General Terms

1. Structure of the Agreement

The “Agreement” is comprised of: (a) the provisions of these “General Terms and Conditions” or “GTCs” ; and (b) the document labelled “Order Form”, including all documentation referenced in the Order Form (the “Order Form”).

2. License

2.1

In this clause 2 (LICENCE) and where used elsewhere in this Agreement:

(a) “Authorised Users” means those employees of the Customer who are authorised by the Customer to access and use the Platform in accordance with this Agreement;

(b) “Platform” means the software applications and the platform known as 24social as described in the Platform Specification;

(c) “Platform Specification” has the meaning given in the Order Form;

(d) “Portal” means the following URL: https://app.24social.io; and

(e) “Third Party Integrations” means third party applications accessible through the Platform (including payment gateways and booking facilities and other plug-in services provided or made available by third parties (including, for example, DesignMyNight, MailChimp, Fatsoma, and Fixr)).

2.2

The Supplier grants to the Customer a non-exclusive and non-transferable right to permit the Authorised Users to access and use the Platform through (the “Portal”) during the Subscription Period solely for use in the Customer's internal business operations.

2.3

The Customer shall not permit anyone to access the Platform who is not an Authorised User without the prior written consent of the Supplier.

2.4

In order to ensure that security, performance, and stability of the Platform, the Supplier reserves the right to restrict the number of Authorised Users who may access the Platform provided that: (a) the Supplier gives reasonable advance notice of such restrictions; and (b) permits at least five (5) Authorised Users to access the Platform on a named or concurrent user basis at the Supplier’s discretion.

2.5

The Customer shall procure that each Authorised User shall keep secure and confidential their password for accessing the Platform.

2.6

The Customer shall not (and shall ensure that Authorised Users do not) access, store, distribute or transmit any software, code, file or programme which may prevent, impair or otherwise adversely affect the operation of the Platform (including without limitation worms, Trojan horses, viruses and other similar things or devices) or submit any material to the Platform that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or offensive (including without limitation racially or ethnically offensive);

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property, 

and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s (and all Authorised Users’) access to the Platform if any breach of this clause occurs.

2.7

The Customer shall not:

(a) have any right to copy, adapt, reverse engineer, de-compile, disassemble, modify, adapt or make error corrections to the Platform except, with respect to de-compilation of the Platform, to the extent such de-compilation is necessary for the exclusive purpose of obtaining the information necessary to create an independent program which can be operated with the Platform or with another program and the Customer’s right to de-compile the Platform shall not apply if:

  1. the Customer is in breach of the de-compilation conditions described in section 50B of the Copyright, Designs and Patents Act 1988; or
  2. the Supplier: (A) is prepared to carry out, and/or procure the carrying out of, such de-compilation in return for a reasonable fee; or (B) has provided the information necessary to achieve such inter-operation without such de-compilation within a reasonable period, and the Customer shall request that the Supplier carries out such action or provides such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such de-compilation;

(b) attempt to circumvent, disable, or otherwise interfere with any security related features of the Platform (including features that enforce limitations of use or prevent copying);

(c) remove any copyright or other Intellectual Property Rights notices from the Platform;

(d) access the Platform in order to build a product or service which competes with the Platform or the Services;

(e) use the Platform to provide services to third parties; or

(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make the Platform available to any third party except those comprising the Authorised Users.

2.8

The Customer shall: 

(a) to the extent within its control, use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform; and

(b) in the event that the Customer discovers or is made aware of any such unauthorised access or use, immediately give notice to the Supplier of such access or use.

3. Services

3.1

The Supplier shall, during the Subscription Period, provide the Services selected in the Order Form to the Customer on and subject to the terms of this Agreement (including, in particular, the Supplier’s obligations set out in clause 5 (SUPPLIER’S OBLIGATIONS).

