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1 Definitions
1.1 The following terms have the following meanings:
"Contract"
means the Contract which consists of these Conditions and the
Order Form; "Confidential Information" means secret
or confidential commercial, financial, marketing, technical, or
other information that is of value to its owner, know-how, trade
secrets and other information in any form or medium whether disclosed
before or after the date of this Contract;
"Intellectual
Property Rights" means patents, trade marks (whether registered
or not), domain names, copyright, design right, database rights
and all similar property rights including without limitation any
rights created in carrying out the Services and in applications
for protection of any of the above rights;
"Suspension
Event" means any event outside the reasonable control of
either party affecting eithers ability to perform any of its obligations
under this Contract including Act of God, fire, flood, lightning,
war, revolution, riot or civil commotion.
1.2 All Services
and Bulletins shall be supplied in accordance with the Contract.
In the case of any conflict or ambiguity between the Conditions
and the Order Form, the Order Form shall take precedence.
2 Duration
2.1 This Contract
shall commence on the Commencement Date [and (subject to the provisions
for earlier termination in clause 10) shall last until the Expiry
Date] [shall continue thereafter until terminated in accordance
with clause 10].
3 Provision
of Services
3.1 With effect
from the Commencement Date, and in consideration of the due payment
of the Charges by the Customer, the Customer engages Aroq,
and Aroq agree to provide the Services to the Customer for
the term of this Contract in accordance with, and subject to, the
terms and conditions of this Contract.
3.2 In performing
the Services, Aroq shall operate as, and have the status of,
an independent contractor and shall not operate or have the status
of the Customer's agent, employee or representative.
3.3 Aroq
shall during the Term:
(a) provide the Services with all reasonable skill and care and
in good and workmanlike manner in accordance with the provisions
of this Contract;
(b) use all reasonable endeavours to provide the Bulletins to the
E-mail Addresses either daily, weekly, monthly or otherwise as specified
on the Order Form but if Aroq fail to do so this does not
mean that Aroq are in breach of this Contract; and
(c) inform the Customer of any material changes to the Services
to be provided within a reasonable time.
3.4 Aroq
may sub-contract performance of any of the Services (or part thereof)
to any person, firm, corporation or organisation provided that Aroq
shall remain responsible to the Customer for the performance of
such Services in accordance with the terms of this Contract.
3.5 Aroq
shall be able to withdraw the Services in whole or in part (without
compensation to the Customer) if at anytime, otherwise is in breach
of any applicable laws or regulations, incorrect or Aroq did
not have full rights to use any part or parts of the material in
the Bulletin.
3.6 Aroq
excludes any warranty, express or implied as to the quality, accuracy,
completeness or fitness for a particular purpose of any of the contents
of the Bulletins and, to the fullest extent permitted by law, hereby
excludes all liability in relation to such information, subject
to clause 7.2.
3.7 Aroq
represent, warrant and undertake to the Customer that:
(a) the Bulletins supplied shall be reasonably free of technical
errors and/or inaccuracies and provided without corruption; and
(b) the Bulletins shall reflect reasonable standards and quality
of news bulletins supplied by e-mail from ; and
(c) Aroq has the legal rights and necessary licences to distribute
the information in the Bulletins.
3.8 Whilst just-site have used information from sources which they
believe are reliable, Aroq cannot guarantee the accuracy of
the contents in any way.
4 Customers
Obligations
4.1 The Customer undertakes and warrants that it will, during the
Contract supply Aroq with such information, as Aroq
may require to enable Aroq to fulfil its' obligations under
this Contract.
4.2 The Customer
may not make any statements which might bind Aroq, nor shall
the Customer enter into any contract or commitment with a third
party on just-site's behalf or in just-site's name as the Customer
does not have authority to do so.
4.3 The Customer
shall not:
(a) edit or change the Bulletins in any way whatsoever;
(b) archive the Bulletins or store then in any manner for more than
3 months after receipt;
(c) incorporate materials from the Bulletins in any other work or
publication whether in hard copy, electronic or any other form.
