1. These Referrer Terms & Conditions (the “agreement”) set forth the legally binding terms and conditions between the Referrer (the individual or representative of an organisation that subsequent to agreeing to these terms in this agreement, supplies details of an opportunity to Datum that translates into real business with revenue) and Datum Datacentres Limited (registered.in the United Kingdom registration number 07954217 and whose registered company address is at 90 High Holborn, London, WC1V 6XX). For the avoidance of doubt, any reference in this agreement to “Datum” means a reference to Datum Datacentres Limited, its assignees, successors and affiliates.
2. The Referrer shall read the provisions of this agreement carefully and print it out for his/her personal record.
3. The Referrer must be a member of a registered company or organisation and not a private individual.
4. By clicking on “I agree to these terms and conditions” the Referrer expressly confirms that they have read and understood the terms of this agreement and are authorised to be bound or to bind their organisation according to the terms and conditions of this agreement.
5. The Referrer fully understands that this agreement is limited solely to the single lead provided on the registration page (the “referred client”), and no other referred client.
6. Datum shall only accept referrals for services to be provided in the, or from the, United Kingdom.
7. Once the Referrer has clicked on the “submit” button, an automatic e-mail of confirmation will be sent to the e-mail address that has been provided by the Referrer during the online registration process on the Datum website.
8. Said auto-generated electronic email will be limited to notifying receipt of the online referral and does not constitute an acceptance
9. Performance of the click on the ‘submit’ button by the Referrer shall also generate an e-mail that shall be sent to Datum and stored on its servers.
10. .Said auto-generated e-mail will associate all identification elements related to the online referral (company or person name, address, e-mail address, and logs of the authorised representative)
11. Datum will confirm acceptance of the referral by way of a formal email from a Datum Account Director to the Referrer. If such a contact is not made the referral is not accepted and no fee will be payable.
12. This acceptance email shall indicate the date and time of signature as well as the acceptance of this agreement by Datum (the “effective date”).
13. Said acceptance e-mail will associate all identification elements related to the online contracting process (company or person name, address, e-mail address, and logs of the authorised representative) with this agreement.
14. Said acceptance e-mail generated by Datum will include the recorded computer data that will establish the agreement on proof referred to below in section 7.1.
15. Datum shall agree to pay any Referrer’s fee subject to these terms and conditions and in line with the notes, definitions, conditions and exclusions below
16. This agreement is the complete agreement between the parties in respect of the services and replaces any and all prior oral or written communications between the parties relating to the services. There are no other conditions, understandings, agreements, representations or warranties, expressed or implied, which are not specified herein
NOW IT IS HEREBY AGREED AS FOLLOWS
1. DEFINITIONS AND INTERPRETATION
1.1 In the Agreement (except where the context otherwise requires), the following words shall have the following meanings:
“Material Anti-Corruption Law Violation” means a violation of an Anti-Corruption Law which would if it were publicly known, in the reasonable view of a Party, have a material adverse effect on the other Party or on the reputation of the other Party because of its relationship with the Party;
“Affiliate”means in relation to a Party, any subsidiary, subsidiary undertaking or holding company of that body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
“Anti-Corruption Laws” means the UK Bribery Act 2010 and any other applicable laws, directives and regulations for the prevention of fraud, corruption, racketeering, money laundering and terrorism applicable in the jurisdiction detailed in Clause 3
“Confidential Information” means all information disclosed or made available by a Party or members of its group in connection with this Agreement including technical information, designs, computer programs, commercial, marketing and financial information, data and reports, employee data, and correspondence howsoever recorded, but excluding information which:
a) is already in or becomes part of the public domain without fault of the recipient;
b) can be shown to have been in the possession of the recipient before disclosure by the discloser;
c) can be shown to have been generated independently by the recipient without any benefit from or use of the Confidential Information;
d) comes into the possession of the recipient from any third party without breach of any confidential relationship;
the discloser expressly states in writing is not confidential
1.2 In this Agreement, (unless the context otherwise requires) reference to:
1.2.1 any statute or statutory provision are to that statute or statutory provision as from time to time amended, re-enacted or modified;
1.2.2 the singular includes a reference to the plural and vice versa and reference to any gender includes a reference to all other genders;
1.2.3 any Party (where relevant) includes its successors in title and permitted assigns or transferees;
1.2.4 a “person” includes any individual, company, firm, corporation, partnership, joint venture, association, institution or Government body (whether or not having a separate legal personality);
1.2.5 recitals, clauses and schedules are references to recitals, clauses and schedules to this Agreement;
1.2.6 any phrase in this Agreement introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.7 any undertaking under this Agreement not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing.
