Definitions

1.    Definitions

In these Terms and Conditions for the Supply of Services, the following terms shall have the following meanings:

1.1 Client Services Agreement means a Define Media Client Services Agreement, signed by each of us, which sets out the details of the Services which we are to provide to you (together with details of the term and pricing of the Services) subject to these Terms and Conditions for the Supply of Services and any terms and conditions set out in the Client Services Agreement itself plus any supplementary terms and conditions each of our TellYourStory network of specialist and financial publishers may set for your broadcasts to comply and be accepted for publishing on their hubs.

1.2 Services means the services which we agree to provide to you and which are set out in a Client Services Agreement.

1.3 Term means the initial minimum term for the Supply of the Services specified in the Client Services Agreement and each subsequent renewal of that term.

Creation of the Client Services Agreement

2.    Creation of the Client Services Agreement 

2.1 In order for you to be able to access and use our Services such as uploading and publishing content, you must first register independently, for a GiGaSoft platform User Account, at https://www.definemedia.net/gigasoft/customer/signup. Please observe our Terms & Conditions of Website and Services Use applying to your access and use of our platform, portal and player services plus the contractual obligations in your Client Services Agreement governing these Terms & Conditions for the Supply of Services. 

2.2 As soon as each of us signs a Define Media Client Services Agreement, a contract is created between us for the supply by us to you of the Services set out in the Client Services Agreement, on: (i) the terms and conditions for the supply of services to contract customers as set out in these terms on this website, and (ii) any additional terms and conditions set out in the actual Client Services Agreement (including the description, term and pricing provisions set out), plus (iii) any supplementary terms and conditions each of our TellYourStory network of specialist and financial publishers may set for your broadcasts to comply and be accepted for publishing (together, the "Terms and Conditions").

2.3 Any order submitted by you constitutes an offer by you to purchase Services in accordance with these Terms and Conditions. Your order shall only be treated as accepted by us when each of us signs a Define Media Client Services Agreement incorporating the provisions of that order. These Terms and Conditions apply to the Client Services Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4 The Client Services Agreement and these Terms and Conditions (together with the terms, texts or documents referred to in them) constitute the entire agreement between us. You acknowledge that you have not relied on any statement, promise or representation made or given by us or on our behalf of which is not set out in the Client Services Agreement or these Terms and Conditions (provided that nothing in this clause excludes any liability for fraud).

Supply of Services

3.    Supply of Services

3.1 During each Term we shall provide to you the Services set out in the Client Services Agreement in all material respects in accordance with the description set out in that document and more of the general of Services which we we provide to all users of our Services as described and detailed in the information pages of our website.

3.2 We warrant to you that we will provide the Services using reasonable care and skill.

3.3 We may, from the start of each new Term, change or introduce new charges for the Services. We may also change these Terms and Conditions. If we wish to make any of these changes, we will give you at least 45 days' notice of these changes expiring before the start of the new Term when the changes are due to come into effect. If you do not agree to the changes you may terminate the Client Services Agreement by giving us at least 30 days' notice expiring before the start of the new Term in question.

Charges and Payment

4.    Charges and Payment

4.1 The charges payable by you for the Services are set out in the Client Services Agreement. Charges are invoiced in advance, at the frequency specified in the Client Services Agreement. These charges exclude any applicable VAT, which you may have to pay in addition at the rate, and in the manner, prescribed from time to time by law.

4.2 We may change or introduce new charges in the manner set out in paragraph 3.3 above.

4.3 You shall pay each invoice submitted by us or generated from your User Account before any Services can be provided or within 30 days after the date of the invoice, if we have agreed to provide you the Services in arrears, in full and in cleared funds to the bank account which we have specified on our invoice. Time for payment shall be of the essence of the Client Services Agreement between us.

4.4 Without limiting any other of our rights or remedies, if you fail to make any payment due to us under the Client Services Agreement by the due date for payment ("Due Date"), we may suspend the Supply of Services or charge interest on the overdue amount at the rate of 2% per annum above the then current base rate of our bankers accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

4.5 You will pay all amounts due under the Client Services Agreement in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.

