Definitions, interpretation and scope
In this agreement, unless otherwise provided:
“Agreement” means the terms found in this document and the Ordering Document.
“Business Day ” means any day (other than a Saturday or Sunday) on which banks are generally open in London for non-automated normal business.
“Client” means a person or legal entity to whom the Product(s) and Service are supplied pursuant to the terms and conditions of this Agreement.
“Commencement Date” means the go live date.
“Confidential information” means all information disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other's or its Group Members' business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:
is available to the public other than because of any breach of this Agreement;
is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
"Customer Data" means all data, information and material input or uploaded to any Product or transmitted through the Service by the Client and/or any User.
"Customer Materials” means any material provided or made available by or on behalf of the Client to the Supplier for the purposes of incorporation into any Product and/or the Service for the Client, but excluding Customer Data.
"Group Member” means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where "control" means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise.
“Initial Term” means the period set out in the Ordering Document or if not specified means 1 month from the Commencement Date.
“Intellectual Property Rights” means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights, chip topography rights, and any other intellectual property rights (whether registered or unregistered) and all applications for any of the foregoing, anywhere in the world.
“Licence” means the license granted by the Supplier to the Client in respect of the Hotel Price Reporter Software as set out in the Ordering Document and subject to the terms of the Agreement.
“Licence Fee” means the fees due by the Client to the Supplier in respect of the licence for the Hotel Price Reporter Software as set out in the Ordering Document.
“Licenced Users” means the number of users as agreed in writing between the parties.
“Ordering Document” means the ordering document to which these terms and conditions are attached.
“Platform” means the Supplier’s underlying technology (including any software, hardware or other platform technology or software) used to provide the Software.
“Product” means the Supplier’s product(s) set ou in the Ordering Document.
“Proposal” means the proposal sent by the Supplier in relation to the Product and Service.
“Renewal Term” means the period after the expiry of the Initial Term as specified in the Ordering document and each subsequent period. If no length is specified in the Ordering Document, each Renewal Term is considered as covering a period of 1 month.
“Software” means any communications or other software provided to or made available to the Client by the Supplier in connection with the Agreement and in relation with Hotel Price Reporter, but excluding Third Party Software.
“Service” means the provision of the Support Service under this Agreement.
“Support Services” means the provision of the support service pursuant to this agreement.
“Supplier” refers to Lancewood Media Ltd, whose registered office is 20-22 Wenlock Road, N1 7GU London, England.
“Supplier’s Content” means all data, information and material owned by or licensed to Lancewood Media Ltd or any of its Group Members and comprised within any Product and/or the Service, but excluding Customer Data and Customer Materials.
Interpretation and scope
Unless the context otherwise requires:
the singular includes the plural and vice versa;
each gender includes the others;
the words ‘including’ or ‘includes’ means including or includes without limitation;
references to persons or parties include individuals, unincorporated bodies, government entities, corporations and companies;
reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation;
clause headings are for convenience only and shall not affect the construction of this Agreement;
References to clauses or articles mean to clauses and articles of this Agreement.
Formation of Agreement
Proposals issued by the Supplier are valid for the number of Business Days from issue as set out in the Proposal. They do not constitute an offer to sell or supply. If the Client wishes to purchase Software or Service it will need to place an order.
Any orders submitted by the Client are offers that are not binding until accepted by the Supplier by way of commencement of the supply of Software or Service.
These terms and conditions (including the Proposal and the Ordering Document) will apply to and will form the Agreement for the supply of the Product and Service by the Supplier to the Client. They supersede any previously issued terms and conditions of supply.
No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase order, confirmation of order, specification or other document will form part of the contract.
No variation will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
Marketing and other descriptive matter relating to the Product or Service or Software are illustrative only and do not form part of the contract.
Provision of Service
Following the Commencement Date, the Supplier shall set-up the Service for the Client in respect of the Product which the Client is licensed to access and use under this Agreement, as set out in the Ordering Document.
With effect from the commencement date, the Supplier shall:
procure that the Service is enabled for the Client in live production use;
for the remainder of the term of this Agreement:
(i) support and maintain the Product(s) and Service.
