Content App – Standard Terms & Conditions (the “Conditions”)
As At 24th November 2018
CONTRACT BETWEEN CONTENT APP LIMITED AND CUSTOMER
1.1 No contract shall subsist between Content App Limited (Content App) and the Customer until the earlier of the Customer completing a Content App Limited order form or the Customer first using the software provided by Content App Limited, (the “Services”). The Customer is defined as the organization, corporate body or other party completing a Content App order form and subsequently pays the charges due to Content App.
1.2 The contract between Content App Limited and the Customer (the “Contract”) shall comprise the completed order Form (either paper or online sign up via the Content App Limited website), these Conditions and other appendices attached to these Conditions. This is to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or other document).
1.3 The Services shall comprise all of the functionality provided to the Customer via the Content App website from time to time.
The term of the Contract shall be the period stated on the Client Order Form as indicated by the Contract Start and End Date (the “Term”) and subject to the termination provisions in section xx “Termination”
OBLIGATIONS OF CONTENT APP & THE CUSTOMER
Obligations of Content App
3.1 Content App shall use all reasonable skill & care and comply with applicable laws in the United Kingdom in the provision of the Services but makes no representation or warranty that the Service is free from error at all times, or the continued availability content source or other channel operated by a third party and incorporated or otherwise integrated into the Services.
3.2 Content App may temporarily suspend and/or alter the operation of the Services for legal or technical reasons and shall use all reasonable endeavours to notify the Customer as far in advance as possible of any suspension or significant alteration. The Customer acknowledges that prior notice may not always be possible.
Obligation of the Customer
3.3 The Customer shall not disclose its user logins or passwords for the Services to any third party.
3.4 The Customer shall ensure that only its personnel access the Services and such personnel use a unique Login ID and password to access the Services.
3.6 The Customer is responsible for ensuring that its use of the Services comply with all applicable laws, regulations and codes of practice and will not be defamatory or infringe the copyright, trade mark or other rights of any third party.
3.7 The Customer is responsible for complying with the terms and conditions and the payment of all charges of any third party it contracts with in using the Services.
3.8 The Customer shall not resell the Services or license the use of the Services to any third party. This clause does not preclude use of the Services under this Agreement by any part of the Customer’s Group, as defined by the Companies Act 2006 and subject to clause 5.2 and 5.3 below.
3.9 The Customer shall not publish, disclose, reproduce or create derivative works from any information obtained pursuant to the Customer’s use of the Services unless expressly agreed in writing by Content App.
3.10 The Customer shall not copy, make modifications to, reverse engineer or decompile the software supporting the Services, except to the extent permitted by law.
3.11 The Customer is responsible for all content uploaded, posted, published, displayed, emailed or otherwise transmitted by its personnel when using the Services and the Customer hereby indemnifies Content App against any actions initiated by a third party from the Customers misuse of the Services.
3.12 for the avoidance of doubt, the customer must prevent its personnel distributing content which:
- infringes any intellectual property or other proprietary rights of any party;
- forges headers or otherwise manipulates identifiers to disguise the origin of any materials posted or transmitted using the service.
- they has no right to upload under any law or under contractual or fiduciary relationships;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- poses or creates a privacy or security risk to any person;
- constitutes unsolicited or unauthorized advertising, promotional materials or commercial activities
- is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libellous, lewd, profane, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; to stalk, intimidate and / or otherwise harass another, to incite others to commit any of the above acts, to harm minors in anyway.
3.13 The Customer and its personnel must not use any data mining, robots or other data gathering and extraction methods in connection with the Services.
3.14 The Customer agrees Content App has the right to impose reasonable size limits on the storage utilized on Content App servers by the Customer during its use of the services. Size limits can be imposed by requesting you to delete excessive content or to pay additional charges for storage at rates to be agreed between the parties.
CHARGES FOR THE USE OF THE SERVICES
4.1 Charges are as stated on the Order Form or the Content App webstie pricing section and are exclusive of VAT which shall be paid by the Customer at the rate and in the manner prescribed by English law.
4.2 The Customer shall pay all invoices within 7 days of receipt and must complete a direct debit instruction via the Gocardless functionality provided by Content App unless otherwise stated on the Order Form.
4.3 The Customer must notify Content App of any disputed invoices with 7 days of issue.
4.4 If the Customer fails to pay any undisputed amount by the due date then:
4.4.1 Content App reserves the right to charge interest at the rate of 2% above Bank of England base lending rate in force from time to time; and
4.4.2 Without prejudice to any other right or remedy available to Content App, Content App shall be entitled to suspend the Customer’s access to the Services until full payment has been made of all outstanding items.
