All capitalised terms are as defined in clause 1 below.
“We” “us” are Market Making Limited
, the owners of the Social Insight Engine.
“You” or “Customer” are the person named in the Order form, who has agreed to receive the Services on the terms appearing below.
Market Making's Facebook app for generating personalised inspirational quotes as further described at: momentsto.be
and including any adapted or “white label” version of the App developed or supplied pursuant to the Services.
charges paid for Services and specified in the Order Form.
our database of Content, which has been created for the specific purpose of our Services and as a result of substantial investment and effort on our part.
Data Protection Legislation:
means all privacy laws applicable to Personal Data which is processed under or in connection with this Agreement, including EU Directive 94/96/EC and 2002/58/EC, as interpreted by the Data Protection Act 1998 (or equivalent local laws), all regulations made pursuant to and in relation to such legislation and including the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or equivalent local regulations) together with all codes of practice and other guidance on the foregoing issued by any relevant Data Protection Authority, all as amended from time to time.
in accordance with which we developed the App.
Intellectual Property Rights:
all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application for the same), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
any materials provided by the Customer to us, to assist us in the provision of the Services.
the form completed by the Customer specifying the Services and the Fees.
bears the meaning given in the Data Protection Act 1998.
relating to the Social Insight Engine and the uses of data gathered using the App.
services provided to Customers as further specified in the order form and the Services Specification, based around gathering, interpreting and using Content to assist the Customer to develop a more personalised and targeted marketing offering.
the description of the services to be supplied to the Customer set out in the contract.
any Site (including any Facebook account associated with any Customer or with us) through which the Social Insight Engine is promoted to Users.
any period during which the Services are supplied, as stated on the Order form.
anyone who uses the Social Insight Engine and the Services, or provides Content by use of the App.
1.1 Clause headings do not affect the interpretation of this agreement.
1.2 References to clauses are (unless otherwise provided) references to the clauses of this agreement.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being made under it.
1.5 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
1.6 References to written or writing include material submitted electronically.
2.1 Customers are, in consideration of paying the Charges, entitled to receive the Services in accordance with the Services Specifications.
2.3 The Services will be supplied in accordance with good industry practice and using personnel with reasonable and appropriate care and skill.
2.4 Save as expressly set out in this agreement, all conditions, warranties and representations whether express or implied, statutory or otherwise as to the Services are hereby excluded.
3. CHARGES AND PAYMENT
3.1 Charges for Services shall be levied in accordance with the Services ordered and shall be payable within 30 days.
3.2 All Charges are exclusive of VAT.
4.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
4.2 The Customer warrants that it has acquired all necessary consents and permissions (including without limitation under the Data Protection Legislation) to allow us to use Material as set out in this agreement in the provision of the Services.
4.4 We shall perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards. The Host will use all reasonable endeavours to ensure that the Content is free of material errors and material defects and that the Services provides the facilities and functions materially in accordance with the Services Specification.
4.5 Given the inherent limitations of the internet, no warranty is given that the operation of the Social Insight Engine will be uninterrupted and no warranty is given with respect to any third party service or infrastructure required to operate the Social Insight Engine.
5. LIMITATION OF REMEDIES AND LIABILITY
5.1 Nothing in this agreement shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence; or
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
5.2 Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
5.3 Save for clauses 5.1, clause 7.1 and clause 9.5 each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement, or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 125% of the amount of the Charges paid or payable in that year by the Customer.
5.4 Liability under clause 7.1 shall be limited to [£1million] per incident or series of incidents.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer retains all Intellectual Property Rights in the Materials, and grants us a licence to use such Intellectual Property Rights to the extent required to perform its obligations pursuant to this agreement and deliver the Services in accordance with the Service Specifications.
6.2 Save for the Materials, all Intellectual Property Rights in the Site and the Social Insight Engine remain those of us and will only be licensed to the Customer to use as contemplated by this agreement during its term. For the avoidance of doubt, all data sourced by us, including all Content and the Database shall remain our property.
7.1 Each party shall, subject to clause 7.3 below, indemnify us (the party indemnified) against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party arising out of the acts or omissions of the indemnifying party in connection with this Agreement.
7.2 The Customer shall subject to clause 7.3 below indemnify us in respect of any costs, claims, damages and expenses arising out of any breach of Intellectual Property Rights in any Materials supplied by the Customer to us or any breach by the Customer of the warranties included in clause 9.2 below.
