© 2019 All rights reserved
Dribble Business Service Agreement
- 1.1 Definitions:
|App||the mobile application owned by Dribble which provides users with information and recommendations on things to do and see, places to visit with children, events and family friendly services..|
|App Terms||the terms setting out Dribble’s terms and conditions for the use of the App.|
|Charges||the charges payable by the Client for the Services by Dribble, as set out in the Order or otherwise agreed in writing between the parties.|
|Client||the client referred to in the Order, to whom Dribble has agreed to provide the Services in accordance with these Terms.|
|Client Background IPR||the Intellectual Property Rights in the Client Materials.|
|Client Materials||all materials, data, photos and videos supplied by the Client to Dribble or uploaded to the App, with the exception of any such materials that are created by the Client and Dribble together.|
|Consumer and Advertising Laws||the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Rights Act 2015 and the Committee of Advertising Practice Code.|
|Control||has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.|
|Dribble||Dribble Limited (company number SC578351).|
|Dribble IPRs||all Intellectual Property Rights owned by or licensed to Dribble excluding any Client Materials incorporated in them.|
|Effective Date||the date on which Dribble agrees to proceed with the Services.|
|Foreground IPRs||the Intellectual Property Rights in any materials created by Dribble, or by Dribble in conjunction with the Client, for the purposes of providing the Services or otherwise in connection with the Services (excluding the Client Background IPRs).|
|Intellectual Property Rights||copyright, patents and all other intellectual property rights of any nature whatsoever, whether registered, capable of registration or not, in any part of the world and including all applications and the right to apply for any such rights.|
|Media Pack||sets out the description of the Services as such documentation will be updated from time to time.|
|Order||the order form, purchase order, invoice or other document agreed between the parties or issued by Dribble to the Client setting out details of the commercial agreement between the parties.|
|Promotions||any special offer, price reduction, prize draw, competition or any other promotional initiative offered by the Client via the App.|
|Services||the services that Dribble has agreed to provide to the Client in accordance with the relevant Order or as otherwise agreed in writing between the parties, as further described in the Order and the Media Pack.|
|Services Start Date||the day on which Dribble begins providing the Services, as set out in the Order or as otherwise agreed in writing between the parties.|
|Terms||these terms of business and any Order and Media Pack agreed between the parties.|
1.2.1 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 includes any subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 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.
1.2.3 A reference to writing or written includes email.
2. Commencement and Term
2.1 Any instruction given by the Client to Dribble to proceed with the provision of Services shall be treated as constituting an acceptance by the Client of these Terms. These Terms shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with its terms, until the Services have been completed and Dribble has received payment in full for the Services.
3. Supply of Services
3.1 The parties may agree in writing from time to time, following a request from the Client, that Dribble will supply Services to the Client. Dribble shall use reasonable endeavours to supply the Services to the Client from the Services Start Date in accordance with the Order and the Media Pack or as otherwise agreed between the parties in writing.
3.2 In supplying the Services, Dribble shall:
3.2.1 perform the Services with reasonable care and skill;
3.2.2 use reasonable endeavours to perform the Services in accordance with the service description set out in the Order and the Media Pack; and
3.2.3 take reasonable care of all Client Materials in its possession.
3.3 The parties acknowledge that Dribble may change the nature of the Services at any time by updating the Media Pack. If Dribble makes changes to the Services during the performance of the Services for the Client, Dribble reserves the right to change the Services being provided to the Client to the new Services that most closely reflect the Services currently being provided.
4 Client’s Obligations
4.1 The Client shall:
4.1.1 co-operate with Dribble in all matters relating to the Services;
4.1.2 ensure that any Promotions or other marketing content it submits for display on the App:
(a) do not mislead App users, in particular by presenting false or misleading information (or omitting material information) about its products or services; and
(b) do not breach Consumer and Advertising Laws.
4.1.3 provide, for Dribble, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s data and other facilities as required by Dribble or any of them;
4.1.4 provide, in a timely manner, such information as Dribble may require, and ensure that it is accurate and complete in all material respects;
4.1.5 comply with the App Terms so far as they relate to the Client;
4.1.6 at the request of Dribble, share content about Dribble on the Client’s website, social media and/or premises;
4.1.7 if stated in the Order, the Media Pack or otherwise agreed between the parties, provide offers and access on an exclusive basis to Dribble and not provide the same offer to any other party; and
4.1.8 comply with any obligations as stated in the Order and the Media Pack.
