PLEASE READ CAREFULLY BEFORE USING THIS SITE
1. ABOUT US AND HOW TO CONTACT US
1.1 www.tacklestream.com (Website) is a site operated by Top Corner Editorial and Design Ltd.
1.2 Top Corner Editorial and Design Ltd (company number 05365421) (we and us) is a company registered in England and Wales and our registered address is at 23 Cottingham Way, Thrapston, Northants, England, NN14 4PL.
2. BY USING OUR SITE YOU ACCEPT THESE TERMS
2.2 This Website is for retailers and brand partners. It is not for consumers. If you are a consumer you must not use our Website.
2.3 If you do not agree to these terms, you must not use our Website.
2.4 We recommend that you print a copy of these terms for future reference.
3. THERE ARE OTHER TERMS THAT MAY APPLY TO YOU
3.2 If you are a brand partner our Online Advertising Service Terms and Conditions (see below) will also apply to your purchase of the advertising services.
4. WE MAY MAKE CHANGES TO THESE TERMS
4.1 We amend these terms from time to time. Every time you wish to use our Website, please check these terms to ensure you understand the terms that apply at that time
5. WE MAY MAKE CHANGES TO OUR WEBSITE
5.1 We may update and change our Website from time to time to reflect changes to our services, our users‘ needs and our business priorities.
6. WE MAY SUSPEND OR WITHDRAW OUR WEBSITE
6.1 We do not guarantee that our Website, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our Website for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
7. WE MAY TRANSFER THIS AGREEMENT TO SOMEONE ELSE
7.1 We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
8. YOU MUST KEEP YOUR ACCOUNT DETAILS SAFE
8.1 If you choose, or you are provided with, a username, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
8.3 If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at firstname.lastname@example.org.
9. HOW YOU MAY USE MATERIAL ON OUR SITE
9.1 We are the owner or the licensee of all intellectual property rights in our Website, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
9.2 You may print off one copy, and may download extracts, of any page(s) from our Website for your personal use and you may draw the attention of others within your organisation to content posted on our Website.
9.3 You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
9.4 Our status (and that of any identified contributors) as the authors of content on our Website must always be acknowledged.
9.5 You must not use any part of the content on our Website for commercial purposes without obtaining a licence to do so from us or our licensors.
10. DO NOT RELY ON INFORMATION ON THIS SITE
10.1 The content on our Website is provided for general information only and to give you a representation of our brand partners’ products. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Website.
10.2 Although we make reasonable efforts to update the information on our Website, we make no representations, warranties or guarantees, whether express or implied, that the content on our Website is accurate, complete or up to date.
11. WE ARE NOT RESPONSIBLE FOR WEBSITES WE LINK TO
11.1 Where our Website contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
11.2 We have no control over the contents of those sites or resources.
12. USER-GENERATED CONTENT IS NOT APPROVED BY US
12.1 This Website may include information and materials uploaded by other users of the site. This information and these materials have not been verified or approved by us. The views expressed by other users on our Website do not represent our views or values.
13. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
13.1 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
13.2 If you are a brand partner different limitations and exclusions of liability will apply to liability arising as a result of the supply of online advertising services to you, which will be set out in our Online Advertising Service Terms and Conditions (see below).
13.3 We exclude all implied conditions, warranties, representations or other terms that may apply to our Website or any content on it.
13.4 We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
- use of, or inability to use, our site; or
- use of or reliance on any content displayed on our Website.
In particular, we will not be liable for:
- loss of profits, sales, business, or revenue;
- business interruption;
- loss of anticipated savings;
- loss of business opportunity, goodwill or reputation; or
- any indirect or consequential loss or damage.
14. HOW WE MAY USE YOUR PERSONAL INFORMATION
15. UPLOADING CONTENT TO OUR SITE
15.1 Whenever you make use of a feature that allows you to upload content to our Website, or to make contact with other users of our Website (Contributions) you must comply with the content standards as follows:
a) A Contribution must:
- Be accurate (where it states facts).
- Be genuinely held (where it states opinions).
- Comply with the law applicable in England and Wales and in any country from which it is posted.
b) A Contribution must not:
- Be defamatory of any person.
- Be obscene, offensive, hateful or inflammatory.
- Bully, insult, intimidate or humiliate.
- Promote sexually explicit material.
- Include child sexual abuse material.
- Promote violence.
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any copyright, database right or trade mark of any other person.
- Be likely to deceive any person.
- Breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
- Promote any illegal activity.
- Be in contempt of court.
- Be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety.
- Be likely to harass, upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person.
- Give the impression that the Contribution emanates from Find A Counsellor Limited, if this is not the case.
- Advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse.
- Contain a statement which you know or believe, or have reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.
- Contain any advertising or promote any services or web links to other sites.
15.2 You warrant that any such Contribution does comply with those standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
15.3 Any content you upload to our Website will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, store and copy that content and to distribute and make it available to third parties.
15.4 We have the right to remove any posting you make on our Website, for whatever reason.
16. WE ARE NOT RESPONSIBLE FOR VIRUSES AND YOU MUST NOT INTRODUCE THEM
16.1 We do not guarantee that our Website will be secure or free from bugs or viruses.
16.2 You are responsible for configuring your information technology, computer programmes and platform to access our Website. You should use your own virus protection software.
16.3 You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to our Website, the server on which our site is stored or any server, computer or database connected to our Website. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately.
17. RULES ABOUT LINKING TO OUR SITE
17.1 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.
17.2 You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
17.3 You must not establish a link to our Website in any website that is not owned by you.
17.4 Our Website must not be framed on any other site, nor may you create a link to any part of our Website other than the home page.
17.5 We reserve the right to withdraw linking permission without notice.
18. WHICH COUNTRY’S LAWS APPLY TO ANY DISPUTES?
Online Advertising Service Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE AGREEING TO USE OUR ONLINE ADVERTISING SERVICES AS A BRAND PARTNER.
1. ABOUT US
1.1 Top Corner Editorial and Design Ltd (company number 05365421) (we and us) is a company registered in England and Wales and our registered address is at 23 Cottingham Way, Thrapston, Northants, England, NN14 4PL (Supplier).
2. DEFINITIONS AND INTERPRETATION
2.1 In these terms, the following words shall have the following meanings:
|Booking Form||The booking form which contains the description of the Services and the Charges.|
|Brand Partner||The person or firm who purchases the Services. Also referred to as ‘you’ or ‘your’.|
|Business Day||A day other than a Saturday, Sunday or public holiday in England (United Kingdom) when banks in London are open for business.|
|Charges||The charges payable by the Brand Partner for the supply of the Services in accordance with Clause 9.|
|Commencement Date||Has the meaning given at Clause 5.3.|
|Contract||Refers to this contractual agreement (comprising the Booking Form) and the terms and conditions within, as amended from time to time under Clause 19.1.|
|Personal Data||Have the meaning as defined in the Data Protection Legislation.|
|Data Protection Legislation||Any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 and any successor legislation; and (ii) for so long as and to the extent that the law of the EU has legal effect in the UK, the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable EU regulation relating to privacy.|
|Force Majeure Event||Has the meaning given to it in Clause 17.1.|
|Intellectual Property Rights||Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|Order||The Brand Partner’s order for Services as set out in the Booking Form.|
|Relevant Regulatory Bodies||Refers to any regulatory body of the country (or countries as the case may be) the Brand Partner operates within, and which the Brand Partner is required to comply with its regulations, codes and/or policies in the provision of its goods and/or services.|
|Services||The online advertising services the Supplier provides to the Brand Partner as specified in the Booking Form.|
|User||A retailer who has visited the Website and clicked on the Brand Partner’s product details and/or raised an enquiry with the Brand Partner.|
|Vulnerabilities||A weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.|
|Website||The Supplier’s website at URL www.tacklestream.com.|
2.2 This Contract shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
2.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.4 A reference to writing or written includes email.
2.5 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.
3. THE CONTRACT
3.1 This Contract forms the agreement between the Brand Partner and the Supplier for the supply of Services from the Supplier to the Brand Partner. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3.2 In the event of any conflict or inconsistency between this Contract and any other purported contract documents, terms and conditions, codes of conduct or policies, you agree that the terms of this Contract shall prevail.
3.3 This Contract shall apply to the exclusion of any other terms that the Brand Partner seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.4 This Contract is non-exclusive and does not prevent or restrict the Supplier from entering into similar or different agreements with third parties. The Supplier makes no representation that the terms of this Contract are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.
3.5 This Contract is made only in the English language.
3.6 You should print off a copy of this Contract or save them to your computer for future reference.
4. REGISTERING AS A BRAND PARTNER
4.1 To register as a Brand Partner you must complete the online registration form on the Website, or alternatively the Supplier may permit you to complete your registration via telephone or in person.
