1. Definitions and interpretation
1.1 The following terms shall have the following meanings for the purposes of this agreement:
means this agreement, in accordance with, and including the Schedule;
means the charges payable by the "Client" to "iSiteTV" and detailed in the Schedule;
means all proprietary and confidential information or personal data of the "Parties" and of their customers or clients, whether technical, financial commercial or otherwise (including all specifications, drawings, designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information:
(a) is identified as confidential at the time of disclosure;
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of the disclosure; or
(c) results directly or indirectly from the discussions or negotiations of the "Parties" relating to this "Agreement", including the terms of this "Agreement" and any other agreement reached by the "Parties";
means the Client and any subsidiary or holding company of the Client;
means …………………..a company registered in England and Wales with company number ............and whose registered office is located at ………………………………………………………………….
means the names, trademarks and logos of the Client (and all "Intellectual Property Rights" subsisting in these names, trademarks and logos);
means, but is not limited to; Product Videos which have a typical duration of 30-90 seconds, 360 Degree Animations, Images, Text, Soundtracks, PDF’s, Web Pages, and other Web Applications offered by "iSiteTV";
means the date this "Agreement" is signed by the Client;
"Force Majeure Event"
means any event arising which is beyond the reasonable control of the affected party including, but not limited to, the following:
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes (excluding those involving employees of either iSiteTV or the Client);
(f) inability to obtain raw materials, labour, fuel, parts or machinery; and
(g) power failure or breakdown in machinery (excluding those which are the direct or indirect result of the acts or omissions of either Party);
"Intellectual Property Rights"
means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, Confidential Information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights to sue for passing off;
means iSiteTV a company registered in England and Wales with company number 05676455 and whose registered office is located at 8 Tollgate Business Park, Colchester, CO3 8AB and any subsidiary or holding company of iSiteTV and any subsidiary or holding company of iSiteTV’s ultimate holding company (as such terms are defined in section 736 of the Companies Act 1985);
means "iSiteTV" and the "Client";
means "iSiteTV" or the "Client" (as the context requires);
means any goods manufactured, or distributed, by the Client, either directly or indirectly;
means any Company that offers for sale, Products which the Client manufactures, or distributes, either directly or indirectly, and who has agreed to use the Services exclusively in accordance with iSiteTV’s terms and conditions;
means the spoken text used within the Digital Media;
means the services to be provided by "iSiteTV" pursuant to this Agreement, as described in clause 2;
means any UK website belonging to the "Client" and its Resellers,
1.2 Clause headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the schedules of this Agreement, the clauses shall prevail.
1.5 Where the context so admits or requires, words denoting the singular include the plural and vice versa.
2.1 iSiteTV hereby agrees to:
2.1.1 provide the Service in accordance with the terms of the Schedule;
2.1.2 produce Digital Media in accordance with the Schedule and the Client’s brand guidelines, with such guidelines to be agreed in advance.
2.1.3 offer Digital Media to the Resellers;
2.1.4 promptly supply to Resellers the source code required to incorporate the Digital Media on the Websites; pursuant to clause 2.1.5
2.1.5 stream the Digital Media on the Websites;
2.1.6 host the Digital Media on its server; and
2.1.7 ensure that the hosting facilities described in clause 2.1.6 above are supported by a globally load balanced network which is operational at a level of at least 99.9% per month, excluding downtime caused by facilities of local circuits between iSiteTV and Resellers and/or failures of or in the operation of Resellers hardware or software.
2.1.8 make available sufficient insured warehouse space to accommodate the Client’s Products during filming;
2.2 iSiteTV may suspend the Services from time to time for necessary technical reasons, including network upgrades outside the 99.9% warranty provided in clause 2.1.7 above, PROVIDED THAT:
2.2.1 iSiteTV gives Resellers reasonable notice of the intended suspension.
3. The Client’s obligations
3.1 In consideration of the performance of Services by iSiteTV pursuant to clause 2 above the Client agrees to:
3.1.1 provide Products in accordance with the terms of the Schedule;
3.1.2 promptly approve scripts and Video’s, issue brand guidelines prior to filming, and provide other assets that may be required by iSiteTV to fulfil its obligations under the terms of this agreement;
3.1.3 subject to clause 18 below, not to allow any third party to use, or to have access to the Digital Media, other than for the purpose of viewing product demonstrations using the iSiteTV Service;
3.1.4 during the term of this Agreement, not to enter into with any third party any form of agreement whatsoever for the provision of producing or streaming video content for use over the Internet, which is of the same, or substantially similar type, as are being provided by iSiteTV pursuant to clause 2.1.1, 2.1.2, 2.1.3 and 2.1.5 above;
3.1.5 collect Products within 28 (twenty eight) days from the date on which iSiteTV shall notify the Client, that such Products are available for collection.