4.2 Without prejudice to the Client’s obligation under clause 4.1.4, the Client shall inform Dribble of any changes to the Promotion, and provide all Client Materials required for the changes, within any timescales made known to the Client by Dribble from time to time. The Client acknowledges that if the Client does not inform Dribble of changes or provide the required Client Materials within such timescales, Dribble may not be able to implement the changes by the date requested by the Client for the change and Dribble makes no guarantees and accepts no liability in respect of any delay in implementing such changes as a result of a failure by the Client to comply with this clause 4.2.
4.3 If Dribble’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Dribble shall:
4.3.1 not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
4.3.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.3.3 be entitled to recover any additional costs, charges or losses Dribble sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Client Materials
5.1 The Client warrants to Dribble that the Client Materials:
5.1.1 are accurate and up-to-date and not in any way misleading;
5.1.2 are not unlawful, defamatory (whether of Dribble, the App, our users or any other third party), malicious, harassing, abusive, fraudulent, obscene, confidential or otherwise objectionable (as reasonably determined by Dribble);
5.1.3 do not promote violence, sexually explicit material, illegal activity or discrimination of any kind;
5.1.4 do not contain any viruses, bugs or other malicious code;
5.1.5 do not infringe another person’s rights, including intellectual property and privacy rights; and
5.1.6 are not threatening or abusive, and do not cause annoyance, alarm, embarrassment or distress to any other person.
5.2 The Client warrants to Dribble that it has the required authority to share the Client Materials.
5.3 If the Client Materials include advice, the Client shall ensure that such advice is reasonably sound and is not dangerous, misleading or flawed. Dribble accepts no responsibility for the quality of any advice given in any Client Materials.
6 Intellectual Property
6.1 Dribble and its licensors shall retain ownership of all Dribble IPRs. The Client and its licensors shall retain ownership of all Client Background IPRs.
6.2 Dribble grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use the Dribble IPRs for the purpose of receiving and using the Services in the Client’s business during the term of these Terms.
6.3 The Client grants Dribble a perpetual, irrevocable, fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Client Materials (including the Client Background IPRs).
6.4 All Foreground IPRs shall be owned by Dribble and the Client hereby assigns, by way of present and future assignment, all Intellectual Property Rights that the Client may own in the Foreground IPRs to Dribble. The Client shall do, or procure the doing, of all acts that Dribble requires to give effect to this clause.
6.5 Dribble grants the Client a fully paid-up, non-exclusive, royalty-free licence to use the Foreground IPRs for the duration of these Terms for the purpose of receiving and using the Services in the Client’s business during the term of these Terms.
6.6 The Client shall indemnify Dribble in full against any sums awarded by a court against Dribble arising of or in connection with any claim brought against Dribble for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by Dribble.
7 Charges and Payment
7.1 In consideration for the provision of the Services, the Client shall pay Dribble the Charges in accordance with this clause 7.
7.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to Dribble at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
7.3 Dribble shall submit invoices for the Charges plus VAT if applicable to the Client. Each invoice shall include all reasonable supporting information required by the Client.
7.4 The Client shall pay each invoice due and submitted to it by Dribble, unless otherwise agreed by the parties, within 15 days of receipt (or as otherwise specified in the Order or agreed between the parties), via the method(s) of payment specified in the Order or as otherwise agreed by Dribble.
7.5 If the Client fails to make any payment due to Dribble under these Terms by the due date for payment, then, without limiting Dribble’s remedies under clause 9(Termination):
7.5.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.5.2 Dribble may suspend all Services until payment has been made in full.
7.6 All amounts due under these Terms from the Client to Dribble shall be paid by the Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8 Limitation of Liability
8.1 Any Promotions are created by the Client and are hosted by Dribble and Dribble is not liable for any aspect of the Promotions. Dribble is not liable for any misleading information or errors in the marketing content or Promotions submitted by the Client for display on the App. The Client shall indemnify Dribble for any loss or damages Dribble suffers as a result of the Client submitting content for display on the App that is false, misleading or breaches Consumer and Advertising Laws or these Terms. If Dribble receives any complaints from App users that relate to the Client’s Promotions, products or services, those complaints will be referred to the Client, who shall take reasonable steps to resolve any such complaints directly.
