No cost media agreement: standard terms and conditions

1.                     Interpretation

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

1.1                   Definitions:

Applicable Laws: the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the exercise of the parties’ rights or the performance of their obligations.

Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

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

Club: the golf club specified in the Offer and any successors in title regarding the same.

Club Marks: any and all trademarks used by the Club, together with any associated artwork, design, slogan, text and other collateral marketing signs of the Club.

Commencement Date: the date of the latest signature on the Offer.

Confidential Information: has the meaning given in clause 14.1.

Corporate Client: means any entity that enters into a contract with Whole In 1 Golf to provide sponsorship of any of the Platforms (or any part thereof) at the Club or the Venue during the term of this Agreement.

Data Protection Legislation: The Data Protection Act 2018 and the EU General Data Protection Regulation 2016/679 (GDPR).

Equipment: the items set out in the Offer supplied to the Club or Venue by Whole in 1 Golf to deliver the Platforms.

Offer: a written document headed “Offer” supplied by Whole In 1 Golf to the Club (the content and form of which is not to be amended or altered without the consent of a director of Whole In 1 Golf evidenced in writing upon it).

Package: means the Package set out in the Offer.

Term: has the meaning given in clause 3.1.

Venue: means the golf course specified within the Order.

Whole In 1 Golf: means Whole in 1 Golf Limited incorporated and registered in England and Wales with company number 7574948 whose registered office is at 14 Holly Park Mills, Woodhall Road, Calverley, Pudsey, West Yorkshire LS28 5QS

1.2                   A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.3                   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.

1.4                   A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established and its successors in title.

1.5                   A reference to writing or written includes email.

1.6                   A reference to sign or signature includes either manuscript or electronic signature.

1.7                   Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.8                   A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.

2.                     Grant of rights

2.1                   The Club grants and Whole In 1 Golf accepts:

(a)               An exclusive right to provide the Platforms, whereby the Club shall not grant the same rights to any third party for use in any advertising, marketing or promoting products or services that impedes upon the said Platforms;

(b)               The right to install the Equipment at the Venue and the Club; and

(c)               The right to undertake a) and b) above free from interference by the Club, any other third party authorised by the Club or any Affiliate of the Club,

during the Term, at and or in the Venue and in accordance with the terms and conditions set out in this agreement.

2.2                   All rights not expressly granted to Whole In 1 Golf under this agreement are reserved to the Club. Whole In 1 Golf acknowledges and agrees that:

(a)               the Club is the owner or controller of all rights in the Club’s Intellectual Property, save where the contrary is agreed as a term of this agreement; and

(b)               the Club shall be entitled to enter into any other sponsorship arrangement with any third party that does not impede upon the Platforms or the terms of this agreement.

2.3                   The Club grants and Whole In 1 Golf accepts a worldwide, sub-licensable, non-exclusive, royalty free licence to use the Club Marks:

(a)               during the Term for the purposes of Whole In 1 Golf marketing and selling the Package; and

(b)               in perpetuity to promote Whole In 1 Golf’s services in any media whether now known or yet to be invented (including in a computer game, on a website or mobile-device application) including by use on promotional material and merchandising.

3.                     Term

3.1                   This agreement shall commence on the Commencement Date for a period of 4 years and shall continue, unless terminated in accordance with clause 11.

3.2                   After the expiration of the Term, unless the Contract has been terminated by one of the parties giving the other at least 6 months written notice prior to the expiration of the Term or in accordance with clause 11 below, this agreement will recommence for a further

4 years under the same terms contained in the Offer and this agreement.

3.3                   The Club shall not engage in any Sponsorship Negotiations with Corporate Clients of Whole In 1 Golf, although upselling is permitted, during the period from the Commencement Date until the earlier of;

(a)               the Club giving Whole In 1 Golf written notice under clause 3.2 above; or

(b)               either party giving the other notice of termination of this agreement in accordance with clause 11.

4.                     the equipment

4.1                   In order to provide the Platforms in accordance with this agreement, Whole In 1 Golf shall provide the Club with the Equipment on a non-exclusive, royalty free licence for use at the Venue during the Term at no cost to the Club with the delivery, installation and installation location of the Equipment being entirely at the discretion of Whole In 1 Golf and time not being of the essence regarding the same.

4.2                   The Equipment is at all times the legal property of Whole In 1 Golf and is provided to the Club on an “as is” basis with no warranty regarding the suitability of the Equipment nor its functionality.