7.3 The indemnity in clause 7.1 and 7.2 is subject to the following conditions:
(a) the party indemnified notifying the indemnifying party in writing of the action or claim;
(b) the party indemnified making no admissions or settlements without the indemnifying party’s prior written consent;
(c) the party indemnified giving the indemnifying party all information and assistance that the indemnifying party may reasonably require; and
(d) the party indemnified allowing the indemnifying party complete control over the litigation and settlement of any action or claim.
8. MATERIAL CONTENT
8.1 All Material supplied to us by the Customer must:
• Be Material in which the Customer owns all applicable intellectual property or is entitled to supply and not breach the confidence of any third person.
• Be accurate and not misleading.
• Not breach, in any way, the Data Protection Legislation.
• (Without prejudice to the foregoing) not be discriminatory (whether on the grounds of race, sex, sexuality, disability, marital or family status or on any other protected status grounds) or in our reasonable opinion constitute biased or hate speech.
• Not be defamatory.
• Not, in our reasonable opinion, be harassing or abusive.
• Not contain Materials which are unlawful or fraudulent, or have any unlawful or fraudulent purpose or effect.
• Not be used or intended for the purpose of harming or attempting to harm minors in any way.
• Not contain viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
8.2 The Customer will inform us as soon as reasonably practicable if it becomes aware that any Material supplied by it is in breach of any of the above points and comply with the reasonable directions of the Host with respect to removing such Material.
9. DATA PROTECTION AND PROTECTION OF CONTENT
9.2 It is specifically drawn to the Customer’s attention that the provision of the Services will normally be based around our use and analysis of anonymised and aggregated data, not having the quality of Personal Data. The Customer is strictly prohibited from disaggregating or otherwise seeking to derive Personal Data from Content used to supply the Service.
9.3 The Customer warrants that it is receiving the Services of the purposes of carrying out marketing and advertising on its own account and not on behalf of any third party and that it is not acting as an ad network, data broker or other similar advertising or monetization-related service or on behalf of any person who is so acting.
9.5 The Customer agrees to indemnify us against all costs, claims, damages or expenses to the extent the same arise out of any breach by them of the Data Protection Legislation in respect of any Content or any use by them of the Services or the provision of any Material to us or any breach of the warranty in clause 9.3 above.
10. TERM AND TERMINATION
10.1 Subject to the remainder of this clause 10, this Agreement will come to an end either at the expiry of any fixed Term agreed between the parties or, in the absence of a fixed term, on [30 days written notice by either party].
10.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or
(c) that other party has been subject to a Force Majeure Event for a continuous period of more than 90 days.
10.3 We may terminate this Agreement without liability on either side in the event that Facebook requires us to cease distributing the App or the Content or otherwise materially changes its Developer Agreement to restrict our use and gathering of Content. We will give you such notice as is reasonable in the circumstances of any such notification and will if so requested by you join with you in good faith to discuss any modifications or changes to the Services to allow us to continue to supply them.
10.4 On expiry or termination of this agreement:
(a) all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
11. CHANGE CONTROL
Any request to change the scope of the Services shall be agreed in writing between the Parties and will not take effect until embodied in an addendum to this agreement signed by both parties.
12. FORCE MAJEURE
12.1 The definition in this clause applies in this agreement.
Force Majeure Event: any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
12.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
13.1 The definition in this clause applies in this agreement.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
13.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
13.4 The obligations set out in this clause shall not apply to Confidential Information that the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 13; or
(b) was in the possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other prompt written notice of the requirement.
13.5 The obligations of confidentiality in this clause 13 shall not be affected by the expiry or termination of this agreement.
14.1 A notice given under this agreement:
(a) shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
(b) shall (if sent to the Host) be sent to the address of the Host given on the Site and if sent to the Customer shall be sent to the Customer’s most recent email address given to the Site.
The rights and duties of either party pursuant to this Agreement may not be assigned except with the written consent of the other, which may not be unreasonably withheld.
16. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party's only remedies shall be for breach of contract as provided in this Agreement.
17. THIRD PARTY RIGHTS
17.1 The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under this agreement is not subject to the consent of any person who is not a party to this agreement.
17.2 No person has any rights under the Contracts (Rights of Third Parties) Act 1999 in respect of this agreement.
18. VARIATION AND WAIVER
18.1 A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.
18.2 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
18.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
19.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
20.2 In the event of any dispute between the parties as to any matter falling within the scope of this Agreement the parties shall seek to resolve it by internal escalation and if that has not succeeded in resolving the dispute within [28 days] of such escalation (or such longer period as the parties may agree) then either party may propose referring the dispute to non-binding mediation before a qualified mediator under the rules of a body such as Centre for Dispute Resolution.
20.3 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement which cannot be settled by alternative dispute resolution.