Terms and Conditions
COOConnect STANDARD COMMERCIAL TERMS AND CONDITIONS
- Definitions and interpretation
1.1 In these Standard Terms and Conditions, the following words and expressions have the following meanings, unless the context otherwise requires:
"Agreement" means the Partner Agreement to which these Standard Terms and Conditions are attached, comprising the front page of this Agreement, this Schedule and the Exhibits thereto and any other documents incorporated therein;
"Confidential Information" means, in relation to the relevant Party, all information relating to the business, customers, financial or other affairs of that Party which is not in the public domain.
"Content" means all editorial and advertising or related branding material published or to be published on the Public Site, the Members' Site, the Magazine and at Events in accordance with the Publishing Resources.
"Events" means, within the resources provided under the Agreement, there may be meetings, workshops, panel discussions and other arranged interactions between the Partner and members of the COOConnect community;
"Insolvent" means in the case of either party the appointment of, or the application for (or other step taken in relation to) the appointment of, a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into of a scheme of arrangement or composition for the benefit of creditors generally, any re-organisation, moratorium or other administration involving its creditors or any class of its creditors, the proposal or passing of a resolution to wind it up (other than a voluntary winding-up as part of a reorganisation) or the company becoming unable or being deemed to be unable to pay its debts as and when they fall due within the meaning of section 123 of the Insolvency Act 1986;
"Intellectual Property" means any patents, designs, trade marks, trade names, copyright in all specifications, drawings and technical descriptions, software and databases, database rights, moral rights, inventions (whether or not capable of protection by patent or registration), and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any such rights and all rights or forms of protection having equivalent or similar effect anywhere in the world;
"Public Site" means COOConnect.com;
"Magazine" means the COOConnect magazine;
"Members' Site" means MyCOOConnect.com;
"Publishing Resources" means the publishing of partner submitted material as Content;
"Related Resources" means all Resources provided under this Agreement which are not Publishing Resources;
"Resources" means the partner Resources to be provided to the Partner which are set out in Exhibit A to this Agreement, comprising both the Publishing Resources and the Related Resources.
"Resource Fees" means the fees payable for the resources detailed on Exhibit A
"Users" means any person who accesses the Public Site or the Members' Site.
1.2 In this Agreement, unless otherwise specified, reference to:
(a) a "group undertaking" or an "undertaking" is to be construed in accordance with section 1161 of the Companies Act 2006, a "subsidiary undertaking" is to be construed in accordance with section 1162 of the Companies Act 2006 and a "subsidiary" or "holding company" is to be construed in accordance with section 1159 of that act;
(b) a person includes any person, individual, company, firm, corporation, government, state or agency of a state or any undertaking or organisation (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
(c) "includes" and "including" shall mean including without limitation; and
(d) "clauses", "paragraphs" or "schedules" are to clauses and paragraphs of and schedules to this agreement.
1.3 The headings in this agreement are for information only and are to be ignored in construing the same.
- Rights and obligations of COOConnect
2.1 COOConnect will provide the Partner with the Resources for the term of this Agreement.
2.2 COOConnect will retain full editorial control over all the Content and has, at its absolute discretion, the right to omit, suspend or change the position of or the content of any Content and the right to make any alteration it considers necessary or desirable in its sole discretion to the Content.
2.3 COOConnect, at its sole discretion, may make changes to the Related Resources and the delivery timetable of the Publishing Resources at any time. COOConnect's changes will not result in a material reduction in the level of performance of the Related Resources. COOConnect will give the Partner 30 days' advance notice of material changes to the delivery timetable of the Publishing Resources.
2.4 COOConnect warrants that the Resources shall comply in all material respects with their specification in Exhibit A to this Schedule. COOConnect shall, at no cost to the Partner, correct any defect in non-compliant Resources, or refund the price of such Resources if, in the sole discretion of COOConnect, correction is not practical, provided that the Partner notifies COOConnect of such non-compliance within 30 days of the defect occurring. The warranty set out in this clause is the only warranty given by COOConnect in respect of the Resources and all other warranties, conditions and other terms relating to the Resources of whatever nature are excluded to the fullest extent permitted by law.
- Rights and Obligations of the PARTNER
3.1 The Partner will submit to COOConnect suitable and relevant content, by the due dates notified to the Partner by COOConnect from time to time. The material submitted by the Partner shall be in a form suitable (as relevant) for:
(i) inclusion on the Public Site;
(ii) inclusion on the Members' Site;
3.2 All material submitted by the Partner shall be in accordance with any guidelines provided to the Partner by COOConnect from time to time.
