MyCake may change these General Terms from time to time at its absolute discretion without prior notice to the Customer. The Customer agrees that such changes will be binding on it. Any changes will be posted on MyCake’s website and will amend and form part of these General Terms. The Customer is responsible for reviewing the MyCake website on a regular basis to obtain timely notice of any such changes. This Agreement and any new Agreement entered into after such changes have been posted will include those changes.
The provision of benchmarking services is a confidential service available from MyCake limited with the software provided by Prospect Management Services. The MyCake site complies with the principles of the Data Protection Act 1998.
1.1 In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
“MyCake” – means MyCake Limited, a limited company registered in England and Wales company number 06378234 whose registered office is at Prospect House, Copt Hewick, Ripon, North Yorkshire
“Agreement” – means this agreement between MyCake and the Customer
“Effective Date” – means the date on which the Customer accepts the terms and conditions of this Agreement
“Fee” – means the fee as posted on MyCake’s website or by negotiation with the Customer in respect of subscription to MyCake’s services
“Intellectual Property Rights” – rights in databases, trade marks, trade names, rights in trade secrets, knowhow and all other intellectual property rights of any nature whatsoever, and all rights of a similar nature or having similar effect, throughout the world whether registered or unregistered and including all applications and rights to apply for any of the same
“Service” – means the provision of benchmarking services to be provided to the Customer by MyCake
1.2 All references to clauses are, unless otherwise expressly stated, references to the clauses of this Agreement.
1.3 The headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement
1.4 References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time
2.1 In consideration of the performance by the Customer of all its obligations set out in this Agreement, MyCake agrees to provide the Service to the Customer subject to and in accordance with the terms of this Agreement
2.2 MyCake agrees to use reasonable skill and care in the provision of this Service
3.1 This Agreement shall take effect on the Effective Date and (subject to clauses 5.4, 6.5, 7 and 12.2 below) shall continue unless and until terminated by the Customer. MyCake shall be entitled to treat the Customer as having terminated the agreement if it request a refund within the first 7 days after invoicing by MyCake and if no data has been ‘sent for review’ by the Customer. The Customer shall be deemed to have terminated this agreement if it cancels its subscription to the Service or fail to pay for a renewal regardless of whether a reminder has been issued. MyCake may terminate this agreement at any time giving the Customer not less than one (1) month prior notice by email. Termination of this agreement by the Customer must be received in writing by MyCake no later than 3 months before the renewal date. The renewal date is 12 months after an invoice has been issued for the subscription
4 CUSTOMERS OBLIGATIONS
4.1 The Customer hereby undertakes to and agrees with MyCake that the Customer shall:
4.1.1 Comply with any and all instructions provided to the Customer by MyCake relating to the Service
4.1.2 Not use the Service for any purpose which is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities
4.1.3 To make available free of charge to MyCake such accurate information, documentation, data and programs and such other assistance as MyCake may reasonably require to enable the Services to be carried out
4.1.4 Procure that its officers and employees co-operate with MyCake, its agents and subcontractors in carrying out the Service and
4.1.5 Be responsible for any and all applicable sales, use, excise, value added or other taxes and duties and any other fees, charges or payments payable to any governmental or regulatory authority, body or organization incurred as a result of or in connection with the use by the Customer of the Service
5 PRICING & PAYMENT
5.1 In consideration of the supply of the Service, the Customer agrees to pay MyCake the Fee. Unless otherwise expressly stated, all prices are exclusive of value added tax.
5.2 The Customer shall pay to MyCake the Fee for the Service annually in advance at MyCake’s discretion. MyCake shall send a receipted invoice to the Customer upon receipt by MyCake of the relevant payment. MyCake reserves the right to send receipts to the Customer by electronic means only.
