The following definitions and rules of interpretation apply in these Conditions.
|“Advertising Materials”||all posters, designs, images, content, documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Services for incorporation or display on the Advertising Space as set out in the Order, including the items provided pursuant to clause 5.1.3, and such other materials as may be agreed between the parties from time to time.|
|“Advertising Space”||the advertising space on the Website which is to display the Advertising Materials in accordance with these Conditions.|
|“Applicable Laws”||all regional, national and international laws, regulations and standards applying to the person or circumstances in question, including standards imposed by or notices issued by any governmental or regulatory authorities and all generally applicable industry standards, including those attributable to self-regulation.|
|“Business Day”||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|“Charges”||the charges payable by the Client for the supply of the Services in accordance with clause 7.|
|“Client”||the person or firm who purchases Services from the Supplier.|
|“Client Default”||has the meaning set out in clause 5.5.|
|“Commencement Date”||has the meaning given in clause 2.2.|
|“Conditions”||these terms and conditions as amended from time to time in accordance with clause 12.5.|
|“Contract”||the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.|
|“Control”||has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.|
|“Fixed Term”||has the meaning set out in clause 3.2.|
|“Inappropriate Content”||has the meaning set out in clause 5.3.|
|“Intellectual Property Rights”||patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Ongoing Term”||has the meaning set out in clause 3.3.|
|“Order”||the Client’s order for Services as set out in the Client’s purchase order form submitted through the Website or in such other form as may be accepted by the Supplier from time to time.|
|“Services”||the provision by the Supplier of the Advertising Space to the Client for the purposes of marketing and advertising as set out in the Order or as otherwise agreed in writing between the parties.|
|“Supplier”||The Student Pocket Guide Ltd, incorporated and registered in England and Wales with company number 06058781 whose registered office address is 1 Chalk Hill House, Lower Ground, Rosary Road, Norwich, Norfolk, England, NR1 1SZ.|
|“Website”||shall mean https://www.thestudentpocketguide.com/ or such other website as may be operated by the Supplier from time to time.|
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email but not fax.
- Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted upon which ever is the earlier of the following events:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 the Supplier uploading the Advertising Materials to the Advertising Space,
at which point and on which date the Contract shall come into existence (the “Commencement Date”).
2.3 The Supplier shall be permitted to refuse to accept an Order at its absolute discretion. In the event that the Supplier decides to refuse an Order, the Supplier shall notify the Client as soon as reasonably practicable following such decision. If the Client has made payment of any sums to the Supplier pursuant to clause 7.3 prior to such refusal, the Supplier shall refund such sums to the Client as soon as reasonably practicable using the method of payment originally used by the Client.
2.4 Any images, descriptive matter or advertising issued by the Supplier, and any descriptions or images contained on the Website or in any marketing materials, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- Term of the Contract
3.1 The Contract shall commence on the Commencement Date.
3.2 If the Order states that the term of the Contract is to be a fixed period (a “Fixed Term”) the Contract shall continue, unless terminated earlier in accordance with clause 10, for the duration of the Fixed Term and shall terminate automatically without notice upon expiry of the Fixed Term.
3.3 If the Order states that the term of the Contract is to be ongoing (an “Ongoing Term”), the Contract shall continue, unless terminated earlier in accordance with clause 10, until either party gives not less than one month’s written notice to the other party to terminate the Contract.
- Supply of Services
4.1 The Supplier shall supply the Services to the Client in accordance with the Order in all material respects.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Supplier reserves the right to amend the Order and/or the Services if necessary to comply with any Applicable Law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
4.4 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
4.5 The Supplier shall use its commercially reasonable endeavours to make the Website available to be viewed by the general public 24 hours a day, seven days a week. However, the Supplier does not warrant that the Website will be available to be viewed by the general public on an uninterrupted or error-free basis and is not responsible for any loss or damage resulting from a period of time during which the Website cannot be viewed due to a failure of communications networks and facilities (including the internet) or any planned or unplanned maintenance of the Website.
4.6 The Supplier does not warrant the accuracy or completeness of the Advertising Materials or any other materials used in the Services or contained within the Advertising Space.
4.7 The Supplier shall be under no obligation to check or review the Advertising Materials for or on behalf of the Client, including (without limitation) the clarity of text or images, formatting, typographical errors or factual correctness.
4.8 The Supplier makes no guarantee or warranty in respect of the Advertising Materials’ viewership (including, without limitation, the number or quality of those who view the Advertising Materials) or that the Services will result in any specific outcome for the Client (including, without limitation, any specific number of “clicks” on the Advertising Materials, any click-through rate, or number of leads generated by the Advertising Materials).