INTELLECTUAL PROPERTY RIGHTS
5.1 The Customer acknowledges that Content App is the owner or licensee of all intellectual property rights in the Services and that the Customer has no rights in, or to, such intellectual property other than the right to use the Services in accordance with these Terms & Conditions.
5.2 The Customer agrees that Content App may use anonymised, non-personally identifiable, aggregated data in marketing materials, reports and other commercial products.
5.3 Content App shall indemnify the Customer (“the Indemnified Party”) against all damages, costs, charges, losses, liabilities and expenses incurred by the Indemnified Party arising from or incurred by reason of any third party claim or suit alleging that the use the Services infringes any Intellectual Property Right belonging to a third party anywhere in the world. The Indemnified Party shall:
5.3.1 promptly notify Content App in writing of any such claim or suit;
5.3.2 make no admissions or settlements without the prior written consent of Content App.
5.3.3 at the request and expense of Content App, to allow Content App complete control over any negotiations or litigation and/or the defense or settlement of such claim or suit (provided that Content App seeks input from and takes into account the Indemnified Party’s interests in the handling of the negotiations or litigation); and
5.3.4 give Content App all information and assistance as Content App may reasonably require.
5.4 Content App shall not use the Indemnified Party’s name in any action or claim without that party’s prior written consent.
5.5 Content App shall have no obligations under Clause 5.3 to the extent that any alleged infringement arises from:
5.5.1 modifications made by the Customer to the Services not permitted to be made under these Terms & Conditions;
5.5.2 use of the Services in any manner in breach of this Agreement.
5.6 Without limitation to Clause 5.3, in the event that the use of the Services by the Indemnified Party infringes or, if in the opinion of Content App, is likely to be held to infringe any Intellectual Property Right belonging to a third party, Content App may, at its option and expense, promptly and within a maximum of 3 months:
5.6.1 procure for the Indemnified Party the right to continue using the Services free from any liability for such infringement; or
5.6.2 modify or replace the Services so as to avoid the infringement but providing the Indemnified Party with substantially the same functionality and performance; or
5.6.3 in the event that the remedies in 5.6.1 and 5.6.2 are not commercially possible, the contract will be terminated and the Indemnified Party will be entitled to a pro rata refund of all Fees paid under this contract calculated by reference to the date the infringement was identified to the date of termination.
5.7 The Customer shall give notice to Content App if the Customer becomes aware of any unauthorised use or exploitation of the whole or any part of the Services.
Data protection and in particular the application of the GDPR is covered by a separate data processing agreement between that parties that is available on the Website of Content App. In signing an order form or upon first use of the Services the Customer is giving their explicit agreement to the application of that data processing agreement to the services provided by Content App.
7.1 Both parties to these Terms & Conditions agree to keep the terms and any and all information that is obtained about the business, finances, technology and affairs of the other strictly confidential.
7.2 The Customer agrees that whilst it remains a customer of Content App, Content App may refer to the Customer as being a Customer by name and/or Logo on the website of Content App and on any other marketing materials produced by Content App from time to time.
7.3 Each party shall, on request, return to the other all Confidential Information of the other party (whether held by it or its officers, employees, agents or contractors) which is in a physical form (including all copies) and shall, on request, destroy any other records (including, without limitation, those in machine-readable form) containing Confidential Information.
7.4 The provisions of this Clause 7 shall not apply to information which:
7.4.1 is in or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
7.4.2 is lawfully received from a third party free of any obligations of confidence at the time of its disclosure;
7.4.3 is independently developed by the recipient, its officers, employees, agents or contractors;
7.4.4 is required by law, by court or governmental order to be disclosed; or
7.4.5 is communicated to a third party with the express written consent of the disclosing party.
7.5 Both parties, without prejudice to any other rights or remedies which the other party may have, acknowledge and agree that damages may not be an adequate remedy for any breach by the other of the provisions of this Clause 7 and that each shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the other party and no proof of damages shall be necessary for the enforcement by any party of its rights under this Clause 7.
7.6 Each party shall indemnify the other in respect of all actions, claims and losses which the other party may incur arising out of a breach of any of the terms contained in this clause 8.
7.7 The obligations under this Clause 7 shall survive for a period of 3 years from the date of variation, expiry or termination of this Agreement.