4.3                   The Club warrants that it will at all material times during the Term:

(a)               Be responsible, at its own expense for the safe use of the Equipment;

(b)               Be responsible, at its own expense for the upkeep and safe storage of the Equipment;

(c)               Return the Equipment to Whole In 1 Golf at the end of the Term in a reasonable condition, fair wear and tear accepted; and

(d)               Will comply with any reasonable request made by Whole In 1 Golf regarding the use of the Equipment by the Club.

4.4                   The Club will indemnify Whole In 1 Golf against any liability claimed by any third party against Whole In 1 Golf regarding the Equipment, and this indemnity will include a full indemnity for any legal costs reasonably incurred by Whole In 1 Golf in responding to or defending any such claim, whether or not proceedings are issued.

4.5                   The Club will indemnify Whole in 1 Golf in respect of any additional costs incurred by Whole in 1 Golf including legal costs due to any failure by the Club to comply with clause 4.3 (a), (b) or (c).

5.                     whole in 1 golf’s Obligations

5.1                   Whole In 1 Golf warrants to the Club that it will:

(a)               comply with all Applicable Laws relevant to the exercise of its rights and the performance of its obligations under this agreement;

(b)               not apply for registration of any part of the Club Marks or anything confusingly similar to the Club Marks as a trade mark for any goods or services;

(c)               contact the Club to notify of any additional sponsors that are added to the Package throughout the Term.

6.                     The Club’s Obligations

6.1                   The Club warrants to Whole In 1 Golf that it will:

(a)               comply with all Applicable Laws relevant to the exercise of its rights and the performance of its obligations under this agreement;

(b)               ensure that all relevant signage, advertising or viewing medium (including electronic screens and any websites or web promotion) required as part of the Platforms is properly in place and  not concealed or obscured from view at any time;

(c)               use its best endeavours to assist Whole In 1 Golf in whatever form necessary to allow Whole In 1 Golf to use the Platforms at the Venue;

(d)               use its best endeavours to assist Whole In 1 Golf in whatever form necessary to market the Package at the Venue, including (but not limited to) emailing all of its members within one calendar month of the Commencement Date to inform them of the commencement of this agreement and the services Whole In 1 Golf offer and distributing by email a quarterly newsletter (designed by Whole In 1 Golf) to all of its members;

(e)               provide to Whole In 1 Golf, or any party notified to the Club by Whole In 1 Golf (including by telephone or email), with Golf to be used by Whole In 1 Golf or any party notified to the Club by Whole In 1 Golf as per the agreed allowance and subject to availability free from any restriction or fetter by the Club or any Affiliate of the Club;

(f)               allow Corporate Clients of Whole In 1 Golf to the use the meeting facilities of the Club at a discounted rate that is deemed reasonable and at the discretion of Whole In 1 Golf;

(g)               notify WholeIn1Golf immediately by telephone AND email of any equipment that has been returned by the Club during or at the end of the agreement period. Failure in doing so will result in the Club being liable for any costs and expenses occurred, in accordance with clause 8;

(h)               notify WholeIn1Golf immediately by telephone AND email if the Club should get into administration.

7.                     Representations and warranties

7.1                   Each party warrants to the other that:

(a)               it has full authority to enter into this agreement and is not bound by any agreement with any third party that adversely affects this agreement; and

(b)               it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this agreement.

7.2                   The Club represents to Whole In 1 Golf that:

(a)               the Club owns or controls the Venue and the Club Marks and that Whole In 1 Golf’s use of the Club Marks and its exercise of the Platforms in accordance with the provisions of this agreement shall not infringe the rights of any third party; and

(b)               the Club has not currently licensed, assigned or otherwise permitted any other party to exploit or use the Platforms, nor will it do so during the Term.

8.                     Indemnities

8.1                   The Club shall indemnify Whole In 1 Golf against all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Whole In 1 Golf arising out of or in connection with:

(a)               any claim made against Whole In 1 Golf by a third party for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with Whole In 1 Golf’s use of the Club Marks in accordance with this agreement; and

(b)               any claim made against Whole In 1 Golf by a third party arising out of or in connection with Whole In 1 Golf’s provision and exploitation of the Platforms, whether or not any claim arises during the Term; and

(c)               any claim made against Whole In 1 Golf by a third party arising out of or in connection with a breach of the Data Protection Legislation by the Club or any provisions of this agreement relating to Data Protection by the Club;

(d)               any claim made against Whole In 1 Golf for the none return of equipment owned by Whole In 1 Golf or a third party;

(e)               the loss of equipment owned by Whole In 1 Golf, that has been lost due to still being attached to the Club’s supplier’s equipment.