3.2

In the event the Customer requires the Supplier to perform any additional services to: (a) the provision of access to the Platform; (b) the BAU Services; and (c) the services described in the Service Level Agreement  (the “Additional Services”) then the fees payable in consideration of any such Additional Services shall be  agreed between the Parties in writing and the parties shall also use their reasonable endeavours to agree a written statement of work for such Additional Services.

3.3

The Supplier has sole discretion and control over, and may modify at any time (with or without notice to the Customer), the functionality, performance, configuration, appearance and content of the Platform provided that, in each case such modifications do not result in a material reduction to, or loss of, the functionality, performance, transmission speeds, content, latency and/or accuracy of the Platform.

4. Personal Data

4.1

In this clause 4 and where used elsewhere in the Agreement:

(a) “Data Controller” means the entity which determines the purposes and means of the processing of the Personal Data.

(b) “Data Protection Laws” means the UK GDPR and all other mandatory laws and regulations of the European Union, the European Economic Area and their member states and the United Kingdom, applicable to the parties’ Processing of Personal Data under these General Terms and Conditions;

(c) “Data Subject” means someone who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity;

(d) “UK GDPR” means the UK retained version of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation), as amended from time to time;

(e) “Personal Data” means any information relating to Data Subject (including an End User) provided to the Supplier by or on behalf of the Customer in connection with the Services and pursuant to these General Terms and Conditions;

(f) “Process” means any operation or set of operations which is performed by the Supplier as part of the Services upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction and Processing shall be construed accordingly;

(g) “Standard Contractual Clauses” means:

  1. in respect of Personal Data originating from EU data subjects, the standard contractual clauses which consist of Commission Decision of 4 June 2021 repealing previous Implementing Decisions 2001/497/EC and 2010/87/EU as regards the introduction of an alternative set of standard contractual clauses for the transfer of Personal Data to third countries (2021/914/EC) pursuant to Regulation (EU) 2016/679; and
  2. in respect of Personal Data originating from UK data subjects: (A) the standard contractual clauses (in the form annexed to the European Commission's decision of 5 February 2010 on Standard Contractual Clauses) for the transfer of personal data to processors established in Third Countries; or (B) such replacement Standard Contractual clauses approved by the UK ICO;

(h) “Third Country” means a country which: (i) is not recognised by the European Commission as providing an adequate level of protection for Personal Data under the UK GDPR (or other Data Protection Laws (as applicable)); or (ii) is not covered by a framework recognised by the relevant authorities or courts as providing an adequate level of protection for personal data under the UK GDPR (or other Data Protection Laws (as applicable)).

4.2

Each party acknowledges that it shall act as an independent Data Controller in relation to the Personal Data collected by the Supplier under and in connection with the Agreement, and shall each be responsible for complying with its obligations as Data Controller under Data Protection Laws. 

4.3

The Customer warrants, represents and undertakes that all Personal Data that it provides to the Supplier has been collected and disclosed in accordance with Data Protection Laws to enable the Authorised Users to access and use the Services, and to enable the Supplier to Process such Personal Data exclusively as required under these General Terms and Conditions. Such Processing may include Processing the Personal Data in order to perform its obligations under these General Terms and Conditions, including:

(a) to generate and manage login details and access to, and security of, the Platform; 

(b) as necessary in connection with “know-your client”; anti-money laundering; and other compliance checks required to be taken under Applicable Laws;

(c) to comply with its legal and regulatory obligations; and

(d) for internal administration,

and such Processing may take place anywhere in the world provided that the Supplier complies with Data Protection Laws when transferring Personal Data to a Third Country. 

4.4

To the extent that the Customer is located in a Third Country, the provisions of this clause 4.4 shall apply:

(a) the Customer and the Supplier shall complete and enter into the relevant Standard Contractual Clauses. The Supplier shall be the “data exporter” and the Customer shall be the “data importer” for the purposes of the Standard Contractual Clauses; and

(b) the parties referred to at clause 4.4(a) agree to replace the provisions of the relevant Standard Contractual Clauses to the extent required by Data Protection Laws;

4.5

To the extent that the Customer is located in the EEA and the UK is considered a Third Country, the provisions of this clause 4.5 shall apply: (i) the Customer and the Supplier shall complete and enter into the relevant Standard Contractual Clauses. The Customer shall be the “data exporter” and the Supplier shall be the “data importer” for the purposes of the Standard Contractual Clauses; and (ii) the parties referred to at clause 4.5(i) agree to replace the provisions of the Standard Contractual Clauses to the extent required by Data Protection Laws.