1.3 The headings are used for convenience only and shall not affect the interpretation or validity of this Agreement.
1.4 Both Parties irrevocably acknowledge and agree that this Agreement shall override and exclude any other terms and conditions referred to, offered or relied on by the Referrer, whether in negotiation or at any stage in the dealings between the parties. Without prejudice to the foregoing, neither Party shall be bound by any standard or printed terms furnished by the other Party.
2. REFERRER’S FEE.
2.1 A “Referrer’s Fee” shall mean an amount payable to a Referrer pursuant to the terms and conditions of this Agreement and shall be equal to ten (10) per cent of the first years charges (“Annual Fees”) representing the co-location services stated on the initial sales order (the “Sales Order”) ; and
2.2 A Referrer’s Fee shall only be payable if the Referred Client and Datum agree and enter in to a contractual agreement for colocation services within 150 days of the Effective Date of the lead being approved
2.3 Subject to clause 2.4 below the Referrer’s Fee that is due to the Referrer shall be paid in two (2) parts fifty (50) per cent within 45 days of the go live date of the Referred Client co-location services and fifty (50) per cent within 45 days of the end of the sixth (6th) elapsed month after the go live date of the Referred Client co-location services.
2.4 In the event a Referred Client for which Referrer’s Fee has been paid a Referrer’s Fee fails for any reason to fulfil the obligations and meet the payment schedule to which such Referred Client has agreed, the Referrer shall promptly refund to Datum the portion of the Referrer’s Fees that Datum reasonably determines is attributable to charges that have not or will not be paid by such Referred Client, provided that in each case Datum has exhausted all of its commercially reasonable remedies in attempting to collect as much as possible of all amounts owed by the defaulting Referred Client;
2.5 The Referrer’s Fee shall be the only compensation to which Referrer is entitled in consideration of its referral of the Referred Client;
2.6 No Referrer’s Fee shall be payable to the Referrer:
2.6.1 if Datum fails to timely enter into a Contract with the Referred Client for any reason whatsoever or no reason at all, including through the fault of Datum or any other party; or
2.6.2 Datum already has a relationship (past or present) or is progressing a relationship with a Referred Client
2.7 Notwithstanding anything to the contrary in this Agreement, a Referrer’s Fee will only be paid to individuals who can reasonably document that they are an established commercial or selling agency regularly engaged in advising Clients on colocation services.
3.1 THE BRIBERY ACT
3.1.1 The parties warrant that they have and shall maintain processes and procedures that are in line with the requirements of the Anti-Corruption Laws for the duration of the Agreement; and
3.1.2 To the knowledge of the Party, neither the party nor its Affiliates, nor any consultants, agents, representatives or sub-contractors connected with the Agreement has taken any action in the twenty four (24) months preceding the Effective Date which was a Material Anti-Corruption Law Violation at the time it was taken, nor has any of them been formally notified that they are subject to an investigation by a Regulatory Authority for a Material Anti-Corruption Law Violation.
3.1.3 The Parties further warrant that they shall comply with Anti-Corruption Laws for the duration of the Agreement and shall promptly inform the other Party as soon as they become aware they are subject to an investigation by a Regulatory Authority for a Material Anti-Corruption Law Violation.
3.2 For any violation of this Clause 3, Datum shall be entitled to recover from Referrer all damages caused, directly or indirectly, by any violation of the obligations in this clause 3, including but not limited to:
3.2.1 consequential damages,
3.2.2 lost profits, and
3.2.3 any punitive damages, except to the extent prohibited by local law; and
3.3 In addition, upon any violation of this Clause 3, Datum shall be entitled to recover from Referrer all Referrer’s Fees; and
3.3.1 any other compensation paid by Datum under this Agreement.
