| Date |
Sunday, January 21, 2018 |
| 1 |
Establish Mindfulness, a company registered in United Kingdom (UK) under number 11496167 whose registered office is at 16 Rykens Lane, Brockham Park, Betchworth, Surrey, RH37AB, United Kingdom (UK) and |
| 2 |
Bongo Land |
| admin+adzone@establishmindfulness.com |
| admin+technical@establishmindfulness.com |
| 1 |
At all material times the Advertising Host is engaged in the writing and publishing of the advertising platform known as Establish Mindfulness at - https://www.establishmindfulness.com
- https://app.establishmindfulness.com
- https://community.establishmindfulness.com
|
| 2 |
At all material times the Advertiser is engaged in the business of ("the Business") and wishes to advertise the Business on the Advertising Platform. |
| 2 |
The Advertising Host hereby agrees to advertise the Business on the Advertising Platform subject to the terms and conditions of this Agreement. |
| 1 |
The Definitions and Interpretation |
| 1.1 |
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings: |
| "Advertising Services" means, generally, the advertising platform advertising services to be provided by the Advertising Host to the Advertiser including the creation of Adverts on the Advertising Platform |
| "Advertising Platform Host" means, Establish Mindfulness, the service provider which hosts the Advertising Platform |
| "Business Day" means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business |
| "Confidential Information" means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such) |
| "Fee" means the consideration payable to the Advertising Host for the Advertising Services as defined in sub-Clause 5.1 |
| "Intellectual Property Rights" means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions |
| "Intellectual Property Rights" means (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a) |
| "Intellectual Property Rights" means (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and |
| "Intellectual Property Rights" means (d) the right to sue for past infringements of any of the foregoing rights |
| "Licence Term" means the duration of the licence granted to the Advertiser under Clause 6, as defined in Schedule 1 |
| "Advert" means a post on the Advertising Platform which advertises the Business and is created in the course of the Advertising Services; and |
| "Required Information" means the information which the Advertiser must supply to the Advertising Host to enable the Advertising Host to carry out the Advertising Services as defined in Schedule 1 |
| 1.2 |
Unless the context otherwise requires, each reference in this Agreement to: |
| 1.2.1 |
"writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means |
| 1.2.2 |
A statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time |
| 1.2.3 |
"this Agreement" is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time |
| 1.2.4 |
A Schedule is a schedule to this Agreement |
| 1.2.5 |
A Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and |
| 1.2.6 |
A "Party" or the "Parties" refer to the parties to this Agreement |
| 1.3 |
The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement |
| 1.4 |
Words imparting the singular number shall include the plural and vice versa |
| 1.5 |
References to any gender shall include the other gender |
| 2 |
Engagement and Advertising Services |
| 2.1 |
The Advertiser hereby engages the Advertising Host to provide the Advertising Services |
| 2.2 |
The Advertising Services shall commence on Sunday, January 21, 2018 ("the Start Date") |
| 2.3 |
The provisions of sub-Clauses 2.1 shall be subject to any and all events beyond the Advertising Host's reasonable control. Such circumstances shall include, but not be limited to, the termination of the Advertising Platform by the Advertising Platform Host (unless such termination is the fault of the Advertising Host), the change of control, closure or winding-up of the Advertising Platform Host and other events addressed in Clause 13 |
| 2.4 |
The Advertising Host shall publish adverts at random, and cannot provide a minimum or maximum length of time for which each advert maybe displayed |
| 2.5 |
Adverts may not contain imagery, ideas or language that may incite racial or religious intolerance. Adverts may not contain imagery, ideas or language that is profane, pornographic, violent or obscene. Any adverts that contravene these guidelines will be removed immediately and will result in this Advertising Agreement being terminated forthwith. |
| 2.6 |
The Advertising Host shall be responsible for the quality of the Advertising Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by him to perform all or any part of the Advertising Services shall also do so competently and with reasonable care |
| 3 |
Nature of Engagement |
| 3.1 |
The Advertising Host shall at all times be an independent contractor and the Advertising Host's activities and those of his substitutes or employees are at all times under the Advertising Host's exclusive direction and control |
| 3.2 |
The Advertising Host shall at all times be responsible for organising how and in what order the Advertising Services are performed and shall, where relevant, liaise with the Advertiser (or the Advertiser's representative) to ensure that due account is taken of the impact of the timing of the Advertising Services to be performed upon the activities of the Advertiser and any other contractors, consultants and similar third parties also engaged by the Advertiser |
| 3.3 |