4.4 If the Bulletins
are permitted to be re-distributed or copied the Customer must:-
(a) acknowledge Aroq as the source of the material together
with any other name or author connected to such material;
(b) include acknowledgement of the Aroq website address (www.Aroq.com);
and
(c) inform such parties that the Contract also applies to them and
that they must comply with it.
5 Prices
and Payments
5.1 If the Customer
fails to make any payment to Aroq within the specified period,
Aroq may charge the Customer interest on the outstanding amount,
from the date on which the payment was due until it is actually
made (both before and after any judgment), at the rate of 8% above
the base rate of Lloyds Bank plc as at the date when the payment
is due.
5.2 If the Customer
does not pay for the Services within the limits specified in clause
6.2, Aroq may issue a notice to the Customer to pay any outstanding
sums within 14 days. If the Customer does not pay such outstanding
sums by the dates specified in this notice Aroq may terminate
this Contract.
5.3 Aroq
may at its discretion vary the arrangement for payment contained
in the Order Form and may require payment before the Services are
performed or require the Customer to provide any security that just-sites
may consider to be satisfactory.
6 Warranty
6.1 The Services shall be performed as set out in the Order Form.
Any dates specified for performance are intended to be an estimate
only and time for performance shall not be of the essence.
6.2 If the Customer
can prove to Aroq reasonable satisfaction that, due to Aroq
own act or omission, Aroq have failed to perform the Services
in accordance with this Contract, then Aroq shall at its own
option remedy such breach by either:
(a) re-executing
the relevant part of the Services free of charge up to the amount
of the Charges received by Aroq for the provision of such
Services (exclusive of any value added tax); or
(b) repaying or crediting to the Customer that part of the Charges
paid by the Customer to Aroq relating to the provision of
the relevant part of the Services (exclusive of any VAT).
6.3 The Customer shall be deemed to have accepted that the Bulletin
has been delivered in accordance with this Contract unless the Customer
notifies Aroq within [14] days of the Bulletin having been
delivered of any defects, inaccuracies or failures failing which
Aroq shall have no liability for any inaccuracies, defect
or failures and the Customer shall be bound to pay the Charges as
if the Bulletin had been delivered in accordance with this Contract.
7 Liability
7.1 Nothing in these Conditions excludes or limits the liability
of Aroq for death or personal injury caused by the Aroq'
negligence, or for fraudulent misrepresentation.
THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS
OF CLAUSES 7.2 AND 7.3
7.2 Aroq' total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation or otherwise, arising
in connection with the performance or contemplated performance of
this Contract shall be limited to the Charges in respect of which
the Customer suffered or incurred such loss or damage.
7.3 Aroq shall not be liable to the Customer for any loss
of profit or other economic loss (direct or indirect), indirect
or consequential loss or damage, costs, expenses or other claims
for consequential compensation (however caused) or loss or damage
(contractual, tortious, breach of statutory duty or otherwise) which
arises out of or in connection with the Contract, or for any liability
incurred by the Customer to any other person for any economic loss,
claim for damages or awards however arising from the Services or
otherwise.
7.4 The Charges have been calculated on the basis that Aroq
will exclude or limit its' liability as set out in this Contract.
The warranties set out in this Contract are the only warranties
which shall be given by Aroq and all warranties, conditions
and other terms implied by statute or common law are, to the fullest
extent permitted by law, excluded from this Contract.
7.5 The Customer shall indemnify Aroq in full against all
damages, losses, costs and expenses (including legal and other professional
advisers' fees), direct and indirect loss of profit and all other
economic loss whether direct or indirect (including but not limited
to loss of future revenue, reputation or goodwill and anticipated
savings) which are made or brought against or incurred or suffered
by Aroq directly or indirectly and whether wholly or in part
resulting from any breach by the Customer of the Customer's obligations
under this Contract.
8 Suspension of Contract
8.1 Each party will be released from its obligations under this
Contract to the extent that it is prevented from carrying them out
by a Suspension Event.
8.2 If a Suspension Event continues for three months either party
may bring this Contract to an end immediately by notice to the other
in writing.
