In these terms and conditions, the following definitions apply:
Agreement: these terms and conditions along with the corresponding Order
Commencement Date: the date on which Key Media either countersigns the Order or issues written acceptance of the Order.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party in connection with this Agreement which is either labelled as confidential or would be regarded as confidential by a reasonable business person.
Force Majeure Event: any acts, events, omissions or accidents beyond the reasonable control of the affected party, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Key Media or any other party), failure of a utility service or transport or telecommunications network, accident, breakdown of plant or machinery, fire, flood, storm, any restriction or measures imposed in connection with a pandemic, epidemic, public health emergency, act of God, war, riot, civil commotion, malicious damage, compliance with any law or acts of any governmental or local or other duly constituted authority order, rule, regulation or direction, or default of suppliers or sub- contractors.
Governing Jurisdiction: the location of the Key Media entity as detailed in the Order
Intellectual Property Rights: patents, patent applications, know-how, trademarks, trademark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights whether registered or unregistered, created, developed, subsisting or used in connection with this Agreement and whether in existence at the Commencement Date or created in the future in any part of the world.
Key Media: the legal entity as detailed on the Order
Key Media Publication: all text, images, graphics, photography, audio and/or visual content, whether printed or online or an any other medium, published by or on behalf of Key Media.
Order: the order issued by Key Media which sets out details of the Client’s order and other key terms of this Agreement.
Payment Date: the date by which payment of the Price must be made as expressly set out in the Order or if no such provision is made in the Order or for any other invoices relating to this Agreement such date as is determined in accordance with clause 3.
Price: the price payable by the Client for the Services as is set out on the Order.
Services: the Subscription services, the full details of which are set out in Order.
Subscription: access to the Website to which the subscription is linked, plus any applicable printed publications as detailed in the Order.
Website: the Key Media website to which the Subscription is linked as detailed in the Order.
1.1 The Client’s delivery of an Order to Key Media constitutes an offer to purchase Services pursuant to and in accordance with this Agreement. The Client shall have the right to cancel or amend any Order delivered to Key Media only if Key Media has not yet accepted the Order. Any Order given by Key Media is only valid for 14 days after the date issued unless otherwise agreed in writing by Key Media and Key Media has the right, in its sole discretion, to accept or reject any Order.
1.2 This Agreement constitutes the entire agreement between the parties and replaces and supersedes all other prior oral and written agreements. Unless otherwise agreed in writing, any Client conditions of contract which are included with any acknowledgement of the Order, invoice or any other documentation along with any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing are expressly excluded from this Agreement and shall not be deemed to become part of same by virtue of Key Media’s delivery of the Services or otherwise.
1.3 THE CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT, INFORMATION, PROMISE, REPRESENTATION, ASSURANCE OR WARRANTY MADE OR GIVEN BY OR ON BEHALF OF KEY MEDIA OR OBTAINED VIA ACCESS TO THE SERVICES WHICH IS NOT SET OUT IN THIS AGREEMENT AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY LAW AND/OR CONTRACT ARE HEREBY EXCLUDED, IT IS FURTHER ACKNOWLEDGED THAT KEY MEDIA’S LIABILITY FOR THE SERVICES SHALL CEASE UPON COMPLETION OF THE SERVICES.
2.1 The Subscription is for a term of twelve (12) months.
2.2 The Client may cancel the Subscription at any time and in such event the provisions of clause 9 shall apply.
2.3 Subscription will auto-renew unless cancelled in accordance with clause 4.5
2.4 Key Media shall, at its sole discretion, have the right to make any changes to the Website which (I) are necessary to comply with any applicable law; or (ii) do not materially affect the nature or quality of the Services.
2.5 Access to the Services is available to all members of the Client’s organisation. The Client shall not, and shall take all reasonable steps to ensure that it’s members shall not, share access to the Services with anyone, either individual or corporate, outside of the Client’s direct organisation.
2.6 Key Media shall have the right to vary the location, content, layout, frequency and format of the Website and any Key Media Publications at any time and any such variation shall in no way relieve the Client of its obligation to pay the Price.
2.7 Key Media will take reasonable endeavours to ensure the Website is available twenty four (24) hours a day however reserves the right to make the Website unavailable at any time or to restrict access to parts or all of it without notice. The Client shall not be entitled to any refund unless the Website is unavailable for a period greater than seven (7) days and such unavailability is not as a consequence of default on the part of the Client.
