Terms & Conditions
1.1 In these terms and conditions ("the Conditions") the following expressions shall have the following meanings:
“Annually”means each period of 12 calendar months during the Term
“Charges” means the charges shown in the schedule of Charges relating to the Service
“Client” means the person or persons named as the client on the Proposal for whom Contagious Communications Ltd has agreed to provide the services in accordance with these Conditions
“Confidential Information” means any information of a confidential nature which is disclosed by one of the parties hereto to the other pursuant to or in connection with the Contract (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such)
“Contract” means the contract for the provision of the Services attached here to as exhibit A.
“Force Majeure” means in relation to either of the parties hereto any circumstances beyond the reasonable control of that party (including without limitation any strike, lock out or other form of industrial action)
“Information” means all information in relation to the content delivered as part of the magazine, DVD, including all online properties, both www.contagiousmagazine.com and Contagious I/O.
“Media” means the entertainment media in which the Advertisements are displayed or contained in respect of which Contagious Communications Ltd is providing the Client with the Services as detailed in the Proposal
“Proposal” means the statement of work prepared by Contagious Communications Ltd and agreed between Contagious Communications Ltd and the Client attached hereto as exhibit A.
“Quarter” means each successive period of three calendar months during the Term
“Schedule of Charges” means the details of those sums that are to be paid to Contagious Communications Ltd by the Client as set forth in the Contract.
“Services” means the supply to the Client of the Information by such means of transmission as shall be agreed between Contagious Communications Ltd and the Client the details of which are contained in the Proposal, Appendix A.
“Special Terms” means any special terms and conditions identified in the Proposal.
“Term” means the period set forth in the Contract.
“Territory” means a particular country or geographical area designated by Contagious Communications Ltd in the Proposal.
“Contagious Communications Ltd” means Contagious Communications Ltd Information Limited (company number 3255646)
1.2 The headings in these Conditions are for convenience only and shall not affect its interpretation.
1.3 Any reference to a party includes reference to any of its employees, subcontractors, representatives or other third party under its control.
1.4 References to persons in these Conditions shall include bodies corporate.
2 Supply of the services
2.1 Contagious Communications Ltd shall provide the Services to the Client, subject to these Conditions and the Proposal.
2.2 The Client acknowledges that it has read and fully
understood the Proposal and these Conditions.
2.3 In the event of any conflict between the terms of the Proposal and the terms of these Conditions, the terms of the Proposal shall prevail including any Special Terms identified in the Proposal.
2.4 Contagious Communications Ltd agrees to perform the Services with all reasonable care and skill and to comply with the reasonable instruction of the Client in the performance of these obligations.
2.5 Any changes or additions to the Services or these
Conditions must be agreed in writing by Contagious Communications Ltd and the Client. Contagious Communications Ltd reserves the right to determine whether or not such changes are included within the Schedule of Charges. If not included, Contagious Communications Ltd shall not be required to carry out the change to the Services until the Client and Contagious Communications Ltd have agreed the additional charges in writing.
2.6 Contagious Communications Ltd may at any time notify the Client in writing of any changes to the Services which are necessary to comply with any mandatory statutory requirements. If such changes to the service are not acceptable to the Client in its sole discretion, the Client will be entitled to terminate the Contract and receive a refund on a pro rata basis for the remainder of the Term.
2.7 Contagious Communications Ltd shall supply and transmit to the Client, in whatever format as shall be specified in the Proposal, the Information.
3.1 In consideration of Contagious Communications Ltd providing the Services and subject to any Special Terms the Client shall pay to Contagious Communications Ltd the Charges as specified in the Schedule of Charges, and any additional sums which are mutually agreed between Contagious Communications Ltd and the Client for the provision of the Services.
3.2 All charges quoted to the Client for the provision of the Services are exclusive of any value added tax or applicable local sales tax for which the Client shall be additionally liable at the applicable rate from time to time.
3.3 The Charges and any additional sums payable shall be paid by the Client (together with any applicable value added tax or applicable local sales tax and without any set off or other deduction or withholding) within 30 days after the date on which the Client receives Contagious Communications Ltd’s invoice.
3.4 If payment is not made on the due date, Contagious Communications Ltd shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of Fortis Bank plc from the due date until the outstanding amount is paid in full.