Service Levels and Service Credits

5.    Service Levels and Service Credits

5.1 In this paragraph 5, "Service Downtime" means the aggregate number of minutes in any calendar month during which the Services are unavailable as a result of a failure in the Define Media's product infrastructure, operations, software or systems affecting your ability to access or use the Services. Availability refers to an access point on our backbone network. It does not apply to the portion of the circuit that does not transit our hosting provider's backbone network, as you are responsible for your own internet access. The measure of Service Downtime shall not include the unavailability of Services arising as a result of:
(a) any scheduled outages, which are the periods of time that the Services may be temporarily interrupted for upgrades, maintenance, or any other similar reason or purpose. We may schedule such outages at any time but we will give you reasonable notice of the times at which they are to occur;
(b) outages or disruptions which are caused by you or any third party (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by us to perform the Services); or
(c) any interface or functionality problems of the type set out in the Interface or Functionality paragraph 4.8 of the Terms and Conditions of Use; or
(d) outages or disruptions attributable in whole or in part to force majeure events within the meaning of Events Outside our Control in paragraph 14 below.

5.2 For the purposes of Service Levels and Service Credits, the availability of the Services in each calendar month is calculated as a percentage of the total number of minutes in each calendar month as follows:

Service Availability % = ((M-D) ÷ M) x 100
where:
M = total possible uptime minutes in the calendar month in question
D = total minutes of Service Downtime in the month in question

If, in respect of any calendar month, the Service Availability falls below  99%, you will be entitled (conditional upon you having complied with these Terms and Conditions) to receive Service Credits, calculated as a percentage of the total amount in monthly charges you have paid for the Services in the calendar month in question, calculated as follows:
 
Service Availability    vs    Service Credits (as a percentage of monthly charges paid)       
95% or greater but less than 99%    = 2%        
90% or greater but less than 95%    = 5%       
Less than 90%     = 10%     

5.3 Each of us agrees that the remedies set out in this paragraph 5 have been arrived at in good faith as a reasonable estimate of compensation and not as a penalty. Accordingly, the payment to you of any Service Credits in accordance with this paragraph 5 shall be your sole remedy, and our sole liability, for any Service Downtime or the failure to meet any Service Levels. In the event that you are entitled to multiple Service Credits hereunder arising from the same event, such Service Credits shall not be cumulative, and you shall be entitled to receive only the maximum Service Credits available for such event. The aggregate maximum amount of Service Credits to be issued for any and all Service Downtime that occurs in a single calendar month shall not exceed ten percent (10%) of the pro-rated amount of monthly recurring charges paid by you for the month in which such Service Credits are issued.

5.4 To claim any Service Credits, you must send a Service Downtime Credits request email message to accounts@3bnexus.com within seven (7) days from the date of the Service Downtime in relation to which you are claiming. To be eligible, the Service Downtime Credits request email message must include:
(a) your name, company name and account ID
(b) the dates and times that you claim to have experienced Service Downtime
(c) a description of the Service Downtime event to justify your claim for Service Credits
(d) your server request logs or other relevant data that documents the errors and support your claimed Service Downtime.
 
Note: any confidential or sensitive information in these logs should be removed or replaced with asterisks (*). If you fail to comply with these Service Credits Claim requirements you will forfeit your right to receive the Service Credits.

5.5 If we approve your claim, we will credit the applicable Service Credits amount to your User Account credits balance or to the outstanding invoice for the following billing period. If the Service Credits payable exceeds the charges for the Services for the following billing period, any balance of the Service Credits will be applied to your User Account balance or to subsequent billing invoices until the Service Credits are fulfilled. No entitlement to Service Credits will arise in respect of any calendar month unless the Service Credits for that month exceed £50 (GBP).

Confidentiality

6.    Confidentiality

Each of us ("Receiving Party") shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other of us ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations or exercising the Receiving Party's rights under the Client Services Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This paragraph 6 shall survive termination of the Client Services Agreement.

Our Liability

7.    Our Liability

7.1 This paragraph 7 sets out our entire financial liability to you in respect of: 
(a) any breach of any Client Services Agreement or of these Terms and Conditions; 
(b) any use made by you of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with any Client Services Agreement.

7.2 Except as expressly and specifically provided in this document, you assume sole responsibility for results obtained from your use of the Services. We shall have no liability for any damage caused by errors or omissions in any information or content provided to us in the course of your use of the Services, and all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from each Client Services Agreement.

7.3 Nothing in this agreement excludes our liability: 
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation

7.4 The Service Credits arrangements set out in paragraph 5 state your full and exclusive right and remedy, and our only obligation and liability in respect of, the performance and/or availability of the Services, or their non-performance and non-availability.

7.5 Subject to paragraph 7.3 and paragraph 7.4:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, 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, wasted management time or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any Client Services Agreement in any calendar quarter (beginning 1 January, 1 April, 1 July and 1 October) shall be limited to the charges paid by you for the Services in that calendar quarter.

