THIS CONTRACT is made at the time of acceptance of…….

BETWEEN

IT IS HEREBY AGREED

1.2.1 A reference to legislation or a legislative provision:
a) is a reference to it as amended, extended or re-enacted from time to time; and
b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.2.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3 A reference to writing or written includes email.

The Contract shall commence on the date hereof (the “Services Start Date”) and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 3 months’ written notice to terminate, expiring on or after the first anniversary of the date of this Contract.

3.1 The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.

3.2 In supplying the Services, the Supplier shall:

​3.2.1 perform the Services with reasonable care and skill;
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​3.2.2 use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 1;
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​3.2.3 comply with all applicable laws, statutes and regulations from time to time in force provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.

4.1 The Customer shall:

​4.1.1 co-operate with the Supplier in all matters relating to the Services;
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​4.1.2 provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s data and other facilities including the Application as reasonably required by the Supplier or any of them;
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​4.1.3 provide, in a timely manner, such information as the Supplier may require, including but not limited to all information required to enable the Supplier to comply with all applicable laws and practices, and shall ensure that all such information is true, accurate and complete in all respects; and
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​4.1.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services.

4.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:

​4.2.1 not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
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​4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
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​4.2.3 be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

5.1 In order to submit Content on the Application for public viewing, the Supplier must first register on the website with the Supplier’s individual credentials. All pre-created and/or pre-recorded Content submitted by the Supplier will be reviewed by the Customer prior to publication on the website or Application and the Customer reserves the right to accept or reject Content in its sole discretion. The Customer’s review and publication of the Content is not an endorsement by the Customer of the Content or a guarantee that the Content will (i) earn revenue on the website or Application or (ii) attract viewers, and the Customer make no guarantee regarding the success of the Content in attracting viewers or earning revenue. Information about appropriate formats for Content and instructions for how to upload it are available here.

5.2 The Customer reserves the right to determine and change the categories in which the Content appears, associated search tags, and the location of the Content, on the Application, at its sole discretion.

5.3 All Content, whether pre-recorded or live-stream, must comply with this Contract, the Terms of Service, the Content Guidelines and Privacy Policy. The Supplier will be solely responsible for all Content submitted by the Supplier in any format, and as to the form, content, and accuracy of the Content. The Customer may offer live-stream capabilities for Content as part of the Services, but does not guarantee the availability or quality of live-stream Services. The Supplier’s use of live-stream Services or any other features or tools the Customer makes available to service users and/or other suppliers is subject to this Contract, the Terms of Service, the Content Guidelines and Privacy Policy.

5.4 The Customer reserves the right to remove any Content that it, in its sole discretion, determines does not comply with this Contract, the Terms of Service, the Content Guidelines and Privacy Policy or that the Customer otherwise determines is inappropriate for the Service. The Customer has the right but not the obligation to monitor live-stream Content the Supplier submits, and to remove or disable access to any Content at any time and without notice to the Supplier. The Supplier agrees that it shall not have any claim against the Customer in connection with the rejection or removal of Content, or the unavailability of the Services. In addition, the Customer reserves the right to terminate the Supplier’s access to the Service or the Application and disable any account the Supplier has established on the Application in the event that the Customer determines that the Supplier or the Supplier’s Content has triggered serious or multiple user complaints, or the Supplier is in violation of this Contract, the Terms of Service, the Content Guidelines or the Privacy Policy. In such an event, the Customer shall pay the Supplier the revenue the Supplier’s Content has earned (if any) prior to the removal of the Content or the Supplier from the Application in accordance with our then-current Earn Structure.

6.1 For the purposes of this clause 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the GDPR.

6.2 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

6.3 The parties have determined that for the purposes of Applicable Data Protection Laws:

​6.3.1 the Supplier shall process the personal data as set out in paragraph 1.1 of Schedule 3 as processor on behalf of the Customer; and
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​6.3.2 the Supplier shall act as controller of the personal data set out in paragraph 1.2 of Schedule 3.

6.4 Should the determination in clause 6.3 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 6 and Schedule 3.

6.5 Without prejudice to clause 6.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this agreement.

6.6 In relation to the Customer Personal Data, Schedule 3 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

6.7 If the transfer of the Customer Personal Data between the Customer and the Supplier requires execution of Standard Contractual Clauses (“SCCs”) in order to comply with the Applicable Data Protection Laws (where the Customer is the entity exporting personal data to the Supplier outside the EEA), the parties will complete all relevant details in, and execute, the SCCs contained in Schedule 4, and take all other actions required to legitimise the transfer.

6.8 Without prejudice to clause 6.2, the Supplier shall, in relation to Customer Personal Data:

​6.8.1 process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes of the provision of the Services only, unless the Supplier is required by Applicable Data Protection Laws to otherwise process that Customer Personal Data (the “Purpose”). Where the Supplier is relying on Applicable Data Protection Laws as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Data Protection Laws. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
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​6.8.2 implement the technical and organisational measures set out in Schedule 3 (Processing, personal data and data subjects) to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
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​6.8.3 ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
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​6.8.4 assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
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​6.8.5 notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
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​6.8.6 at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 6.7.6, Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
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​6.8.7 maintain records to demonstrate its compliance with this clause 6, and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.

