1 The Parties
A binding Agreement is entered into between the you “Purchaser” and us “Mediademon” Limited together with our respective employees, directors, partners, affiliates, shareholders, brokers, agents, principals, trustees, corporate officers, consultants and all of our respective related corporate business entities (both of which are sometimes referred to as the “Party” or the “Parties”) on the date that both Parties accept the agreed Deliverables. Should these dates differ, then the later date will apply. By placing and order with Mediademon you accept these Terms & Conditions.
2.1 The following expressions shall have meaning ascribed to them below:
|“Agreement”||means these Terms & Conditions of Sale|
|“Price”||means the price for the Deliverables as agreed, in writing, between the Parties|
|“Deliverables”||means any and all goods, services and documentation as agreed in writing between the Parties.|
|“Software”||means the Software manufactured by us that may form part of the Deliverables such as Mediademon e-commerce processing modules.|
|“Software Licence”||means he licence to operate the compiled Software (if any) that is property of Mediademon or a third party.|
|“Network Boundary Point”||The Network Boundary Point is the point at which an Internet Protocol (IP) data packet passes from equipment wholly managed by us to equipment not so managed by us.|
|“Personnel”||means both Parties employees, contractors and sub-contractors and their respective employees and other personnel|
|“Timescale”||means the timetable agreed between the Parties as defined in the Deliverables|
|“Title”||means the Intellectual Property Rights/Copyright vested in Software & associated services developed by Mediademon.|
|“us” “we” “our”||means Mediademon Limited|
|“you” “your”||means you the Purchaser of the Deliverables|
3.1 This Agreement is for the sale and purchase of the goods and services identified and agreed in writing by the Parties for the Deliverables and in accordance with the provisions set out herein.
4.1 We shall use our available resources to execute the man days within the agreed timescale but accept no liability whatsoever for failure to do so, such times being given and intended as estimates.
4.2 The Parties shall, if required and at mutually agreed times, allow the necessary Personnel access to each other’s premises to assist with the Deliverables for the purpose of carrying out their obligations hereunder.
4.3 Notwithstanding the provisions of Clause 4.2 above, either Party shall have the right to refuse access to any of the other Party’s personnel at any time. The Party shall not be obliged to give any reason therefore and shall notify any such action which shall not relieve either Party of its obligations hereunder.
4.4 Without prejudice to either Party’s statutory obligations, both Parties shall take all reasonable precautions to ensure the health and safety of each other’s personnel whilst on each other’s premises.
4.5 We reserve the right to make changes in these terms from time to time and/or introduce new terms from time to time if there are changes in the law or amendments to regulations.
5 Prices, Payment
5.1 The contract Price is the price agreed in writing.
5.2 Invoices for shall be paid within the specified period on your receipt of a correct and valid invoice.
5.3 Invoices for service payments/subscriptions/licence fees that form part of the Deliverables shall be paid within the specified period on your receipt of a correct and valid invoice. Failure to do so may result in the services being withdrawn.
5.4 Proforma invoices will be issued on request.
5.5 The Price is exclusive of all taxes where applicable that will be charged at the current rate at the date of invoice.
5.6 If you owe us money and this has not been paid when it should have been paid, we may charge you interest on the unpaid amount at an annual rate (but with interest accruing on a daily basis) of 2% above the base rate of HSBC Bank from time to time and/or a withdraw services.
5.7 We reserve the right to increase/decrease our charges from time to time and/or introduce new charges from time to time. We will try to give you at least 3 months prior written notice of such events.
6 Software and Intellectual Property Rights
6.1 You agree to use Mediademon’s Software accordance with its Software Licence.
6.2 Title (Both Legal & Equitable) to Software manufactured by Mediademon and associated services (if any) shall remain with Mediademon unless otherwise agreed in writing before receipt of order.
6.3 You should also similarly observe the copyright and other intellectual property rights of the respective manufacturers of any third party software supplied.
7 Internet Based Systems/Services
7.1 Internet-based systems carry risk including but not limited to the failure of hardware, software, and Internet connection. We have no control over signal power, its reception or routing via Internet or the configuration of user’s equipment or the reliability of its connection and cannot be responsible for communication failures, distortions or delays experienced by users.
