NEWTON MEDIA LIMITED (“NEWTON MEDIA”) IS WILLING TO PROVIDE THE PUBLICATIONS TO THE CUSTOMER, BEING THE PERSON, COMPANY, OR LEGAL ENTITY SET OUT IN THE ORDER FORM, ON THESE TERMS AND CONDITIONS OF SUBSCRIPTION (THE “TERMS OF SUBSCRIPTION”). THE CUSTOMER MUST READ THESE TERMS OF SUBSCRIPTION CAREFULLY BEFORE USING THE PUBLICATIONS. ONCE ENTERED, THE ORDER FORM AND THE TERMS OF SUBSCRIPTION CONSTITUTE A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE CUSTOMER AND NEWTON MEDIA (THE “AGREEMENT”). BY USING THE PUBLICATIONS, ACCESSING THE PUBLICATIONS, CLICKING THE [“I AGREE”] BUTTON, OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, THE CUSTOMER AGREES TO THESE TERMS OF SUBSCRIPTION. IF THE CUSTOMER DOES NOT AGREE TO THESE TERMS OF SUBSCRIPTION, THE CUSTOMER SHOULD NOT CLICK THE [“I AGREE”] BUTTON AND SHOULD IMMEDIATELY MAKE NO FURTHER USE OF THE PUBLICATIONS.
1.1 The following definitions apply to this Agreement:
“Agreement”: means the Order Form and these Terms of Subscription.
“Authorised User”: means the Customer, if the Customer is a natural person. If the Customer is a company or other legal entity, "Authorised User" means an individual nominated as an Authorised User in accordance with clause 3.
“Business Day”: means any day which is not a Saturday, Sunday or public holiday in the UK.
“Effective Date”: means the date of submission of the Order Form.
“Fees”: means the fee payable by the Customer for accessing the Publications as set out in the Order Form.
“Intellectual Property Rights”: means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
“Renewal Term”: means the period of renewal of the Subscription Term, as set out in clause 8.1.
“Subscription Term”: means the period of subscription, as selected by the Customer when completing the Order Form.
“Publications”: means any publications owned or operated by Newton Media and made available to the Customer under this Agreement, as selected by the Customer when completing the Order Form.
1.2 A “person” includes a natural person, corporate or unincorporated body.
1.3 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular and references to one gender are references to the other genders.
1.4 The words “include” and “including” (or similar) shall be deemed to have the words “without limitation” after them.
2.1 Newton Media will provide and host the Publications.
2.2 Newton Media may change the Publications from time to time.
2.3 By using the Publications the Customer warrants that:
2.3.1 all information it submits to Newton Media is truthful, accurate and will be kept up to date;
2.3.2 if the Customer is a natural person, it is aged 18 years or older; and
2.3.3 its use of the Publications will not violate any applicable law or regulation.
3. AUTHORISED USERS
3.1 The Customer’s access to the Publications shall be restricted to Authorised Users only.
3.2 If the Customer is a natural person, Newton Media will issue a user username and password to the Customer as an Authorised User.
3.3 If the Customer is a company or other legal entity, access to Publications will be limited to the maximum number of Authorised Users specified in the Order Form. Newton Media will issue a user username and password to the individuals nominated as an Authorised User.
3.4 With Newton Media’s consent, the Customer may change the individual nominated as Authorised User. In such case, Newton Media will issue a user username and password to the new individual nominated as an Authorised User and disable the username and password of any individual no longer nominated as an Authorised User.
3.5 The Customer will, and will ensure that each Authorised User will, keep its password confidential. Newton Media will not be liable for any losses or damage suffered by the Customer due the disclosure of its password or the passwords of any Authorised Users.
3.6 Subject to the terms and conditions of this Agreement, Newton Media hereby grants to the Customer a non-exclusive, non-transferable non-sublicensable licence to access the Publications as hosted by Newton Media and to use the Publications for its information only.
3.7 The rights provided under clause 3.5 are granted to the Customer only and not to any subsidiary or holding company of the Customer.
3.8 The Customer will not use the Publications to:
3.8.1 provide reporting services to third parties; or
3.8.2 to build a product or service which competes with the Publications.
3.9 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Publication and notify Newton Media promptly of any such unauthorised access or use.
4. CHARGES AND PAYMENT
4.1 The Customer will pay the Fees by credit or debit card, or by bank transfer in advance on entry of this Agreement. The Customer hereby authorises Newton Media to bill such credit or debit card for the Fees on entry of this Agreement and at the commencement of each Renewal Term.
4.2 Newton Media may change the Fees on 30 days’ notice to the Customer. During such notice period, the Customer may terminate this Agreement immediately on written notice to Newton Media.