The engagement under this Agreement is mutually non-exclusive and the Advertising Host shall be entitled, at his own expense, to substitute or to employ another worker with the requisite skills and experience to perform the Advertising Services. The Advertising Host shall in any event provide such a substitute where the provision of the Advertising Services is unduly delayed by absence due to incapacity or for any other reason upon notification by the Advertiser (or the Advertiser's representative) that a delay is unacceptable |
| 3.4 |
Whenever possible and practicable, the Advertising Host shall use his own equipment, materials and resources to carry out the Advertising Services |
| 3.5 |
The engagement and appointment of the Advertising Host under this Agreement does not create any mutual obligations on the part of the Advertiser or the Advertising Host to offer or accept any further engagement and no continuing relationship shall hereby be created or implied |
| 4 |
Status of the Advertising Host |
| 4.1 |
The Advertising Host shall at all times be an independent contractor [and shall have the status of a self-employed person] and shall be responsible for all income tax and national insurance contributions or similar taxes or contributions in respect of the consideration payable under this Agreement |
| 4.2 |
The Advertising Host hereby agrees to indemnify the Advertiser in respect of any claims that may be made by the relevant authorities against the Advertiser in respect of income tax or national insurance contributions or similar taxes or contributions, including interest and penalties, relating to the Advertising Services provided by the Advertising Host under this Agreement |
| 4.3 |
The Advertising Host shall be responsible for his expenses and value added tax |
| 4.4 |
Nothing in this Agreement shall be deemed to create any partnership, joint venture or employment relationships between the Parties |
| 5 |
Consideration |
| 5.1 |
In consideration of the Advertising Services the Advertiser shall pay to the Advertising Host the Fee of GBP0.05 per impression and the Fee of GBP1 per click |
| 5.2 |
Payment of the Fee per impression and the Fee per click shall be made by the Advertiser to the Advertising Host, within 5 days of receipt of the Advertising Host's invoice, and no later than the end of each calendar month. The aforementioned invoice will be sent by e-mail to the registration e-mail address provided by the Advertiser. The aforementioned invoice will contain advertising data pertaining to the amount of impressions & clicks that have been recorded by the Advertising Host's system |
| 5.3 |
No further payment shall be made to the Advertising Host for the Advertising Services over and above the entitlement set out in this Clause 5 and, without limitation, no payment shall be made to the Advertising Host in respect of any expenses incurred by the Advertising Host in completing the Advertising Services |
| 6 |
Intellectual Property |
| 6.1 |
Nothing in this Agreement shall vest copyright or any other Intellectual Property Rights subsisting in any and all materials created by the Advertising Host in the course of providing the Advertising Services to the Advertiser |
| 6.2 |
Nothing in this Agreement shall vest any rights in any material provided by, or otherwise belonging to the Advertiser which is used in the Adverts to the Advertising Host |
| 6.3 |
Save for that material addressed in sub-Clause 6.1, nothing in this Agreement shall vest any rights of any kind in any other part of the Advertising Platform to the Advertiser |
| 7 |
Advertising Host's Warranties and Indemnity |
| 7.1 |
The Advertising Host represents, warrants, undertakes, and agrees with the Advertiser as follows: |
| 7.1.1 |
The work produced in the course of the Advertising Services shall be original to the Advertising Host and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person |
| 7.1.2 |
Neither the work produced in the course of the Advertising Services nor anything else in the Advertising Platform shall, under the laws of the UK be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the work will, if published, constitute a contempt of court |
| 7.1.3 |
The Advertising Host shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the work produced in the course of the Advertising Services except pursuant to this Agreement and shall not enter into any agreement or arrangement which might conflict with the Advertiser's rights under this Agreement or might interfere with the Advertising Host's performance of his obligations under this Agreement |
| 7.1.4 |
Subject to sub-Clause 7.2 the Advertising Host hereby undertakes to indemnify the Advertiser and keep the Advertiser at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Advertiser on a solicitor and own-client basis), awards, or damages howsoever arising - directly or indirectly - as a result of any breach or non-performance by the Advertising Host of any of the Advertising Host's undertakings, warranties, or obligations under this Agreement |
| 7.2 |
The Advertising Host under this Agreement shall not be held liable for damages that are incurred from any or all of the activities listed in this section |
| 8 |
Advertiser's Warranties and Indemnity |
| 8.1 |
The Advertiser represents, warrants, undertakes, and agrees with the Advertising Host as follows: |
| 8.1.1 |
The Required Information shall be original to or otherwise owned by the Advertiser and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person |
| 8.1.2 |