8.2                   The indemnities in this clause 8 shall apply whether or not the indemnified party has been negligent or at fault.

8.3                   If a payment due from the indemnifying party under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the indemnified party shall be entitled to receive from the indemnifying party such amounts as shall ensure that the net receipt, after tax, to the indemnified party in respect of the payment is the same as it would have been were the payment not subject to tax.

9.                     Limitation of liability

9.1                   Nothing in this agreement shall limit or exclude a party’s liability:

(a)               for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)               for fraud or fraudulent misrepresentation;

(c)               for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law; or

(d)               under the indemnities set out in clause 8.

9.2                   Subject to clause 9.1, under no circumstances shall Whole In 1 Golf be liable to the Club for any of the following, whether in contract, tort (including negligence) or otherwise:

(a)               loss of revenue or anticipated revenue;

(b)               loss of savings or anticipated savings;

(c)               loss of business opportunity;

(d)               loss of profits or anticipated profits;

(e)               wasted expenditure; or

(f)               any indirect or consequential losses.

9.3                   Subject to clause 9.1, Whole In 1 Golf’s maximum aggregate liability in contract, tort (including negligence) or otherwise, however arising, under or in connection with this agreement shall be limited to £5,000.

10.                   Intellectual Property Rights

10.1                 The Club and Whole In 1 Golf acknowledge that all rights in the Club Marks, including any goodwill associated with them, shall be the sole and exclusive property of the Club, and, save as expressly provided in clause 2.3, Whole In 1 Golf shall not acquire any rights in the Club Marks, nor in any developments or variations of them.

10.2                 All Intellectual Property Rights in and to any materials produced by Whole In 1 Golf to allow Whole In 1 Golf to exploit the Platforms shall be the sole and exclusive property of Whole In 1 Golf and if the Club acquires, by operation of law, title to any such Intellectual Property Rights it shall assign them to Whole In 1 Golf on request, free of any charge or payment, whenever that request is made.

11.                   Termination

11.1                 Without affecting any other right or remedy available to it, Whole In 1 Golf may terminate this agreement with immediate effect by giving notice to the Club if the Club:

(a)               commits a material breach of any term or repeatedly breaches any terms of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;

(b)               a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Club (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Club with one or more other companies or the solvent reconstruction of the Club;

(c)               the Club suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(d)               any warranty given by the Club in clause 7 of this agreement is found to be untrue or misleading.

12.                   Consequences of termination

12.1                 On termination or expiry of this agreement:

(a)               Whole In 1 Golf shall have no obligation to continue to provide the Platforms (albeit that it may continue to do so in its absolute discretion);

(b)               Whole In 1 Golf’s licence to use the Club Marks under clause 2.3(a) shall be revoked as of the date of termination (but Whole In 1 Golf’s rights under clause 2.3(b) shall remain unaffected);

(c)               the Club shall indemnify Whole In 1 Golf for any and all costs or liabilities associated with its provision and exploitation of the Platforms, which for the avoidance of doubt includes any and all amounts that are required to be repaid to any third party by Whole In 1 Golf due to the termination of this agreement as well as any professional fees and costs incurred in relation to the same;

(d)               each party shall promptly return to the other any property of the other within its possession or control (including the Equipment as set out in clause 4); and

(e)               the following clauses shall continue in force: clause  1 (Definitions and interpretation), clause  8 (Indemnities), clause 9 (Limitation of liability), clause 12 (Consequences of termination), clause 14 (Confidentiality), clause 15 (Data Protection) and clauses 24 and 25 (Governing law and jurisdiction).

12.2                 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of Whole In 1 Golf that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

13.                    Force majeure

13.1             Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a)               acts of God, flood, drought, earthquake or other natural disaster;

(b)               epidemic or pandemic;

(c)               terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d)               nuclear, chemical or biological contamination or sonic boom;

(e)               any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

(f)               collapse of buildings, fire, explosion or accident; and

(g)               any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);

(h)               non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and

(i)               interruption or failure of utility service.

