Counterweight Licensee Provision of Goods and Services Agreement

January 2021

The Customer wishes to employ the Services and purchase the Goods of the Supplier; and the Supplier is prepared to provide the Services and sell the Goods to the Customer subject to the terms and conditions of this Agreement and those of the Licence Terms.

1. DEFINITIONS

In this Agreement, the following terms shall have the following meanings:

Agreement: means this Counterweight Provision of Goods and Services Agreement;

Authorised Users: are trained health practitioners who are employees of the Customer(s) accessing the Training Course(s) and Licensed Materials authorised by the Customer;

Commencement Date: means the date that the Fee is paid to the Supplier by the Customer, or is in receipt of any Services delivered by Counterweight, whichever is first;

Confidential Information: means all confidential or proprietary information relating to:

(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Supplier (hereinafter Part 1 Confidential Information); and

(ii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Supplier, any information, findings, data or analysis derived from the Confidential Information, and any other information that is identified as being of a confidential or proprietary nature of the Supplier (hereinafter Part 2 Confidential Information).

Customer: means the commercial entity or entities employing the Services and/or purchasing the Licensed Goods from the Supplier;

Fee: means the fees charged by the Supplier in relation to the provision of the Services and/or the Licensed Goods;

Licence: means the licence granted by the Supplier to the Customer for the Authorised User’s use of the Licensed Materials, the Licensed Goods and the Programmes in accordance with the terms given in separate Licence Terms;

Licensed Goods: means the Counterweight food products displayed on the Website from time to time;

Licensed Materials: means all course manuals, learning products, course notes and any other materials related to Programme Delivery Support written by the Supplier or its third-party suppliers to be supplied (whether electronic or hard copy form) to the Authorised Users under the terms given in the Licence;

Licence Period: shall have the meaning given in the Licence.

Programmes: means the Supplier’s Counterweight-Plus and Counterweight-Core programmes or any of the Supplier’s future programmes as advertised on the Website;

Programme Delivery: the Authorised User’s delivery of any of the Programmes;

Programme Delivery Support: includes support to be provided by the Supplier to the Authorised Users delivering the Programmes in the form of regular mentoring and medical query support;

Services: means jointly the Training Course(s), and Programme Delivery Support; 

Special Terms: any special terms as provided in the quotation issued by the Supplier;

Supplier: means Counterweight Limited, incorporated and registered in England and Wales (company number 11278617) with its registered offices at 32 Monk Street, Abergavenny, United Kingdom NP7 5NW;

Training Course(s): means one or more trainings courses provided by the Supplier for the Authorised User;

Website: means the Supplier’s website at: www.counterweight.org;

2. COMMENCEMENT

2.1  This Agreement starts on the Commencement Date and shall remain in force for the Licence Period. 

3. SPECIFIC OBLIGATIONS OF THE CUSTOMER

3.1 Any specific obligations of the Customer will be specified in the Special Terms.

4. OBLIGATIONS OF THE SUPPLIER

4.1 The Supplier shall:

4.1.1 provide the necessary Licensed Materials; and

4.1.2 use reasonable endeavours to supply the Authorised User with any Licensed Goods whilst in stock.

5. FEES

5.1 The Customer shall pay to the Supplier the Fee.  All Training Courses purchased by the Customer must be attended by the Authorised User within the same year.  The Supplier reserves the right to request the Customer pay the Fee to the Supplier prior to the commencement of the Services or delivery of the Licensed Goods.

6. ACCESS TO THE SUPPLIER SERVICES AND MATERIALS

6.1  Only Customer's Authorised Users shall be entitled to access the Services and Materials.

6.2  Content and features may be added to or withdrawn from the Materials and the Services otherwise changed without notice.

6.3 The Customer must ensure that each person having access to the Services and Materials: (a) is an Authorised User; and (b) is using those Services only in accordance with this Agreement.

