ADVERTISING & LISTING TERMS AND CONDITIONS
This Contract shall commence on the date stated at the beginning of it.
Advert: any advertising content provided by the Customer to GrassPlant for publication on the Website.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 12 (General) (inclusive).
Content: the content for an Advert.
Contract: the contract between the Customer and GrassPlant for the supply of the Services in accordance with the Contract Details and 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.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to GrassPlant.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill 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.
Website: the website at www.GrassPlant.co.uk or any other website owned or operated by GrassPlant.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
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.
A reference to writing or written includes fax and email.
In supplying the Services, GrassPlant shall:
perform the Services with reasonable care and skill;
use reasonable endeavours to perform the Services; and
subject to the Customer having complied its obligations with clause 3, 4 and 6, GrassPlant will use reasonable endeavours to publish the Content on the Website on the Advert Start Date or as soon as possible thereafter
if no Advert Start Date has been agreed, GrassPlant will publish the Content as soon as reasonably possible and in any event within 24 hours.
Subject to clause 4, 4 and 10 the Content will remain on the Website until the Services Expiry Date.
The Customer shall:
co-operate with GrassPlant in all matters relating to the Services;
proof-read all Customer Materials before they are submitted to GrassPlant and ensure that they do not contain any mistakes (including typographical errors) and GrassPlant shall not be responsible for any such errors;
meets any technical and other requirements of GrassPlant; and
provide, in a timely manner, such information as GrassPlant may require, and ensure that it is accurate and complete in all material respects.
The Customer shall further ensure:
any information supplied in the Content is accurate, fair and not misleading, does not make unsubstantiated or unsupported claims and does not make dishonest or unreasonable comparisons with any person, or any other item published on the Website;
it has obtained the consent of any living person whose name or image (in whole or in part) is contained in the Content;
the Content is legal, decent and truthful, is not libellous or defamatory and is not contrary to the provisions of any applicable law, regulation or code of practice (including the CAP code and all other codes under the supervision of the Advertising Standards Authority);
the Content does not contain anything that is prejudicial to the image or reputation of GrassPlant or the Website;
the Content does not contain any negligent advice or misrepresentations and is not likely to deceive any person;
the Content, including images, does not infringe the rights of any other person, including any person’s Intellectual Property Rights;
any Content (including images, links and other digital material) submitted will be free of viruses and will not cause an adverse effect on the operation of the Website; and
it is the author of the Content or has the right to submit it to GrassPlant for publication.
The Customer acknowledges and accepts that GrassPlant has no responsibility for the Content.
Delivery and Publication of Content
The Customer must ensure that all Customer Materials are provided to GrassPlant in good time and in accordance with any timescales agreed with GrassPlant.
If the Customer submits an accompanying image or logo, GrassPlant will use reasonable endeavours to reproduce the logo or image but cannot guarantee that the logo or image will be of exactly the same quality or layout.
GrassPlant will review all Content prior to publication and GrassPlant reserves the right, in its sole discretion and without liability to the Customer, to amend any Content as necessary in order to fit in with the format of the Website or as required by any regulatory body, and to reject, remove, cancel or refuse to publish any Content that it considers to be unsuitable or contrary to these terms and conditions. GrassPlant may, at its sole discretion, refund the Customer for any Content that is delayed or not published for the reasons set out in this clause.
GrassPlant has sole discretion over the length of time any Content may remain on the Website and its position on the Website. GrassPlant may, in its sole discretion, additionally publish Content on any other website or social media channel owned or operated by GrassPlant from time to time.
The Customer shall not be entitled to see a proof of the Content before publication. It is the Customer’s responsibility to check that the Content has been published and to notify GrassPlant if there are any errors. GrassPlant will use its reasonable endeavours to correct any such errors as soon as reasonably possible.
The Customer grants GrassPlant a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract and for the purpose of providing the Services to the Customer in accordance with the Contract.