4. Charges and Payment
4.1 iSiteTV shall be entitled to issue to the Client "invoices" in respect of the Charges calculated in accordance with the Schedule, and in accordance with the remainder of this clause 4.
4.2 The Client shall pay to iSiteTV the sum of £75.00 per product for any amendments the Client shall request to the script or Video once either or both have been approved, pursuant to clause 3.1.2.
4.3 The Client shall pay to iSiteTV the Charges set out in the invoice issued by iSiteTV pursuant to clause 4.1 above, within 30 (thirty days) of the date on which iSiteTV issues the invoice. Failure to make timely payment under this clause will constitute a material breach of the Agreement.
4.4 All sums payable under this Agreement unless otherwise stated are exclusive of VAT and other duties or taxes.
4.5 Interest shall be payable, and recoverable on demand, in respect of all overdue invoices at a rate of 4% per annum above the base rate of Lloyds TSB Bank from time to time.
5. Intellectual Property Rights
5.1 Subject to clause 3.1.3 and 3.1.4, iSiteTV agrees to grant to the Client a licence to use the Digital Media.
5.2 The property and Intellectual Property Rights in all Videos shall remain with iSiteTV always, subject only to the licence granted to the Client under clause 5.1 above.
5.3 The Client agrees to grant to iSiteTV a non-exclusive, non-transferable licence to use the Client’s Marks during the term of this agreement for the purpose of iSiteTV promoting the Client’s use of the Service, and for performing its obligations under this agreement.
5.4 iSiteTV acknowledges and agrees that the Client and its licensors own and will retain absolute ownership of the Client Marks, and in any Intellectual Property provided to iSiteTV in connection with this Agreement.
5.5 Both Parties acknowledge and agree that nothing in this Agreement will operate as an assignment to the other Party of any of its Intellectual Property Rights.
5.6 The licences granted in this clause 5 will automatically terminate upon termination or expiry of this Agreement.
6. Reporting and use of Data
6.1 iSiteTV shall provide the Client with access to general, "non-personal" data generated from the Websites relating to the Resellers use of the Digital Media. This statistical information shall be made available to the Client, PROVIDED THAT the Client treats such statistical information as Confidential Information as set out in clause 10.
6.2 The Client agrees that iSiteTV shall have the right to collate general, "non-personal" data from the Websites relating to the Client’s use of the Services, and Digital Media, in order to produce statistical information. This statistical information will be made available to Various Parties PROVIDED THAT such Various Parties treat such statistical information as Confidential Information and are bound by obligations of confidentiality at least equivalent to those set out in clause 10 below. For the purposes of this clause 5.1, "non-personal data" means any data which is not "Personal data" as defined by the Data Protection Act 1998.
7. Warranties and Liability
7.1 Each of the Parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
7.2 Each of the Parties warrants to the other that it will not:
7.2.1 act in such a way as to damage, undermine or challenge the other Party’s ownership of its Intellectual Property Rights (including, but not limited to, the Client’s Marks); and
7.2.2 infringe the Intellectual Property Rights of any third party.
7.3 iSiteTV warrants to the Client that the Digital Media and Services supplied to the Client and Resellers by iSiteTV will:
7.3.1 conform to the applicable regulations and statutes of any competent authority, and laws for the country in which the Digital Media are to be provided and will not be contrary to any applicable codes of conduct;
7.3.2 be free from computer viruses, harmful or malicious code or other disabling devices;
7.4 iSiteTV warrants to the Client that the Services will be provided:
7.4.1 using reasonable care, diligence and skill to a standard consistent with good practice as then current in the relevant area of the information technology industry; and
7.4.2 in compliance with all applicable laws, enactments, orders, regulations and other similar instruments in force from time to time.
7.5 Upon becoming aware of any non-conformity with a warranty under clause 7.3 or 7.4 above, or upon receiving notice to that effect from the Client or Resellers, iSiteTV shall (without affecting the Client’s other rights or remedies) at its own cost immediately remove the
offending Video(s) in order to comply with the relevant warranties within 5 days of becoming aware, or receiving notice, of the non-conformity.
7.6 Neither Party shall be liable to the other Party by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any indirect, special or consequential loss, damage, costs, expenses or other claims including loss of profit.