4.2 After you submit the registration form, you will receive an email from the Supplier acknowledging that we have received it.
5. ORDERING SERVICES
5.1 Upon you registering as a Brand Partner in accordance with Clause 4, the Supplier will contact you to make a proposal for the Services. The Supplier will present the proposal to you in the Booking Form.
5.2 If you agree to the details in the Booking Form you must sign and return it to the Supplier. This process is deemed to be your Order for the Services, which constitutes an offer by you to purchase the Services in accordance with this Contract.
5.3 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
5.4 If we are unable to supply you with the Services for any reason, we will inform you of this by email.
6. PROVIDING THE SERVICES
6.1 The Supplier shall use commercially reasonable endeavours to provide the Services in accordance with the specifications set out in the Booking Form.
6.2 The Supplier may install the Conversion Tracking Codes on the Website, to enable both parties to track User actions and behaviour when using the Website.
6.3 The Supplier shall be responsible for developing, operating and maintaining the Website.
6.4 The Supplier may at any time or times without notice to the Brand Partner change the name or design of the Website.
7. BRAND PARTNER OBLIGATIONS
7.1 The Brand Partner shall provide the Supplier with all co-operation in relation to this Contract.
7.2 The Brand Partner shall provide the Supplier at all material times with the information, in such format as the Supplier prescribes, which the Supplier reasonably requires to perform its duties, including:
- product specification details, marketing information, advertising copy and graphic material relating to the Brand Partner’s products; and
- information about the Brand Partner, including contact details, trade marks, domain names, logos or branding.
Once the Supplier has uploaded the information provided under this Clause 7.2 to the Website, the Supplier shall be under no obligation to amend the information, unless it comes to the Supplier’s attention that the information provided is incorrect or is misleading.
The Brand Partner shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of misleading marketing regulations or laws in the United Kingdom, arising out of or in connection with the Supplier’s use of the information provided under Clause 7.2.
7.3 The Brand Partner shall ensure that all information provided to the Supplier under Clause 7.2 shall comply with all applicable laws, regulations and codes of practice in the United Kingdom and in the country (or countries as the case may be) you operate within, will not be defamatory or infringe any Intellectual Property Rights of any third party whatsoever. The Brand Partner shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made by any third party in connection with a breach of this Clause 7.3 by the Brand Partner.
7.4 The Brand Partner shall comply with the compliance and regulatory requirements of the Relevant Regulatory Bodies, and all applicable laws and regulations with respect to its activities under this Contract and to its business. Failure to comply with this Clause 7.4 shall be deemed to be a material breach of this Contract. The Brand Partner shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made by any third party in connection with a breach of this Clause 7.4 by the Brand Partner.
7.5 The Brand Partner acknowledges and agrees that the Supplier is not responsible for any content on any third party websites which the Website provides links to.
7.6 If the Supplier’s ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in this Clause 7 (Your Default):
- The Supplier will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under Clause 15 (Termination);
- we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
- it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
8.1 The Brand Partner shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee of the Supplier in the provision of the Services.
8.2 Any consent given by the Supplier in accordance with Clause 8.1 shall be subject to the Brand Partner paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or, if higher, 20% of the annual remuneration to be paid by the Brand Partner to that employee.
9. CHARGES AND PAYMENT
9.1 In consideration of the Supplier providing the Services you must pay the Charges in accordance with this Clause 9.
9.2 The Charges are the prices quoted in the Booking Form.
9.3 If you wish to change the scope of the Services after the Supplier accepts your order, and we agree to such change, we will modify the Charges accordingly.
9.4 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date.
9.5 The Supplier’s Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay the Supplier such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
9.6 Timing for payment of the Charges by you shall be as specified in the Booking Form. If the Booking Form does not specify a payment schedule, the Supplier shall take your payment for the total Charges upon acceptance of the Order. Time for payment shall be of the essence of the Contract.
9.7 Payment for the Services, including all bank fees, is by direct debit, credit or debit card, wire transfer or via Paypal in full and in cleared funds to a bank account nominated in writing by the Supplier.
9.8 If you fail to make any payment due to the Supplier under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
9.9 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by you against any amount payable by the Supplier to you.
9.10 In the event that the Supplier is required to take action to enforce payment as a result of non-payment of Charges, the Supplier will charge any reasonable expenses it has incurred associated with such collection including, but without limitation, legal costs, court fees and collection agency fees.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Brand Partner) shall be owned by the Supplier.