5. Supplier's Obligations

5.1

The Supplier shall perform the Services: (a) in compliance with the Agreement; (b) in accordance with the Service Level Agreement described in the Order Form; (c) promptly using reasonable skill and care; and (d) substantially in accordance with the Service descriptions listed in the Order Form (including, where applicable, the Platform Specification and BAU Services Description)  except in trivial and/or immaterial respects that do not adversely affect its functionality or use.

5.2

The Supplier shall have no liability for Losses incurred under and/or in connection with this Agreement to the extent any such liability is caused by: (a) use of the Platform contrary to the Supplier's instructions, minimum requirements listed in Platform Specification or modification or alteration of the Platform by any person other than the Supplier or the Supplier's duly authorised contractors or agents; (b) any act or omission of the Customer or an Authorised User in breach of the Agreement; or (c) the unavailability of Third Party Integrations or any incorrect or inaccurate Third Party  Integrations.

5.3

The Supplier does not warrant, represent or undertake that the: (a) Customer's use of the Platform will be uninterrupted or error-free; or (b) information obtained by the Customer through the Platform or the Services will meet the Customer's requirements.

5.4

The Supplier shall have no liability for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.5

The Customer is responsible for all acts and omissions of Authorised Users as if such acts or omissions were its own.

5.6

An obligation of the Customer contained in this Agreement (unless the context reasonably requires otherwise) includes an obligation on the Customer to ensure that an Authorised User does not act, or omit to act, in breach of that obligation.

6. Customer's Obligations

6.1

The Customer shall:

(a) comply with all applicable laws, regulations and binding codes of practice with respect to its activities under and in connection with this Agreement;

(b) obtain and shall maintain all necessary licences, consents, and permissions necessary for it to: (i) provide and/or make available the Customer Materials and Personal Data under this Agreement; and (ii) connect its computing environment to the Platform.

(c) comply with all terms and conditions applicable to the Third Party Integrations;

(d) use the latest end-point security and versions of anti-virus definitions and software available from an industry accepted anti-virus software provider in respect of its computer systems, technology and network infrastructure;

(e) ensure that its network and systems comply with the relevant specifications necessary to access the Platform provided by the Supplier from time to time; and

(f) unless otherwise agreed in writing, be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

6.2

The Supplier may monitor the use of the Platform by the Customer and/or Authorised Users on a remote basis. 

7. Charges and Payment

7.1

The Customer shall pay the BAU Services Fees, System Access Fees and any Additional Services Fees to the Supplier in accordance with the terms of this Agreement.

7.2

Unless stated otherwise in the Order Form, the Supplier shall invoice the Customer for: 

(a) the System Access Fees and any Additional Services Fees monthly in arrears; and 

(b) the BAU Services Fees monthly in advance of the provision of the BAU Services. 

7.3

The Customer shall pay each invoice on or before the expiry of thirty (30) days from the date of an invoice (the “Due Date”), unless credit card/payment details have been provided in advance and Fees deducted in accordance with clause 7.10.

7.4

If the Supplier has not received payment in full of the Fees by the Due Date, then without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Platform and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at the maximum rate prescribed by applicable law, commencing on the Due Date and continuing until fully paid, whether before or after judgment.

7.5

All amounts and Fees stated or referred to in this Agreement are exclusive of all taxes, including any value added tax. 

7.6

If the Customer is required by applicable law to make any deduction or withholding from any payment to the Supplier then the sum due in respect of such payment shall be increased so that, after the making of such deduction or withholding, the Supplier receives a net sum equal to the sum it would have received had no such deduction or withholding been made.