7.7 iSiteTV shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any direct or indirect loss, special or consequential loss, damage, costs, expenses or other claims including loss of profit.
7.8 Nothing in this clause or in this Agreement shall exclude or limit the liability of either Party in respect of:
7.8.1 dishonesty, or the tort of deceit, or wilful neglect by its employees, agents or contractors;
7.8.2 any breach of the confidentiality obligations and/or intellectual property warranties in this Agreement;
7.8.3 any breach of the obligation to pay the Charges and the interest accrued on any unpaid Charges, and the costs and expenses incurred in recovering such Charges and interest; or
7.8.4 any liability which may not otherwise be limited or excluded under applicable law.
8. Term and Termination
8.1 This Agreement shall commence on the Effective Date and shall continue for an initial period of twelve months ("Initial Period"), and thereafter shall continue until terminated in accordance with the remainder of this clause 8.
8.2 Either Party may terminate this Agreement at any time by serving 90 days written notice to the other Party, such notice not to be served before the end of the Initial Period.
8.3 Either Party may terminate this Agreement immediately at any time by written notice to the other party if:
8.3.1 that other Party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 14 (fourteen) days after the service of written notice specifying the breach and requiring it to be remedied;
8.3.2 that other Party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement) or becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or 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 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 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
8.3.3 that other Party has been subject to a Force Majeure Event for a continuous period of more than 30 (thirty) days.
8.4 On expiry or termination of this Agreement:
8.4.1 all licences granted to either Party under this Agreement shall terminate immediately;
8.4.2 all provisions of this Agreement shall cease to have effect, save that any provision which can reasonably inferred as continuing or is expressly stated to continue shall continue in full force and effect (including, but not limited to, the confidentiality obligations in clause 10 below).
9. Force Majeure
9.1 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 Party and shall inform the other Party of the period for which it is estimated that such failure or delay shall continue. The affected Party shall take reasonable steps to mitigate the effect of the Force Majeure Event, but otherwise shall not bear any liability or responsibility to the other party for the Force Majeure Event.
10.1 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.
10.2 Confidential Information may be disclosed by the receiving party to its employees, affiliate partners, and professional advisers, provided that the recipient is bound by obligations of confidentiality no less onerous than those contained in this Agreement to maintain the confidentiality of the Confidential Information received.
10.3 The obligations set out in this clause 10 shall not apply to Confidential Information which the receiving party can demonstrate:
10.3.1 is or has become publicly known other than though breach of this clause 10;
10.3.2 was in the possession of the receiving party prior to disclosure by the other party;
10.3.3 was received by the receiving party from an independent third party who has full right of disclosure;
10.3.4 was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other prompt written notice requirement; or
10.3.5 was agreed to be disclosed as set out in clauses 6.1.and 6.2
11.1 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 will remain in force.
11.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
12. Whole agreement
12.1 Each party acknowledges that this Agreement contains the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
13. Supersedes prior agreements
13.1 This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the Effective Date but without prejudice to any rights which have already accrued to either of the parties.
14.1 All notices to be given under this Agreement shall be in writing and shall either be delivered personally or sent by first class or airmail prepaid post or by telex, cable or facsimile transmission.
14.2 Each notice shall be addressed to the address of the Party concerned set out in this Agreement or to such other address as that party shall have previously notified to the sender.
15.1 iSiteTV shall be entitled, without prior consent from the Client, to assign, novate or otherwise dispose of any of its rights and/or obligations under the Agreement.
15.2 iSiteTV may sub-contract any of its obligations under this Agreement provided that iSiteTV remains liable for the acts and omissions of its sub-contractors.
16. Governing law and jurisdiction
16.1 This Agreement and any disputes or claims arising out if or in connection with its subject matter are governed by and construed in accordance with the law of England.
16.2 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.
17. Variation and Waiver
17.1 A variation of this Agreement must be in writing and signed by or on behalf of both parties.
17.2 A waiver of any right under this Agreement is only effective if it is in writing and it applied 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. Third party rights
18.1 Subject to clauses 18.2 below, a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
18.2 iSiteTV and any person who is a permitted successor or assignee under clause 15 above shall have the right:
18.2.1 to enforce any rights or benefits in this Agreement; and
18.2.2 to enforce the rights or benefits of any indemnity, limitation and/or exclusion of liability in this Agreement.
19.1 Nothing in this Agreement creates a joint venture, relationship of partnership or agency between the Parties. Accordingly, except as expressly authorised under this Agreement neither Party has authority to pledge the credit of or make any representation or give any authority to contract on behalf of the other Party.
Last updated: on June 11, 2014