5.3 Without prejudice to any other right or remedy it may have, MyCake reserves the right to set off any amount owing to it at any time from the Customer against any amount payable by MyCake to the Customer under or in connection with this Agreement
5.4 If the Customer fails to pay an amount by it under the Agreement then access to the Service will be severely restricted and may be suspended until payment is made or may be terminated
5.5 No refund of any subscription fees shall be given under any circumstances once the first 7 days of the subscription have passed.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 1 The Customer acknowledges and agrees that all Intellectual Property Rights existing or arising in any materials, know-how, specifications, inventions, processes, data or information supplied by MyCake under or in connection with this Agreement shall at all times belong to and remain vested in MyCake or its licensors and, save as expressly provided hereunder, no proprietary rights or any other rights whatsoever are assigned, granted or otherwise pass to the Customer. The Customer undertakes not to take any action which might invalidate the title of MyCake or its licensors to the Intellectual Property Rights mentioned aforesaid. Any goodwill arising from the use of such rights shall accrue to MyCake and its relevant licensors.
6.2 As and when required by MyCake, the Customer hereby agrees to do all such things and execute all such documents as may be required for absolutely vesting MyCake’s and/or its relevant licensor’s full right, title and interest in and to the Intellectual Property Rights referred to in clause 6.1.
6.3 The Customer acknowledges that civil and criminal penalties may be incurred in the event of any infringement of any Intellectual Property Rights referred to in clause 6.1, and that any such infringement by the Customer may result in incalculable damage and/or loss to MyCake and/or its licensors, and accordingly, the Customer agrees that, in addition to any other right or remedy of MyCake, MyCake shall be entitled to immediate injunctive relief to restrain any actual or anticipated infringement thereof and the Customer undertakes to indemnify MyCake in full against all losses, damages, costs, expenses and liabilities (including loss of profit) which may be incurred by MyCake by reason of any such infringement by the Customer.
6.4 Save as provided in clause 6.5, MyCake shall indemnify the Customer against any claim (including, without limitation, any losses and liabilities arising out of such claim but excluding any indirect, special or consequential loss or loss of profits, revenue or goodwill) that the Customer’s use of the Service in accordance with this Agreement infringes the Intellectual Property Rights of any third party, conditional upon the Customer :
6.4.1 promptly notifying MyCake in writing of any such claim and not making any admissions of liability or settling any such claim without MyCake’s prior written consent;
6.4.2 allowing MyCake at MyCake’s request and expense sole conduct of all negotiations and litigation resulting from any such claim; and
6.4.3 at the request and expense of MyCake, giving all reasonable assistance with such negotiations or litigation. The foregoing states MyCake’s entire liability to the Customer in respect of the infringement of the Intellectual Property Rights of any third party.
6.5 If any claim is made as described in clause 6.4 based on the Customer’s use of the Service other than in accordance with this Agreement, MyCake shall not be responsible and shall be entitled (a) to require the Customer to cease using the Service until otherwise notified by MyCake in writing, and/or (b) to terminate this Agreement immediately by written notice and/or (c) to require the Customer to indemnify MyCake against any consequential claim which may be brought against MyCake.
6.6 The Customer undertakes to notify MyCake promptly of any infringement of the Intellectual Property Rights referred to in clause 6.1 above of which the Customer is or becomes aware and to render to MyCake and/or MyCake’s relevant licensors all reasonable assistance in relation to any action, suit or proceeding taken by MyCake and/or its relevant licensors in respect of such infringement. Subject to the foregoing, the Customer shall not be entitled to take any steps or proceedings in relation to any infringement by any person of such Intellectual Property Rights without the prior written consent of MyCake.
7.1 Without prejudice to its other rights and remedies, either party may, by written notice to the other, terminate this Agreement with immediate effect if the other party:
7.1.1 commits a material breach of this Agreement and shall, in the case of any remediable breach, fail to remedy the same within 14 days of receipt of a written notice from the non-breaching party requiring such remedy; or
7.1.2 is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) or otherwise becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other party (other than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the other party’s assets or the other party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction or if it ceases to trade or threatens to cease to trade.
7.2 For the avoidance of doubt, failure by the Customer to pay any prices to MyCake in full in cleared funds by the due date shall constitute a material breach of this Agreement. Failure by the Customer to pay the prices to MyCake in cleared funds by the due date on more than two occasions shall entitle MyCake to terminate this Agreement forthwith on giving written notice to the Customer.
7.3 Upon termination of this Agreement, MyCake shall cease to make the Service available to the Customer.
7.4 MyCake shall at any time without incurring any liability be entitled to terminate the Service or to temporarily suspend the Service if MyCake reasonably considers that such action is necessary to comply with any governmental, legal or other regulatory requirement or request (whether or not having the force of law).