6.4  All reasonable efforts will be made to ensure that the Training Course takes place on the advertised date and time. In the event that the Training Course does not take place, an alternative date/time will be scheduled.  The Supplier reserves the right to substitute speakers and or where events beyond its reasonable control prevent speakers from appearing.  The Customer accepts that there will be no right to any refund or cancellation in these circumstances.

7. CONFIDENTIALITY

7.1 Except as otherwise permitted hereunder, the Customer shall not at any time during the Term of this Agreement, (or for those Customers who have entered into a Licence with the Supplier, for the period of the applicable Licence) and: (i) for a period of five (5) years after termination disclose to any person any Part 1 Confidential Information disclosed to it by the Supplier; and (ii) for an unlimited period of time after termination disclose to any person any Part 2 Confidential Information disclosed to it by the Supplier.

7.2 The Customer may disclose the Supplier’s Confidential Information to its affiliates, employees, officers, agents, consultants or sub-contractors (“Representatives”) who need to know such information for the purposes of carrying out the Licensee’s obligations under this Agreement, provided that the Customer takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 7 as though they were a party to this Agreement. The Customer shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause 7.

7.3 The Customer will not be in breach of any obligation to keep any information confidential to the extent that it:

7.3.1 is known to the Customer prior to the Supplier’s disclosure, and not already subject to any obligation of confidentiality;

7.3.2 is or becomes publicly known to the Licensee without any breach of these Terms and Conditions or any other undertaking to keep it confidential;

7.3.3 has been obtained by the Customer from a third party in circumstances where the Customer has no reason to believe that there has been a breach of an obligation of confidentiality owed to the Supplier;

7.3.4 has been independently developed by the Customer prior to receiving the disclosure;

7.3.5 is approved for release in writing by an authorised representative of the Supplier; or

7.3.6 is required to be disclosed pursuant to the requirement of any law or regulation or the order of any Court of competent jurisdiction provided that, to the extent practicable and permitted by applicable law, the Customer required to make such disclosure has informed the Supplier in writing of the requirement to disclose prior to such disclosure in order to allow the Supplier a reasonable opportunity to seek an appropriate protective order or other means to protect the confidentiality of such Confidential Information; and if required to disclose Confidential Information of the Supplier: (i) discloses only such Confidential Information as it is required to disclose; and (ii) reasonably cooperates with and assists the Supplier in trying to obtain confidential treatment of such Confidential Information.

7.4 The Supplier reserves all rights in its Confidential Information. No rights or obligations in respect of the Supplier’s Confidential Information other than those expressly stated in this Agreement are granted to the Customer or to be implied from this Agreement.

8. DATA PROTECTION.

8.1  The Supplier and the Customer will both comply with the provisions given in the Data Protection Legislation which includes the General Data Protection Regulation (EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation including the Data Protection Act 2018 (DPA 2018) relating to data protection and privacy, as amended or updated from time to time, in the UK, as well as any successor legislation to the GDPR and DPA 2018.

9. TERMINATION BY SUPPLIER

9.1  The Supplier may by written notice terminate this Agreement or suspend its performance of all or any of its obligations under it immediately and without liability for compensation or damages if: (a) the Customer and/or Authorised User fails to comply with any of its obligations under this Agreement or any agreement or deed supplemental to it and the failure (if capable of being remedied) remains un-remedied for 30 days after being brought to the Customer's attention by written notice from the Supplier; (b) the Customer becomes bankrupt, has a receiving order made against it, makes any arrangement with its creditors generally or takes or suffers any similar action as a result of debt; (c) the Customer is guilty of any act which brings the Supplier into disrepute or which in the Supplier's reasonable opinion is prejudicial to the Supplier's interests; or (d) the Customer purports to assign the burden or benefits or charge the benefits of this Agreement.

9.2 In all other circumstances with the exception of the above the Supplier may by written notice terminate this Agreement or suspend its performance of all or any of its obligations under it on serving of ninety (90) notice.  The Supplier's only obligation in this event shall be the pro rata refund of any charges paid in advance.