7.7

Value added tax shall be added to the Supplier's invoice(s) at the appropriate rate (if applicable).

7.8

Subject to clause 7.9, the Supplier shall be entitled to be reimbursed for any expenses (such as travel or subsistence expenses) incurred in the performance of the Services which have been authorised in advance in writing (which may be by e-mail) by the Customer.

7.9

The Customer shall reimburse the Supplier for all expenses agreed pursuant to clause 7.8 provided that the reimbursement is on a ‘pass through’ basis with no additional mark up and the Supplier submits to the Customer appropriate receipts or proof of payment for such expenses.

7.10

If applicable, the Customer shall provide the Supplier with valid credit card/payment details in respect of the System Access Fees.

7.11

The Supplier shall be entitled to increase the Fees applicable to the following Subscription Period at any time prior to the expiry of the current Subscription Period by written notice to the Customer provided that such notice is given at least thirty (30) days before the expiry of the relevant Subscription Period in order to allow the Customer to exercise its rights under clause 11 (TERM AND TERMINATION).

8. Intellectual Property Rights

8.1

In this clause 8 (INTELLECTUAL PROPERTY RIGHTS) and where used elsewhere in the Agreement: 

(a) “Intellectual Property Rights” means:

  1. patents, any extensions of the exclusivity granted in connection with patents, petty patents, utility models, registered designs, plant variety rights, applications for any of the foregoing (including, but not limited to, continuations, continuations-in-part and divisional applications), the right to apply for and be granted any of the foregoing, rights in inventions;
  2. copyrights, design rights, semiconductor topography rights, moral rights, publication rights, database rights;
  3. trade marks and service marks, applications for any of the foregoing, the right to apply for any of the foregoing, rights in trade names, business names, brand names, get-up, logos, domain names and URLs;
  4. rights in know-how, trade secrets and confidential information, data exclusivity rights; and
  5. all other forms of intellectual property right having equivalent or similar effect to any of the foregoing which may exist anywhere in the world; and

(b) “Customer Materials means the Customer’s data submitted to the Platform together with all other content, materials, logos, and/or other creative, graphic and/or design assets provided and/or made available to the Supplier by the Customer under this Agreement.

8.2

The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in: 

(a) the Platform (excluding the Customer Materials); 

(b) all materials provided and/or made available as part of the Services; and

(c) any/all adaptations, add-ons, modifications, updates, and/or enhancements to the Platform and such materials (including as an Additional Service), 

(together, the “Supplier IPR”). 

8.3

The Supplier may freely incorporate feedback and/or suggested improvements to the Supplier IPR given by the Customer or an Authorised User.

8.4

Except as expressly stated in this Agreement the Customer shall have no right or interest in the Supplier IPR.

8.5

The Customer and/or its licensors own all Intellectual Property Rights in and to all of the Customer Materials and shall have sole responsibility for the legality, non-infringement, reliability, integrity, accuracy and quality of the Customer Materials. 

8.6

The Customer grants to the Supplier (and its sub-contractors) a non-exclusive, non-transferrable right to use the Customer Materials strictly to the extent necessary for the Supplier (or the Supplier’s sub-contractor as the case may be) to provide the Services.

8.7

If through the provision of the Service, use of the Platform or otherwise, the Customer (or an Authorised User) comes to own Intellectual Property Rights in the Supplier IPR by operation of appliable law and despite the provisions of clause 8.2 then the Customer shall (or shall ensure that the Authorised User in question shall) at the Supplier’s request take all steps necessary to assign such Intellectual Property Rights to the Supplier and, to the extent permitted by applicable law, waive all moral rights (and analogous rights) worldwide in connection with such Intellectual Property Rights.