The Required Information shall not, under the laws of the UK be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the Required Information will constitute a contempt of court |
| 8.1.3 |
The Advertiser shall not enter into any agreement or arrangement which might conflict with the Advertising Host's rights under this Agreement or might interfere with the Advertising Host's performance of his obligations under this Agreement |
| 8.1.4 |
Subject to sub-Clause 8.2 the Advertiser hereby undertakes to indemnify the Advertising Host and keep the Advertising Host at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Advertising Host on a solicitor and own-client basis), awards, or damages howsoever arising - directly or indirectly - as a result of any breach or non-performance by the Advertiser of any of the Advertiser's undertakings, warranties, or obligations under this Agreement |
| 8.2 |
The Advertiser's liability under this Agreement shall be equal to the damages that are incurred from any or all of the activities listed in this section |
| 9 |
Confidentiality |
| 9.1 |
Both Parties undertake that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and for 30 days after its termination: |
| 9.1.1 |
Keep confidential all Confidential Information |
| 9.1.2 |
Not disclose any Confidential Information to any other party |
| 9.1.3 |
Not use any Confidential Information for any purpose other than as contemplated by this Agreement |
| 9.1.4 |
Not make any copies of, record in any way or part with possession of any Confidential Information; and |
| 9.1.5 |
Ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 9 |
| 9.2 |
Subject to sub-Clause 9.3, either Party may disclose any Confidential Information to: |
| 9.2.1 |
Any of their sub-contractors, substitutes, or suppliers |
| 9.2.2 |
Any governmental or other authority or regulatory body; or |
| 9.2.3 |
Any of their employees or officers or those of any party described in sub-Clauses 9.2.1 or 9.2.2 |
| 9.3 |
Disclosure under sub-Clause 9.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 9.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made |
| 9.4 |
Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party |
| 9.5 |
When using or disclosing Confidential Information under sub-Clause 9.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge |
| 9.6 |
The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason |
| 10 |
Termination |
| 10.1 |
Either Party may terminate this Agreement by giving to the other not less than 30 days written notice |
| 10.2 |
Without prejudice to the generality of sub-Clause 10.1, this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances: |
| 10.2.1 |
Either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable of remedy, is not remedied within 30 days of written notice of such failure from the other Party; or |
| 10.2.2 |
Either Party goes into bankruptcy or liquidation - either voluntary or compulsory - save for the purposes of bona fide corporate reconstruction or amalgamation, or if a receiver is appointed over the whole or any part of that Party's assets |
| 10.3 |
The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement |
| 11 |
Nature of the Agreement |
| 11.1 |
This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) [or sub-license] any of its rights hereunder, [or sub-contract or otherwise delegate any of its obligations hereunder], except with the written consent of the other Party, such consent not to be unreasonably withheld |
| 11.2 |
This Agreement contains the entire agreement between the Parties with respect to its subject matter and may be modified, by the Advertising Host only, at any time, without due notice, by adding a clause/clauses. Any changes made to this agreement by the Advertising Host, will be immediately available for inspection, using the link provided in the registration e-mail sent to each Advertiser. This agreement will be available for inspection at any time, except for when the Advertising Host platform is undergoing routine maintenance. The Advertising Host reserves the right to carry out routine maintenance on any part of its platform, including the Advertising Agreement section, at any time, for any length of time, without due notice. This is to ensure the smooth running of the Advertising Host's platform and the mitigation of any security risks that might result from not taking such an action |
| 11.3 |
Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law |
| 11.4 |
No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision |
| 12 |
Force Majeure |
| 12.1 |
Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question |
| 13 |
Notices |
| 13.1 |
All notices under this Agreement shall be delivered by e-mail and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice. |
| 13.2 |
Notices shall be deemed to have been duely given: |
| 13.2.1 |
If a return receipt is duely generated by the recipient |
| 14 |
Alternative Dispute Resolution |
| 14.1 |
Any dispute or difference arising between the Parties relating to this Agreement or its subject matter shall be referred to a single arbitrator to be agreed upon by the Parties or, failing such agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales |
| 14.2 |
The Parties hereby agree that the decision of the Arbitrator shall [not] be final and binding on both Parties |
| 15 |
Law and Jurisdiction |
| 15.1 |
This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales |
| 15.2 |
Subject to the provisions of Clause 14, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales |
| Establish Mindfulness |
| Bongo Land |