3.3 Material submitted by the Partner must not contain any references which is likely to imply that COOConnect is in any way connected with:
(i) the Partner; or
(ii) the proprietors of any part of the submitted material.
3.4 COOConnect reserves the right to refuse any submitted material that in the sole opinion of COOConnect is similar in any way to the editorial style of the Public Site, the Members' Site or the Magazine.
3.5 Where the Partner has undertaken to supply material for insertion as Content and such material has been accepted by COOConnect, the relevant Resource will be deemed to be properly performed if such material fails to arrive at the agreed time, place or in suitable condition for insertion.
- PARTNER's warranties
4.1 The Partner warrants it has the full power and authority to enter into and perform the terms of this Agreement and has not entered into any arrangement which in any way conflicts with this Agreement or inhibits restricts or impairs its ability to perform its obligations under this Agreement.
4.2 The Partner warrants that any material submitted to be published as Content will:
(a) comply with the Trade Description act 1968 and 1972 (including any statutory re-enactment or modification thereof), The Financial Services Act 1986 and any other relevant legislation;
(b) not contain any material that shall infringe any copyright, right of trademark, right of privacy, right of publicity or personality or any other right of any other nature of any person, or be obscene or libellous or blasphemous or defamatory, and that the submitted material does not incorporate any third party source material, or otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction or which might bring COOConnect into disrepute;
(c) be legal, decent, honest and truthful so as to comply with the British Code of Advertising practice (for the time being in force), consumer protection legislation and other codes under the general supervision of the Advertising Standards Authority, the Trading Standards authorities or the Office of Fair Trading;
(d) be not subject to any claims, demands, liens, encumbrances or rights of any kind in the submitted material resulting from any act or omission of the Partner, which can or will impair or interfere with the rights of COOConnect, and that nothing contained in the submitted material, nor any use of it, will violate any right (including Intellectual Property) of any third party; and
(e) comply with the relevant parts of any policy or guidelines which may be provided by COOConnect to the Partner from time to time.
(f) does not contain material that is obscene, blasphemous, defamatory, infringing of any rights of any third party or otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction from which the Content will be accessible or which might bring COOConnect into disrepute.
4.3 The Partner warrants that it owns all necessary rights in, or has all necessary licences in respect of any Intellectual Property in the submitted material to be published as Content.
- Scope of Resources
5.1 The Partner understands and agrees that:
(a) the Resources are being provided to the Partner solely for the Partner's business purposes;
(b) COOConnect do not and cannot guarantee the accuracy, completeness or timeliness of the Resources relied on or the results obtained from the use of the Resources;
(c) the Partner understands and agrees that COOConnect is not an investment advisor to it or any other person and it should not rely upon any information provided by COOConnect or its Sources as investment advice, and nor should it encourage directly or indirectly any third person so to do, and it acknowledges that the same is not and will not be made available for such purpose; and
(d) COOConnect relies on its suppliers and other sources of information for the accuracy, sufficiency and completeness of the information used in developing the Resources and components thereof.
5.2 The Partner acknowledges and agrees that the Resources may contain additional disclaimers and limitations of liability, and that such additional disclaimers and limitations are hereby expressly incorporated into the terms of this Agreement.
- Payments and fees
6.1 In consideration for entering into this Agreement, Partner agrees to pay the Resource Fees within 30 days of receipt of a valid invoice.
6.2 All fees and prices hereunder are exclusive of any taxes including value added tax (VAT) (if applicable).
6.3 If Partner fails to pay any sum on the due date for payment, COOConnect may charge Partner interest at a rate of four per cent. per annum over the Bank of England base rate from time to time on the sum from the due date for payment on a daily basis until the date payment in full (including any accrued interest) from the Partner is received. COOConnect reserves the right to suspend any or all of the Resources as long as such amounts remain unpaid.
- Intellectual property RIGHTS
7.1 The Partner agrees and acknowledges that all Intellectual Property in the Resources is and will remain with COOConnect.
7.2 COOConnect grants Partner a non-exclusive, non-transferable, limited license to access the Resources and the Content for its own internal business purposes in the conduct of its normal business affairs.