10.2 All Intellectual Property Rights in the Website shall be owned by the Supplier.
10.3 The Brand Partner grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Brand Partner to the Supplier for the term of this agreement for the purpose of providing the Services to the Brand Partner.
11. DATA PROTECTION
11.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of Personal Data, including the Data Protection Legislation. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
11.3 This Clause 11 shall survive the termination of the Contract.
12.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specification, 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, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the agreement. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2 This Clause 12 shall survive termination of the Contract.
13.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Contract.
13.2 This Contract sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
13.3 The Supplier does not warrant that:
- the accessibility of the Website will be uninterrupted or error-free;
- the Website will be free from Vulnerabilities; or
- the use of the Services will result in an increase in business for the Brand Partner.
14. LIMITATION OF LIABILITY
14.1 Nothing in agreement shall limit or exclude either party’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- the indemnities provided at Clauses 7.2, 7.3 and 7.4; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2 Subject to Clause 14.1:
a) the Supplier shall under no circumstances whatever be liable to the Brand Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
- any loss of profit;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of us or corruption of software, data or information;
- loss of or damage to goodwill;
- loss of reputation; or
- any indirect or consequential loss.
b) the Supplier’s total liability to the Brand Partner in respect of all other losses arising under or in connection with the agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount of Charges paid by the Brand Partner in the 12 months preceding the date the liability arose.
14.3 The terms implied by by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.4 Unless the Brand Partner 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 Brand Partner became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.5 This Clause 14 shall survive termination of the Contract.
15. TERM AND TERMINATION
15.1 This Contract shall continue for the period as specified in the Booking Form, unless:
- the Supplier provides 30 days’ written notice to the Brand Partner of termination; or
- it is otherwise terminated in accordance with the provisions of this Contract.
15.2 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to the Brand Partner if:
- you commit a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 (fourteen) days after receipt of notice in writing to do so;
- you fail to pay any amount due under the Contract on the due date for payment;
- you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
- your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
16. EFFECT OF SUSPENSION OR TERMINATION
16.1 On suspension of the Services for any reason:
- the Brand Partner shall retain financial responsibility (in accordance with the agreement) and 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 yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Brand Partner immediately on receipt; and
- the Supplier shall have the right to suspend the Brand Partner’s registration on the Website, and remove any information relating to the Brand Partner on the Website.
16.2 On termination of the Contract for any reason:
- the Brand Partner shall retain financial responsibility (in accordance with the agreement) and 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 yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Brand Partner immediately on receipt;
- the Supplier shall remove all information relating to the Brand Partner from the Website;
- the accrued rights and remedies of the parties as at 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.
17. FORCE MAJEURE
17. 1 Neither party shall be liable to the other for any failure to fulfil the agreement or any provision of the agreement if fulfilment has been delayed, hindered or prevented by circumstances beyond our reasonable control including but not limited to fire, explosion, flood, tempest, unusually adverse weather conditions, failure or shortage of power supplies, fault or failure of plant or machinery of manufacturers, delayed delivery caused by manufacturers, war, hostilities, riot, acts of terrorism, strikes, lock-outs or other industrial action or trade dispute (Force Majeure Event).
17.2 Where one party becomes aware of a Force Majeure Event arising, that party shall immediately notify the other.
17.3 If a Force Majeure Event exceeds 30 days, either party may immediately terminate the agreement without liability, by providing written notice to the other party.
18. MULTI-TIERED DISPUTE RESOLUTION PROCEDURE
18.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
- either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Managing Director (or an individual of similar seniority) and the Managing Director of the Supplier shall attempt in good faith to resolve the Dispute;
- if the Managing Director of the Brand Partner and Managing Director of the Supplier are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 7 days after the date of the ADR notice.
18.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 19.9(b) (Jurisdiction) which clause shall apply at all times.
18.3 If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Clause 19.9(b) (Jurisdiction).
19. OTHER IMPORTANT TERMS
- No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- No failure or delay by a party to exercise any right or remedy provided under this Contract or by 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.3 Rights and remedies:
- Except as expressly provided in this Contract, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- 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.
- The Brand Partner shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
- The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.
19.6 No partnership or agency:
- Nothing in this Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19.7 Third party rights:
- This Contract does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Contract, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Contract.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
19.9 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 the law of England and Wales.
- 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 Contract or its subject matter or formation (including non-contractual disputes or claims).