2. 8 In the event the Services includes delivery of a printed publication, this shall be delivered to the address provided by the Client. Key Media shall have no liability for the failure of any delivery services to deliver such publications or for the Client’s failure to provide the correct delivery address. Key Media reserves the right to dispose of incorrectly addressed publications without an obligation to refund the Client if they are returned to Key Media and, upon Key Media taking reasonable steps to obtain, correct address details are not received within 14 days of their return. The Client shall reimburse Key Media with any additional costs associated with the Client providing incorrect delivery details.
3.1 The Client shall pay Key Media the Price in accordance with this clause.
3.2 The Price is exclusive of any and all applicable taxes.
3.3 The Client warrants that it has accurately declared the size of its organisation for the purposes of assessing the Price.
3.4 The Client must inform Key Media if at any time the size of its organisation is to be increased by more than ten percent (10%) of the number provided at the time of this Agreement or that has been declared subsequently and such increase is to be valid for a period of more than a month. If such increase results in the Client exceeding the threshold for the Price quoted then Key Media reserves the right to increase the Price on a pro rata basis for the residual period of the Subscription term.
3.5 For the avoidance of doubt, the Client shall not be entitled to any refunds In the event of a decrease in size during any Subscription period.
3.6 Key Media shall send invoices to the Client’s billing address, which may be an e-mail address, as set forth in the Order. The Client shall pay all invoiced amounts in accordance with the terms set out in the invoice. The Client shall make all payments in the currency detailed in the Order. Pre-payment may be required at Key Media’s discretion and any such requirement will be detailed in the Order. For the avoidance of doubt, failure to pay the Price in accordance with this Agreement will constitute a material breach on behalf of the Client.
3.7 The Client shall pay interest on all late payments, calculated daily and compounded monthly, at the rate of 1% per month on all amounts outstanding for more than 30 days from the date of the invoice.
3.8 The Client shall pay all amounts due under this agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If the Client is or was required by law to make any deduction or withholding for any taxes from any payment due hereunder then the gross amount payable will be increased so that Key Media receives an amount that is no less than would have been received had no such deduction or withholding been required to be made. The Client shall indemnify and hold harmless Key Media in respect of any interest and penalties arising as a result of the Client’s failure to deduct, withhold, or remit taxes in accordance with relevant legislation.
3.9 The Client shall notify Key Media of any disputed invoices within ten (10) working days of receipt.
3.10 Key Media reserves the right to suspend access to the Services in the event of late payment of any amounts due under this Agreement until such amounts are paid in full.
3.11 The Client shall have no right to a refund for any periods of suspension due to late payment unless such delay is due to a dispute which, in the sole opinion of Key Media (acting reasonably), is valid. In such event, provided the Client supplied notice in accordance with this clause, the term of the Subscription shall be extended by the number of days equal to the period of the suspension.
4.1 The Subscription shall auto-renew every twelve (12) months for a further twelve (12) month period unless cancelled in accordance with this clause.
4.2 Key Media may request confirmation of the Client size as part of the auto-renewal process and reserves the right to adjust the Price accordingly.
4.3 Key Media reserves the right to increase the Price at auto-renewal, provided that it shall notify the Client forty five (45) days prior to the auto-renewal date in the event the Price shall increase by more than ten per cent (10%) of the Price paid for the expiring term.
4.4 The Client may advise Key Media at any time of a reduction in size and such reduction shall be taken into consideration upon assessment of the auto-renewal Price.
5.1 Nothing in this agreement shall limit or exclude either party’s liability for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or any other liability which cannot be excluded or limited by applicable law.
5.2 NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, EACH PARTY SHALL EACH BE RESPONSIBLE FOR AND SHALL SAVE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER FROM AND AGAINST ANY AND ALL LIABILITY HOWSOEVER ARISING AND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE AT LAW AND WHETHER OR NOT FORESEEABLE AT THE COMMENCEMENT DATE IN RESPECT OF ITS OWN CONSEQUENTIAL OR INDIRECT LOSSES, LOSS OF BUSINESS, PROFITS, GOODWILL AND/OR SIMILAR LOSSES ARISING FROM, RELATING TO OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
5.3 THE CLIENT SHALL INDEMNIFY AND HOLD HARMLESS KEY MEDIA FROM AND AGAINST ALL CLAIMS, DEMANDS, LOSSES, DAMAGES OR COST (INCLUDING LEGAL FEES) EXPENSES AND LIABILITIES IN RESPECT OF OR ARISING OUT OF ANY CLAIM THAT THE CLIENT ADVERTISEMENT AND/OR THE EVENT MATERIALS INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AND/OR THE DISTRIBUTION, HANDLING, ADVERTISING, USE OF, OR ANYTHING RELATING TO, THE EVENT MATERIALS OR CLIENT ADVERTISEMENT HAS CAUSED A THIRD PARTY TO SUFFER LOSS OR DAMAGE.