- Client’s obligations
5.1 The Client shall:
5.1.1 ensure that the terms of the Order are complete and accurate;
5.1.2 co-operate with the Supplier in all matters relating to the Services;
5.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services, including in relation to the use of the Advertising Materials, before the date on which the Services are to start;
5.1.5 provide all of the Advertising Materials to the Supplier in such format, image quality, size and dimensions as may be required by the Supplier from time to time before the date on which the Services are to start or at such other intervals as may be agreed between the parties (and, without prejudice to the Supplier’s other rights and remedies, the Supplier may refuse to supply or suspend the Services in the event that the Client fails to provide the Advertising Materials in such format, image quality, size and dimensions, or within such timescales, as may be required by the Supplier); and
5.1.6 comply with all Applicable Laws.
5.2 The Client shall be solely responsible for the accuracy and completeness of the Advertising Materials which are used in the Services or incorporated into the Advertising Space.
5.3 The Client warrants that the Advertising Materials, or any part of them, do not and will not:
5.3.1 infringe any Applicable Laws, including but not limited to the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008, and any standards, codes or regulations imposed or regulated by the Advertising Standards Authority;
5.3.2 infringe the rights of any third party, including but not limited to the Intellectual Property Rights of any third party;
5.3.3 incorporate or include any material which, in the absolute discretion of the Supplier, is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, or is otherwise inappropriate,
and any such Advertising Materials shall be deemed “Inappropriate Content“.
5.4 The Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
5.4.1 any breach of, or non-compliance with, the Contract by the Client; and
5.4.2 any action or claim that the Advertising Materials constitute Inappropriate Content.
5.5 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
5.5.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
5.5.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.5; and
5.5.3 the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
- Changes to the Services
In the event that the Client wishes to alter, vary or add to the Services (the “Proposed Variation”), the Client must contact the Supplier in writing as soon as possible, setting out sufficient details of the Proposed Variation. As soon as practicable following receipt, the Supplier will give notice to the Client whether the Proposed Variation would result in any changes to the Charges, the time of supply of the Services or the terms of the Order. The Client will confirm within 5 Business Days of receipt of such notice if it wishes to proceed on the basis of the changes to the Charges, timings or terms of the Order and if so, the Contract will be varied accordingly. If the Client does not agree to the changes, the Supplier shall continue to provide the Services without the relevant Proposed Variation.
- Charges and payment
7.1 The Client shall pay the Charges in accordance with these Conditions.
7.2 The Charges for the Services shall be as set out in the Order or as otherwise agreed between the parties in writing.
7.3 Unless otherwise agreed by the Supplier in writing:
7.3.1 where the Contract is for a Fixed Term, payment of the Charges must be made in full at the point of submitting the Order; or
7.3.2 where the Contract is for an Ongoing Term, payment of the Charges in respect of the first month of the Ongoing Term must be made at the point of submitting the Order and payment of the Charges in respect of each subsequent month of the Ongoing Term must be made on the first Business Day of such month.
7.4 The following methods of payment are accepted:
7.4.1 credit card;
7.4.2 debit card; and
7.4.3 direct debit.
7.5 In the event that the Supplier agrees to invoice the Client and accept payment otherwise than in accordance with clause 7.3, the Client shall pay each invoice submitted by the Supplier:
7.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Client (provided always that the Advertising Materials shall not be displayed in the Advertising Space until payment of all outstanding invoices has been received in full); and
7.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”) unless otherwise stated. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.7 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 10, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- Intellectual property rights
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client, including the Advertising Materials) shall be owned by the Supplier.
8.2 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to print, reproduce, display, copy and modify any materials provided by the Client to the Supplier (including the Advertising Materials) for the term of the Contract for the purpose of providing the Services to the Client.
- Limitation of liability
9.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
9.1.1 death or personal injury caused by negligence; and
9.1.2 fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1, the Supplier shall not be liable to the Client for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
9.3 Subject to clause 9.1 and 9.2, the Supplier’s total liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the aggregate sum of the Charges paid to the Supplier under the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
10.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract or suspend the Services with immediate effect by giving written notice to the Client if:
10.2.1 the Client fails to pay any amount due under the Contract on the due date for payment;
10.2.2 the Supplier, at its sole discretion, believes that the Advertising Materials, or any part of them would, or may, constitute Inappropriate Content;
10.2.3 the Client becomes subject to any of the events listed in clause 10.1.2 to clause 10.1.4, or the Supplier reasonably believes that the Client is about to become subject to any of them; or
10.2.4 there is a change of Control of the Client.
- Consequences of termination
11.1 On termination or expiry of the Contract:
11.1.1 the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt; and
11.1.2 the Supplier shall be entitled to remove the Advertising Materials from any Advertising Space.
11.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
12.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.2.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.3.1 Each party undertakes that it shall not at any time during the Term, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.2.
12.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
12.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.7 shall not affect the validity and enforceability of the rest of the Contract.
12.8.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email its main email address.
12.8.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
(c) if sent by email at 9.00 am on the next Business Day after transmission.
12.8.3 This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.