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Terms and Conditions

Terms and Conditions

1. Definitions

“This Agreement” means this Services Agreement, including any Schedules, and any amendments to this Services Agreement that may be agreed from time to time.

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“Content” means any textual, audio, or visual content, which makes up part of the Products.

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“Product” (or “Products”) are those Digital Distribution Services provided by the Provider and licensed for use by the Customer, as defined in This Agreement.

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“Schedule" means any schedule attached to the agreement.

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“Set-up Services” means the Configuration Service, together with any bespoke system design & content.

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“Actual Delivery Date” means the date on which the Provider first delivers the Deliverables to the Customer.

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“Effective Date” means the date the platform goes live, notwithstanding the date on which this agreement is signed by both parties

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“Deliverable” means a defined level of functionality or product as defined in Schedule 1 of the agreement

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“Initial Term” means the period of 12 months, commencing on the Actual Delivery Date.

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“Service Term” means the Initial Term together with any subsequent roll on period as defined in Term Period.

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“Fees” means the Set-up Fee and the Monthly Service Fee payable to the Provider by the Customer, as described in Payment Profile of the agreement

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“Set-up Fee Deposit” means the deposit amount set up in Payment Profile of the agreement

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“Set-up Fee Balance” means the amount set out in Payment Profile of the agreement

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“Inappropriate Content” has the meaning given to such term at clause 3.1

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“Customer Data” means the data inputted onto the platform by the Registered User or “Customer” in the process of accessing or using the platform. 
 

2. UNDERTAKINGS BY THE PROVIDER

  1. The Provider guarantees to the Customer that they are entitled to provide the Products agreed to under This Agreement.

  2. During the Service Term, the Provider shall make the Products available to the Customer 24 hours a day, 7 days a week (with the exception of downtime for service as outlined in SLA in Section 16.)

  3. The Provider shall ensure that it does not infringe any third party’s IPR in its contractual performance.

  4. The Provider warrants that they have and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.

  5. Inform the Customer (via email) of any significant changes to the solutions or content. 

  6. The Provider shall perform the Set-up Services and shall use reasonable endeavors to meet the Target Delivery Date, but any such date shall be an estimate only, and time shall not be of the essence in this agreement.

  7. The Provider shall, at any point during the Service Term, at its own discretion and expense, be entitled to make changes to the Product, including varying, enhancing, modifying, substituting, or amending any element of the product, subject to there being no material detrimental impact on the Product.

  8. Subject to the Customer paying the fees in accordance with Payment Profile, the provider grants the Customer a non-exclusive, nontransferable right to access and use and to allow the Permitted Users access to the System during the Service Term

3. CUSTOMER DATA

  1. The Customer shall own all rights, title, and interest in and to the Customer Data and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.

  2. The Provider shall follow its archiving procedures for Customer Data, In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Provider to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Provider in accordance with its archiving procedure. The Provider shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Provider to perform services related to Customer Data maintenance and back-up).

  3. If the Provider processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Provider shall be a data processor and in any such case:

    1. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer or any Permitted Users are located in order to carry out the Services and the Provider's other obligations under this agreement.

    2. the Provider shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and

    3. each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction, or damage.

  4. The Customer warrants to the Provider that:

    1. it will collect all personal data in accordance with fair and lawful practices and in accordance with the Data Protection Act 2018 or any subsequent data protection legislation applicable in the United Kingdom;

    2. it is entitled to transfer the relevant personal data to the Provider so that the Provider may lawfully use, process, and transfer the personal data in accordance with this agreement on the Customer's behalf.

    3. the instructions given by the Customer in respect of any personal data will at all times be in accordance with the relevant laws of the United Kingdom and/or applicable jurisdiction; and 

    4. it is legally entitled to control personal data and that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.

3. CUSTOMER DATA

  1. The Customer shall own all rights, title, and interest in and to the Customer Data and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.

  2. The Provider shall follow its archiving procedures for Customer Data, In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Provider to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Provider in accordance with its archiving procedure. The Provider shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Provider to perform services related to Customer Data maintenance and back-up).

  3. If the Provider processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Provider shall be a data processor and in any such case:

    1. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer or any Permitted Users are located in order to carry out the Services and the Provider's other obligations under this agreement.

