Terms and conditions for the supply of services. The Customer's attention is particularly drawn to the provisions of clause 9.
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Advertisement: means an advertisement to be displayed on the Website (including in any of the Supplier’s downloadable eBooks).
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.8.
Content: all text, information, data, software, executable code, images, audio or video material in whatever medium or form provided to the Supplier by the Customer for incorporation into an Advertisement.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Extension Confirmation: the Customer’s confirmation to the Supplier (verbally, in writing or through the Website) that the Customer wishes to extend the term of the Contract.
Insolvency Event occurs where:
- a party makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
- any distress or execution is levied upon a party, its property or assets;
- an administrator or administrative receiver or receiver is appointed over all or part of the party’s undertaking, property or assets;
- a party ceases, or threatens to cease, to carry on business;
- a party becomes unable to pay its debts as they fall due; or
- any analogous proceedings or events similar to those specified above are instituted or occur in relation to a party elsewhere than in England or Wales.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for Services as set out in the Order Form or Extension Confirmation.
Order Form: the Supplier’s online Order Form on the Website detailing the Services.
Supplier’s Rate Card: the document containing prices and descriptions for the different advertisement placement options (including, where relevant, the percentage of pages on the Website that the Advertisement will be displayed) available on the Website or available to be emailed to the Customer on request by the Customer to the Supplier .
Services: the services supplied by the Supplier to the Customer as set out in the Order Form.
Supplier: Square Meter Media Limited, Registered Office: St Mary’s House, Netherhampton, Salisbury SP2 8PU.
Website: means the web pages on the world wide website operated by or on behalf of the Supplier.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase 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
(e) a reference to writing or written includes emails.
2. Basis of contract
2.1 The Order shall constitute an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier sends an email confirmation that the Order has been accepted to the email address provided by the Customer in the Order Form (whether or not this is received by the Customer) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions and such additional conditions (if any) as may be set out in the Supplier’s Rate Card apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 In the event of any variations or inconsistency between these Conditions and the conditions set out in the Supplier’s Rate Card, the latter shall prevail.
2.6 Any quotation given by the Supplier shall not constitute an offer.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Order Form in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services (including any Advertisement) which:
(a) are necessary to comply with any applicable law, the British Code of Advertising Practice and all other codes under the general supervision of the Advertising Standards Authority or the production and quality specifications stipulated or referred to in the Supplier’s Rate Card; or
(b) do not materially affect the nature or quality of the Services;
and the Supplier shall notify the Customer in any such event.
3.4 The Supplier has the right at its discretion to decline to publish, or to omit, suspend or change the position of, any Advertisement otherwise accepted for insertion.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6 The Supplier shall use its reasonable endeavours to ensure an Advertisement is published on the Website within 5 Business Days of receipt of the Advertisement by the Supplier from the Customer in the form required by these Conditions.
3.7 On the reasonable request of the Customer, the Supplier will amend an Advertisement within 5 Business Days of request.
3.8 In the event the Customer wishes to extend the period for the supply of the Services it shall send an Extension Confirmation to the Supplier. The Extension Confirmation shall only be deemed to be accepted when the Supplier sends an email confirmation that the Extension Confirmation has been accepted (whether or not this is received by the Customer) to the email address provided by the Customer in the Order Form or subsequently notified to the Supplier, at which point it will operate tp extend the Contract accordingly.
3.9 Where the Services include subscription to the Supplier’s mailing list service the Customer will not be entitled to receive any personal information relating to the persons on the mailing list.
4. Customer's obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information supplied in connection with an Advertisement are accurate, complete and true;
(b) ensure that Content is provided in optimised png, jpeg or animated gif format.
(c) ensure that all Content submitted to the Supplier is legal, decent, honest and truthful and complies with the British Code of Advertising Practice and all other relevant codes under the general supervision of the Advertising Standards Agency along with all relevant legislation for the time being in force or applicable in the United Kingdom (including but not limited to competition, anti-discrimination and false advertising laws);
(d) Ensure that all Content supplied to the Supplier in relation to the Services does not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(e) co-operate with the Supplier in all matters relating to the Services; and
(f) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services (including, without limitation, removal of the Advertisement) until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The charges for the Services shall be as set out in the Order Form, or if no price is stated, the charges for the Services will be in accordance with the standard prices as set out in the Supplier’s Rate Card (Charges).
5.2 The Supplier shall have the right to change the rates states in the Supplier’s Rate Card at any time.
5.3 In the absence of any other specific arrangement between the Supplier and the Customer, payment in respect of the Services is due with the Order Form or, where a contract already exists and is to be extended in accordance with clause 3.8 , with the Extension Confirmation.
5.4 Time for payment shall be of the essence of the Contract.
5.5 Unless otherwise agreed in writing with the Supplier, payment for the Services will be made by the Customer using the Supplier’s nominated online payment provider.
5.6 Unless expressly stated, all amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current HSBC Bank plc's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
5.9 The Supplier will not be liable to refund the Customer for any Charges in the event of the termination of the Contract in accordance with clause 10 (Termination) save where the Supplier is shown to be a Defaulting Party in accordance with clause 10.1.
6. Licence
6.1 Subject to clause 6.2 during the duration of the Contract, the Customer grants to the Supplier a non-exclusive licence (including the right to sub-licence) to include the Content on the Website.
6.2 The licence granted under 6.1 permits the Supplier for the purposes of carrying out the Services to:
(a) modify, electronically reproduce and distribute, and publically perform and display the Content on the Website;
(b) reproduce and distribute through any media now known, or hereafter developed, excerpts of the Content in Advertisements for, and in marketing and promotional materials related to the Website; and
(c) post hypertext links to the Customer’s Website.
7. Intellectual property rights
7.1 The Supplier retains all Intellectual Property Rights in the Website and nothing in these Conditions shall be taken to grant any rights to the Customer in respect of such Intellectual Property Rights.
7.2 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with the Customer.
7.3 The Customer shall indemnify the Supplier against all costs, claims, damages, losses and expenses arising as a result of any claim or action that the Content and any Advertisement infringes Intellectual Property Rights belonging to a third party.
7.4 The Customer warrants that in respect of any Content which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified the Customer has obtained the authority of such living person to make use of such name, representation and/or copy.
8. Confidentiality
8.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8 shall survive termination of the Contract.
9. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
(b) the Supplier will not be liable for any loss of Content provided to the Supplier by the Customer; and
(c) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the cost of the Services.
9.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10. Termination
10.1 A party (Non-Defaulting Party) shall be entitled to terminate this Agreement with immediate effect by serving written notice on the other party (Defaulting Party) if:
(a) the Defaulting Party materially defaults in or commits any material breach of any of its obligations under the Contract and (where capable of remedy) fails to remedy such breach at the written request of the Non-Defaulting Party within 30 days of notification by the Non-Defaulting Party; or
(b) the Defaulting Party suffers an Insolvency Event.
10.2 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 3 months' written notice.
10.3 Subject to clause 5.8, the Customer shall have the right to request removal of the Advertisement from the Website at any time during the Contract.
10.4 In the event of a request by the Customer under clause 10.3 the Supplier shall remove the Advertisement from the Website within 5 Business Days of receipt of the request.
10.5 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to an Insolvency Event or the Supplier reasonably believes that the Customer is about to become subject to an Insolvency Event, if the Customer fails to pay any amount due under the Contract on the due date for payment.
11. Consequences of termination
11.1 On termination of the Contract for any reason the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. General
12.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, Website downtime caused by the Website provider’s default or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
12.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.3 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
(c) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause 12.3, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
12.4 Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing.
12.9 Governing law and jurisdiction: This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.