7.5 All clauses intended by their nature to survive termination including clauses 9 and 10 shall survive the termination of this Agreement.
7.6 Upon termination of this Agreement for any reason, the Customer shall promptly return (or at MyCake’s request destroy) all copies in any form (including in any human or machine readable form) of any materials relating to this Agreement which have been provided to the Customer by MyCake which are in the possession, custody or control of the Customer or its officers, employees or agents.
7.7 MyCake warrants that it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
7.8 MyCake does not warrant that the Service will meet the Customer’s requirements nor that, in the case of internet-based Services, the operation of the Service will be error-free or uninterrupted.
7.9 The Customer warrants that:
7.9.1 it shall comply with all applicable laws and regulations relating to the Service and with all applicable rules, regulations and guidelines (whether or not having the force of law) of any regulatory organisations or bodies of which it is a member or by which it is bound;
7.9.2 it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
7.10 Save as expressly set out in this Agreement, all conditions, representations, warranties, undertakings or terms whether express or implied, statutory or otherwise, including in particular any implied warranty of satisfactory quality or fitness for any particular purpose or use are excluded from this Agreement to the fullest extent permitted by law.
8 LIABILITY AND INDEMNITY
8.1 Save in respect of liability for death or personal injury arising as a result of MyCake’s negligence, the total aggregate of MyCake’s liability howsoever arising under or in connection with this Agreement, whether in respect of a single occurrence or a series of occurrences, shall not exceed in any year the sum of the Fees payable by the Customer in respect of that year. For the avoidance of doubt a “year” is a period of twelve (12) months from the Effective Date and thereafter each subsequent period of twelve (12) months from anniversary of the Effective Date during the term of this Agreement.
8.2 The Customer acknowledges that in some instances the Service is Internet based. Owing to the nature of the Internet and its interconnected systems, problems such as, but not constrained to, outages, link failures, power difficulties, telephone outages, network overload etc. may have an adverse affect on the Service. While MyCake will generally strive to mitigate, if possible, the negative effect of such problems, MyCake will in no way be held liable in any manner for loss(es) suffered as a result of any such problems.
8.3 Save in respect of liability for death or personal injury arising as a result of MyCake’s negligence, MyCake shall not be liable to the Customer for any loss of profits or goodwill or any other type of special, indirect or consequential loss or revenue of any nature whatsoever (including loss or damages suffered as a result of an action brought by a third party) whether arising from negligence, breach of contract or otherwise, even if such loss was reasonably foreseeable or MyCake had been advised of the possibility of the Customer incurring the same, and such liability is hereby excluded to the fullest extent permitted by law.
8.4 The Customer hereby undertakes and agrees to indemnify MyCake and keep it fully indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by MyCake arising out of or in connection with (i) any claims, proceedings, demands or actions by third parties arising out of or in connection with MyCake’s supply of and/or the Customer’s use of the Service (including without limitation claims under the Data Protection Act 1998) and/or any breach of the Customer’s undertakings or obligations set out in this Agreement, and/or (ii) any breach by the Customer of its obligations under this Agreement, and/or (iii) the Customer’s negligence or wilful misconduct.
8.5 The Customer agrees that all the limitations and exclusions of liability in favour of MyCake in this Agreement are reasonable in the circumstances under which the Service is to be performed.
8.6 The Customer confirms that neither MyCake nor any of its representatives has made any claims or representations of guaranteed or anticipated profits that may result from the use of the Service and MyCake expressly disclaims liability for any profit projections which may have been provided to the Customer.
8.7 The Customer acknowledges that the benchmarking data provided as part of the Service is compiled from material supplied to MyCake by other parties and that MyCake cannot and therefore does not warrant the accuracy of that benchmarking data and expressly disclaims (and the Customer accepts such disclaimer) of any liability arising out of any reliance placed on such data
9.1 Neither party shall disclose or communicate to any person (other than as permitted by this Agreement or with the prior written consent of the other party) any information in whatever form relating to the other party or its affairs, business, clients or property (the “Confidential Information”) irrespective of whether such information is marked as confidential, of which it may become aware during the term of this Agreement and it shall use its reasonable endeavors to prevent the unauthorised publication or disclosure of any Confidential Information and shall treat the other party’s Confidential Information as secret and proprietary.
