These standard Terms and Conditions (“CONDITIONS”) set out the terms and conditions on which ArtRabbit LTD, with company number 08787750 and having its registered address at Second Floor Windsor House, 40/41 Great Castle Street, London, W1W 8LU (“ArtRabbit”) shall supply the client referred to in the booking confirmation form (“Client”) with the advertising services specified in clause 2 of these conditions and the booking confirmation form. By executing a copy of the Booking Confirmation Form, the Client hereby agrees to be bound by the Conditions herein.
It is hereby agreed as follows:
“Advertisement” means the promotional and/or advertising material in respect of the Client’s goods or services referred to in the Booking Confirmation Form;
“Advertisement Particulars” means the size, location, prominence and other details relating to the Advertisement, as more specifically set out in the Booking Confirmation Form;
“Agreement” means together these Conditions and the Booking Confirmation Form;
“Booking Confirmation Form” means the booking confirmation form attached hereto or otherwise making reference to these Conditions;
“Charges” means the charges payable by the Client to ArtRabbit for publication of the Advertisement, as specified in the Booking Confirmation Form;
“Commencement Date” means the date specified in the Booking Confirmation Form;
“Publication Date” means the date specified in the Booking Confirmation Form that the Advertisement is to be published on the Website;
“Publication Period” means the period, starting on the Publication Date and subject to these Conditions, that the Advertisement shall remain published on the Website;
“Term” means the term referred to in clause 5.1;
“User” means any visitor to the Website; and
“Website” means the website specified in the Booking Confirmation Form.
2.1 In consideration for the payment of the Charges and subject to these Conditions, ArtRabbit shall publish the Advertisement(s) on the Website in accordance with the Advertisement Particulars, on the Publication Date for the Publication Period.
2.2 The parties acknowledge and agree that this Agreement shall be non-exclusive between the parties and ArtRabbit may publish advertisements on the Website relating to the same or similar goods and services from third parties, including those who directly compete with the Client.
2.3 ArtRabbit does not warrant, represent or guarantee that the Website shall be uninterrupted or fault-free at all times. ArtRabbit may suspend the Website (wholly or partly) for any reason whatsoever, including but not limited to repairs, planned and emergency maintenance or upgrades.
2.4 ArtRabbit reserves the right to make such changes to the Website (including to the content, layout and features) as ArtRabbit deems necessary from time to time and at its sole discretion.
3.1 Client shall provide the Advertisement(s), including any amendments or updates thereto, for publication on the Website to ArtRabbit as soon as reasonably practicable following the Commencement Date (but in any event no later than seven (7) days prior to the Publication Date), in accordance with such format and specification reasonably required by ArtRabbit. Client shall also provide such other information and material necessary to enable ArtRabbit to publish the Advertisement on the Website (“Client Material”).
3.2 The Client shall ensure that:
3.2.1 all Client Material supplied in connection with the Advertisement and all information contained in the Advertisement is accurate, correct and up-to-date;
3.2.2 the Advertisement or the Client Material does not infringe any third party rights, including without limitation, any third party intellectual property rights or any other proprietary rights;
3.2.3 the Advertisement shall not breach any applicable statutory or regulatory requirement (including but not limited to the British Code of Advertising, Sales Promotion and Direct Marketing and all other applicable codes under the general supervision of the Advertising Standards Authority);
3.2.4 the Advertisement shall not be misleading, deceptive or in any way contravene all applicable consumer, e-commerce and data protection legislation;
3.2.5 the Advertisement shall not be obscene, defamatory or in the reasonable view of ArtRabbit, be deemed to be offensive and/or inappropriate;
3.2.6 it has obtained the consent of any living person whose name or image appears in the Advertisement; and
3.2.7 on submission to ArtRabbit, the Advertisement will be free from viruses or similar destructive code.
3.3 ArtRabbit has the right to reject, edit or remove from the Website any Advertisement that ArtRabbit considers, at its sole discretion, is unsuitable and/or infringes the provisions in clause 3.2 above.
3.4 Client shall provide ArtRabbit promptly with all necessary co-operation, access to timely decision making and all the necessary information including without limitation the Client Material which may be reasonably required by ArtRabbit for the performance of its obligations under this Agreement.
3.5 Client shall verify all Advertisement and Client Material prior to its provision to ArtRabbit. For the avoidance of doubt, ArtRabbit shall bear no responsibility or liability for inspecting, or verifying the Advertisement and/or Client Material prior to or during its use by ArtRabbit pursuant to this Agreement.