9. Customer Indemnity

9.1

The Customer shall indemnify and hold harmless the Supplier, its affiliates, its and their officers, directors and employees against any Losses arising out of or in connection with any allegation or claim that the: (a) Customer Materials infringe any Intellectual Property Rights belonging to a third party; and/or (b) Customer’s use of the Third Party Integrations is in breach of terms applicable to such Third Party Integrations.

9.2

The Supplier shall ensure that the: (a) Customer is given prompt notice of any allegation or claim to which the indemnity in clause 9.1 applies; (b) Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim; and (c) Customer is given sole authority to defend or settle the claim.

10. Confidentiality

10.1

In this clause 10 (CONFIDENTIALITY) and where used elsewhere in this Agreement, “Confidential Information” means any and all information that is proprietary and/or confidential in nature and is either clearly labelled as such or would, by its nature, be considered by a reasonable business person to be confidential.

10.2

A party's Confidential Information shall not include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party's lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party.

10.3

Each party shall hold the other's Confidential Information in confidence and, subject to clauses 10.4 and 10.5, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than in connection with the performance or receipt of the Services (as the case may be).

10.4

The Supplier shall be entitled to disclose the Customer’s Confidential Information: (a) to any employee, consultant, contractor, auditor, professional advisor or other person engaged by the Supplier who have a need to know the Customer’s Confidential Information in connection with this Agreement and/or the Services; or (b) for the purpose of the examination and certification of the Supplier's accounts.

10.5

The Supplier shall use commercially reasonable efforts to ensure that the person to whom the Customer's Confidential Information is disclosed under clause 10.4 is bound by written confidentiality obligations substantially similar to those set out in this Agreement.

10.6

Either party may disclose the other party’s Confidential Information if and to the extent required by applicable law or by any regulatory body or securities exchange, provided that the disclosing party shall as soon as reasonably practicable and to the extent permitted by applicable law notify the other party in writing of the circumstances of such disclosure and the Confidential Information to which such disclosure applies.

10.7

Each party shall take reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

10.8

No party shall make, or permit any third party to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

10.9

The Customer acknowledges that the Supplier: (a) collects the metrics (including the date, time and number of logins) for the following reasons: (i) to plan and implement improvements to the Platform; (ii) prepare accurate invoices; (iii) evaluate adoption rates and the success of new features and releases of the Platform; and (iv) evaluate current performance of the Platform; and (b) may anonymise and aggregate the Customer data submitted to the Platform (“Aggregated Data”) for use by the Supplier for the purposes of analysing market trends, creating and publishing press releases and white papers, and preparing case studies,

and, in each case, the Customer hereby gives its consent to the same.

10.10

Aggregated Data will not be attributable to any particular Customer and the Supplier shall ensure that the aggregation does not reveal data about a Customer that would have a negative commercial impact on the Customer without their consent.

11. Term and Termination

11.1

In this clause 11 (TERM AND TERMINATION) and where used elsewhere in this Agreement:

(a) “Initial Subscription Period” has the meaning given in the Order Form;

(b) “Renewal Period” means a period of: (a) twelve (12) months where BAU Services have been purchased in the Order Form; or (b) three (3) months (or such other period specified in the Order Form) where BAU Services have not been purchased in an Order Form (i.e., Platform access only); and

(c) “Subscription Period” means the period commencing on the Effective Date and, subject to early termination of the Agreement in accordance with its terms, continuing in full force and effect until the later of expiry of the:

  1. Initial Subscription Period; or
  2. final Renewal Period (if the Initial Subscription Period has been extended pursuant to clause 11.3).
11.2

This Agreement shall take effect on the Effective Date and continue, unless terminated in accordance with its terms, for the Subscription Period.

11.3

The Agreement shall be automatically extended beyond the Initial Subscription Period for a Renewal Period unless and until one party gives written notice to the other of its intention not to renew the Agreement at the end of the Initial Subscription Period or the relevant Renewal Period (as the case may be) and provided that such written notice is received by such other party at least thirty (30) calendar days prior to the expiry of the:

(a) Initial Subscription Period (in respect of the first renewal); or

(b) then current Renewal Period (in the case of the second, and all subsequent, renewals),

as the case may be.

