South West News Service Ltd.
Standard Terms and Conditions v.0124
Definitions & Interpretation
Client means the Party to the Contract identified as the client of SWNS® in the Order Form;
Contract means the contract between the Client and SWNS®, whether or not reduced to writing, governed by these Terms;
Contractual Term means the period commencing on the Commencement Date and ending on the Termination Date;
Commencement Date means the date specified in the Order Form, or if no such date is specified, the date upon which SWNS® indicates that the Order Form has been accepted;
Content means all content or any part thereof, including without limitation Digital Assets, displayed on the Platform or any SWNS® owned or controlled website (whether or not public facing).
Credentials means any user name, password, code, digital key, PIN, or other means provided to the Client to enable the Client or Client Personnel to the access the Platform;
Derivative Work means a Client created work derived from or incorporating Licensed Digital Content;
Digital Asset means a single item of digital media. Licensed Digital Asset means a Digital Asset licensed, or as the case may be, sub-licensed to the Client;
Digital Content means the collection of Digital Assets made available by SWNS® to the Client pursuant to the Contract through the Platform or mRSS feed. Licensed Digital Content means the Digital Content licensed, or as the case may be, sub-licensed to the Client;
Infringement means use by the Client of Digital Content a)without having purchased a Digital Content Package or without agreeing to a rate for pay as you go Digital Content; b) in a way not permitted by the Licence; c) in breach of copyright, or d) use an additional amount of Digital Content over the allotted number stated in the Order Form;
IPR means copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information 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;
Licence means the licence granted by Clause 3 of these Terms;
Net Advertising Revenue means the aggregate of cash amounts collected from the sale or license of all forms of advertisements before, during, after, within, overlaid or displayed on the Digital Content;
Order Form means the order form issued by SWNS®, signed by the Parties, and setting out matters included in the contract, including but not limited to the identity of the Client, Fees, and Special terms;
Pay-as-you-go Access means access to the Platform for which the Client, who is a PAYG Client, pays the amount specified on the Order Form for each Digital Asset downloaded during the Term;
Permitted Client Media has the meaning ascribed to it in the Order Form;
Permitted Client Social Media has the meaning ascribed to it in the Order Form;
Platform means SWNS®’s internet based digital asset management system;
Revenue Share means the percentage of Net Advertising Revenue specified on the Order Form as being payable to SWNS®;
Renewal Date means the date on which a contract is automatically renewed for a further Contractual Term, being the day following the last day of the previous Contractual Term;
Single Asset Access means access to the Platform on a one-off basis, entitling the Client, who is a Single Access Client, to download a single Digital Asset of the type and for the Fee specified in the Order Form;
Specific Terms means those terms and conditions, if any, set out in or annexed to the Order Form, and forming part of the Contract;
Subscription Access means payment by the Client, who is a Subscriber, of a subscription allowing the Client to download during the Term such number of Digital Assets as may be specified on the Order Form;
SWNS® means South West News Service Ltd., a company registered in England and Wales, number 06561578);
Teaser Content means content comprising not more than 20% or five 5 seconds of the Digital Asset in an unedited or non-transformative format;
Terms means these terms and conditions;
Termination Date means:
- a) in the case of a Single Access Client, the earlier of the date on which the Client downloads the Digital Asset purchased, or one month from the Commencement date irrespective of any other contractual term which may be set out in the Order Form;
- b) in the case of a Subscriber or PAYG Client, the last day of period specified in the Order Form. If no such period is specified in the Order Form the relevant period shall be one year.
Transformative Manner means inclusion in the licensed Digital Content of not less than three of explanatory graphics, screen overlays, Client audio commentary, Client visual commentary, Client logos or branding, Client bumpers.
Clause headings shall not affect the interpretation of these Terms or the Contract.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Unless the context otherwise admits words in the singular shall include the plural and in the plural shall include the singular.
The Contract shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
A reference to “writing” or ”written” shall include email.
A reference to “signed” or “signature” shall include a) digital signature, or b) an email from the corporate account of a person authorised to bind the Party, bearing that person’s corporate email footer/signature.
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 shall include all 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.
- Formation of Contract & Duration
1.1 The Contract shall come into effect on the Commencement Date and remain in force until the Termination Date, unless terminated earlier in accordance with the terms hereof.
1.2 The Contract shall be governed by these Terms, and the Specific Terms to the exclusion of all other terms and conditions howsoever or whensoever communicated. In the event of conflict between these Terms and the Specific Terms the latter shall prevail.
1.3 (a) If the auto renewal box in the Order Form is checked, and subject to Clause 1.3(c) the
contract shall automatically renew at the end of each Contractual Term for a further Contractual Term
(b) Following automatic renewal the Renewal Date shall be substituted for the Commencement Date, and the contract shall be construed accordingly.
