STANDARD TERMS FOR RACKING WIZARD LINKING SERVICE
(1)Racking Wizard Limited whose registered office is at Unit B1, Headway Business Centre, Knowles Lane, Bradford, BD4 9SW (Company Number 03958574) ('the Provider'); and
(2)The person (individual, partnership or Company) whose details are set out in the Acceptance Form ('the Target').
PLEASE NOTE YOUR ATTENTION IS DRAWN CLAUSES 9, 11 AND 13
IT IS AGREED as follows:
In this agreement, unless the context otherwise requires:
the Acceptance Form sent by fax or email by the Target confirming acceptance of the Provider’s offer to supply the Link subject to this Agreement.
in relation to any company:
(a)any subsidiary or holding company of the company or any subsidiary of the holding company, or
(b)any other entity controlling or controlled by such company;
a day (excluding Saturdays) on which banks are generally open in the City of London for the transaction of normal business, other than solely for trading at settlement in euros;
To be as set out in the providers offer.
all business, technical, financial or other information created or exchanged between the parties pursuant to this agreement;
the persons listed in schedule 1;
'the Effective Date'
the date the Target requests the Link;
Graphic Interchange Format;
Hypertext Mark-up Language, being a set of codes that can be inserted into text files to indicate special type-faces, inserted images and links to other hypertext documents;
'a hypertext link'
a link embedded within a page using HTML permitting the user to access another point in the same or another page, which link triggers other pages to be displayed;
'intellectual property rights'
patents, rights in design, trade marks, trading business or domain names and email addresses, copyrights (including any such rights in typographical arrangements, websites or software) whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character that subsist now or in the future in any part of the world;
a hypertext link from the Provider Site to the Target Site;
the fees as set out in the Provider’s Offer;
the Provider’s design service known as e-racking wizard licensed for use by the Target through the Target Site from the Provider;
the Provider’s Offer’
the offer by the Provider to the Target setting out the terms by which the Provider agrees to provide the Link
the Provider's website on the world wide web at URL www.rackingwizard.com;
the performance and quality standards set out in schedule 2;
the Target's website on the world wide web at the URL as set out in the Acceptance Email;
'Target Trade Marks'
the trade marks, names and logos of the Target as depicted in schedule 1;
means a contact name, Company or business name, zip code and email address of a visitor following the visitors' use of the Link;
'Uniform Resource Locator'
the address of a file accessible on the Internet;
any person accessing the Target Site via the Link;
the names, email addresses, contact details and other information collected from visitors by the Target; and
pages or a related group of pages linked together using the hypertext transfer protocol ('http').
In this agreement unless otherwise specified:
2.1reference to a subsidiary or holding company is to be construed in accordance with the Companies Act 1985 section 736;
2.2reference to a party is reference to a party to this agreement and includes his permitted assignees and successors in title to substantially the whole of his undertaking;
2.3reference to a person includes any person, individual, company, firm, corporation, government, state or agency of a state, or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists;
2.4reference to a statute or statutory instrument or any of its provisions is to be construed as a reference to that statute or statutory instrument or such provision as from time to time amended or re-enacted;
2.5words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
2.6reference to recitals, clauses, paragraphs or schedules is to recitals, clauses or paragraphs of or schedules to this agreement;
2.7 the schedules form part of the operative provisions of this agreement and references to this agreement shall, unless the context otherwise requires, include references to the recitals and the schedules;
2.8 'control' is to be construed in accordance with the Income and Corporation Taxes Act 1988 section 416 and 'controlling' and 'controlled' shall be construed accordingly; and
2.9'includes' and 'including' shall mean including with limitation.
3.1 On and from Effective Date, the Provider shall provide and maintain the Link. The number, content, size, appearance and positioning of the Link on the Provider Site shall be determined initially, and may from time to time be varied, by the Provider in his absolute discretion.
4 The Trade mark licence
The Target grants the Provider a world-wide, non-exclusive, royalty-free right and licence to use the Target Trade Marks on the Provider Site and to promote it and for use as the Link.
5.1In consideration of the set up of the Link for the Target, the Target will pay to the Provider the Linking Fee the Effective Date (or as required).
5.2In consideration of the number of Transaction Leads generated for the Target from the Link, the Target shall, on and from the Effective Date, pay the Commission to the Provider. The Commission earned for each calendar month (or part month) of this agreement shall be calculated by the Target at the end of the relevant calendar month (or part month) and shall be paid to the Provider within 3 business days of the date of calculation.
5.3The Provider shall serve written notice of the Target at anytime disputing the proposed commission payable by the Target. If the parties cannot agree on the correct commission was paid, the Provider shall be entitled to terminate this agreement forthwith and issue proceedings for the outstanding amount plus interest. If the Provider’s claim is unsuccessful in those proceedings on the basis the correct commission was payable the Target’s only remedy shall be to terminate.
5.4All sums due under this agreement are inclusive of all labour and materials but exclude VAT which, if payable, shall be paid by the Target. All payments to the Provider by the Target shall be made within [14 business days] after receipt of the Provider's invoices therefore. All payments to be made by the Target to the Provider shall be in pounds sterling and shall be made by a cheque or bank transfer to the account of the Provider at a bank to be nominated in writing by the Provider.