(ii) procure the hosting of the Product(s);
Grant of licence
Subject to the full payment of the applicable Licence Fee, the Supplier grants to the Client a non-exclusive and non-transferable limited Licence, for the term of this Agreement, to use the Product(s) and Service, for up for up to the number of properties set out in the Ordering Document and in accordance with the terms of this Agreement and the Ordering Document. Without prejudice to clause 5.1, the client may not sub-license the right to access and/or use any Product or the Service to any third party. The Client is licensed to access and use only the Product(s) set out in the Ordering Document and may do so only by means of the Service. Except as expressly set out in this Agreement, all rights in and to the Product(s), Service (including the Supplier’s content but excluding Customer Data and Customer Materials) and Software are reserved to the Supplier.
The Licence set out in clause 4.1 will commence on the Commencement Date and will continue for the Initial Term and automatically renew for the Renewal Term unless or until terminated under article 10 or any other clause of this Agreement.
Only the Client is licensed to access and use the Product(s) and Service and solely for the Client’s internal business purposes. Use by the Client includes use by:
the Client’s employees;
any contract staff who are working for the Client; and
any other person working with, or on behalf of the Client;
provided that, in each of these cases, the person concerned is accessing and using the Product(s) and Service exclusively on the Client’s behalf, for the above purposes.
The Client shall not (whether on behalf of, or for the benefit of, itself or a third party) or permit or allow any third party:
to distribute or resell the Software;
to use or attempt to use the Software contrary to any restriction stated in the Agreement or unless otherwise expressly permitted by the Agreement.
The Client shall ensure all the persons mentioned at article 5 .1 (“Permitted use”):
are aware of the obligations or restrictions imposed on the Client under the Agreement; and
shall use its reasonable endeavours to ensure that they comply with the provisions of the Agreement.
The Client undertakes to be responsible and liable for all acts, omissions, fault, default or negligence of any of the persons mentioned at article 5.1 or by an authorised third party arising in respect of, or in connection with, the obligations or restrictions imposed on the Client pursuant to the Agreement, to the extent that it would be liable had such act, omission, fault, default or negligence been caused by the Client under this Agreement, and to indemnify the Supplier in respect of all losses, damages or expenses incurred by the Supplier as a result of any use of the Software in breach of this Agreement.
The Client acknowledges that the Supplier is not responsible for the Client’s connectivity or broadband speeds and that in the event that the Client has a slow broadband connection then the Client may suffer from poor performance of the Software and/or it may be difficult for the Supplier to provide the Service and Product(s).
Restrictions on use
Except to the extent required to be permitted by applicable law or as expressly allowed in this Agreement, the Client shall not:
translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the Platform or Software, nor arrange or create derivative works based on the Software;
make for any purpose including (without limitation) error correction, any modifications, additions or enhancements to the Software;
permit the whole or any part of the Software to be combined or merged with or become incorporated in any other program;
assign, distribute, licence, sell, charge or otherwise deal in or encumber the Software;
sub-license, assign, sub-contract or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
use the Software on behalf of or make it available to any third party nor allow or permit a third party to do so; or
remove or alter any copyright notice, trade mark marking or other proprietary notice on any of the Software.
create Internet "links" to the Service or "frame" or "mirror" any Supplier’s Content on any other server or wireless or Internet-based device;
interfere or try to interfere with the proper working of any of the Products, the Service or Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, engage in any spamming activity, or hack into or otherwise disrupt any Product, the Service or Software or any associated website, computer system, server, router or any other internet-connected device;
use the Service to:
engage in any fraudulent activity or further any fraudulent purpose;
attempt to gain unauthorised access to any Product or the Service or its related systems or networks;
manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Service;
attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that it is permitted to do so under applicable law in circumstances under which the Supplier is not lawfully entitled to restrict or prevent the same), including in order to:
build a competitive product or service;
build a product using similar functions, ideas, features, or graphics of the Service
The supplier warrants that:
it has the right to enter into this Agreement and to provide the Service as contemplated by this Agreement;
the Product(s) and Service shall substantially conform to the description provided in the specification set out in the Ordering document.