3.6 For the avoidance of doubt, ArtRabbit shall not be liable for any delay or failure to perform its obligations hereunder which arises as a result of a failure by the Client to comply with its obligations under this clause 3.
4.1 In consideration of ArtRabbit’s publication of the Advertisement in accordance with these Conditions, Client shall pay the Charges to ArtRabbit.
4.2 ArtRabbit shall invoice the Client in accordance with the billing cycle set out in the Booking Confirmation Form, or otherwise at the end of each month.
4.3 All invoices shall be paid in full without set-off or counterclaim in accordance with the payment terms set out in the Booking Confirmation Form or otherwise within fourteen (14) days of the date of the invoice.
4.4 All Charges exclude VAT and all applicable taxes which shall be charged in addition, at the rates in force at the time of application.
4.5 ArtRabbit reserves the right to, without prejudice to any of its other right or remedy, charge the Client interest on any payment no made by the due date. Interest shall be calculated on a daily basis, both before and after any judgment, at the rate of four (4) percent per annum above the base rate from time to time of the Bank of England, for the period from the date the payment is due until the date on which such sum is actually paid. It shall be compounded quarterly and payable on demand.
Term and Termination
5.1 This Agreement shall commence on the Commencement Date and shall continue until the expiry of the Publication Period, unless otherwise terminated earlier in accordance with clause 5.2 or 5.3 below.
5.2 The Client may cancel and terminate this Agreement by providing ArtRabbit with notice in writing (including by e-mail) at any time within seven (7) days of the Commencement Date and receive a full refund of any Charges paid. No refunds shall be due to the Client on termination of this Agreement outside of the aforementioned period.
5.3 In any event, this Agreement may be terminated immediately on written notice:
5.3.1 by either party if the other party is in material breach of its contractual obligations and has not remedied such breach within fourteen (14) days after receipt of a written notice of default from the other party. For the avoidance of doubt, and without limitation, breach of any provision under clause 3.2 is a material breach for these purposes; or
5.3.2 by either party if the other is declared bankrupt, or if a body corporate, has a liquidator, receiver or administrator appointed or enters into any form of arrangement with its creditors, or is otherwise insolvent.
5.3 Without prejudice to any of its rights and remedies, ArtRabbit reserves the right to suspend the provision of the Services at any time upon notice to the Client if the Client has breached or if ArtRabbit has reason to believe that there is a breach of any of the provisions herein.
5.4 On termination of this Agreement for any reason:
5.4.1 ArtRabbit shall remove the Advertisement from the Website;
5.4.2 Client shall delete any data collected through the Technologies in accordance with clause 9, and on request by ArtRabbit, shall provide written confirmation that it has done so; and
5.4.3 each party shall delete or destroy any Confidential Information belonging to the other in its possession or control.
5.4 The provisions of clauses 4 (to the extent of unpaid obligations), 6, 7, 8, 10.5, 10.9 and this clause 5.4 shall survive the termination of these Terms however arising.
Warranties and liabilities
6.1 All warranties, representations, guarantees, conditions and terms, other than those expressly set out in these Terms whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law. In particular, ArtRabbit does not guarantee any specific result(s) from the provision of the Services or that the Advertisement will reach a certain number of impressions.
6.2 Subject to clause 6.5, liability of which shall remain unlimited, ArtRabbit’s maximum aggregate liability (including its respective agents and sub-contractors) under, arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Charges paid by the Client to ArtRabbit under this Agreement.
6.3 In no event shall ArtRabbit (including its respective agents and sub-contractors) be liable for:
6.3.1 any loss of profits, loss of data, business interruption, loss of use, loss of use, loss of goodwill and reputation (whether direct or indirect), loss of contracts, expectation loss, loss of anticipated savings and loss of management time; or
6.3.2 any indirect or consequential losses of any nature whatsoever.
6.4 In the event that ArtRabbit fails to comply with its obligations under this Agreement, then it shall be entitled to be given a reasonable opportunity to remedy any errors and re-perform its obligations (wholly or partly).
6.5 For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit the liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
6.6 The parties accept that the limitations and exclusions set out in these Conditions are reasonable having regard to all the circumstances.
Intellectual property rights
7.1 All right, title and interest in the Client Material shall remain exclusively with the Client and/or its licensors.
7.2 Client hereby grants ArtRabbit a non-exclusive licence to reproduce and publish the Advertisement on the Website and use the Client Material to the extent and for the duration necessary to perform its obligations under this Agreement.