3.4 The Referrer further represents and warrants that no third party is or will be entitled to any commission or payment in connection with the Referred Client based upon the acts, communications, dealings or agreements by the Referrer.
3.5 Furthermore the Referrer shall indemnify, defend and hold Datum harmless from and against any failure by Referrer to adhere to the terms of this Clause 3.
Except as specifically provided herein, the existence and terms of this Agreement shall remain strictly confidential and neither party shall make any public comments with respect thereto. Notwithstanding the foregoing, Datum shall not be prohibited from discussing with any Client the material terms of this Agreement and being completely open and transparent about its relationship with Referrer.
5. LIABILITY LIMITATION.
5.1 Neither Party excludes any liability that may not be excluded by law or statute.
5.2 In no event shall Datum be liable for any:
5.2.3 indirect; or
5.2.4 special damages, howsoever caused whether under:
18.104.22.168 tort (including acts of negligence in so far as permitted by law); or
5.3 Subject to clause 3.1 Datum makes no Warranty with respect to its Service under this Agreement whether:
5.3.1 express; or
5.3.3 Each party further acknowledges that except as expressly warranted herein, all services under this agreement are provided as is and does not infer or make any warranty to any Referred Client.
6.1 In no event shall the Referrer make:
6.1.1 any representation, guarantee or warranty concerning Datum or Datum’s products or services;
6.1.2 the Referrer acknowledged that the Referrer shall have no authority to accept any offer on Datum’s behalf or to bind Datum in any manner whatsoever;
7. GENERAL PROVISIONS
7.1 By accepting this Agreement, the Parties acknowledge and agree that:
7.1.1 all electronic messages and documents filled or exchanged between them within the framework of their relationship shall be considered as writings in an electronic form that are admissible as evidence; and that
7.2 in the event of a dispute, the recordings made Attenda’s IT system will have a probative value between the Parties
7.3 Referrer shall pay all costs, taxes, fees, expenses and charges incurred by Referrer in the performance of its duties hereunder
7.4 Neither Party shall directly or indirectly employ or encourage, induce, recruit, solicit, or attempt to solicit for employment, any employee of or contractor to the other Party who had at any time during the term of this Agreement any material involvement with the provision or use of the Services.
7.5 Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the Parties, nor shall either Party be deemed the agent or employee of the other or have the right to bind the other in any way without the prior written consent of the other.
7.6 All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile transmission (receipt confirmed and with a confirmation copy sent by post) during normal
business hours of the recipient; or on the 3rd business day following posting, if posted by first class or recorded post postage pre-paid.
7.7 A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
7.8 Neither Party may assign this Agreement without the prior written consent of the other Party (except that either Party may assign this Agreement to any person or entity that acquires or succeeds to all or substantially all of such Party’s business or assets).
7.9 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
7.10 Neither Party shall use the other Party’s name, domain names, logos, trademarks or service marks in advertising or publicity or disclose the details of this Agreement without obtaining the other Party’s prior written consent.
7.11 Failure by either Party at any time to require the performance of any provision of this Agreement shall not affect the right of such Party to require full performance thereof at any time thereafter.
7.12 Datum reserves the right to amend the terms and conditions of this Agreement from time to time. In the event that Attenda wishes to exercise this right, it shall provide at least thirty (30) days’ notice to the Client, with such amended terms coming into effect upon the expiry of this notice period. Except for any additional Services which may be procured by the Client, which may have separate and specific terms and conditions, no other variation of this Agreement may be made by the Parties..
7.12.1 This Agreement shall be governed by and construed in accordance with the laws of England without reference to conflicts of law principles. The Parties agree to submit to the exclusive jurisdiction of the English courts.
7.12.2 This Agreement constitutes the complete and exclusive understanding of the Parties with respect to the subject matter hereof, and supersedes all prior sales proposals, negotiations, agreements, authorisation to proceed letters and other representations or communications, whether oral or written except in respect of any fraudulent representation made by either Party.
Datum Datacentres Ltd 02-2014