These terms and conditions (“Terms and Conditions”) apply to and form an integral part of the Agreement (as defined below) and regulate the provision of the Services (as defined below) by Bango to the Customer.
1. OBLIGATIONS AND WARRANTIES
1.1. Bango shall, subject to availability, and subject to Bango’s acceptance of the Customer’s order to receive the Services, provide the Services in accordance with the description set out in the Order Form. Bango reserves the right to reject Customer’s order for the provision of Services. Acceptance of the Customer’s order is at Bango’s sole discretion and shall be confirmed by email.
1.2. The Customer warrants that it shall provide Bango such information and assistance that Bango may reasonably require in order for Bango to perform its obligations under this Agreement and that it shall ensure that any such information provided to Bango is complete, accurate, in the agreed format, and provided in a timely manner.
1.3. Each party warrants that:
a. it has the full power and authority to enter into this Agreement;
b. it has obtained and will continue to hold all necessary licences, consents, permits and agreements required for it to comply with its obligations under this Agreement and for the grant of rights to the other party under this Agreement; andc. the use by the other party as permitted by this Agreement of any information, data, software, documentation and/or services which it provides to the other party shall not infringe any third-party Intellectual Property Rights.
1.4 .The warranties expressly set out in this Agreement are the only warranties that each party gives to the other in respect of the subject matter of this Agreement. All other warranties, representations or terms of equivalent effect that might be implied by law are excluded to the extent permitted by law.
2. TERM
2.1. Subject to acceptance by Bango of the Customer’s order in accordance with the provisions of the Order Form and subject to receipt by Bango of all fees payable by the Customer, this Agreement shall commence on the Availability Date and, subject to the provisions for early termination set out in the Order Form or clause 10 below, shall continue for a period of 30 days or other date set out in the Order Form and shall automatically renew for successive 30 day terms until terminated in accordance with these Terms and Conditions or on receipt of notice of non-renewal at least 7 days prior to the relevant renewal date.
3. PAYMENTS AND INVOICING
3.1. The Customer shall pay the fees set out in the Order Form.
3.2. Apart from any sums which are stated in the Order Form to be payable in accordance with a specified payment timetable, all sums payable by the Customer to Bango will be invoiced upon acceptance by Bango of the Order Form. All invoices are payable in cleared funds within 14 days after the date of the relevant invoice.
3.3. Bango invoices and requires payment in US Dollars. The Customer must ensure that invoices are settled in full, without deduction of any and all bank charges and foreign exchange fees.
3.4. If any sum payable by the Customer to Bango is not paid in cleared funds by its due date, Bango shall be entitled to charge interest on the overdue amount at 2% per annum above HSBC Bank plc’s base rate from time to time. Interest will accrue on a daily basis from the due date up to the date of actual payment, after as well as before judgment. In addition, Bango shall, on giving written notice to the Customer, be entitled to suspend provision of the Services with immediate effect until the overdue amount is paid in full.
3.5. All sums referred to in this Agreement are exclusive of VAT or any other similar sales or turnover tax (if applicable); such taxes shall be payable on the same payment terms as apply to the sums to which the taxes relate.
3.6. Customer and Bango agree to cooperate to minimize withholding taxes and any other taxes that may be imposed on payments due under this Agreement. Such cooperation will include, when applicable, the provision of foreign tax credit receipts to Bango for foreign taxes withheld. If Customer is required by Applicable Law to withhold on such payments, Customer shall promptly provide to Bango the related foreign tax credit receipt. If Bango is in a position to claim a foreign tax credit and no receipts are available, Customer shall work with Bango to develop and provide secondary forms of evidence to support Bango’s claim.