7.3 ArtRabbit shall have no liability for, and the Client shall indemnify ArtRabbit in full for all losses, damages, claims, costs and expenses (including legal expenses) incurred or suffered by ArtRabbit arising out or in connection with any claim made by any third party that the use, possession and/or publication of the Advertisement and/or Client Material by ArtRabbit infringes any third party intellectual property rights or any other proprietary rights.
8.1 Each party ("Receiving Party") shall keep confidential the provisions of this Agreement and all information and documentation disclosed by the other party ("Disclosing Party"), before or after the date of this Agreement, to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any software, operations, products, processes, dealings, trade secrets or the business of the Disclosing Party (including without limitation all associated software, specifications, designs and graphics) or which is identified by the Disclosing Party as confidential ("Confidential Information") and will not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party.
8.2 During the Term the Receiving Party may disclose the Confidential Information to its employees and sub-contractors (any such person being referred to in this Clause as the "Recipient") to the extent that it is reasonably necessary for the purposes of this Agreement. The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
8.3 The obligations contained in clauses 8.1 and 8.2 shall not apply to any Confidential Information which is:
8.3.1 at the date of this Agreement already in, or at any time after the date of this Agreement comes into, the public domain other than through breach of this Agreement by the Receiving Party or any Recipient;
8.3.2 furnished to the Receiving Party or any Recipient without restriction by a third party having a bona fide right to do so; or
8.3.3 required to be disclosed by the Receiving Party by law or regulatory requirements of any stock exchange, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
8.4 All tangible forms of Confidential Information, including, without limitation, all summaries, copies, excerpts of any Confidential Information whether prepared by the Disclosing Party or not, shall be the sole property of the Disclosing Party, and shall be immediately delivered by the Receiving Party to the Disclosing Party upon the Disclosing Party's request or the termination of this Agreement (whichever is earlier). The Receiving Party shall not copy, reproduce, publish or distribute in whole or in part any Confidential Information without the prior written consent of the Disclosing Party.
Data collecting on the website
9.1 Client shall not place any cookies, web beacons of other data collecting technologies (“Technologies”) onto a User’s device without ArtRabbit’s prior written consent. On receipt of ArtRabbit’s consent (if granted), Client agrees to disclose to ArtRabbit all information reasonably requested by ArtRabbit regarding such Technologies and shall not use such Technologies in any manner contrary to such information disclosed.
9.2 The Client acknowledges that any data collected from Users using the Technologies shall be considered Confidential Information (as defined in clause 8.1 above) and will not be disclosed by the Client to any third party without ArtRabbit’s express written authorisation. Client shall not display “personalised” or “targeted” advertising using data collected through the use of the Technologies on the Website without ArtRabbit’s prior written consent.
10.1 References to clauses shall be to clauses of this Agreement.
10.2 The waiver by either party of its rights in respect of any breach of any provision of these Conditions shall not be taken or held to be a waiver in respect of any subsequent breach thereof.
10.3 No alteration, modification or addition to this Agreement shall be valid unless made in writing and signed by the duly authorised representatives from both parties.
10.4 Neither party or any of its employees, servants, agents or sub-contractors shall be under any liability whatsoever to the other party for any non-performance, defective performance or delay in the performance of any of the Services or work to be supplied hereunder caused directly or indirectly by an Act of God or by any other event or circumstance beyond the reasonable control of that party.
10.5 If any part of this Agreement is found to be unreasonable, invalid or unlawful under any enactment or rule of law the Court shall have the power to strike out or override that part whether it be an entire clause or clauses or some part or parts thereof and enforce these Terms as if the offending part or parts had not been included.
10.6 The clause headings in this Agreement are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement.
10.7 Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against ArtRabbit and such third parties shall not be entitled to enforce any term of this Agreement against ArtRabbit.
10.8 This Agreement constitutes the entire agreement between the parties. Other than as expressly stated otherwise in this Agreement neither party shall be under any liability for any representations made prior to or during the operation of this Agreement.
10.9 This Agreement shall be governed and construed in accordance with the Laws of England and Wales and shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
10.10 These Conditions shall take precedence over any terms and conditions notified by either party to the other whether prior to or after the agreement of either party to this Agreement.
10.11 All notices, documents and other communications relating to this Agreement must be in writing and delivered by hand, posted by first class pre-paid post or sent by facsimile transmission to the registered office of a party and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of 48 hours after posting or at the time of transmission in the case of facsimile transmission.