The supplier should provide support and maintenance services with reasonable care and skill.
In case of a breach of any of the warranties stated in article 7.1, the Client must notify the Supplier as soon as possible. The Client must give the Supplier a reasonable time to fix the problem or to re-perform any relevant services. This will be done without any additional charge to the Client.
In the event when the Supplier is unable to provide the Service and Product , the Client can ask to be compensated. For each day of unavailability , the Client will receive four (4) days extension of the Term of the agreement. The Client is entitled to cancel the contract if the unavailability continues for fourteen (14) days and the Supplier will reimburse the Client for the remaining time.
Limitation of liability
The Supplier shall deploy reasonable efforts to provide a comprehensive and accurate Service and performs regular data backups; provided, however, the Supplier cannot assure that all displayed prices, demand, rankings, extranet details, and other information will be found or delivered. The Supplier denies any warranty relative to loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by the Supplier.
The Supplier does not warrant that the operation of the Software shall be uninterrupted or error-free.
Occasionally, delivery of the Service and Product may be delayed due to scheduled or unscheduled maintenance or factors beyond the Supplier’s control. Failure to deliver the Service and Product in such event shall not constitute a breach of the Agreement.
The Client acknowledges that:
the Supplier is not and cannot be aware of the extent of any potential loss or damage to the Client resulting from any failure of the Software to conform to the Ordering Document or any failure by the Supplier to discharge its obligations under the Agreement;
the Software cannot be tested in every possible combination and operating environment, and that it is not possible to produce or maintain economically computer programs known to be entirely error free or which operate in uninterrupted manner.
The Client acknowledges that the Software has not been prepared to meet the Client’s individual requirements and that it is the Client’s responsibility to ensure that the functions of the Software described in the Ordering Document meet the Client’s requirements.
To the extent permitted by applicable law, the Supplier disclaims all other warranties and conditions as to the Software and the Services including but not limited to implied warranties relating to fitness for a particular purpose, quality, or ability to achieve a particular result.
The Supplier will not be liable or obligated to remedy any problem arising from or caused by any modification made to any part of the Software (including data structure) by persons other than Supplier without its express prior written consent.
The Supplier shall have no liability for any data loss suffered by the Client for any reason whatsoever.
The Supplier’s liability to the Client in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with the Software, and the Service, or other performance or non-performance of the Supplier’s obligations under the Agreement shall:
not extend to any:
loss of profit;
loss of revenue;
loss of sales, turnover;
loss of business;
loss of customers;
loss of or damage to reputation or goodwill;
loss of contracts or opportunity;
loss of anticipated savings;
loss of production;
loss of any software or data;
loss of use of hardware, software or data;
loss or waste of management or other staff time;
any other special, indirect or consequential loss or damage whatsoever, whether sustained by the Client or any other person and even if foreseeable or if the Supplier has been advised of their possibility;
be limited, in respect of each 1-month or 12-months period (depending on the length of the contract picked by client and expressly agreed by the Supplier in the Ordering Document) calculated from the Commencment Date, to the total of all amounts payable by the Client under this Agreement for the preceding month or preceding twelve months (depending on the length of the contract agreed by the parties in the Ordering Document) in respect of any one incident or any series of connected incidents.
All advice and recommendations given by the Supplier shall be made in good faith and on the basis of information provided to the Supplier by the Client. Where a piece of advice does not form part of the Service, that advice or recommendation shall in no circumstances constitute a warranty by the Supplier as to the accuracy of such advice and the Supplier shall not in any event be liable for any loss or damage that may be suffered whether directly or indirectly as a result of the Client acting upon such advice.
Nothing in the Agreement shall exclude or restrict either Party’s liability:
for death or personal injury resulting from the negligence of a Party or its employees while acting in the course of their employment; or
for any other liability that cannot be limited or excluded by law;
to pay sums properly due and owing to the other in the normal course of performance of this Agreement;
for any other liability which may not lawfully be excluded or limited.
