1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions “(Conditions)”.
1.1.1 “Agreed Position” means the agreed position of the Listing on the Site according to the type of listing.
1.1.2“Commencement Date” means the later of the anticipated commencement date stated at the point of order or the date the Listing appears on the site;
1.1.3“Contract” means the Customer’s purchase order and the Supplier’s acceptance of it on the Order Form, or the Customer’s acceptance of the Order Form for the provision of Services by the Supplier under Condition 2.2;
1.1.4“Customer” means the business person, firm or company who purchases Services from the Supplier, who will in all cases not be acting as a consumer;
1.1.5“Fee” means the charges payable by the Customer to the Supplier under the Contract in consideration of the provision of the Services plus VAT, which the Supplier shall add to its invoices at the appropriate rate.;
1.1.6“Intellectual Property Rights” means 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;
1.1.7“Location Search Phrase” means the keyword and geographic location agreed with the Customer on the Order Form, which when inputted by a user produces the Listing;
1.1.8“Point of Order” means either, verbal confirmation by the Customer (in respect of a telephone purchase) or electronic confirmation by the Customer (in respect of an online purchase);
1.1.9“Services” means the advertising and related production and administration services provided, or to be provided, by the Supplier under the Contract, including without limitation those services more particularly set out in clause 4.1, together with any other services which the Supplier provides or agrees to provide to the Customer;
1.1.10“Site” means the official www.chestersculturalcentre.co.uk website, or such other website.
1.1.11“Listing” means an advertisement that is served on the Site in relation to a search request by a user, and which is paid for by a Customer and which includes the Listing Information;
1.1.12“Listing Information” means the information (including, the data, information, details, titles, descriptions, URLs or other content) that is displayed in connection with a Listing;
1.1.13“Term” means the duration specified at the point of order or where we have made a Listing available to you a monthly rolling basis, indefinitely until terminated by you or us in accordance with the Contract.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.3 Words in the singular shall include the plural and vice versa.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re–enactment and includes any subordinate legislation for the time being in force made under it.
2. Application Of Conditions
2.1 These Conditions shall:
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier or the Customer payment, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
2.2.1 on the Order Form issued and executed by the Supplier; or
2.2.2 (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract. The Supplier shall be under no obligation to enter into a Contract with any Customer or prospective customer.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with Condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. Commencement and Duration
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the Commencement Date. In the event of delay caused by the negligence of the Supplier the Commencement Date shall be the date the Listings Information first appears on the Site.
3.2 The Services supplied under the Contract shall continue to be supplied for the Term agreed at the point of Order from the Commencement Date unless the Contract is terminated otherwise in accordance with these Conditions, except where;
3.2.1. We have made a Listing available to you on a monthly rolling basis, indefinitely, whereby this may be terminated by you or us giving not less than thirty days notice.
4. Supplier’s Obligations
4.1 In consideration of the payment of the Fee, the Supplier shall use reasonable endeavours to have the Customer’s Listing served in the Agreed Position on the Site incorporating the Listing Information for the Term upon input of the Location Search Phrase.
4.2 The Supplier shall take reasonable steps to ensure that the Listings Information and any other information disclosed to it in relation to the Contract is held secure and confidential throughout the period it is held in its possession, power or custody during the Term.
5. Customer’s Obligations
5.1 The Customer shall:
5.1.1 provide all Listing Information and related information as the Supplier may request in such manner and in such data format as requested by the Supplier, to ensure that it can be uploaded for serving on the Site;
5.1.2 ensure that at all times during the Term the use or display of its Listings shall not contravene any applicable criminal or civil laws, regulations or mandatory codes of practice, nor breach any Intellectual Property Rights or other rights of any third party;
5.1.3 take reasonable steps to ensure that any technical, business or commercial know–how and any other information disclosed to it in relation to the Contract by the Supplier shall be held secure and confidential throughout the period it is held in the Customer’s possession, power or custody during the Term and for three years thereafter.