9.2 The provisions of this clause 9 shall survive the termination of this Agreement but the restrictions in clause 9.1 shall not prevent the party receiving the Confidential Information (“the Receiving Party”) from divulging any part of the Confidential Information:
9.2.1 to such of its employees as strictly need to receive and consider the Confidential Information in connection with the provision of the Service, provided that it shall procure that each such “need to know” employee having access to the Confidential Information is made aware of the obligations of secrecy attached thereto and shall procure that any of its employees to whom disclosure of the Confidential Information is made shall adhere to the terms of this Agreement as if it were a party thereto;
9.2.2 to the extent necessary to enable it to exercise any rights or obligations expressly granted to it by this Agreement;
9.2.3 to its auditors, and any other persons or bodies having a right, duty or obligation to know the business of the Receiving Party and then only in pursuance of such right, duty or obligation;
9.2.4 to the extent that it is obliged to divulge such Confidential Information by any laws or regulations, taxation authority or by any recognised stock exchange or by any order of a court of competent jurisdiction or in the course of any legal proceedings provided that in such circumstances the Receiving Party shall have, so far as it is legally able to do so, immediately notified the disclosing party of its obligation to disclose to enable the disclosing party to seek appropriate means to prevent the disclosure or waive compliance with this clause 11 and taken such steps as the disclosing party may reasonably require for that purpose.
9.3 The Receiving Party undertakes to ensure that the persons and bodies mentioned in clause 9.2 are made aware prior to the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
9.4 The restrictions in clause 9.1 shall not apply to Confidential Information:
9.4.1 which at the time of acquisition by the Receiving Party is already in the possession of the Receiving Party and at its free disposal, or in the public domain;
9.4.2 which enters the public domain at any time hereafter through no fault of the Receiving Party;
9.4.3 which is acquired by the Receiving Party in good faith from third party sources unconnected with and owing no duty of confidentiality to MyCake; or
9.4.4 which is acquired by the Recipient through its own independent research.
9.5 The Receiving Party shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom the Receiving Party divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
9.6 The Receiving Party hereby irrevocably and unconditionally indemnifies and shall hold fully indemnified the other party from and against any and all actions, proceedings, losses, damages, liabilities, obligations, costs, claims, charges and expenses suffered or incurred by the other party of whatsoever nature arising out of or in connection with any breach of this clause 9 by the Receiving Party.
9.7 Subscribers to the Culture Benchmark or RFO Benchmark who are included in the MMM Re.volution facilitator group are agreeing (by participating in this group) that their individual organisations data may be shared with members of the MMM team for the purposes of evaluation and reporting to stakeholders.
10 CUSTOMER’S TRADE MARKS
10.1 Subject to clauses 10.2 and 10.3 below, neither party may use the other’s logo, name and/or trade marks without the other party’s prior written consent.
10.2 The Customer agrees that MyCake may use the Customer’s logo, name and trade marks in connection with MyCake’s advertising and marketing materials but only in accordance with clause 10.3 below.
10.3 MyCake shall submit all advertising and marketing materials which incorporate the Customer’s logo, name and/or trade marks to the Customer before publication. The Customer shall have a period of seven (7) business days commencing on the date on which MyCake sends the materials in which to notify MyCake as to whether the Customer approves or disapproves the materials, such approval not to be unreasonably withheld or delayed. If the Customer does not communicate its approval or disapproval to MyCake within such seven day period, the Customer shall be deemed to have approved the materials.
11 FORCE MAJEURE
11.1 MyCake shall not be liable to the Customer for any breach or non-performance of its obligations under this Agreement resulting from causes beyond its reasonable control (an “Event of Force Majeure”) including, but not limited to, Acts of God, governmental act, war, fire, drought, failure of power supply, lock out, strike, explosion, accident, civil commotion, refusal of any licence by any telecommunications body, impossibility or delay in obtaining materials or telephone lines.
11.2 MyCake agrees to notify the Customer immediately upon becoming aware of an Event of Force Majeure and to use all reasonable endeavours to overcome the circumstances affecting its performance and fulfil all outstanding obligations as soon as practicable.