(c) Not less than sixty days prior to the Termination Date either Party may give written notice to the counterparty that the contract shall not automatically renew. Such notice having been given the contract shall terminate on the Termination date.
- Service Provision and Access
2.1 During the Term SWNS® shall:
(a) provide access to the Digital Content through the Platform and/or mRSS feed for the number of Client Personnel set out in the Order Form.
(b) use reasonable endeavours to ensure the availability of the Platform, but gives no guarantee that the Platform will be available at all times, and SWNS® shall have no liability to the Client or any other person for any loss arising from the unavailability of the Platform.
2.2 The Credentials remain the property of SWNS®. The Client shall:
(a) ensure the Credentials are kept secure, and not disclosed to any person other than the Client Personnel authorized to access the Platform; and
(b) ensure the Credentials are used only in accordance with the contract between the Client and SWNS®; and
(c) forthwith report the loss, unauthorized disclosure, or unauthorised use of the Credentials.
- Licence, Permitted Use, and Unauthorised Use
3.1 During the Contract Term, SWNS® grants the Client a limited non-exclusive, non- transferable, or as the case may be sub- licence, to use the Licensed Digital Content or any of it for the purposes set out in Clause 3.4, and otherwise accordance with the provisions of the Contract.
3.2 Grant of the Licence is conditional upon the Client being a Subscriber, PAYG Client or Single Use Client, and adherence by the Client to these Terms and the Special Terms.
3.3 The Client may use a Licensed Digital Asset:
(a) to investigate, develop and produce news content;
(b) to create Derivative Works of a Digital Asset; and
(c) to publish, perform and display a Licensed Digital Asset and derivative works on the Permitted Client Media and Permitted Client Social Media Platforms (where relevant) subject only to the terms of the Contract, and the Licence.
(d) on the Permitted Client Media if specified on the order form, in which case the Client may:
(i) embed the Licensed Digital Asset and/or link to the original Digital Asset;
(ii) embed and or link to the Client’s use of the Licensed Digital Asset on its owned digital media;
(iii) use a single thumbnail, image frame or GIF of the Licensed Digital Asset; and
(iv) create teaser content, comprising not more than 20% or (5) seconds of the Licensed Digital Asset in an unedited or non- transformative format
(e) in a Transformative Manner in a Derivative Work. Such use shall not constitute more than 25% of the total Derivative Work.
3.4 Digital Assets may only be downloaded by use of the embedded download button linked to each Digital Asset. Any failure of a download button to function correctly must be reported to SWNS® immediately.
3.5 Subject to the provisions of Clause 3.6 the Client shall not, without the express written consent of SWNS®:
(a) upload the Licensed Digital Content or any of it to YouTube;
(b) syndicate, redistribute or resell the Licensed Digital Content or any of it to any other party;
(c) permit, or cause any third party to publish, broadcast through any online or broadcast medium the Licensed Digital Content or any of it.
(d) license or attempt to license a Licensed Digital Asset directly from its creator and/or owner.
3.6 If specified on the Order Form, and subject to any conditions set out thereon, the Client may use the Licensed Digital Content on the Permitted Client Media platforms, and the Client shall be entitled to:
(a) embed the Licensed Digital Content and/or link to the original Licensed Digital Content;
(b) embed and or link to the Client’s use of the Licensed Digital Content on its owned digital property;
(c) use a single thumbnail, image frame or GIF of the Licensed Digital Content; and
(d) create and use Teaser Content.
3.7 The Client may also use the Licensed Digital Content in a Transformative Manner in a Derivative Work where such use shall not constitute more than 25% of the total Derivative Work. In this Clause 3.7
3.8 The Client has sole responsibility for and must satisfy itself as to the freedom to use, quality, accuracy, reliability and truthfulness and general nature of all Licensed Digital Content before it uses it as part of any of its news services.
3.9 The Client shall attribute Licensed Digital Content to SWNS® and/or its licensor(s) pari passu with any other provider of comparable services, or as otherwise directed by SWNS®.
3.10 Save as expressly set out in this Clause 2 the Client may not reproduce the Digital Content or any of it, nor may the Client communicate, display, perform, publish, broadcast, sell, give away, hire, lease, offer, expose for sale or distribute the Digital Content or any of it.
3.11 Without prejudice to any other legal or equitable remedy available to SWNS®, if the Client shall commit any act of Infringement, the Client shall be liable for:
(a) charges for unlicensed use of Digital Content set out in the Order Form, or if no such rate is specified in the Order Form, the rate specified in SWNS®’s then current rate card; and
(b) all costs incurred by SWNS® in remedying the Infringement, including without limitation legal costs on an indemnity basis.