11.4

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party commits a Material breach (or a series of persistent breaches which together amount to a Material breach) of any term of this Agreement that:

(a) is irremediable; or

(b) if such breach is remediable, is not so remedied within thirty (30) calendar days from written notice requiring remedy of the Material breach.

11.5

Without limiting the Supplier’s rights to terminate under clause 11.4, the Supplier may terminate this Agreement if the Customer (or an Authorised User) commits any breach (Material or otherwise) of any one or more of the following clauses: 2 (LICENCE); 6.1(a) (CUSTOMER’S OBLIGATIONS); or 10 (CONFIDENTIALITY).

11.6

On termination or expiry of this Agreement for any reason:

(a) all rights and licences granted under this Agreement shall immediately terminate and the Customer must cease using the Platform;

(b) each party shall return, and make no further use of, any equipment, property, and other items (and all copies of them) belonging to the other party; and

(c) the Supplier may destroy or otherwise dispose of any of the Customer Materials in its possession unless the Supplier receives, no later than ten (10) calendar days from the effective date of the termination or expiry of this Agreement, a written request for the delivery to the Customer of such Customer Materials.

11.7

Termination or expiry of this Agreement (howsoever occurring) shall be without prejudice to any rights or liabilities which may have accrued up to the date of such termination or expiry and it shall not affect the coming into force or the continuance in force of any of its provisions which are expressly or by implication intended to come into or continue in force on or after such termination or expiry.

12. Limitation of Liability

12.1

Nothing in this Agreement shall limit or exclude either party's liability to the other to a greater extent than is permitted under applicable law for Losses resulting from:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation, or

(c) any matter in respect of which Losses may not be limited or excluded under applicable laws.

12.2

Except as expressly provided otherwise in clause 12.3, nothing in this Agreement shall limit or exclude the Customer’s liability: 

(a) to pay the Fees;

(b) under the indemnity given in clause 9.2; or

(c) for Losses resulting from a breach of clause 10 (CONFIDENTIALITY).

12.3

Subject to clause 12.1 and clause 12.2 (except under sub-clause 12.2(b)), neither party shall be liable to the other (or any third party claiming under or through the other) under any and all causes of action (whether such causes of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) for Losses that comprise:

(a) loss resulting from use of the Third Party Integrations;

(b) loss of profit or revenue (except for the Fees);

(c) loss of anticipated savings;

(d) loss of contract or business opportunity;

(e) depletion of goodwill;

(f) loss or corruption of data or information except as described in clause 4.16; or

(g) any special, indirect or consequential loss, 

in each case, whether arising directly or indirectly under or in connection with this Agreement and whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by a party at the Effective Date.

12.4

Subject to clauses 12.1, 12.2 and 12.3, each party’s total aggregate liability to the other (and to any third party claiming under or through the other) in each Contract Year and in respect of all Causes of Action arising in that Contract Year (as determined at the date when the liability giving rise to the Causes of Action arose) shall not exceed the total Fees paid by the Customer to the Supplier in respect of the Contract Year in question.

12.5

The parties agree that the provisions of this clause 12 (LIMITATION OF LIABILITY) are considered by them to be reasonable in all the circumstances, having taken into account section 11 and the guidelines in schedule 2 of the Unfair Contract Terms Act 1977 and the nature of the Services and the Fees.

13. Exclusion of Implied Warranties

13.1

Subject to clause 12.1 and except to the extent expressly set out in this Agreement (including in the Service Level Agreement), the Supplier does not give any warranties, representations or other commitments to the Customer (including as to the functionality, performance, availability, transmission speeds, content, latency and/or accuracy of the Platform, Third Party Integrations, and/or of any Service) and all other warranties, conditions, representations, and terms (whether written or oral, express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, including as to satisfactory quality, fitness for a particular purpose or use, accuracy, adequacy, completeness or timeliness) are hereby excluded to the fullest extent permitted by applicable law.