7.3 The Partner agrees to protect (and to ensure that its employees, agents and consultants protect) any Intellectual Property in, and the confidentiality of, the Resources during and after the term of the Agreement, and the Partner further agrees to honour all reasonable requests by COOConnect to protect such rights and confidentiality.
7.4 The Partner agrees and acknowledges that no ownership and/or license rights in respect of trade marks used in connection with the Resources are being transferred or granted hereunder to the Partner.
7.5 COOConnect will be entitled to use the Partner's name and trade marks in connection with providing the Resources.
7.6 In the event that the Partner is permitted to include any third party licensed content in any print and electronic material submitted by the Partner, the Partner shall provide COOConnect with credits to the sources of the third party licensed content.
8.1 The Partner shall indemnify COOConnect against any claim, cost, loss, damage, and/or expense that COOConnect may incur, including, but not limited to, reasonable legal fees, as a direct or indirect consequence of COOConnect publishing material submitted by the Partner as Content in accordance with the copy instructions supplied by the Partner or which is in breach of any of the obligations of the Partner under this Agreement.
8.2 The Partner shall indemnify COOConnect against any claim, cost, loss, damage, and/or expense that COOConnect may incur, including, but not limited to, reasonable legal fees, arising out of any use of Content by a User, including in respect of any transaction between the Partner and a User.
8.3 COOConnect will not indemnify the Partner if the Partner:
(a) uses the Resources outside the scope of this Agreement;
(b) uses a version of the Resources which have been superseded and the infringement claim could have been avoided by using a current version of the Resources; or
(c) continues to use the Resources after the licence to use the Resources ends.
8.4 If COOConnect believes or it is determined that any of the Resources may have violated a third party’s intellectual property rights, COOConnect may choose to:
(a) modify the infringing Resources to be non-infringing;
(b) obtain a licence to allow for continued use; or
(c) terminate this Agreement with respect to the allegedly infringing Resources by giving written notice to the Partner and by refunding to the Partner the prorated share of any prepaid charges relating to such infringing Resources.
- Limitation of Liability
9.1 The following provisions govern the COOConnect's entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Partner in respect of:
(a) any breach of its contractual obligations under this agreement;
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement; and
(c) any claim under an indemnity, save that any exclusions or limitations shall not apply in the case of fraud or fraudulent concealment.
9.2 Any act or omission on the part of COOConnect or its employees, agents or sub-contractors falling within clause 9.1 shall, for the purpose of this clause, be known as an "Event of Default". If a number of Events of Default give rise substantially to the same loss they shall be regarded as giving rise to only one claim under this agreement.
9.3 COOConnect will not be liable for any loss or damage occasioned by omission to insert any material as Content, or for late or early publication of submitted material as Content, caused by negligence or otherwise.
9.4 COOConnect will not accept any responsibility for loss of circulation or ineffectiveness of any Content owing to circumstances beyond its direct control.
9.5 COOConnect will not be liable for any damage or loss of any material supplied by the Partner for the Resources, caused by negligence or otherwise.
9.6 COOConnect's liability to the Partner for death or injury resulting from its negligence shall not be limited.
9.7 COOConnect shall not be liable to the Partner in respect of any Event of Default for any:
(a) loss of profits, loss of operations, loss of data, loss of contracts, loss of revenue, loss of opportunity, loss of market share, loss of goodwill;
(b) increased costs or expenses; or
(c) type of special, indirect or consequential loss, including such loss or damage suffered by the Partner as a result of any action brought by a third party. This clause applies even if such loss was reasonably foreseeable or COOConnect had been advised of the possibility of the Partner incurring it.
9.8 COOConnect shall have no liability to the Partner in respect of any Event of Default unless the Partner serves notice of the same upon COOConnect within 6 months of the date it became aware of the circumstances giving rise to the Event of Default or the date it ought reasonably to have become so aware.
9.9 Unless stated otherwise, COOConnect's liability in contract (whether or not under an indemnity), tort, breach of statutory duty or otherwise, including any liability for negligence, howsoever caused arising out of or in connection with this agreement shall be limited to the Resource Fees payable under this agreement.
9.10 COOConnect shall not be liable to the Partner in respect of any failure to comply with its obligations under this Agreement to the extent that such failure arises as a result of the failure by the Partner or any third party to fulfil its obligations under this Agreement.
9.11 Nothing in this clause 9shall confer any right or remedy on the Partner to which it would not otherwise be legally entitled.