LIMITATION OF LIABILITY
8.1 This clause sets out the entire financial liability of Content App to the Customer in respect of:
8.1.1 any breach of the Contract;
8.1.2 any use made by the Customer of the Services; and
8.1.3 any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law in relation to the Services are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in the Contract shall exclude or limit liability for death or personal injury resulting from the negligent breach of statutory duty or interference with legal right of Content App or for fraud or for any other liability that cannot be excluded or limited by law.
8.4 Neither party to this Contract shall be liable to the other under or in connection with the Contract for any loss of indirect, special or consequential loss or damage, loss of business or goodwill, profit or revenue and shall allow for specific claims (for instance in relation to provision of the Services).
8.5 Subject to clauses 5, 7.1.3, and the data processing agreement the total liability of one party to the other under these terms and conditions in respect of any loss or damage under or in connection with the Contract shall not exceed the aggregate amount of Fees paid by the Customer, in the twelve months immediately preceding the incurring of such loss or damage.
ANTI-BRIBERY & CORRUPTION
- Content App shall not and shall procure that its Personnel shall not solicit or accept any gratuities, or offer, give or agree to give to any employee, contractor, agent or representative of the Customer any gift or consideration of any kind which could act as an inducement or reward for doing (or refraining from doing) any act in relation to this Contract.
- Content App shall take all reasonable steps, in accordance with Good Industry Practice, to prevent fraud or bribery by its Personnel in the performance of the Services.
- Content App shall:
- comply with all United Kingdom applicable laws, statutes and regulations relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (the “Relevant Requirements”); and
- have and maintain in place (and shall ensure that its employees adhere to) throughout the term of this Contract its own policies and procedures (including adequate procedures under the Bribery Act 2010) relating to anti-bribery and anti-corruption.
- Either party may terminate the Contract:
- immediately upon written notice to the other party if the other party commits any material or persistent breach of any of the provisions of the Contract and, in the case of a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving particulars of the breach and requiring it to be remedied; or
- immediately upon written notice to the other party if the other party shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due.
- For any reason on the provision of 7 days written notice to the other.
- Upon termination of the Contract:
- the Customer shall immediately cease using the Services and permanently delete all login passwords for the Services; and
- The breaching Party shall immediately pay to the other Party any outstanding or prepaid sums due pursuant to the Contract.
- Termination of the Contract shall not affect the accrued rights or liabilities of the Party under the Contract nor any provision of the Contract which is expressed or required to survive or operate in such event.
Neither party shall be liable for any delay or non-performance under the Contract caused by any event beyond its reasonable control (a “Force Majeure Event”) provided that the party affected gives prompt notice in writing to the other party of such Force Majeure Event and uses all reasonable endeavours to continue to perform its obligations under the Contract. If the Force Majeure Event continues for more than one month, the party not subject to the Force Majeure Event may terminate the Contract by notice in writing to the other party.
- Any notice pursuant to this contract shall be deemed to have been served:
- if hand-delivered at the time of delivery (with hard copy to be forwarded by first class mail or, if overseas, by airmail);
- if by first class recorded delivery within the United Kingdom, sent to the address of the party set out in the Order Form, two days after posting;
- if by registered airmail from outside of the United Kingdom, sent to the address of the party set out in the Order Form, seven days after posting;
- if sent by email to the [email protected] address at the time of receipt
- The Contract contains the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements or arrangements (written or oral) between the Parties in relation to such matters. No amendment, variation or modification of the Contract shall be deemed valid unless it is in writing and signed by the Parties.
- Neither party shall assign, transfer or deal in any other manner with all or any of its rights or obligations under the Contract.
- A person who is not a party to the Contract has no right under the Contracts (Rights of Third Party) Act 1999 to enforce any terms of the Contract.
- Nothing in the Contract shall be construed as creating a partnership, joint venture or agency of any kind between the Parties.
- No failure or delay by either party in exercising any of that party’s rights or remedies under the Contract shall operate as a waiver of those rights or remedies. No right or remedy of either party under the Contract shall be deemed to be waived unless the waiver is in writing and signed by both Parties. No waiver of any breach of the Contract is a waiver of any subsequent or other breach.
- If any provision of the Contract shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder of the Contract shall not be affected.
- In the event of a conflict between the Order Form and the Conditions, the Parties agree that the Order Form shall prevail.
- The Contract shall be governed by the laws of England and the Parties submit to the exclusive jurisdiction of the courts of England to settle any dispute concerning the Contract.