7.2 We employ back-up systems and contingency plans to minimise the possibility of system failure. In the event the service is not available the owner should implement their own back-up services or, owners of trading system websites should inform users that trading via telephone or email is usually available. We will be pleased to advise you appropriately.
7.3 Design copyright to your website automatically belongs to Mediademon unless agreed otherwise in writing. Text and images supplied by you to populate the website remain your property.
7.4 Your/our website may use “cookies” that are small, encrypted, plain text files, located in browser directories that can be used to authenticate users on log-in to a secure area, identification of a user sessions, user’s preferences, shopping cart contents, or anything else that can be accomplished through storing text data on the user’s computer.
7.5 Any equipment connected to any services that may form part of the Deliverables must be technically compatible with that service and not harm our or any third party’s networks or equipment and adequately protected by you against viruses and other breaches of security.
7.6 We do not guarantee the security of the service against unauthorised or unlawful access or use. If we believe there is or is likely to be a breach of security or misuse of the services we may:
a) change and/or suspend user security details (and notify you that we have done this); or
b) require you to change your or, in the case of e-commerce sites, your client’s security details.
7.7 We may, as a result of our on-going development and maintenance programme, from time to time change or alter the configuration and the technical functionality of service that may form part of the Deliverables. We will, where practicable, use reasonable efforts to give at least 30 days (thirty days) prior notice to you of any such change or alteration. Any such configuration or functionality change shall not in itself diminish the services provided or result in any increased cost to you.
7.8 We may from time to time without notice change or alter the networks to which we connect provided that no such changes or alterations shall result in any increase in charges made by us to you, or any material change in the performance of your services (if any).
8 Warranty & Limitations
8.1 Third party goods forming part of the Deliverables are supplied with their respective manufacturer’s warranty and, unless otherwise agreed, it is your responsibility to manage those warranties.
8.2 We do not warrant that our Software will be bug or error free but do warrant that it will be free of defect for 60 days from the date of purchase.
8.3 The foregoing warranty in 8.2 will not apply if:-
8.3.1 The cause of any error is due to Software not installed in accordance with the any written instructions.
8.3.2 You have altered or attempted to repair or alter any element of the Software.
8.3.3 Adjustment repair or replacement is impractical due to you or your representative having connected any element of the system to operate on a device/operating system not specified in the Deliverables.
8.4 The foregoing warranties and limitations are exclusive remedies and are in lieu of all other warranties expressed or implied including, without limitation, any warranty of merchantability or fitness for a particular purpose except to the extent (if any) required by Law.
8.5 We reserve the right to charge for incidents (whether by accident or otherwise) resulting from:-
a) your staff or any third party maintaining or attempting to maintain or alter the equipment or services specified in the Deliverables from modification or merger other than in accordance with the relevant user manual(s) and the relevant recommendations of the relevant manufacturer(s) and/or us.
b) accidental damage that includes (without limitation) liquid spillage, riot, storm, flood, fire, lightning discharges and power or radio wave variation or interruption
9.1 We will not be liable, whether in contract, tort (including negligence) or otherwise, for direct or indirect loss of profits or revenue, loss of use, lost business or missed opportunities, wasted expenditure or savings you might have made.
9.2 You shall warrant that you shall not infringe any letters patent, registered design or copyright or other intellectual or industrial property right of Mediademon.
9.4 You acknowledge and agree that we have no effective control over the Internet and/or VPN beyond the Network Boundary Point and that we are not responsible in any way for any other part of such networks and services or the materials accessible on or the quality of the service obtainable through such networks and services.
9.5 We are not liable for the content of any internet-based services so managed by you and you are advised to keep a back-up of the content.
10.1 Both Parties shall ensure that their personnel maintain as confidential and do not disclose to any third party (other than one needing to know for the purposes of this Agreement) any information which is confidential to the other Party and marked or orally informed as being confidential.
10.2 Information is confidential to the either Party or its respective business or associated businesses and is not in the public domain unless:
10.2.1 It is already in the either Parties possession other than through a third party who was not entitled to disclose it.