- Commencement, term and termination
The Agreement shall commence on the Effective Date and continue until the resources specified have been provided or the anniversary of the Effective Date whichever sooner, unless terminated in accordance with the following clauses:
10.1 Either Party may terminate this Agreement:
(a) by giving the other Party 30 days prior written notice if the other Party commits a irremediable breach of this Agreement;
(b) by giving the other Party 30 days prior written notice if the other Party commits a material breach of this Agreement and such breach has not been cured by such party within 30 days of receipt of such notice;
(c) immediately if the other party becomes Insolvent.
10.2 COOConnect may terminate this Agreement if the Partner undergoes a change of Control and for the purposes of this clause, "Control" has the meaning specified in Section 995 of the Income Tax Act 2007.
10.3 Upon the end of this Agreement the Resources will cease and the Partner will no longer have any right to access or use the Resources and COOConnect has the right to delete or otherwise render inaccessible any content contained in the Resources.
10.4 Notwithstanding any other provision to the contrary, on termination of this Agreement (howsoever arising), all payments payable to COOConnect, for the avoidance of doubt being those that have accrued prior to termination as well as all sums remaining unpaid for the Resources ordered under this Agreement plus related taxes and expenses, shall remain due and shall become immediately due and payable by the Partner.
10.5 Provisions which survive termination or expiration of this Agreement are those relating to limitation of liability, infringement, indemnity, payment and others which by their nature are intended to survive.
11.1 Force Majeure
Neither Party shall be deemed to be in breach of this Agreement or have any liability for any default or delay resulting from an event or circumstance beyond its reasonable control (a "Force Majeure Event"). The claiming Party shall promptly notify the non-claiming party of the nature and extent of the circumstances giving rise to the force majeure event.
(a) Any notice, demand or other communication given or made under or in connection with this agreement shall be in writing and shall be sent by prepaid first class post or delivered personally to the address set forth on the first page of this Agreement and shall be deemed to have been duly given or made as follows:
(i) if personally delivered by hand, upon delivery at the address of the relevant party; or
(ii) if sent by first class post, two business days after the date of posting.
(iii) By e-mail to firstname.lastname@example.org
(b) A Party may notify the other Party of a change to its name, relevant addressee, address or fax number or e-mail address for the purposes of this clause provided that such notification shall only be effective on:
(i) the date specified in the notification as the date on which the change is to take place; or
(ii) if no date is specified or the date specified is less than five business days after the date on which notice is given, the date falling five business days after notice of any such change has been given.
No waiver, alteration, variation or amendment of any provision of this Agreement shall be effective unless authorised in writing by COOConnect.
Each party undertakes that it will not during the term of this Agreement or at any time thereafter use, divulge or communicate to any person, except its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any Confidential Information concerning the other party, or its business, which may have or may in future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any Confidential Information.
If any provision of this agreement is or becomes for any reason whatsoever invalid, illegal or unenforceable, it shall be divisible from this agreement and shall be deemed to be deleted from it and the validity of the remaining provisions shall not be affected in any way.
11.6 Governing law
This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with English law.
Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in any way relate to this Agreement or its formation and, for these purposes, each Party irrevocably submits to the jurisdiction of the courts of England.
This Agreement may not be assigned by either Party without the prior written consent of the other Party, such consent not to be unreasonably withheld.
11.9 No partnership
Nothing in this agreement and no action taken by the parties pursuant to this agreement shall constitute, or be deemed to constitute, the parties a legal partnership, association, joint venture or other co-operative entity.
A waiver of any term, provision or condition of this agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given.
Each of the Parties shall bear its own legal, accountancy and other costs, charges and expenses connected with the negotiation, preparation and implementation of this Agreement and any other agreement incidental to or referred to in this Agreement.
11.12 Entire agreement
(a) Each party acknowledges and agrees with the other party that:
(i) this Agreement, together with any other documents referred to in this agreement, constitutes the entire and only agreement between the parties hereto with respect to its subject matter;
(ii) it has not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto;
PROVIDED THAT the provisions of this clause 11.12 shall not exclude any liability which either of the parties would otherwise have to the other party or any right which either of them may have in respect of any statements made fraudulently by either of them prior to the execution of this Agreement or any rights which either of them may have in respect of fraudulent concealment by either of them.
(b) This agreement may be varied only by a document signed by or on behalf of both of the parties and the provisions and terms of any purchase order issued by Partner in conjunction with this Agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing by COOConnect.
11.13 Third parties
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than the parties to this agreement shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.