13.2                 Provided it has complied with clause 13.3, if Whole In 1 Golf is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, Whole In 1 Golf shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. Whole In 1 Golf’s time for performance of such obligations shall be extended accordingly.

13.3                 Whole In 1 Golf shall:

(a)               as soon as reasonably practicable after the start of the Force Majeure Event but no later than 7 days from its start, notify the Cub of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and

(b)               use reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

14.                   Confidentiality

14.1                 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its Representatives) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with Whole In 1 Golf’s exploiting of the Platforms, concerning:

(a)               the terms of this agreement;

(b)               any information that would be regarded as confidential by a reasonable business person relating to:

(i)               the business, affairs, customers, Corporate Clients, suppliers, or plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

(ii)              the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

(c)               any information developed by the parties in the course of carrying out this agreement.

14.2                 Each party shall keep the other party’s Confidential Information confidential and shall not:

(a)               use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or

(b)               disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

14.3                 On termination of this agreement, each party shall:

(a)               return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;

(b)               erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable).

14.4                 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

14.5                 For the avoidance of any doubt any Corporate Client shall remain the property of Whole In 1 Golf at all times during and after termination of this agreement and no approach shall be made by the Club, any other third party authorised by the Club, any Affiliate of the Club or the Venue to any Corporate Client regarding any opportunity to provide or exploit the Platforms or any rights which are similar to the Platforms and, which if entered into concurrently with this agreement, would conflict with the Platforms without the prior written authority of Whole In 1 Golf.

14.6                 Nothing in this clause 14 shall affect or limit the obligations of the parties in respect of the Data Protection Legislation which shall override any provision within this Clause 14 where there is any conflict between this agreement and the Data Protection Legislation.

15.                   Data Protection

15.1                 Both parties will comply with all applicable requirements of the Data Protection Legislation.

15.2                 Whole in 1 Golf are committed to ensuring that whenever we process Personal Data, it is processed lawfully in accordance with the Data Protection Legislation. How we do this is set out in detail in our Privacy Notice which can be accessed on our website at https://wholein1golf.uk/privacy-policy/

16.                   No partnership or agency

16.1                 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

16.2                 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

17.                   Third party rights

17.1                 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 term of this agreement.

17.2                 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.

18.                   Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19.                   Assignment and other dealings

This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement, save for in the event of a change of control over the Club or the Venue whereby the parties irrevocably agree that Whole In 1 Golf may require the previous owner of the Club or Venue to use their best endeavours to ensure that the new owner of the Club or the Venue continues with this agreement for any remaining term. Termination in this instance is at Whole In 1 Golf’s sole and absolute discretion.

20.                   Waiver

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 that or any other right or remedy, nor shall it 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.

21.                   Severance

21.1                 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

21.2                 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

22.                   Entire agreement

22.1                 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

22.2                 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

23.                   Notices

23.1                 Any notice given to a party under or in connection with this contract shall be in writing and shall be:

(a)               delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b)               in the case of notices sent by Whole in 1 Golf, sent by email.

23.2                 Any notice shall be deemed to have been received:

(a)               if delivered by hand, on signature of a delivery receipt;

(b)               if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.

(c)               if sent by email by Whole in 1 Golf after 4pm, at 9.00 am on the next Business Day after transmission.

23.3                 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. For the purposes of this clause, no notice can be validly transmitted by email save as set out at 23.1(b).

24.                   Governing law

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.

25.                   Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its

subject matter or formation (including non-contractual disputes or claims).

26.                   Acknowledgments

26.1                 By signing this agreement, the Club acknowledges that this agreement will automatically renew as per clause 3.2 without notification from Whole In 1 Golf; and

26.2                 the Club acknowledges that Whole In 1 Golf will notify the Club of all sponsors assigned to their project via the Content Management System (CMS); and

26.3                 the Club acknowledges that in case the Club should go into administration, it must comply with clause 19; and

26.4                 the Club acknowledges that it is responsible for contacting Whole In 1 Golf 60 days prior regarding the return of its equipment and that the Club are liable for the costs for the collection of Whole In 1 Golf’s equipment should a supplier of the Club come to have the equipment in their possession as per clause 8.1; and

26.5                 the Club acknowledges the installation process as discussed during the sign up, which will take place in order as follows;

(a)               CMS and MYCADDIE APP

(b)               TV installation

(c)               3D Flyover iFrames

(d)               Installation of GPS Cart Computers (if applicable)