4. PROVISION AND USE OF THE SERVICES, AUDIENCES AND BANGO MATERIALS
4.1. Bango grants the Customer (subject to clause 4.2 and 10.3) a non-exclusive non-transferable licence to use the Audiences and any Bango Materials provided as part of the Services in the Territory for the Permitted Purpose for the Availability Term on any licence terms identified in the Order Form. The licence granted under this clause is made separately in respect of each individual element of the Bango Materials and commences on the day that each element of the Bango Materials is first made available to the Customer and shall automatically terminate upon the expiry or termination of the Agreement Term.
4.2. Audiences are provided subject to availability. If, after acceptance of Customer’s order, some or all of the Audiences ordered are unavailable, for any reason, for a period of 60 days, Bango reserves the right to cancel the order. In such circumstances Bango shall notify the Customer accordingly and refund to the Customer any amounts received by way of fees for these unavailable Audiences.
4.3. The Services and the Audiences are not intended to be used as the sole basis for any business decision, nor to relieve the Customer of its obligation to comply with its own obligations under Applicable Law. Audiences are based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for Bango to guarantee. The Services also involve models and techniques based on statistical analysis, probability and predictive behaviour. The Customer acknowledges that it is prudent to use, and it is responsible for using, the Services and the Audiences as one of a number of factors in its decision-making process, and for determining those other factors. Therefore, Bango is not able to accept liability for:
a. any inaccuracy, incompleteness or other error in the Service or Audiences which arises as a result of data provided to Bango by the Customer or any third party; or
b. any failure of the Services to achieve any particular result for the Customer.
The Customer warrants that it will:
a. use the Services, Audiences and/or Bango Materials provided under this Agreement, for the Permitted Purpose only and in accordance with any documentation and instructions provided by Bango from time to time;
b. not sell, transfer, sub-license, distribute, commercially exploit or otherwise make available to, or use for the benefit of, any third party any of the Services, Audiences and/or Bango Materials provided under this Agreement, except as specifically permitted by this Agreement;
c. not (and will not allow any third party to) adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with any Bango Materials provided under this Agreement without the prior written consent of Bango or as otherwise permitted by law; and
d. only take such copies of the Bango Materials as are reasonably required for the use of the Bango Materials in accordance with this Agreement.
4.5. Bango grants to the Customer the right to grant access to Audiences to its nominated media, marketing or advertising agencies that may assist the Customer within the scope of the Permitted Purpose (“Authorised Third Parties”). Any such access is granted strictly in accordance with the provisions of this Agreement. The Customer shall procure the compliance by all such Authorised Third Parties with the provisions of this Agreement, and liable for any breach by them of any and all provisions of this Agreement.
5. CONFIDENTIALITY
5.1. Each party (“Recipient”) shall, in respect of the Confidential Information for which it is the recipient:
a. keep the Confidential Information strictly confidential and not use or disclose any part of such Confidential Information to any person except as permitted by or as required for the performance of the Recipient’s obligations under this Agreement; and
b. take all reasonable steps to prevent unauthorised access to the Confidential Information.
5.2. The parties, as Recipient, may disclose the Confidential Information, and allow its use in accordance with this Agreement by, the following (provided the conditions in clause 5.3 are met):
a. employees and officers of the Recipient and of the Recipient’s Group Companies who necessarily require it for the purpose of the performing the Recipient’s obligations under this Agreement;
b. the Recipient’s auditors and professional advisors solely for the purpose of providing professional advice and any other persons or bodies having a legal right or duty to have access to, or knowledge of, the Confidential Information in connection with the business of the Recipient;
c. agents and sub-contractors who necessarily require it for the purpose of, in the case of Bango, the performance of Bango’s obligations under this Agreement and, in the case of Customer, those suppliers of Customer authorised to receive the same as otherwise provided for under the provisions of this Agreement.