6.9 The Supplier may only authorised a third party (subcontractor) to process the Customer Personal Data if:

​6.9.1 the Customer provides written consent prior to the appointment of each subcontractor; and
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​6.9.2 the Supplier enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Customer’s written request, provides the Customer with copies of the relevant excerpts from such contracts; and
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​6.9.3 the Supplier maintains control over all of the Personal Data it entrusts to the subcontractor; and
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​6.9.4 the subcontractor’s contract terminates automatically on termination of this Agreement for any reason.

6.10 Where the subcontractor fails to fulfil its obligations under the written agreement with the Supplier which contains terms substantially the same as those set out in this Agreement, the Supplier remains fully liable to the Customer for the subcontractor’s performance of its agreement obligations.

6.11 The Supplier (and any subcontractor) must not transfer or otherwise process the Customer Personal Data outside the “EEA” without obtaining the Customer’s prior written consent.

6.12 Where such consent is granted, the Supplier may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:

​6.12.1 the Supplier is processing the Customer Personal Data in a territory which is subject to adequacy regulations under the Applicable Data Protection Laws that the territory provides adequate protection for the privacy rights of individuals; or
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​6.12.2 the Supplier participates in a valid cross-border transfer mechanism under the Applicable Data Protection Laws, so that the Supplier (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by the GDPR; or
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​6.12.3 the transfer otherwise complies with the Applicable Data Protection Laws.

7.1 Subject to clauses 7.2, 7.3 and [TBC], neither party shall, by the performance of this Contract or otherwise, acquire any rights in or to any Intellectual Property Rights developed, owned, used or adopted by the other party or any of its affiliates now or in the future, whether or not such Intellectual Property Rights are registered with the appropriate governmental authorities.

7.2 Without prejudice to the foregoing, the Customer shall have an exclusive, royalty free, perpetual licence to use and retain the Content and all other information arising from the provision of the Services.

7.3 During the term of this Agreement the Supplier grants to the Customer a non-exclusive licence to use his/her name, image and other branding as set out in Schedule [5], solely in connection with the Customers business and the Supplier’s performance of the Services.

8.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 8 and Schedule 2.

8.2 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 10 (Termination), the Supplier may suspend all Services until payment has been made in full.

8.3 All amounts due under the Contract from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

9.1 Nothing in these terms shall limit or exclude our liability for:

​9.1.1 death or personal injury caused by our negligence, or the negligence of the Customer’s employees, agents or subcontractors (as applicable);
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​9.1.2 wilful fraud or fraudulent misrepresentation; or
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​9.1.3 any matter in respect of which it would be unlawful to exclude or restrict liability.

9.2 Neither party shall be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of revenue, profits, goodwill, use, data or other intangible losses (even if the Customer has been advised of the possibility of such damages), arising under or in connection with the Contract.

9.3 The Customer’s total liability to the Supplier for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the amounts paid by the Customer to the Supplier in the previous thirty day period prior to the event giving rise to the liability.

9.4 The Supplier agrees to release, defend, indemnify, and hold the Customer and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the Supplier’s:-

​9.4.1 access to or use of the Application, Services, or the Supplier’s violation of the Contract;
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​9.4.2 Content;
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​9.4.3 interaction with any Pod1um User; and
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​9.4.4 delivery of the Service, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising out of or in connection with any Service.

9.5 The Customer does not carry out verification or identification checks on Users or Suppliers, and the Customer shall not be liable to any User or Supplier as a result of any fraud or misrepresentation on the part of any User or Supplier.

9.6 Nothing in this clause 9 shall limit the Customer’s payment obligations under the Contract.

9.7 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence.

9.8 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 14 days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

10.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

​10.1.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of [5] days after being notified in writing to do so;
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​10.1.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
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​10.1.3 the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

​10.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
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​10.2.2 there is a change of control of the Customer.

10.3 On termination of the Contract for whatever reason:

​10.3.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
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​10.3.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
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​10.3.3 termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.

11.2 Assignment and other dealings.

​11.2.1 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.
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​11.2.2 The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

11.3 Confidentiality.

​11.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of [two] years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 11.3. For the purposes of this clause 11.3, “group” means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
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​11.3.2 Each party may disclose the other party’s confidential information:
​(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

11.4 Entire agreement. The Contract 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.

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

11.6 Waiver.

11.6.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

11.6.2 A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.7 Severance. If any provision or part-provision of the Contract 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 11.7 shall not affect the validity and enforceability of the rest of the Contract.

11.8 Non-Solicitation. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this Contract to the expiry of 12 months after the termination of this Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, supplier, consultant or subcontractor of the Supplier in the provision of the Services.

11.9 Notices.

​11.9.1 Any notice or other communication given to a party under or in connection with the 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) sent by email to the address specified in Schedule 1.

11.9.2 Any notice or communication shall be deemed to have been received:
​(a) if delivered by hand, at the time the notice is left at the proper address;
​(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; or
​(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

11.9.3 This clause 11.9 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.

11.10 Governing law. The Contract, 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 Ireland.

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

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