials;

“EB Materials” means (in any format) each and all of EB’s documents, materials, training materials, images, videos, instructions, precedents, standards and policies in each case as amended at any time by EB;

“Edit” means a change that requires no re-design of graphics, template, layout nor any additional tabs or sections;

“Fees” means fees for Initial Services as Specified by EB including in any standard Forms as Published by EB at the relevant time or in any price list notified to you, quoted to you for the particular Services or otherwise agreed with you in writing and for Ongoing Services means the fees for ongoing services set out in the NMA plus in each case any additional fees for Edits or Future Changes not included in the original Specification or for additional services agreed by you and EB;

“Form” means either an Initial Services Form or an Ongoing Services Form;

“Future Change” means as set out in sub-clause 6.1;

“Initial Services Form” means each form for initial services submitted or sent by you to EB (using EB’s standard forms as Published by EB at the relevant time) for EB to perform services on your behalf for Your Client prior to Launch Date for example to design artwork for an App or to build all or part of an App on your behalf;

“Initial Services” means the initial services, if any, listed in any Initial Services Form, as amended in the future in accordance with these Terms and / or any related services from EB to you set out in your NMA;

“Intellectual Property” means all intellectual property rights or ownership rights, including as examples only patents, copyright, database rights, design rights, inventions, trademarks, service marks, software rights, moral rights and all other intellectual property rights (in each case whether or not currently registered or capable of registration and all similar or equivalent rights or protections at any time in any part of the world);

“Launch Date” means for each App the date that you submit the Ongoing Services Form for the App or (if different) the date of Acceptance under sub-clause 3.6;

“NMA” means the Network Member Agreement between EB and you in the form current at the relevant time;

“Ongoing Services Form” means each form for services submitted or sent by you to EB (using EB’s standard forms as (using EB’s standard forms as Published by EB at the relevant time) to activate or publish an App;

“Ongoing Services” means the ongoing services from EB to you as set out in your NMA in return for fees as set out in the NMA and / or (if applicable) any additional ongoing services explicitly agreed in return for agreed fees;

“Online Tools” means the internet-based tools, websites or portals and any software available through them in each case as Specified by EB that you or Your Client are licensed to log into all or part of including to manage the Contents or Client Materials on the App and in your case to build and edit Apps;

“Payment Terms” means the payment terms set out in the standard Form Published by EB at the time or if no payment terms are set out in any relevant Form then the payment terms set out in the NMA;

“Privacy Policy” means EB’s data protection and privacy policy or notice on its website as cross-referred to in the Form or as notified by EB from time to time;

“Published by EB” means made available to you in your role as a licensee via the log-in area of your licensee portal in the form current at the relevant time as changed or updated by EB from time to time;

“Sales Tax” means any sales tax or services tax or digital tax or other similar or legally applicable tax (for example VAT in England) applicable at your location or in England, United Kingdom or anywhere else at the time in relation to the supply or sale of goods or services to the extent applicable to the Services or any sums due;

“Services” means the Initial Services, the Ongoing Services and the services for any Edits or Future Changes for Your Client (either as a sub-contractor to you under Your Client Contract or as part of the services that enable you to perform your role under Your Client Contract) in each case as amended from time to time in accordance with these Terms;

“Specification” means the specification for any Initial Services that you set out in any Form (for example for the development of artwork or the build of any App) or that you attach or send to EB as part of the instructions for Initial Services but as amended at any time by agreement in accordance with these Terms;

“Standard Client Terms” means the precedent client order form and client terms for Eazi-Apps current at the time of your Form as Published by EB;

“Terms” means these services terms and the Form as amended from time to time in accordance with these Terms;

“Third Party Products” means products, services or materials supplied or provided by third parties, including (as examples only) publishing and hosting services by the App Store, hosting services of the App and any related databases by their third party service provider and provision of the Online Tools by their third party service provider;

“Vulnerability” means anything (whether inherent or as a result of third party actions) that results in a negative impact to the confidentiality, integrity or availability of the App;

“Working Day” means 09:00 to 17:00 Monday to Friday in England, United Kingdom excluding public holidays in England;

“you” means and refers to the person or company set out as such in the Form or any licensee ordering Services from EB and “your” means of that person or company;

“Your Client Contract” means the contract between you and Your Client to provide initial and ongoing services for an App for Your Client;

“Your Client” means in relation to an App each and any client of the business licensed to you by EB under your NMA.