13.2

The Customer acknowledges and agrees that the Supplier: (a) has no control over the Third Party Integrations and is not responsible for their content and/or availability; and (b) does not endorse the content, or other material contained in, the Third Party Integrations and gives no warranties with respect to the same.

13.3

All Third Party Integrations are provided “as is” and “as available”.

14. Force Majeure

14.1

Other than in respect of the Customer’s obligation to pay the Fees or agreed expenses, neither party shall have any liability to the other under this Agreement if it is prevented from or delayed in performing its obligations, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications 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 or storm.

15. General

15.1

Survival: The rights and obligations under provisions of this Agreement which expressly or by their nature survive termination shall remain in full force and effect.

15.2

Conflicts: If and to the extent there is any conflict, inconsistency or ambiguity between any provision of this Agreement then such conflict, inconsistency or ambiguity shall be resolved in accordance with the following order of precedence (with the document higher in the list prevailing over a document lower in the list): (a) the Order Form; (b) the GTCs; and the remaining Appendices.

15.3

Subcontracting: The Supplier may sub-contract the performance of its obligations (or any part thereof) to any third party service-provider provided that the Supplier shall remain responsible for all acts and omissions of such third party service-providers that result in a breach of the Agreement.

15.4

Variations: No variation of this Agreement shall be effective unless it is in writing and signed by the parties.

15.5

No Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by applicable law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

15.6

Severability: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

15.7

Entire Agreement: This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

15.8

Assignment: Except in respect of invoice financing or the recovery of a debt owed, neither party shall assign any of its rights under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

15.9

Third Party Rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.

15.10

Notices: 

(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by: (a) hand or 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) except with respect to the service of legal proceedings, e-mail to the addresses referred to in sub-clause (b) (below).

(b) Any notice or communication shall be deemed to have been received:

  1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
  2. 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 at the time recorded by the delivery service; or
  3. if sent by e-mail to   nickm@mvgmedia.com, from an authorised representative of sufficient authority to give the notice, upon the generation of a receipt notice by the recipient's server or, if such notice is not generated, upon delivery to the recipient's server.
15.11

Governing Law and jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims).

16. Interpretation

16.1

In this Agreement:

(a) the headings are for convenience only and shall not affect the interpretation of the Agreement;

(b) any reference to a clause is a reference to a clause of the General Terms and Conditions and a reference to a paragraph is a reference to the relevant paragraph in an Appendix;

(c) any obligation in this Agreement on a party not to do something, includes an obligation not to agree, allow, permit or acquiesce to that thing being done;

(d) any reference in this Agreement to any enactment or statutory provision or subordinate legislation will be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders, rules or regulations made under such enactment;

(e) references to a party shall be construed as the Customer or the Supplier and parties shall be construed as the Customer and the Supplier taken together;

(f) any list, word, or phrase following the words including, include, in particular, for example, or any such similar expression shall be construed as having the phrase without limitation following them;

(g) the rule known as eiusdem generis shall not apply and accordingly, words introduced by the word other shall not be given a restrictive meaning by reason of the fact that such words are preceded by words indicating a particular class of acts, matters or things; and

(h) a reference to the performance of an obligation from a given date shall include that date;

(i) “Business Day” means a day other than a Saturday, Sunday or public holiday in England;

(j) “Losses” means all losses, liabilities, damages, costs, charges, and reasonably incurred expenses (including management time, legal fees, other professional advisers’ fees, and costs and disbursements of investigation, litigation, settlement, judgment, interest, fines, penalties and remedial actions) howsoever arising in connection with a party’s breach of the Agreement; and

(k) “Material” in the context of classifying the seriousness of a breach means that such breach is: (i) more than trivial but need not be repudiatory; and (ii) if not remedied (or if not capable of remedy), may or is likely to have, a serious impact on the benefit which the innocent party would otherwise derive from performance of the Agreement in accordance with its terms.