    2. the Provider shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and

    3. each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction, or damage.

  4. The Customer warrants to the Provider that:

    1. it will collect all personal data in accordance with fair and lawful practices and in accordance with the Data Protection Act 2018 or any subsequent data protection legislation applicable in the United Kingdom;

    2. it is entitled to transfer the relevant personal data to the Provider so that the Provider may lawfully use, process, and transfer the personal data in accordance with this agreement on the Customer's behalf.

    3. the instructions given by the Customer in respect of any personal data will at all times be in accordance with the relevant laws of the United Kingdom and/or applicable jurisdiction; and 

    4. it is legally entitled to control personal data and that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation.

4. THIRD-PARTY PROVIDERS

  1. The Provider makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any third-party websites or platforms, correspondence with any such third parties, any transactions completed via such third-party platforms, or any contract entered into by the Customer or any Permitted User and any such third party.  

  2. Any contract entered, and any transaction completed via any third party is between the Customer as appropriate and the relevant third party, and not the Provider. The Provider recommends that the Customer or any Permitted Registered User refers to the third party's platform terms and conditions and privacy policy prior to accessing the relevant third-party platform and/ or using the services of such third party.  

  3. The Provider does not endorse or approve any third-party platform nor the content of any of the third-party platforms made available via the Cabin Select Channel Management Platform.
     

7. TERMINATION

  1. This Agreement may be terminated if either Party may give 90 days written notice to the other Party outside the minimum term.

  2. This Agreement may be terminated immediately by either Party if the other Party is: 

    1. in material breach of this agreement and if that breach is not remedied within thirty (30) days of written notification by the first Party, or

    2. unable to pay its debts or becomes insolvent, or an order is made, or a resolution passed for the administration, winding-up, or dissolution.
       

5. FEES

  1. The Customer shall pay the Fees to the Provider in accordance with this Section 5 and Payment Profile of the agreement

  2. The Provider shall invoice the Customer:

    1. in respect of the Set-up Fee Deposit, on the Effective Date, which shall be payable immediately.

    2. in respect of the Set-up Fee Balance and the first Monthly Service Fee, 5 days prior to the actual delivery date, which shall be payable immediately. 

    3. in respect of the Monthly Service Fee (other than the first Monthly Service Fee), monthly in advance, which shall be paid within 30 Business Days of the date of invoice; and

  3. The Provider shall not render the Platform and/ or the Services active and operational unless and until such time as the Set-up Fee Balance and the first Monthly Service Fee are paid in full.

  4. The Provider shall be entitled to render invoices to the Customer and the Customer shall be obliged to make payment in accordance with clause 5.2 whether or not the Customer makes use of the System and/ or the Services.

  5. All payments by the Customer shall be made without set-off or counterclaim and without any deduction and shall be made by electronic transfer BACS, direct debit or standing order to the Provider’s bank account, details of which will be provided by the Provider upon request or to such other account as the Provider specifies to the Customer from time to time.

  6. All amounts and Fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Provider's invoice(s) at the appropriate rate. 

  7. If the Provider has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Provider:

    1. the Provider may, without liability to the Provider, disable the Customer's access to all or part of the Services, and the Provider shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

    2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Providers Banker in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

    3. All amounts and fees stated or referred to in this agreement:

    4. shall be payable in the Currency; set forth in Schedule 1 of the agreement are exclusive of value-added tax, which shall be added to the Provider's invoice(s) at the appropriate rate.

    5. The Provider shall be entitled to increase the Monthly Service Fee every 12 months from the initial contract delivery date up to no more than 5% above the Annual UK CPI % at that time, and Payment Profile of the agreement shall be deemed to have been amended accordingly.
       

6. TERM

This Agreement shall be enforced for the initial Term Period from the Actual Delivery Date of this agreement and will then continue automatically on a rolling 90 day term unless it is terminated in accordance with clause 7 . The initial term period is set forth on Schedule 1 of the agreement

8. ADDITIONAL TERMS & INFORMATION

  1. This Agreement may be terminated if either Party may give 90 days written notice to the other Party outside the minimum term.