10.2.2 It is in the public domain other than as a result of a breach of this Agreement.
11 Suspension & Termination
11.1 We may suspend our services or this Agreement, or both, at any time without notice if:
a) You breach these Terms & Conditions or any other Agreement that you have with us and if the breach is capable of remedy, fail to put right the breach within a reasonable time of being asked by us to do so. This includes non-payment of any valid invoice by the due date; or
b) we reasonably believe that your service is being used in a way that may be unacceptable in law or relevant code of practice. This applies even if the you are unaware that any services are being used in such a way.
11.2 You will continue to pay any applicable charges during any period of suspension.
11.3 Either Party may end this Agreement if
a) either Party materially breach the Agreement and, if the breach is capable of remedy, fail to put right the breach within a reasonable time of being asked by the you to do so; or
b) either Party cease to do business; or have bankruptcy or insolvency proceedings brought against them; or make an arrangement with creditors (other than where solely for solvent amalgamation or solvent reconstruction); or a receiver, administrative receiver or administrator is appointed over any of assets; or they go into liquidation; or a notice is given, a petition is issued, a resolution is passed or any other step is taken to commence any of the foregoing procedures.
11.4 Access to any content provided on a subscription basis and or hosting services that may form part of the Deliverables will cease when the Agreement between the Parties ends.
11.5 Unless otherwise agreed in writing, either Party may terminate this Agreement by giving one calendar month’s written notice prior to your contract coming to an end and before any specified automatic renewal date.
12 Variations & Law
12.1 On signed acceptance of the Deliverables document or receipt of a purchase order accepted by us, this Agreement shall constitute the entire and only evidence of contract between the you and us for the supply of the Deliverables.
12.2 This Agreement together with any special provisions agreed in writing contains the full terms of the agreement between you and us. No variations of this document or the Deliverables shall be valid unless agreed, in writing, by the Parties.
12.3 This Agreement shall be governed and interpreted entirely in accordance with the Laws of England and the Parties submit to the exclusive jurisdiction of the English Courts.
12.4 We shall, at our own expense, comply with all Acts of Parliament, statutory orders, regulations and bye-laws applicable hereto.
13.1 All formal notices required to be given under this Agreement shall be in writing and sent to the address of the appropriate Party set out in Deliverables or to such other address as may from time to time (by notice to the other Party) be designated and notices shall be deemed to have been duly given:-
13.1.1 On the date of transmission if sent by fax or email.
13.1.2 On the date of delivery if delivered by hand on a working business day.
13.1.3 Three days after the date of posting if sent by first class mail
13.1.4 Any variation, amendment or addition to the specification or the terms and conditions hereof shall only be valid if agreed in writing by duly authorised representatives of both Parties.
14 Dispute resolution
14.1 If a dispute should arise between the Parties in relation to these Terms and Conditions of Sale, the Parties will use their reasonable endeavours to settle the dispute within 30 days.
14.2 Should the matter not be resolved then the either Party may refer the dispute to a mediator such as a local Chamber of Commerce for resolution.
15 Force majeure
15.1 Neither Party shall have any liability for any failure or delay in carrying out its obligations under this agreement, where such failure or delay is caused by any circumstance beyond its reasonable control, including without limiting the comprehensive nature of this provision, acts of god, strikes, labour disturbances and disputes (whether affecting own employees or others) legislative or administrative interference, war, civil commotion or failure of third party service providers. Costs arising from force majeure circumstances shall be borne by the Party incurring such costs.
16.1 No relaxation forbearance, indulgence or delay by either Party in enforcing any of the terms of this Agreement or the granting of time by either Party to the other shall affect, prejudice or restrict the right of the other Party under this Agreement, nor shall any waiver or similar indulgence of any breach of this Agreement operate as a waiver of any subsequent breach.
17 Conflict with Statute
17.1 If any of provision of this Agreement is invalid under any applicable statute or rule of law under the Laws of England it is, to that extent, deemed omitted.
18.1 Neither Party shall issue any public statement with reference to the other Party without prior mutual agreement and written consent of each other.
19.1 All headings used in this Agreement are for reference purposes only and shall not be used in the interpretation or construction thereof.