The Customer shall indemnify GrassPlant in full against any sums awarded by a court against GrassPlant arising out of or in connection with any claim brought against GrassPlant for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by GrassPlant.
In consideration for the provision of the Services, the Customer shall pay GrassPlant the Charges in accordance with this clause 6.
All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to GrassPlant at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
The Customer shall pay the Charges to GrassPlant on the date of this Contract to a bank account nominated in writing by GrassPlant or by credit or debit card payment.
If the Customer fails to make any payment due to GrassPlant under the Contract by the due date for payment, then, without limiting GrassPlant's remedies under clause 10 (Termination):
the Customer 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 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%; and
GrassPlant may suspend all Services until payment has been made in full.
All amounts due under the Contract from the Customer to GrassPlant shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
The Customer shall indemnify GrassPlant 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 GrassPlant arising out of or in connection with the Customer’s breach of this Contract.
If a Customer wishes to extend or renew the period of publication of any Content, it should contact GrassPlant by email or telephone to discuss its requirements as soon as possible. Any renewal or extension will be at GrassPlant’s sole discretion.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence; and fraud or fraudulent misrepresentation.
Subject to clause 1, GrassPlant's total liability to the Customer shall not exceed the total fees paid by the Customer for the publication of the Content.
Subject to clause 1, GrassPlant shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
GrassPlant may terminate the Contract if the Customer’s financial position deteriorates to such an extent that in GrassPlant’s sole opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, GrassPlant may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer fails to pay any amount due under the Contract on the due date for payment; or
there is a change of control of the Customer; or
the Customer breaches any of its obligations under the Contract.
The Customer may, at any time, give GrassPlant written notice that it wishes to terminate the Contract and upon receipt of such notice GrassPlant will cancel the Contract and except in the event of manifest and material error on the part of GrassPlant in publishing the Content, any refund (either wholly or in part) will be at GrassPlant’s sole discretion. Where GrassPlant has already published the Content, GrassPlant will remove the Content as soon as reasonably possible.
GrassPlant may terminate the Contract at any time by giving the Customer at least 5 working days’ notice in writing. GrassPlant will refund any amounts which have been paid which relate to fees payable for publication of Content after the date of termination.
On termination of the Contract for whatever reason:
the Customer shall immediately pay to GrassPlant all of GrassPlant's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, GrassPlant may submit an invoice, which shall be payable immediately on receipt;
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; and
such termination or expiry of the Contract shall not affect any of the 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.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this clause 11, Applicable Laws means (for so long as and to the extent that they apply to GrassPlant) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and GrassPlant is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to GrassPlant for the duration and purposes of the agreement(s) between the parties.
Without prejudice to the generality of clause 1, GrassPlant shall, in relation to any Personal Data (as defined in the GDPR) processed in connection with the performance by GrassPlant of its obligations under the agreement(s) with the Customer:
process that Personal Data for the length of time it takes to perform the Services and only on the written instructions of the Customer unless GrassPlant is required by Applicable Laws to otherwise process that Personal Data;
ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained;
assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a Personal Data breach;
at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement(s) between the parties unless required by Applicable Law to store the Personal Data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause.
The Customer consents to GrassPlant:
appointing third-party processors of Personal Data under the agreement(s) between the parties incorporating terms which are substantially similar to those set out in this Schedule; and
processing Personal Data in order to carry out its obligations under the agreement(s) between the parties.
Force majeure. GrassPlant shall not 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 which for the avoidance of doubt includes any failure, delay or interruption affecting or access to the Website.
Assignment and other dealings.
The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without GrassPlant's prior written consent.
GrassPlant may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 3. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Each party may disclose the other party's confidential information:
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 3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
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.
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 based on any statement in the Contract.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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 shall not affect the validity and enforceability of the rest of the Contract.
Any notice given to GrassPlant under or in connection with the Contract shall be in writing and shall be sent by email to firstname.lastname@example.org.
Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 8(b) business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
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.
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.
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.