  2. This Agreement may be terminated immediately by either Party if the other Party is: 

    1. in material breach of this agreement and if that breach is not remedied within thirty (30) days of written notification by the first Party, or

    2. unable to pay its debts or becomes insolvent, or an order is made, or a resolution passed for the administration, winding-up, or dissolution.
       

9. INTERLECTUAL PROPERTY RIGHTS

All Materials, including, but not limited to, any software, programs, source code, and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof, any routines, methodologies, processes, libraries, tools or technologies created, adapted or used by Cabin Select in its business generally, including all associated intellectual property rights (collectively, the “Materials”),  shall be and remain the sole property of Cabin Select, and the Customer shall have no interest in or claim to the Materials.

10. CONFIDENTIALITY

The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.

This clause does not apply to information which the receiving Party can show by reference to documentary or other evidence:

  1. is already public knowledge or which becomes public other than as a result of a breach of this Agreement, or

  2. is received from a third party who is not under an obligation of confidentiality in relation to the information, or was rightfully in its possession before the start of negotiations leading to this Agreement, or

  3. a Party is obliged to disclose due to applicable legislation, decisions/orders by authorities or courts, or due to the rules or practices of any recognized stock exchange applicable to such Party.

11. AMENDMENTS AND ASSIGNMENTS

To be valid, amendments or changes to this Agreement shall be in writing and signed by both Parties or confirmed by email.

 

​Neither Party may assign, subcontract or otherwise transfer this Agreement or any of its rights and obligations under it, whether in whole or in part, without the prior written consent of the other Party. 

12. FORCE MAJEURE

For the purpose of this clause, a “Force Majeure Event” means an event the occurrence of which is beyond the reasonable control of either Party, including (without limitation) the following: Act of God, explosion, earthquake, or act of terrorism.

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If a Force Majeure Event occurs which prevents a Party ("the Affected Party") from performing any of its obligations to the other ("the Other Party"), or causes a delay in performance, the Affected Party shall not be liable to the Other Party and shall be released from its obligations to perform hereunder the extent that its ability to perform the Services has been directly affected by the Force Majeure Event, provided that the Affected Party notifies the Other Party in writing as soon as reasonably practical of the occurrence of the Force Majeure Event and the nature and likely duration of its impact upon the Other Party and provided that the Affected Party takes all reasonable steps to mitigate the impact of the Force Majeure Event.

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If the impact of the Force Majeure Event upon the Affected Party continues for a period of no less than 30 consecutive days, the Affected Party may, by written notice, terminate this Agreement in whole (but not in part) with immediate effect.

13. EXCLUSION OF INDIRECT DAMAGES

In no event will either party be liable under this agreement for any consequential, incidental, indirect, exemplary, special, or punitive damages.

14. CAP ON MONETARY LIABILITY

Except as to available liability insurance for the party at fault or in breach, in no event will either party’s liability under this agreement or any statement of work exceed the aggregate fees paid to the other party under this agreement.

16. SERVICE LEVEL AGREEMENT

Technical support is available from 9 am to 5.30 pm Monday to Friday, UK, excluding public holidays via email or telephone. 24-hour emergency support is offered via mobile and email. Technical support covers the performance of your site, maintenance of the server, and security.

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Security includes platform monitoring 24/7 for attacks and provides a 99.9% server uptime

15. GOVERNING LAW

This Agreement is governed by and construed in accordance with English law. The parties specifically agree that any all disputes arising out of or in connection with the present Agreement shall be finally settled under English law in an English court of law.

17. FAIR USAGE POLICY

  1. For the benefit of all users of our API it is imperative that users adhere to fair and reasonable use of the API to seek to prevent downtime, loss of or corruption, or damage to data and/or other errors or technical issues due from use of our API, you must immediately notify us, and reduce your usage of the API appropriately.

  2. Use of the API must be limited to a reasonable number of concurrent calls (API requests), together with an appropriate wait period for the completion of those calls before commencing further calls. We may specify a specific number of call limits from time to time, to which you will be required to adhere.

  3. In the event that you receive error reports or error codes from use of our API, you must immediately notify us, and reduce your usage of the API appropriately.

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