Duration

8.    Duration

The supply of the Services shall commence on the Commencement Date specified in the Client Services Agreement, and shall continue for the initial minimum Term specified in the Client Services Agreement. At the expiry of: (a) the initial minimum Term; and (b) each subsequent renewed Term; (unless terminated by either of us in accordance with these Terms and Conditions) the Client Services Agreement shall automatically renew for a further period of 12 months, continuing until the Client Services Agreement is terminated by either of us in accordance with these Terms and Conditions.

Termination of the Client Services Agreement

9.    Termination

9.1 Without limiting our other rights or remedies, each of us may terminate the Client Services Agreement by giving to the other not less than 30 days' notice of termination expiring on the last day of the then current Term.

9.2 Without limiting our other rights or remedies, each of us may terminate the Client Services Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Client Services Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
(b) the other party commits a serious breach of its obligations under the Client Services Agreement;
(c) the other party 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (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 (being a partnership) has any partner to whom any of the foregoing apply;
(d) the other party 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 its creditors other than (where 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 other party other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(f) the other party (being an individual) is the subject of a bankruptcy petition or order; 
(g) 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 its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (c) to (i) above (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

9.3 Without limiting our other rights or remedies, we may:
(a) terminate any Client Services Agreement with immediate effect by giving written notice to you if you fail to pay any amount due under that Client Services Agreement by the due date for payment; and/or
(b) suspend the supply of Services under any Client Services Agreement or any other Client Services Agreement between us if you fail to pay any amount due under that Client Services Agreement on the invoice due date for payment.


10.    Consequences of termination

10.1 On termination of the Client Services Agreement for any reason:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(b) the accrued rights and remedies of each of us as at termination shall not be affected, including the right to claim damages in respect of any breach of the Client Services Agreement which existed at or before the date of termination or expiry; and
(c) any clauses which expressly or by implication have effect after termination shall continue in full force.

Communications & Notices

11.    Written Communications

Applicable laws require that some of the information or communications we send to you should be in writing. When using our website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
 

12.    Notices

All notices given by you to us must be given to Define Media Group Ltd. at 3 Octavia House, 8 Homer Street, London, W1H 4NX. We may give notice to you at either the e-mail or postal address specified by you on the Client Services Agreement. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

Transfer of Rights and Obligations

13.    Transfer of Rights and Obligations

The Client Services Agreement between you and us is binding on you and us and on our respective successors and assigns. You may not transfer or assign any of your rights or obligations under this contract without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of a contract, or any of our rights or obligations arising under it, at any time during the term of the contract.

Events Outside our Control

14.    Events Outside our Control

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Client Services Agreement that is caused by events outside our reasonable control ("Force Majeure"). A Force Majeure includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

(a) unavailability of a third party website or services on which your content is published via our embeddable services such as media players, playlists or webtv channel applets
(b) strikes, lock-outs or other industrial action (whether involving our workforce or that of any other party);
(c) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(d) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(e) accident, breakdown of plant or machinery, failure of IT systems or power supplies, failure of a utility service or transport or telecommunications network (including any content delivery network) or default of suppliers or sub-contractors; or
(f) compliance with any law or governmental order, rule, regulation or direction;

 
Our performance under any Client Services Agreement is deemed to be suspended for the period that the Force Majeure continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure to a close or to find a solution by which our obligations under the Client Services Agreement may be performed despite the Force Majeure.

Waiver

15.    Waiver

15.1 If we fail to insist upon strict performance of any of your obligations under the Client Services Agreement or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Client Services Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

15.2 A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with the Notices provisions in paragraph 12 above.

Severability

 16.    Severability

If any of these terms and conditions are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term or condition will to that extent be severed from the remaining terms and conditions which will continue to be valid to the fullest extent permitted by law.
 

Entire Agreement

17.    Entire Agreement

17.1 The Client Services Agreement and these Terms and Conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of the Client Services Agreement in question, and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.

17.2 We each acknowledge that, in entering into a Client Services Agreement, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such contract except as expressly stated in these terms and conditions.

Law and Jurisdiction

18.    Law and Jurisdiction

These Terms and Conditions and each Client Services Agreement are governed by English law and you consent to the exclusive jurisdiction of the courts of England in relation to any dispute arising in connection with them.

Version Update

Last Updated:  April 2019

Terms may be subject to adjustments in accordance with your individual Client Services Agreement.