3.12 In the event of an act of Infringement, SWNS® may terminate the Licence and the Contract by giving 30 days’ written notice to the Client.
Unauthorised Use
3.13 All Content is copyright of or licensed to SWNS®, and may be used only after grant of a Licence. Use of Content or any part thereof without a Licence is a breach of copyright and is expressly prohibited. This prohibition extends to copying, rewriting, re-imagining or otherwise recreating or publishing Content; including Content in any publication, or passing off Content as being the original work of a person other than the copyright holder. In using or permitting or causing the use of Content without a Licence you expressly agree to pay SWNS® an Unauthorised Use Fee of £500 for each piece of Content used. Without prejudice to any other right or remedy available to it SWNS® shall, upon receipt of the Unauthorised Use Fee, grant a Licence to use the Content in accordance with and subject to these Terms and the Licence granted in this Clause 3.
- Fees and Revenue Sharing
4.1 Fees shall be invoiced in advance, at the intervals set out in the Order Form. VAT at the prevailing rate shall be charged on all sums invoiced and form part of the sum payable by the Client.
4.2 Fees are not pro-rated or apportioned over time; fees accrue in full at the date of invoice and are due and payable in full in accordance with Clause 4.3.
4.3 Unless otherwise agreed in writing the Client shall pay all Fees in full, without deduction or set-off within 30 days of the date of invoice.
Tracking and Audit
4.4 The Client shall track all its use and/or syndication of Digital Content. Not later than 30 days after the end of each calendar month the Client shall deliver to SWNS® a report showing:
(a) the title of each Digital Content Asset used and/or syndicated ; and
(b) where each Digital Asset has been used and/or syndicated; and
(c) where relevant, the Net Advertising Revenue generated by each use of each Digital Asset; and
(d) where the Order Form specifies different Fees for use of a Digital Asset in different media, all media on which the Digital Asset was used. If the Client fails to report media use accurately or at all, the Client shall pay Fees at the highest rate set out in the Order Form for each Digital Asset used.
4.5 If the Client shall fail to disclose use of Digital Content, the Client shall be charged the default ad hoc user / non subscriber rate per Digital Asset set out in SWNS®’s then current rate card.
4.6 Each Party shall maintain accurate records of the calculation of fees due under this Agreement (the Fee Calculation Records), and shall retain such records for not less than two years from the date of the transactions to which the calculations relate, and:
(a) Either Party (the Auditing Party) may, upon reasonable written notice to the other Party (the Audited Party), and not more than once in any twelve month period, either itself or through a third party, audit the Fee Calculation Records of the Audited Party.
(b) The audit shall be undertaken during the Audited Party’s normal business hours, and in a manner reasonably calculated not to interfere with the Audited Party’s normal business operations.
(b) If the audit reveals an error (by way of overpayment or underpayment) in any monies payable, the error shall be remedied by means of a payment or credit note within ten working days of the audit.
Revenue Share
4.7 If the Order Form specifies that SWNS® shall be entitled to a Revenue Share, SWNS® shall invoice the Client for the Revenue Share following receipt of the report to be provided under Clause 4.4(c), and the Client shall pay any such invoice in accordance with Clause 4.2.
Fees on Renewal
4.8 Upon renewal of this Agreement, and subject SWNS® may increase the Fees by 5%.
- Intellectual Property
5.1 Nothing in this Agreement shall be construed as transferring any IPR in the Digital Content or the Platform to any person, and the legal and beneficial title in the IPR remains vested in the SWNS® or as the case may be the licensor or Uploader of the Digital Content at all times.
5.2 SWNS® warrants and represents that:
(a) it has the right and authority to grant the Licence; and
(b) it has all rights necessary to permit the Client to use the Platform and the Digital Content in accordance with the terms of this Agreement and the Licence;
5.3. Save as set out in Clause 5.2, SWNS®, its licensors and Uploaders disclaim any and all warranties, conditions or other promises (whether express or implied) regarding the Digital Content, or the Platform.
- Indemnity and Limitation of Liability
6.1 Nothing in these Terms shall limit a Party’s liability in respect of personal injury, death, fraudulent misrepresentation, or any matter for which by law, liability may not be limited.
6.2 Save in respect of the indemnity granted by the Client in Clause 6.3, the liability of each Party in respect of any claim or series of related claims, howsoever arising, whether in contract, tort (including negligence) or otherwise under or in connection with this Agreement shall not exceed the Fees paid or payable by the Client during the Term. Neither Party shall be liable to the other for any indirect, special, consequential, or pure economic loss.