Fees and Payment
The client shall pay the agreed licence fee on or before the Commencement Date. Upon mutual signature of this Agreement, The Supplier shall invoice the Client for the licence fees in advance, commencing on the Commencement Date.
Save as the context requires or as otherwise provided in this Agreement, Licence Fees are exclusive of VAT and any other sales tax or duty which, if applicable, shall be paid additionally by the Client at the then prevailing rate.
Invoices are payable, in full, without deduction, set off or withholding of any kind. Invoices are due as set out in the Ordering Document. In the event of any dispute as to the amount of an invoice, The Client shall pay the amount in full pending the resolution of any dispute and The Supplier shall make any adjustment due immediately upon such resolution.
If any sum due to the Supplier under the Agreement is in arrears for more than 10 days after the due date and notification thereof, the Supplier may without prejudice to any other right or remedy:
suspend (without liability on the Supplier’s part) the provision of the Platform, Software, Service on immediate prior notice.
All amounts paid in advance are non refundable notwithstanding the date of termination.
This Agreement shall commence on the Commencement Date and shall, unless sooner terminated in accordance with its terms, continue for an initial term of the duration set out in the Ordering Document ("Initial Term") and thereafter renew automatically for successive terms of equivalent duration (each a "Renewal Term") unless and until terminated by either party giving the other not less than 5 days' prior notice to that effect (such notice to expire at the end of the Initial Term or any subsequent Renewal Term only).
Either party may end this Agreement, at any time, by giving the other written notice if the other:
materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within 10 days of being requested in writing to do so; or
materially breaches any term of this Agreement and it is not possible to remedy that breach;
becomes insolvent, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or makes composition with its creditors, or has an order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
Without prejudice to article 10.1, the Supplier may, without liability, terminate this Agreement, or alternatively, may suspend access to the Platform, and use of any Service and/or Product, by giving The Client notice if:
any invoiced amount (not being disputed in good faith) is outstanding beyond the due date for payment, in the conditions detailed at article 9.4;
any provision of article 6.1 is breached;
The Client is in repeated or persistent breach of any of its obligations under this Agreement (whether or not such breaches are remedied and whether or not it is the same obligation that is breached);
Upon termination of this Agreement for any reason:
the Client shall instantaneously cease to access the Platform, and stop all use of the Product(s) and Service;
all amounts payable to the Supplier by the Client become immediately due and owing. All amounts paid in advance are non refundable notwithstanding the date of termination.
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations hereunder. Inability to pay is not Force Majeure. Force Majeure shall include interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds).
A Party will not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
promptly notifies the other of the Force Majeure event and its expected duration;
uses reasonable efforts to mitigate the effects of the circumstances and breach so as to minimise or avoid the breach;
uses reasonable efforts to resume performance as soon as reasonably practicable; and
could not have avoided the breach by taking steps that it ought reasonably to have taken in light of the matters known to it before the circumstances arose.
Each party will treat as confidential all information obtained from the other party under or in connection with this Agreement which is designated as confidential by the other party or which is by its nature confidential including but not limited to, the Platform, the Software and the Services. The recipient party will not disclose such confidential information to any person (except only to those employees, agents, sub-contractors, suppliers and other representatives who need to know it) or use such confidential information without the other party’s prior written consent. This clause will not extend to information which:
was in the possession of the recipient party (with full right to disclose) before receiving it;
is already or becomes public knowledge (otherwise than as a result of a breach of this clause);
is required to be disclosed by law or regulatory authority.
Each party will establish and maintain adequate security measures to safeguard information and data of the other party in its possession from unauthorised access use or copying.
Each party shall promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
Each party will ensure that all persons to whom it discloses any confidential information of the other party are aware, prior to disclosure, of the confidential nature of the information and that they owe a duty of confidence to the other party. These obligations of confidentiality will survive any termination of this Agreement.
The Client acknowledges and agrees that the Product(s), Platform, Service (including the Supplier Content but excluding Customer Data and Customer Materials) and Software and the terms of this Agreement including, in particular, the pricing, constitute Confidential Information of the Supplier.