3.5 Should the customer not remit within the stated credit terms, Contagious Communications Ltd reserves the right to remove the credit status from the account which in turn will render all remaining invoices due and payable. In the event of Contagious Communications Ltd having to employ the services of our appointed collection agent CRS to collect any overdue monies, Contagious Communications Ltd in addition to its statutory rights, will invoice the customer an amount of 10% of any monies sent to collection.
4.1 This Agreement is personal to the Client. The Client may not assign, mortgage, charge or otherwise dispose of its rights or obligations under this Contract.
4.2 Contagious Communications Ltd may assign, subcontract, mortgage, charge or otherwise dispose of its rights or obligations under this Contract, subject to prior notification to the Client and provided that such assignment, sub-contract or other disposal does not alter any of the other terms agreed herein; provided, however, upon any such assignment, subcontract, mortgage, charge or other disposal, the Client shall have the right , in its sole discretion, to terminate the Contract and receive a refund on a pro rata basis for the remainder of the Term.
4.3 Nothing in this Contract shall prevent Contagious Communications Ltd from carrying out the Services or any similar services for any other person, firm or company.
5.1 Contagious Communications Ltd warrants to the Client that the Services will be provided using reasonable care and skill, in accordance with the Proposal, and at the intervals and within the times referred to in the Proposal.
5.2 Where Contagious Communications Ltd supplies the Services based upon data supplied by a third party Contagious Communications Ltd does not give any warranty, guarantee or other terms as to their quality, fitness for purpose or otherwise, except as stated in the Proposal. The performance of the Contract by Contagious Communications Ltd will comply with all applicable laws and will not violate, or cause the Client to violate the intellectual property rights or other rights of any party.
5.3 Contagious Communications Ltd gives no guarantee that the Services will achieve any intended or desired result unless otherwise as stated in the Proposal.
6 Limitation of liability
6.1 Contagious Communications Ltd shall only be liable to the Client for damages caused by the negligence, wilful misconduct or breach of Contagious Communications Ltd or its employees, officers and/or directors. Contagious Communications Ltd shall not in any event be liable to the Client under or in connection with this Contract in contract, tort, negligence, pre-contract or in respect of any representation (other than fraudulent or negligent misrepresentation or as expressly stated in this Contract) or otherwise, for any loss of business, contracts, profits or anticipated savings or for any other indirect, special, incidental, consequential or economic loss whatsoever.
6.2 Except as set out in this Contract, Contagious Communications Ltd hereby excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Services, whether express or implied and whether imposed by statute or by operation of law or otherwise, that are not expressly stated herein, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.
6.3 Contagious Communications Ltd’s entire liability to the Client for damages in relation to performance or non-performance by Contagious Communications Ltd, or in any way related to the subject matter of this Contract, and regardless of whether the claim for damages is based in contract or tort shall not exceed the amount of the Charges paid by the Client to Contagious Communications Ltd. This limitation shall not apply in the event of fraud, gross negligence or will ful misconduct on the part of Contagious Communications Ltd.
7.1 The parties shall at all times during the continuance of this Contract and after its termination:
7.1.1. use all reasonable endeavours to keep all Confidential Information confidential and not disclose any Confidential Information to any other person;
7.1.2. not use any Confidential Information for any purpose other than the performance of its obligations under this Contract.
7.2 Upon receipt of a written request, the parties undertake to return immediately to the other all copies of the Confidential Information and to expunge all Confidential Information from any device containing it.
7.3 The Client agrees that at all times during the continuance of this Contract and after its termination the Information may only be used by the Client or its authorised designated advertising agency/agencies and may not be disclosed to any other third party without the prior written consent of Contagious Communications Ltd.
8 Force Majeure
Neither Contagious Communications Ltd nor the Client shall be deemed to be in breach of this Contract or otherwise be liable to the other by reason of any delay in performance or non-performance by any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure, and the time for performance of that obligation shall be extended accordingly. During any Force Majeur preventing performance by Contagious, the Client shall receive a pro rata refund for the period of non performance.
9 Intellectual Property
The Client acknowledges that the content of the Information is subject to copyright and accordingly the Client shall ensure that the Information is used solely for the Client’s research and/or reference purposes and may not be copied, reproduced, rebroadcast or commercially exploited in all or any part.