5.4 KEY MEDIA’S TOTAL CUMULATIVE LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE AT LAW, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE, CONTEMPLATED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE.
5.5 The Client shall effect and maintain, at its sole cost and expense, comprehensive general liability insurance to fulfil its obligations under this Agreement, including against claims for libel, slander, defamation, breach of intellectual property, breach of confidentiality, privacy and personality rights, in an amount not less than 2,000,000 in the Order currency per occurrence, with a reputable insurer for the term of this Agreement and will provide Key Media with evidence of such insurance upon written request.
6.1 Unless expressly agreed in writing, Key Media does not assign, license or transfer to the Client any Intellectual Property Rights or any goodwill relating to any Intellectual Property Rights owned by Key Media, which shall remain the sole and exclusive property of Key Media.
6.2 Intellectual Property Rights in the Website and the Key Media Publications shall remain at all times the property of Key Media (or its licensors, as applicable).
7.1 All confidential information supplied by one party to the other in connection with this Agreement shall, save to the extent required by any applicable law or regulation, be held in strictest confidence by the receiving party and shall not be used, reproduced, copied or disclosed to any third party by the receiving party except for use for the purposes of this Agreement. This obligation shall remain in full force and effect for a duration of 2 years from completion of the Services.
7.2 These restrictions shall not apply to information which (if) at the time of disclosure is, or which after disclosure becomes, part of the public domain other than by a breach of this Agreement; or (ii) the receiving party can show was in its possession and not under any obligation of confidentiality, prior to disclosure; or (iii) is or lawfully becomes available from a source having the right to disclose the same; or (iv) the receiving party can show has been developed by or for the receiving party at any time independently of the information disclosed to it by the disclosing party; or (v) is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, any applicable listing authority or securities exchange), or by a court or other authority of competent jurisdiction.
8.1 Without limiting its other rights or remedies set out in this Agreement, Key Media may terminate this Agreement with immediate effect by giving written notice to the Client if:
a) the Client commits a material breach of any term of this Agreement and (if such a breach is remediable) the Client fails to remedy that breach within 7 days of being notified in writing to do so;
b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors or 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;
c) the Client’s financial position deteriorates to such an extent that in Key Media’s opinion the Client’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy
The Client accepts that any termination of this Agreement pursuant to this clause shall not entitle the Client to any refund (in whole or in part) of the Price already paid.
8.2 Without limiting its other rights or remedies, Key Media may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this agreement on the due date for payment or fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
9.1 On termination of this Agreement for any reason:
a) the Client shall immediately pay to Key Media all of its outstanding unpaid invoices including any interest and, in respect of any remaining Subscription period for which no invoice has been submitted, Key Media shall submit an invoice, which shall be payable by the Client immediately on receipt;
b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and
c) any other provision which expressly or by implication survives termination shall continue in full force and effect.
10.1 If either party is prevented or delayed from complying with all or part of its obligations, except the Client’s obligation to reimburse Key Media, as a direct result of a Force Majeure Event, delay in performing such obligations shall not be considered a breach and that party shall be relieved from such obligation for so long as it is prevented or delayed by the Force Majeure Event (but not for any longer period). A party seeking to rely on the provisions of this clause shall notify the other party without delay of the occurrence of the Force Majeure and its termination. Key Media may terminate this Agreement if it can be demonstrated that any delay that is a direct result of a Force Majeure Event shall cause an adverse effect on any Website, Key Media Publication or Event.
10.2 If this Agreement is terminated pursuant to this clause, the Client will only be responsible for the Price outstanding at the time of such termination plus any non-cancellable third party costs, which shall become immediately due and payable.
11.1 No amendment to or waiver of this Agreement shall be binding on either party unless it is reduced to writing and signed by an authorised representative of the parties.
11.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.3 Neither party may assign or sub-let this Agreement in whole or in part or any right deriving from this Agreement without the prior written consent of the other.
11.4 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties. Neither party shall act nor describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other's behalf.
11.5 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the email address as is set out on the Order.
11.6 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
12.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the Governing Jurisdiction.
12.2 The parties submit to the exclusive jurisdiction of the courts of the Governing Jurisdiction in connection with matters concerning this Agreement.