5.1.4 cooperate with the Supplier in all matters relating to the Services and pay the Fees promptly.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub–contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud or breach of condition 5.1.2. In all other respects the provisions of Condition 9 shall apply.
5.4 The Customer shall ensure that all information provided for the purpose of publication within the Site is factually accurate and free from material misstatement.
6. Fees And Payment
6.1 The Customer shall pay all Fees as and when they fall due or in any event within 7 days of the date of invoice except where;
6.1.1 We have expressly agreed in writing to a payment plan, in which case the payment plan shall have precedence.
7. Intellectual Property Rights
7.1 All Intellectual Property Rights in the Listings Information shall remain vested in the Customer. The Customer grants the Supplier a personal royalty–free licence during the Term on a royalty–free, non–exclusive, worldwide basis to use the Listings Information to such extent as is necessary to enable the Customer to make reasonable use of the Services.
8. Interruption Or Cessation Of Service By CHESTERS cULTURAL cENTRE
8.1 Notwithstanding any other provision in these Conditions the Customer acknowledges:
8.1.1 that the Supplier does not guarantee any particular format of publication on the Site and reserves the right to change the look and feel of the Site; and
8.1.2 that consequently the Supplier shall not be in breach of this Contract in the circumstances envisaged by clause 8.1.1.
8.2 In the event that the Site is offline for any period or periods not exceeding 24 hours in aggregate during any month, or the Listing is not located at the Agreed Position within the Site for such period no compensation shall be payable to the Customer.
8.3 In the event that the Site is offline for longer period or periods not exceeding one (1) month, or the Listing is not in the Agreed Position within the Site for such a period, the Customer may, as its sole remedy, by notice require the provision of Services from the Supplier at the end of the Term free of charge for a period equal to the period the Site has been offline or the Listing has not been in the Agreed Position.
8.4 In the event that the Site is offline for a period or periods exceeding one (1) month or the Listing is not in the Agreed Position within the Site for such a period,, the contract will continue without payment of compensation, unless the Customer elects during any such period when the Site is offline or the Listing is not in the Agreed Position, to terminate the Contract by giving notice in writing to the Supplier, whereupon the Supplier will refund the Customer within 14 days a sum representing that part of the Fee that is attributable to the unexpired period of the Term down to the end of the Term, in full and final satisfaction of all claims against the Supplier.
9. Limitation Of Liability
9.1 Subject to Condition 5.3, this Condition sets out the entire financial liability of the either party (including any liability for the acts or omissions of its employees, agents and sub–contractors) to the other in respect of:
9.1.1 any breach of the Contract;
9.1.2 any use made by the other of the Services or any part of them; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes the liability of either party:
9.3.1 for death or personal injury resulting from negligence; or
9.3.2 for any damage or liability incurred by one party as a result of fraud or fraudulent misrepresentation by the other; or
9.4 Subject to Condition 5 .3 the total liability of either party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to a sum equal to the Fee.
10. Data Protection
11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than 7 days’ written notice if:
11.1.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or
11.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding–up order of the other party; or
11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
11.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
11.2 On termination of the Contract for any reason:
11.2.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
11.2.2 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.3 The Supplier may at any time terminate this Contract without cause upon giving 7 days’ written notice to the Customer. In this event, the Supplier will refund the Customer within 14 days a sum representing that part of the Fee that is attributable to the unexpired period of the Term in full and final satisfaction of all claims against the Supplier.
No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
14.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
15. Status Of Pre–Contractual Statements
Each of the parties acknowledges and agrees that, in entering into the Contract 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 these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract, save in respect of fraud.
Any notice given under this Contract shall be in writing, sent to the registered office of the relevant party (or such other address as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre–paid, first–class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre–paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this Condition 16 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
17. Governing Law And Jurisdiction
17.1 The Contract is made and shall be subject to the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.