5.3. As a condition of the rights set out in clause 5.2 the party wishing to exercise the rights must:
a. ensure that any person to whom it discloses Confidential Information is under an obligation of confidentiality which is substantially the same as set out in this clause 5 in relation to such Confidential Information; and
b. procure that such persons observe the restrictions in this clause 5.
c. The restrictions in clause 5.1 do not apply to any information to the extent that it:
d. is or comes within the public domain other than through a breach of clause 5.1; or
e. is in the Recipient’s possession (with full right to disclose) before receipt from the other party; or
f. is lawfully received from a third party (with full right to disclose); or
g. is independently developed by the recipient without access to or use of the Confidential Information of the disclosing party; or
h. is required to be disclosed by law or by a court of competent jurisdiction or by any regulatory body or in accordance with the rules of any recognised stock exchange.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All Intellectual Property Rights in the Bango Materials and the Audiences will remain vested in Bango (or its relevant licensors) and to the extent that any rights in such data or materials vest in the Customer by operation of law, the Customer hereby assigns such rights to Bango.
6.2. Each party:
a. acknowledges and agrees that it shall not acquire or claim any title to any of the other party’s Intellectual Property Rights (or those of the other party’s licensors) by virtue of the rights granted to it under this Agreement or through its use of such Intellectual Property Rights;
b. agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice the other party’s ownership (or the other party’s licensors’ ownership) of such Intellectual Property Rights; and
c. agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the materials of the other party and agrees to incorporate any such proprietary markings in any copies it takes of such materials.
7. LIMITS ON LIABILITY
7.1. Neither party excludes or limits its liability to the other for any of the following (and nothing in this Agreement shall be construed as excluding or limiting such liability):
a. for personal injury or death resulting from its negligence or that of its employees, agents and/or sub-contractors;
b. for any matter which it would be illegal for that party to exclude and/or limit, or attempt to exclude and/or limit, its liability; or
c. for that party’s fraud or fraudulent misrepresentation.
7.2. Except as provided in clauses 7.1 and 7.3, the liability of Bango to Customer in respect of any claims (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) brought under or in connection with this Agreement shall be limited in aggregate to the fees (excluding VAT) payable to Bango during the Agreement Term.
7.3. The limitations in clause 7.2 shall not apply to any liability under clause 8.5:
7.4. Subject to clause 7.1, neither party shall be liable to the other (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) for:
a. any indirect or consequential loss;
b. the following types of financial loss: loss of profits; loss of earnings; loss of business or goodwill; even if that party had notice of the possibility of the other party incurring such losses; or
c. the following types of anticipated or incidental losses: loss of anticipated savings; increase in bad debt; failure to reduce bad debt; even if that party had notice of the possibility of the other party incurring such losses.
8. DATA PROTECTION
8.1. To the extent that Personal Data is processed or transferred under this Agreement the parties agree to comply with the clauses 8.2 – 8.5 inclusive.
8.2. Without prejudice to the general obligations under clause 5.1 each of the parties shall in the provision or use of the Services (as appropriate) comply with all applicable Data Protection Legislation.
8.3. Each party warrants that it shall implement appropriate technical and organisational measures to ensure a level of data security relating to the Personal Data of the other party appropriate to the risk presented by the processing.
8.4. Each of the parties will comply with any reasonable request from the other party regarding the execution of any data subject rights with respect to their data (including, access, modification or deletion user rights) according to the Applicable Law.
8.5. Each of the parties shall provide the other party with such information, assistance and cooperation as that other party may reasonably require from time to time to establish such other party’s compliance with the obligations relating to data privacy and security contained in Applicable Laws.
9. TERMINATION
9.1. Either party shall be entitled to terminate this Agreement immediately by serving written notice on the other party in the following circumstances:
A. if the other party commits a material breach of any of its obligations under this Agreement (which shall include the use of Audiences outside of the Permitted Purpose or Territory, non-payment of fees, the passing of Audiences to third parties without consent);
b. if the other party has passed a resolution for its winding up or is subject to a petition presented to any court for its winding-up (save, in either case, for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is the subject of an application for administration, or a notice of intention to appoint an administrator, filed at any court, or is dissolved or declared bankrupt, or has a receiver, administrator or administrative receiver appointed over all or part of its assets, or enters into an arrangement with its creditors, or suspends or threatens to suspend payment of its debts or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or ceases to trade or takes or suffers any similar action;
c. where a change in Applicable Law renders some or all of the activities of that party in connection with this Agreement illegal or unlawful and no action that party could reasonably be expected to take can make such activities legal and lawful.