9 Confidentiality
9.1 The Customer shall keep secret and confidential all of Aroq'
Confidential Information and shall only use or disclose such information
in order to properly perform the Customer's obligations under this
Contract. The Customer may only disclose Aroq' Confidential
Information to any of the Customer's employees, consultants or agents,
so long as it is subject to obligations equivalent to those set
out in this Clause 9. The Customer shall use it's best endeavours
to procure that any such employee, consultant or agent complies
with such obligations, and shall be responsible for any disclosure
or use of such Confidential Information by it's employees, consultants
or agents.
9.2 The obligations of confidentiality in this Clause 9 shall not
extend to any matter which the Customer can show has become publicly
known other than through it's actions; or was in it's written records
prior to the date of this Contract; or was independently disclosed
to the Customer by a third party entitled to disclose it; or which
the Customer is required to disclose under any applicable law, or
by order of a court or governmental body or other competent authority.
Either party may disclose the existence of this Contract to third
parties but shall not disclose the terms of this Contract.
10 Termination of this Contract
10.1 [Either party may terminate this Contract on one months prior
written notice to the other.]
10.2 Aroq may bring this Contract to an end immediately if
the Customer fails to comply with any of its' obligations under
this Contract within [seven] days of having been notified by Aroq
of the relevant failure or failures. Aroq may also bring this
Contract to an end immediately if the Customer is the subject of
a petition for a bankruptcy order, becomes insolvent or enters into
any composition, scheme or arrangement with its' creditors. If the
Customer is a company, Aroq may bring this Contract to an
end immediately if a receiver or liquidator is appointed over any
or all of the Customer's assets. If the Customer is in partnership,
Aroq may bring this Contract to an end immediately if the
partnership is dissolved.
10.3 On the expiry or termination of this Contract (for whatever
reason):
(a) each party shall promptly return or dispose of in accordance
with the other party's instructions all Confidential Information
and all other data and documents and copies thereof disclosed or
supplied to that party pursuant or in relation to this Contract
and shall certify in writing to the other party the same has been
completed; and
(b) Aroq shall within one month of the expiry or termination
of this Contract submit its final invoice to the Customer setting
out the total amounts due to Aroq under this Contract.
10.4 When this Contract ends the relationship between the parties
set out in this Contract shall cease except that each party must
continue to keep any information provided to it by the other confidential
in accordance with Clause 9. Each party will remain liable to the
other for any sums which are due but have not been paid and any
other breaches of this Contract.
11 Legal and Administrative Matters
11.1 Unless indicated otherwise, all sums payable under this Contract
are exclusive of VAT and all other taxes and charges.
11.2 The Customer will not assign sub-contract or transfer its rights
under this Contract without Aroq express prior written approval.
Aroq may assign or charge any or all of its rights under this
Contract and/or sub-contract or otherwise transfer its obligations
under this Contract at any time.
11.3 No person who is not a party to this Contract (including any
employee, officer, agent, representative or sub-contractor of either
party) shall have the right (whether under the Contracts (Rights
of Third Parties) Act 1999 or otherwise) to enforce any terms or
conditions of this Contract.
11.4 This Contract does not create a partnership or joint venture
between the parties and neither party shall claim to be an agent
for the other.
11.5 Any express or implied waiver of any failure to perform obligations
under this Contract will not prevent the subsequent enforcement
of those obligations. Similarly, any waiver will not be taken to
be a waiver of any subsequent failure perform that or any other
obligation.
11.6 This Contract (including the Order Form) together with the
contracts made under it constitutes the entire contract between
the parties relating to the Services and overrides any prior correspondence
or statements relating to the Services (including any statements
or representations in any advertisements or literature produced
by Aroq). The Customer will have no claim against Aroq
for misrepresentation unless Aroq have made such misrepresentation
fraudulently. Any amendment to this Contract must be in writing
and signed by both parties.
11.7 If any provision of this Contract is ruled to be invalid for
any reason, that invalidity will not affect the rest of this Contract
which will remain valid and enforceable in all respects.
11.8 Aroq may set off any monies due to the Customer under
this Contract against any other debts payable by the Customer to
Aroq under this or any other agreement. The Customer is not
entitled to set-off any claims that it may have against Aroq.
11.9 This Contract is governed by English law. Any dispute or claim
which the parties cannot settle will be subject to the non exclusive
jurisdiction of the English Courts.
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