11.3 Either party may terminate this Agreement if MyCake is prevented from performing its obligations because of an Event of Force Majeure for more than thirty (30) consecutive days.
12.1 The Customer shall not, without the prior written consent of MyCake, sub-licence, assign or otherwise transfer or dispose of all or any part of its rights or obligations under this Agreement.
12.2 MyCake shall be entitled to delegate or sub-contract the performance of all or any part of its obligations under or in connection with this Agreement to any third parties.
13.1 If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair: –
13.1.1 the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
13.1.2 the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
14 WAIVER No delay, omission or forbearance by either party to exercise or enforce any right, power or remedy arising under or in connection with this Agreement shall operate as a waiver thereof, and any single or partial exercise or enforcement thereof shall not preclude any other or further exercise or enforcement thereof or the exercise or enforcement of any other right, power or other remedy.
16 NOTICES All notices shall be made in writing and sent by prepaid first class post, by facsimile, e-mail or delivered by hand to, in the case of MyCake, its registered office or (if different) its principal office as notified from time to time to the Customer and, in the case of the Customer, to the address notified to MyCake by the Customer (or to such other address as each party may from time to time notify in writing to the other party). Any notice served by facsimile or e-mail shall be deemed served at the time of transmission provided the sender can show satisfactory transmission and posts a hard copy of the notice within 24 hours of service provided that if any such notice would otherwise be deemed to be served outside working hours, such notice shall be deemed to be served at the start of working hours on the next business day. Any notice served by post shall be deemed served two business days after the date of posting and any notice delivered by hand, upon delivery. Working hours means 9 a.m. to 5 p.m. UK local time Monday to Friday excluding public holidays.
17.1 This Agreement constitutes the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and undertakings between the parties relating to such subject matter. The Customer acknowledges that by entering into this Agreement it has not relied on any representations, promises or warranties (written or oral) which are not expressly set out in this Agreement and accordingly, any implied conditions, representations, warranties or other terms are, save as to fraud, hereby excluded to the fullest extent permitted by law.
17.2 It is acknowledged and agreed by both parties that neither the entry into nor the performance of the terms of this Agreement constitutes or shall constitute a partnership or joint venture between the parties.
17.3 Nothing in this Agreement shall be deemed or construed to constitute either party or any of its officers or employees, the agent or the legal representative of the other party for any reason whatsoever except only as and to the extent specifically stated in this Agreement and, except as so stated, neither party is hereby granted any right or authority to act for, or to incur, assume or create any obligation, responsibility or liability, express or implied, in the name of or on behalf of the other party or to bind the other party in any manner whatsoever.
17.4 Any organisation that participates in the re.volution facilitator group is agreeing that their data may be viewed on an individual basis by persons employed by Mission Models Money. Mission Models Money will maintain the confidentiality of any individual data they access and will not publish it in any format except as aggregated data.
18 THIRD PARTY RIGHTS No person other than the parties to this Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement.
19 LAW This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.
20 USE OF PERSONAL INFORMATION
20.1 Personal information collected via the MyCake site will only be processed for the purpose of providing a confidential benchmarking service and compiling aggregate data.
20.2 Publication of Data
20.3 Any user of MyCake will be assigned both a book-keeping and a benchmarking account. The benchmarking data, once approved, will form part of the MyCake data set. Aggregate data may be published either by MyCake or by individual benchmark groups. A user’s individual data cannot be published.
20.4 MyCake will not be obliged to publish aggregate data prior to a period of three months following the end of the comparison period. A minimum number of data sets will apply to ensure representative results.
20.5 Benchmark Groups wishing to publish their data may only do so with the express written permission of MyCake.
20.6 Access to individual data sets is only available to the contributor of the data set (the user) and to people to whom they specifically grant access. Individual data sets can also be accessed by PMS administrators (super users) or contracted third parties for reasons of providing technical assistance, reviewing data and compiling aggregate data.
20.7 Results are only available to those who have had their data published for the relevant benchmark period.
20.8 The data belongs to the user who is able to delete or transfer his/her data from the site at anytime. It is a condition of use that users agree to input accurate data.
20.9 The Customer will be responsible for maintaining the security of its own passwords for access to the Service and for notifying MyCake in the event of any actual or suspected misuse or loss of its password or other breach of the confidentiality of its data.