9.2. Termination of this Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party:
a. which have accrued before termination; or
b. which are intended to continue to have effect beyond termination.
9.3. The licences granted under this Agreement will, except as required by Applicable Law, automatically expire on termination of this Agreement for any reason, and the Customer shall cease to use all Audiences and Bango Materials.
10. FORCE MAJEURE
10.1. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.
10.2. If the Force Majeure persists for a period of 28 days or more, the party not claiming Force Majeure may give notice to the other to terminate this Agreement with effect from a date specified in the notice without penalty or other liability (except for any liability on the Customer to pay accrued fees).
11. SEVERABILITY
11.1 If any provision or part-provision of this Agreement 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 and the parties will negotiate in good faith a substantively comparable provision to replace the relevant provision. 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 this Agreement.
12. NOTICES
12.1 All notices under this Agreement shall be in writing and shall be given by personal delivery, registered or certified mail, reputable overnight delivery service which features package tracking services or by email (if notice is also provided in another medium). Notices shall be deemed received as follows: notices by personal delivery, on the date of delivery; notices sent by registered or certified mail, or by reputable overnight delivery service, on the fifth (5th) business day after mailing or, as the case may be, deposit with the service; notices sent by email, in accordance with the times specified above for the other media used to confirm the email notice.
12.2. Notices shall be sent to the nominated recipient of the party (as set out in the signature sheet) either at the address of each party as set out in this Agreement, as set out in the signature sheet, or to the registered office addresses of each party.
13. GENERAL
13.1. If either party fails to exercise a right or remedy that it has or which arises in relation to this Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
13.2. A waiver of any breach or provision of this Agreement shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach or provision. Any waiver of a breach of any term of this Agreement shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of this Agreement.
13.3. This Agreement and all matters arising out of it shall be governed by, and construed in accordance with, the laws of England. The English courts shall have exclusive jurisdiction over any claim or matter which may arise out of or in connection with this Agreement.
13.4. In the event of any dispute, claim, question or difference arising out of or relating to the Agreement or the breach thereof, the parties shall use commercially reasonable efforts to settle such disputes, claims, questions or differences. Except where a party seeks urgent interim relief, a party may not commence court proceedings unless it has first complied with this clause 14.4. The parties will use all reasonable endeavours in good faith to resolve any dispute between them by negotiation between a senior manager of each party who will endeavour to resolve the dispute within 21 (twenty-one) days of the giving of the dispute notice.
13.5. Variations of this Agreement shall not be effective unless recorded in writing signed by the parties; except as otherwise provided for in this Agreement, variations in electronic form shall not count as variations recorded in writing. However, variations to the Order Form made in accordance with any agreed change control procedure shall be effective.
13.6. Assignment
a. Subject to clause 14.6.b, neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
b. Either party may assign, transfer or subcontract any or all of its rights and obligations under this Agreement to an Affiliate for so long as that company remains an Affiliate of the assignor. The assignor shall procure that such assignee assigns any rights and obligations assigned to it in accordance with this clause 14.6 back to the assignor or another Affiliate of good standing (in the other party’s reasonable opinion) of the assignor immediately before it ceases to be an Affiliate of the assignor.
c. Either party may at any time assign or transfer this Agreement and/or any of its rights or obligations hereunder, in whole or in part, to any successor to such party following a re-organization or merger of such party with another organization or a sale of substantially all of the assets of such party upon notice but without consent.
13.7. This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties (whether oral or written) relating to the same subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any warranty or representation (whether made innocently or negligently) that is not set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraudulent misrepresentations.