10. LIMITED WARRANTY

10.1  The Supplier represents and warrants that it has the right and authority to make the Services available pursuant to this Agreement.

10.2  Except as otherwise provided in clause 10.1, the Services are provided on an ‘as is’, ‘as available’ basis and the Supplier makes no express warranties under this Agreement, including without limitation that the Services or Materials are or will be complete or free from errors or that information will continue to be available to the Supplier to enable the Supplier to keep the Services and Materials up to date.

11. LIMITATION OF LIABILITY

11.1  To the maximum extent permitted by law, a Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Services or any Materials available or not included therein, (b) the unavailability or interruption to the supply of the Services or any features thereof or any Materials, (c) Customer's use or misuse of the Services or Materials (regardless of whether the Customer received any assistance from a Covered Party in using or misusing the Services), (d) the Customer's use of any equipment in connection with the Services, (e) the content of the Materials and the Service, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any negligence of a Covered Party or its employees, contractors or agents in connection with the performance of its obligations under this Agreement.

11.2 "Covered Party" means (a) the Supplier, the Suppliers' affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of the Supplier or the Suppliers' affiliates; and (b) each third party supplier of the Licensed Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of the Licensed Materials or any of their affiliates.

11.3  The Supplier's liability to the Customer for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by these Terms and Conditions shall, to the extent permitted by law, be limited at the Supplier's option to supplying the  Services or Materials again or paying for their re-supply for any unused portion(s).  Nothing in this Agreement is intended to exclude liability for death or personal injury resulting from any negligence by the Supplier.

11.4  The Supplier's liability to the Customer for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Customer caused or contributed to that loss or damage.

11.5  Subject to clause 11.3, the aggregate liability of the covered parties in connection with any other claim arising out of or relating to the Services shall not exceed the amount of the Customer’s actual direct damages.  The Customer’s right to monetary damages in that amount shall be in lieu of all other remedies which the Customer may have against any Covered Party.

11.6  Subject to clause 11.3, the Covered Parties shall not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including, without limitation, legal fees) in any way due to, resulting from, or arising in connection with the Services, Materials or the failure of any Covered Party to perform its obligations, regardless or any negligence of any Covered Party.

11.7  The Services are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal advice with respect to particular circumstances.

11.8  The Customer agrees that in the event that the Customer breaches the Supplier's intellectual property contained in the Licence Terms it shall indemnify the Supplier for any actual or alleged infringement of any intellectual property right, including without limitation, trademarks, service marks, patents, copyrights, misappropriation of trade secrets or any similar property rights.  The Customer further agrees to indemnify and hold the Supplier's affiliates and their respective officers, directors, employees and agents harmless from and against any and all liabilities, costs, losses, damages and expenses (including reasonable legal fees) associated with such claim or action.

12. MISCELLANEOUS

12.1  No waiver.  A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

12.2 Entire Agreement.  This Agreement, any Special Terms and applicable Licence Terms constitute the entire agreement between the Customer and Supplier and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 

12.3  Variation.  No variation or amendment of this Agreement or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.

12.4  Prior agreements.  This Agreement is in substitution of all previous contracts, express or implied, between the Supplier and the Customer which shall be terminated by mutual consent from the Commencement Date.

12.5  Notices.

12.5.1 Any notice given under this Agreement shall be in writing and may be served: personally; by registered or recorded delivery mail; by facsimile transmission; or by any other means which any party specifies by notice to the other.

12.5.2 Each party's address for the service of notices shall be the address set out above or such other address as he specifies by notice to the other party.

12.5.3 A notice shall be deemed to have been served: if it was served in person, at the time of service; if it was served by post, 48 hours after it was posted.

12.6 Contracts (Rights of Third Parties). 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.

12.7  Interpretation. In this Agreement words expressed in any gender shall where the context so requires or permits include any other gender.

12.8  No Assignment.  The Customer may not assign its rights or delegate its duties under this Agreement without the Supplier's prior written consent.

12.9  Governing law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.