6.3 The Client shall indemnify SWNS® 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 reasonable professional costs and expenses) suffered or incurred by SWNS® arising out of or in connection with any claim made against SWNS® for actual or alleged:
(a) infringement of a third party’s intellectual property rights arising out of or in connection with any change affecting or made to the Digital Content or any of it by the Client; or
(b) defamation, arising out of or exacerbated by failure of the Client to promptly remove a Digital Content Asset from all publicly available media when requested to do so by SWNS®.
- Termination
7.1 Either Party may terminate this Agreement prior to renewal, in accordance with Clause 1.3.
7.2 If the Order Form specifies a Showcase Period, the Client may terminate the Contract at the end of the Showcase Period by giving SWNS® not less than ten days’ written notice of Termination.
7.3 Without prejudice to any other legal or equitable right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the counterparty if the counterparty:
(a) fails to pay any amount due under this agreement on the due date for payment and remains in default not less than sixty (60) days after being notified to make such payment;
(b) commits a material breach of the Contract, which
(I) being a breach capable of remedy fails to remedy that breach within a period of thirty days after being notified in writing to do so; or
(ii) is incapable of remedy;
(c) repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(d) the counterparty:
(i) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986; or
(ii) (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
(iii) (being a partnership) has any partner to whom any of the foregoing apply;
(iv) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the counterparty (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the counterparty (being a company);
(g) the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
(i) the other Party (being an individual) is the subject of a bankruptcy petition, application or order;
(j) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the counterparty in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 7.1(d) to Clause 7.1(j) (inclusive);
(l) the counterparty suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the counterparty (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
7.5 For the purposes of Clause 7.3(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating Party would otherwise derive from:
(a) a substantial portion of this agreement; or
(b) any of the obligations set out in clauses 3.5, 3.9, 8, and 9.
over the term of the Contract.
In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
7.6 Upon termination or expiry of the Contract, the Licence will immediately cease to have effect and:
(a) the Client will no longer be able to receive the Digital Content; and
(b) the Client’s right to use the Credentials shall be withdrawn.
7.7 Termination of the Contract shall not prejudice the rights of a Party which have accrued under it, and It is the intention of the Parties that the provisions of Clause 6 (Indemnity and Limitation of Liability) , and Clause 9 (Confidentiality) shall survive termination of the Contract.
8 Corporate Governance
Anti-bribery
8.1 In performing their respective obligations under this the Contract each Party confirms it is in compliance with all applicable laws and regulations, including but not limited to all applicable United States and international anti-bribery and anti-corruption Applicable Laws (including without limitation the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act). No payments or transfers of value will be made which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or retaining business or directing business to any person or entity.
Anti-slavery
8.2 Each Party confirms it shall comply with all applicable anti-slavery and human trafficking laws, statutes, and regulations from time to time in force including but not limited to the Modern Slavery Act 2015.
Anti-tax evasion
8.3 During the term of this agreement each Party undertakes that it shall:
(a) not engage in any activity, practice or conduct which would constitute either a UK tax evasion facilitation offence under section 45(5) of the Criminal Finances Act 2017, or a foreign tax evasion facilitation offence under section 46(6) of the Criminal Finances Act 2017;
(b) establish, maintain and enforce its own policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person and to ensure compliance with Clause 10.3(a);
8.4 Breach of this Clause 8 shall be deemed a material breach under clause 7.3(b).
- Confidentiality
9.1 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 of companies to which the other Party belongs, except as permitted by Clause 9.2.
9.2 Each Party may disclose the other Party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with this agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this Clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No Party shall use any other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
- General
Assignment and Subcontracting
10.1 The Contract may not be assigned or sub- contracted in whole or in part without the prior written consent of the counterparty.
Force Majeure
10.2 Force Majeure: Neither Party shall be liable to the other Party for any delay or failure to perform its obligations resulting from circumstances beyond its control, including, without limitation, act of God, fire, explosion, accident, natural disaster, volcanic ash cloud, explosion, internet disruption, or downtime caused by third parties (including viruses, bugs or denial of service attacks) provided that the Party unable to perform its obligations promptly notifies the other Party of the occurrence of such an event.
Amendments
10.3 No amendment to the contract shall be valid unless reduced to writing and signed by both parties.
Severance
10.4 If any part of this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
No Waiver
10.5 No failure or delay by a Party to exercise any right or remedy provided under the Contract 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Third Party Rights
10.6 Third Party Rights: It is the intention of the parties that no term of this Agreement may be enforced by anyone who is not a Party to it.
Entire Agreement
10.7 These Terms together with the Order Form constitute 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.
10.8 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
Law and Jurisdiction
10.9 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.
10.10 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 these Terms, the Contract or its subject matter or formation.
DOCUMENT ENDS