4.3 All amounts in this Agreement exclude VAT.
4.4 In addition to any other rights or remedies of Newton Media, if the Customer fails to make any payments within 30 days of the due date or otherwise in accordance with this Agreement:
4.4.1 interest will accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Santander UK PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment; and
4.4.2 Newton Media may immediately suspend the provision of any Publications.
5. PROPRIETARY RIGHTS
5.1 Newton Media and/or its licensors own all Intellectual Property Rights in the Publications. Except as expressly stated in this Agreement, Newton Media does not grant the Customer any Intellectual Property Rights in respect of the Publications or any related content or materials.
5.2 Newton Media confirms that it has all the rights in the Publications that are necessary to grant the licence at clause 3.5.
6.1 In this clause, “Confidential Information”: means the publication of any information that is clearly labelled or identified as confidential or ought reasonably be treated as being confidential. Confidential Information excludes any information which:
6.1.1 is or becomes publicly known other than through a breach of this Agreement;
6.1.2 was in the receiving party’s lawful possession before the disclosure;
6.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
6.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or
6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
6.2 Each party will hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality. Neither party will use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
6.3 Each party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of this Agreement.
6.4 This clause 6 will survive termination of this Agreement for a period of 5 years.
7. LIMITATION OF LIABILITY
7.1 This clause 7 sets out Newton Media's entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
7.1.1 arising under or in connection with this Agreement;
7.1.2 in respect of any use made by the Customer of the Publications or any part of them; and
7.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2 Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for its use of the Publications, and for the results of, or conclusions drawn from, such use. Newton Media will have no liability for any damage caused by errors or omissions in any Publications.
7.3 The Publications are provided “as is” to the fullest extent permissible pursuant to applicable law. Newton Media disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Publications, their use and the results of such use. Newton Media specifically disclaims any warranty:
7.3.1 that the Publications and their availability will be uninterrupted or error-free;
7.3.2 that defects will be corrected;
7.3.3 that there are no viruses or other harmful components;
7.3.4 that the security methods employed will be sufficient;
7.3.5 regarding correctness, accuracy, or reliability.
7.4 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement to the fullest extent permitted by applicable law.
7.5 Nothing in this Agreement excludes the liability of Newton Media:
7.5.1 for death or personal injury caused by Newton Media’s negligence;
7.5.2 for fraud, fraudulent misrepresentation or fraudulent misstatement; or
7.5.3 any statutory liability not capable of limitation.
7.6 Subject to clause 7.5, Newton Media will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement.
7.7 Subject to clause 7.5, Newton Media’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement will be limited to the total monies actually received by Newton Media from the Customer under this Agreement during the 12 months preceding the date on which the claim arose.
7.8 The Customer shall remain primarily liable for all acts and omissions of each of its Authorised Users.
8. TERM AND TERMINATION
8.1 This Agreement will commence on the Effective Date and will continue for the Subscription Term, unless otherwise terminated as provided in this clause 8. After the Subscription Term, this Agreement will automatically renew for successive periods equal to the Subscription Term (a “Renewal Term”), unless either party notifies the other, in writing, at least 90 days before the end of the Subscription Term or the Renewal Term then in effect.
8.2 This Agreement can be terminated by the Customer in accordance with clause 4.2.
8.3 This Agreement can be terminated by Newton Media if it suspects that the Customer is in breach of any of its warranties.
8.4 This Agreement can be terminated by either party if the other party:
8.4.1 is in material breach of this Agreement; or
8.4.2 ceases trading (or threatens to cease trading); is subject to an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); is the subject of a bankruptcy petition or order; becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts.
8.5 Any termination is without prejudice to either party’s accrued rights or remedies.
8.6 On termination of this Agreement for any reason all licences granted under this Agreement will immediately terminate.
8.7 The accrued rights and remedies of the parties, and clauses 1, 5 ,6, 7, 8.5, , 11, 12, 14, 15 and 16, will survive termination of this Agreement for any reason.
9. FORCE MAJEURE
No party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days’ written notice to the other party.
A waiver of any right under this Agreement is only effective if it is in writing.
If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) will remain in force.
12. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between the parties and supersedes any previous agreement between them.
The Customer will not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Newton Media.
14. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.1 Any notice required to be given under this Agreement will be in writing and will be sent by email to:
15.1.1 the Customer’s email address set out on the Order Form;
15.1.2 Newton Media at email@example.com
15.2 Notices will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9 am on the first Business Day following despatch).
16. GOVERNING LAW AND JURISDICTION
This Agreement will be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.