10 Duration and Termination
10.1 Subject to the conditions of clause 10.3, the Contract shall continue for the designated period specified in the Contract and, except as set forth herein, may not be cancelled or terminated by the Client during that period.
10.2 Other than termination of this Contract caused by an event listed under clause 10.3.1, 10.3.2, 10.3.3, 10.3.4 the Client shall not be entitled to a refund of any Charges incurred by Contagious Communications Ltd or any other expenditure incurred by the Client in respect of this Contract. In the event of termination under clause 10.3.1, the Client shall be entitled to a refund of charges commensurate with the remaining period of the Contract.
10.3 Either Contagious Communications Ltd or the Client shall be entitled forthwith to terminate this Contract by written notice to the other if:
10.3.1. that other party commits any material breach of any of the provisions of this Contract, and in the case of a breach capable of remedy, fails to remedy the same within 28 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; provided, however, that the Client shall be entitled to a pro rata refund for the period during which Contagious is in breach; or
10.3.2. an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party; or
10.3.3. that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; or
10.3.4. that other party goes into liquidation (except for the purposes of amalgamation or reconstruction).
10.4 On termination of this Contract the following shall operate:
10.4.1. Contagious Communications Ltd shall cease to be required to perform the Services;
10.4.2. The Client shall be entitled to a pro rata refund for the remainder of the Term.
No failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Conditions by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
12 Entire Agreement
These Conditions, the Proposal and the Schedule of Charges are the complete and exclusive statement of the agreement between the parties relating to the subject matter of these Conditions and supercedes all previous communications, agreements and other arrangements, written or oral.
13 Nature Of Agreement
13.1 Nothing in these Conditions shall create or be deemed to create a partnership or the relationship of principal and agent or employer and employee between the parties.
13.2 Each party acknowledges that in entering into this Contract it does not do so on the basis of and does not rely on any representations warranty or other provision except as expressly provided herein and all conditions warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
13.3 If any provision of these Conditions is held by any court or other competent authority to be void or unenforceable in whole or part this Contract shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
13.4 Save as otherwise provided herein, none of the parties shall have the right to bind the other to any agreement with any third party or to incur any obligation or liability on behalf of the other party.
13.5 Each of the parties hereto shall exercise all such powers as are available to it and do all such acts and things and sign, execute and deliver all such documents and instruments as may be necessary or reasonably required to give full effect to the provisions of these Conditions.
13.6 Each of the parties hereto hereby warrants for the benefit of the other parties hereto that it is empowered and has obtained (and will maintain) all necessary authorisations to enter into this Contract and to enter into all instruments required or contemplated pursuant to the provisions of this Contract and (subject to the provisions of this Contract) lawfully to give effect to each and all of its obligations undertaken or to be undertaken in or pursuant to this Contract or in or pursuant to such instruments as aforesaid.
14 Proper Law
The contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only.
Each of the parties hereby irrevocably consents to the service of any and all process in such action or proceeding by the mailing thereof to the address indicated at the beginning of this Contract; and agrees that a final judgement in any such action or proceeding shall be conclusive and enforceable in any other court of competent jurisdiction.
15 Notices and Service
15.1 Any notice or other information required or authorized by these Conditions to be given by any party to the other may be given by hand or sent (by first class pre-paid post, facsimile transmission or comparable means of communication) to the other party at the address referred to herein or as notified in writing from time to time.
15.2 Any notice or other information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed pre-paid registered and posted and that it has not been so returned to the sender shall be sufficient evidence that such notice or information has been duly given.
Any notice or other information sent by facsimile transmission or comparable means of communication shall be deemed to have been duly sent on the date of posting or transmission provided in the case of transmission that a confirming copy thereof is sent by first class pre-paid post to the other party within 24 hours after transmission.
This Agreement shall commence on the date specified in the contract (“Commencement Date”) and shall continue thereafter for the initial period specified in the Contract, which initial period shall be renewed only if agreed in writing.
16. Subscription Renewal Terms
16.1 The initial term of this Agreement shall be for the term of one (1) year (the “Initial Term”) commencing on the date this Agreement is executed. At the expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term” and collectively with the Initial Term the “Term”) unless a party provides the other parties with written notice of its intent not to renew this Merchant Agreement at least ninety (90) days prior to the expiration of the then current term.