The Client shall not acquire in any way any title, rights of ownership, Intellectual Property Rights of whatever nature in the Platform, Product, Service or the Software or in any copies of it. All such interests and rights are and shall remain the exclusive and absolute property of the Supplier.
The Supplier remains the owner of all Intellectual Property Rights in Lancewood Media’s brands, trade marks and logos, the Product(s), the Service (excluding Customer Data and Customer Materials) and the Software. Except as expressly permitted by this Agreement, the Client may not use any of the Supplier’s Intellectual Property Rights without its prior written consent.
The Client shall maintain adequate security measures to safeguard the Platform, the Product, the Service and the Software from unauthorised access, use or copying by any person.
The Client shall notify the Supplier as soon as reasonably practicable if the Client becomes aware of any unauthorised access to, use or copying of any part of the Platform or Software by any person.
The Client agrees not to conceal, modify, remove, or destroy in any way any proprietary markings of the Supplier or in the Software including without limitation any copyright notices or confidential legends placed upon or contained within the Software or any related materials and documentation. The Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
The Client acknowledges and understands that the Software, Platform, Product, contains confidential and proprietary information and the Client shall:
not provide or otherwise make any of the Software available for any reason to any other person except as permitted by the Agreement or otherwise in accordance with express written authority signed by an authorised signatory of the Supplier;
keep confidential the Software and limit access to the Licensed Users;
use its reasonable endeavours to ensure that all relevant representatives are advised that the Software constitutes confidential and proprietary information of the Supplier and that all Intellectual Property Rights therein are the property of the Supplier and that they owe a duty of confidentiality to the Supplier.
The Client remains the owner of all Intellectual Property Rights in the Customer Data and Customer Materials. The Client grants free of charge, a non-exclusive, worldwide royalty-free licence to use the Customer Data and Customer Materials only to such extent as is necessary to enable The Supplier to provide the Service and to perform its obligations under this Agreement. The Clients warrants that he owns the Customer Data and Customer Materials and/or are otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.
Administrator and Users
The Client shall designate one contact and one alternate as the responsible party for communication with the Supplier during the term of this Agreement (the "System Administrator"). The Client’s System Administrator shall have the authority to bind the Client, except that another duly authorised representative of the Client may change his System Administrator by giving written notice to the Supplier.
The Client shall be responsible for all access to and use of the Product(s) and Service by Users. The Client shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Client or any User in order to access or use any Product and/or the Service. The Client shall promptly notify the Supplier upon becoming aware of any unauthorised access to or use of any Product and/or the Service, and provide all reasonable assistance to the Supplier to bring an end to such unauthorised access or use.
The Client shall ensure that each Authorised User shall, as a condition of being granted access to any Product and/or the Service, be required by the Client’s System Administrator to acknowledge the obligations on the Client under this Agreement respecting authorised use (and restrictions on use) of the Product(s) and Service and agree to comply with the same. The Client shall immediately notify the Supplier in the event that the Client become aware of any breach of the terms of this Agreement or the Supplier’s Privacy and Security Policies by any User.
Third Party interactions
During use of the Service, the Client and/or Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity is solely between the Client and/or the relevant User and the applicable third party. The Supplier shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between the Client and/or the relevant User and any such third party. The Supplier does not endorse any third party or any sites on the Internet that are linked through the Service. The Supplier provides links and access to third parties only as a matter of convenience, and in no event shall The Supplier be responsible for any advice, content, products, or other materials on or available from such companies or sites.
The Agreement shall be governed by and construed and interpreted in accordance with English law and the Parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but the Supplier is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.
If any provision of this Agreement is held for any reason to be ineffective or unenforceable, this shall not afect the validity or enforceability of any other provision of this Agreement or this Agreement as a whole. If any provision of this Agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
A person who is not a party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
It is a condition of this Agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this Agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
This Agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects. Provided always that nothing in this clause will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this Agreement and each party acknowledges that it has not been influenced to enter this Agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this Agreement.