13.8. No one other than a party to this Agreement and their permitted assignees and transferees shall have any right to enforce any of its terms.
13.9. The parties are independent contractors for all purposes and at all times, and neither party has any authority to act on behalf of, or to bind the other to any obligation, except where expressly stated to the contrary herein.
13.10. In this Agreement:
a. any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time;
b. references to clauses are to the clauses of the particular section of these Terms and Conditions in which they appear, unless reference is made to the signature sheet or to the Order Form;
c. the singular includes the plural and vice versa;
d. the headings are for ease of reference only and shall not affect the construction or interpretation of this Agreement;
e. where any matter is to be agreed, such agreement must be recorded in writing; and
f. wherever the words “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.
13.11. The contents of the Order Form all prevail over the contents of these Terms and Conditions to the extent of any conflict or inconsistency.
14. DEFINITIONS AND INTERPRETATION
In this Agreement the following words and expressions shall have the following meanings:
“Agreement” means the agreement between Bango and the Customer formed by the Order Form and the Terms and Conditions;
“Agreement Term” has the meaning set out in the Order Form;
“Affiliate” means an affiliated entity in which either party or any of its affiliated bodies has a controlling interest. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
“Applicable Law” means all legislation, regulations, and other rules having equivalent force which are applicable to the provision or use of the Services under this Agreement;
“Audience” / “Audiences” means a group of anonymized user profiles, selected according to one or more attributes, supplied by Bango to the Customer in connection with this Agreement which can be applied to a market segment to increase relevance, the details of which are set out in the Order Form;
“Availability Date” means the Availability Date as either set out in the Order Form or confirmed by Bango in writing (email will suffice), namely the date on which the Audience is available for use by the Customer;
“Availability Term” has the meaning set out in the Order Form;
“Bango Materials” means software and any materials, documentation or other items developed and/or licensed by Bango to the Customer in connection with this Agreement and includes Audiences;
“Customer Data” means any of the data and/or databases supplied by the Customer and provided to Bango in connection with this Agreement but excluding any data supplied to the Customer by Bango;
“Confidential Information” means any and all information relating to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of the parties and/or to their customers, suppliers, clients or Group Companies in or on any medium or format;
“Data Protection Legislation” means all Applicable Law relating to data protection and privacy, including GDPR;
“Force Majeure” means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations;
“GDPR” means the General Data Protection Regulation 2016/679, to the extent that and in the form that it is a requirement of English law from time to time;
“Group Company” means any company which is in relation to Bango or (as the case may be) the Customer, a subsidiary, holding company or subsidiary of a holding company as the terms “subsidiary” and “holding company” are defined by section 1159 of the Companies Act 2006. “Bango Group Company” and “Customer Group Company” shall be interpreted in this way;
“Intellectual Property Rights” means copyright, database right, domain names, patents, registered and unregistered design rights, registered and unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same;
“Order Form” means the relevant Insertion Order signed by the Customer;
“Permitted Purpose” means, unless otherwise set out in the Order Form, the internal business purposes of the Customer in the Territory and not in any event for the provision of services to any third parties;
“Personal Data” means the definition specified in the Data Protection Legislation;
“Services” means the services as specified in the Order Form and all other services supplied by Bango to the Customer under or in connection with this Agreement, including the provision and grant of licences in respect of any Audiences and/or Bango Material;
“Start Date” means the date on which the Audience is shared by Bango with the Customer and from which the Customer may use the Audience(s) in accordance with the provisions of this Agreement, as such date is agreed with and notified to the Customer by Bango (email will suffice);
“Stop Date” means the date on which the Audience(s) are withdrawn by Bango and on which the Customer must cease using the Audience(s), as such date is agreed with and notified to the Customer by Bango (email will suffice);
“Terms and Conditions” means the terms and conditions set out above which form part of the Agreement;
“Territory” means the United Kingdom, or such other territory as is specified in the Order Form.