The Target warrants that:
6.1his entry into this agreement does not breach any other agreement to which he is a party;
6.2 the Target Site complies with all applicable laws, government rules and regulations and industry codes including (without limitation) those with respect to data protection and advertising and ( any regulations specific to the racking industry regulations)];
6.3he owns or has a right to use all intellectual property rights in, and relating to, the Target Site including (but not limited to ) the Target Trade Marks and that the Provider is permitted to use such rights for the purposes set out in this Agreement ; and
7 Non exclusivity
Nothing in this agreement grants either party exclusive rights in relation to the other party. Either party is entitled to enter into similar arrangements with third parties during the term.
8 Visitor Data
Subject to any restrictions in law in any part of the world and, without limiting the foregoing, the Data Protection Acts 1984 and 1998, the Target will provide the Provider with visitor information relating to:
8.1the number of Transaction Leads created for the Target by the Link, and
8.2 any disputes arising between the Target Site and visitors accessing the Target Site from the Provider Site,
And shall at all times ensure that he has secured for these purposes the specific, express, informed and written consent of the visitors to whom the visitor information relates.
THE TARGET SHALL INDEMNIFY AND HOLD THE PROVIDER AND HIS OFFICERS AND EMPLOYEES HARMLESS FROM AND AGAINST ALL LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES IN RELATION TO ANY CLAIMS OR ACTIONS BROUGHT AGAINST THE PROVIDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIM IN CONTRACT OR TORT OR FOR DEFAMATION, OBSCENITY OR BREACH OF PRIVACY) RELATING TO OR ARISING OUT OF THE TARGET SITE, INCLUDING BUT NOT LIMITED TO THE TRANSACTION LEADS, OR ANY BREACH OF THE WARRANTIES SET OUT IN CLAUSE 6.
10.1During the term of this agreement and after termination or expiration of this agreement for any reason for a period of 12 months starting on the termination of our expiry date whichever is the later ], the following obligations shall apply to the party disclosing confidential information ('the disclosing party') to the other party ('the receiving party').
10.2Subject to clause 10.3, the Receiving Party:
10.2.1may not use any confidential information for any purpose other than the performance of his obligations under this agreement;
10.2.2may not disclose any confidential information to any person except with the prior written consent of the Disclosing Party; and
10.2.3shall make every effort to prevent the use or disclosure of the confidential information.
10.3The obligations of confidence referred to in the provisions of this clause shall not apply to any confidential information that:
10.3.1is in the position of an is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
10.3.2is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
10.3.3is required to be disclosed by any applicable law or regulation; or
10.3.4is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to this agreement in respect of it and who imposes no obligations of confidence upon the Receiving Party.
10.4Without prejudice to any other rights or remedies which the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
10.5The obligations of the parties under the provisions of this clause shall survive the expiry or the termination of this agreement for whatever reason.
11.1NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EACH PARTY'S LIABILITY TO THE OTHER FOR DEATH OR INJURY RESULTING FROM HIS OWN NEGLIGENCE OR THAT OF HIS EMPLOYEES, AGENTS OR SUB-CONTRACTORS SHALL NOT BE LIMITED.
11.2EACH PARTY'S ENTIRE LIABILITY TO THE OTHER IN RESPECT OF ANY BREACH OF THE FORMER'S CONTRACTUAL OBLIGATIONS, BREACH OF WARRANTY, REPRESENTATION, STATEMENT OR TORTUOUS ACT OR OMISSION INCLUDING NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO £10,000 OR 100% OF THE FEES PAID OR PAYABLE BY THE TARGET DURING THIS AGREEMENT WHICHEVER IS THE LOWER PROVIDED THAT THE TARGET’S LIABILITY UNDER CLAUSE 9 SHALL BE UNLIMITED .
11.3NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT OR CONSEQUENTIAL LOSS THE OTHER MAY SUFFER EVEN IF THE LOSS IS REASONABLY FORESEEABLE OR THE POSSIBILITY OF SUCH LOSS OCCURRING HAS BEEN ADVISED.
This agreement shall have the term of 12 months from the Effective Date. This agreement may be extended for successive 6 month periods on the same terms and conditions upon mutual acceptance by the parties in writing to be made no later than one month prior to the expiry of the agreement.
13.1A party ("the Initiating Party") may terminate this agreement with immediate effect by written notice to the other party ("the Breaching Party") on or at any time after the occurrence of an event specified in clause 13.2.
13.2The events are:
13.2.1the Breaching Party committing a material breach of the agreement and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy the breach.
13.2.2the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party's winding up or the presentation of a petition for the Breaching Party's winding up that is not dismissed within seven days (other than, in each case, for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party's obligations under this agreement);
13.2.3the making of an administration order in relation to the Breaching Party or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the Breaching Party;
13.2.4the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.
13.3An act or omission by a person who controls, is under common control with, or is controlled by a party that would be a breach of this agreement if it were an act or omission of the party shall be deemed to be a breach of this agreement by that party;
13.4On termination each party shall immediately remove any reference to the other from his website (including, without limitation, removal of all links) and as soon as reasonably possible remove any reference to the other party from any promotional or other published material or destroy all such materials containing any reference to the other party (including any trade marks of the other party), and shall furnish the other party with a certificate executed by a duly authorised employee certifying the same has been done.
13.5Termination of this agreement for whatever reason shall not affect either:
13.5.1the accrued rights and liabilities of the parties arising in any way out of this agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or
13.5.2all provisions expressed to survive this agreement, which shall remain in full force and effect.
14.1The Target shall not assign, transfer, sub-contract, declare a trust of or in any other manner make over to any third party the benefit or burden of this agreement without the prior written consent of the Provider.
14.2The Provider shall be entitled without the prior written consent of the Target to assign, transfer, sub-contract or in any manner take over the benefit or burden of this agreement to an affiliate or to any company with which the party may merge or to any company to which he may transfer his assets and undertakings, provided that the affiliate or other company undertakes and agrees in writing to assume, observe and perform the rights and powers and/or duties and obligations of the former party under the provisions of this agreement being assigned, transferred or otherwise made over.
15 Force majeure
15.1Neither party shall be deemed to be in breach of this agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this agreement (and the time for performance shall be extended accordingly) if an to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that party ("an event of force majeure").
15.2The party relying on clause 15.1 shall promptly notify the other party of the nature and extent of the circumstances giving rise to the event of force majeure.
15.3If the event of force majeure in question prevails for a continuous period in excess of three months after the date on which it began, the other party may give notice to the affected party terminating this agreement. The notice to terminate must specify the termination date, which must be not less than 30 days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, this agreement will terminate on the termination date set out in the notice. Neither party shall have any liability to the other in respect of termination of this agreement due to an event of force majeure, but rights and liabilities that have accrued prior to termination shall not be affected.
Save as expressly otherwise provided in this agreement 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.
17.1A 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.
17.2No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of it, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.
17.3No breach of any provision of this agreement shall be waived or discharged except with the express written consent of the parties.
18.1If any provision of this agreement is or becomes invalid, illegal or unenforceable in any respect under the law of the jurisdiction, whether or not pursuant to any judgment or otherwise:
18.1.1the validity, legality and enforceability under the law of that jurisdiction of any other provision, and
18.1.2the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, shall not be affected or impaired in any way thereby.
18.2If any provision of this agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever that provision 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. If any such deletion materially affects the interpretation of this agreement, the parties shall use their best endeavours to negotiate in good faith with a view to agreeing a substitute provision as closely as possible reflecting the commercial intention of the parties.
19.1 The rights and remedies provided for by this agreement are cumulative with and not exclusive of any rights or remedies provided by law.
19.2Without prejudice to any other rights or remedies o f the parties, each party acknowledges for the benefit of the other that damages might not be an adequate remedy for any breach of the provisions of this agreement and that, accordingly, either party shall be entitled without proof of special damage to the remedies of injunction and specific performance and other equitable remedies for any threatened or actual breach of the provisions of this agreement by the other.
20.1Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be in writing and shall be delivered personally or sent by fax or prepaid first class post (air mail if posted to or from a place outside the United Kingdom):
In the case of the Provider to:
Address As above
Fax +44(0) 1274 653 606
Attention Peter Gobbi
In the case of the Target to:
Faxthe details as set out in the Acceptance Form Email.
and shall be deemed to have been duly given or made as follows:
20.1.1if personally delivered, upon delivery at the address of the relevant party,
20.1.2if sent by first class post, two business day after the date of posting,
20.1.3if sent by air mail, five working days after the date of posting, and
20.1.4if sent by fax, when despatched;
provided that if , in accordance with the above provision, any such notice, demand or other communication would otherwise be deemed to be give or made after 1700 hours, that notice, demand or other communication shall be deemed to be given or made at the start of the next business day.
20.2 A party may notify the other party to this agreement of a change to his name, relevant addressee, address or fax number for the purposes of the above clause provided that such notification shall only be effective on:
20.2.1the date specified in the notification as the date on which the change is to take place; or
20.2.2if 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
21 Entire agreement
21.1 This agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreement, understandings or arrangements relating to the subject matter of this agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement that is not expressly set forth in this agreement save for any representation made fraudulently.
21.2 Unless otherwise expressly provided elsewhere in this agreement, this agreement may be varied only be a document signed by both of the parties.
Both parties agree not to disclose to any third party, other than to their respective bankers or other professional advisers on appropriate conditions of confidentiality, the fact of or details of this agreement or any other agreement referred to in this agreement. The text of any press release or other communication to be published by or in the media concerning the subject matter of this agreement shall require the approval of each party.
23 Relationship of the parties
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 partnership, association, joint venture, the agents of each other or any other co-operative entity.
24 Governing law and jurisdiction
24.1This 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, shall be governed by and construed in accordance with the laws of England.
24.2The parties irrevocably submit to the exclusive jurisdiction of the court of England for the purpose of hearing and determining any suit, action or proceedings and/or settling any disputes arising out of or in connection with this agreement and/or the purpose of enforcement of any judgement against their respective assets.
25 Exclusion of third party rights
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.