8.2 We do not guarantee that the App, or any content on it, will always be available or be uninterrupted. We may modify, suspend, discontinue, withdraw or restrict the availability of all or any part of the App at any time. We will not be liable to you for any failure to provide the Services as a result of:
8.2.1 unavailability, interruption, modification, suspension, discontinuation, withdrawal or restriction of the App; or
8.2.2 Dribble ceasing to carry on business.
8.3 The total aggregate liability of Dribble under or in connection with these Terms shall not in any event exceed an amount equal to the total fees payable under the relevant Order.
8.4 Where the Order or the Media Pack envisage, or the Client requests, that particular Services are to be provided by particular dates or within particular timescales, Dribble shall use its reasonable endeavours to meet such dates or timescales, but time shall not be of the essence and Dribble provide no guarantee that the Services will be provided at the times requested.
8.5 Nothing in this Agreement shall oblige Dribble to remove, amend or restrict any user generated content. At the reasonable request of the Client, Dribble may (but shall not be obliged to) review any negative reviews, comments or feedback made about the Client by any user, but Dribble shall be under no obligation to remove, amend or restrict any such reviews, comments or feedback and Dribble shall not be liable to the Client in respect of any such reviews, comments or feedback.
8.6 Dribble does not exclude or limit in any way its liability to the Client where it would be unlawful to do so. This includes liability for death or personal injury caused by Dribble’s negligence or the negligence of its employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
8.7 Dribble is only responsible to the Client for foreseeable loss and damage caused by Dribble. If Dribble fails to comply with these Terms, it is responsible for loss or damage the Client suffers that is a foreseeable result of breaking these Terms or failing to use reasonable care and skill, but Dribble is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Client agrees to these Terms, both parties knew it might happen.
8.8 Dribble shall not be liable to the Client (whether for breach of contract, negligence or otherwise) for any:
8.8.1 loss of or corruption to data or computer files; or
8.8.2 loss of anticipated savings or revenues; or
8.8.3 loss of profits (whether actual or anticipated); or
8.8.4 loss of contracts or business opportunities; or
8.8.5 loss of goodwill or damage to reputation; or
8.8.6 indirect, special or consequential loss or damage; or
8.8.7 loss arising from any claim made by any third party to the extent relating to or comprising any loss or damage of the kind referred to in the previous parts of this clause;
which arises out of or in connection with these Terms.
9.1 The duration of the Services and any terms governing renewal shall be set out in the Order and/or the Media Pack. Unless terminated early under clause 9.2 to 9.4, these Terms shall continue in force for the duration set out in the Order (and any further period, if required, to ensure that payment for the Services has been received in full).
9.2 Either party may terminate the Services by giving written notice to the other in accordance with the notice period set out in the Order.
9.3 Without affecting any other right or remedy available to it, either party to these Terms may terminate these Terms with immediate effect by giving written notice to the other party if:
9.3.1 the other party commits a material breach of any provision of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
9.3.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
9.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under these Terms has been placed in jeopardy.
9.4 Without affecting any other right or remedy available to it, Dribble may terminate these Terms with immediate effect by giving written notice to the Client if:
9.4.1 the Client fails to pay any amount due under these Terms on the due date for payment;
9.4.2 there is a change of Control of the Client;
9.4.3 in the reasonable opinion of Dribble, the Clients conduct could result in damage to Dribble’s reputation; or
9.4.4 Dribble ceases to conduct business.
9.5 On termination of these Terms for whatever reason:
9.5.1 the Client shall immediately pay to Dribble all of Dribble’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Dribble may submit an invoice, which shall be payable immediately on receipt;
9.5.2 Dribble shall be under no obligation to refund to the Client any pre-paid fees for the Services (unless the Client has terminated for Dribble’s material breach in accordance with clause 9.3.1);
9.5.3 any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect; and
9.5.4 termination or expiry of these Terms shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination or expiry.
10 Force Majeure
10.1 Dribble shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11 Assignment and other dealings
11.1 The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Terms without the Dribble’s prior written consent.
11.2 Dribble may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under these Terms.
12.1 Each party shall safeguard and keep confidential any and all confidential information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party’s confidential information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under these Terms. Each party shall ensure that its officers and employees and any other persons to whom the other party’s confidential information is disclosed comply in respect of that information with the provisions of this Clause 12.
12.2 The obligations on a party set out in Clause 12.1 shall not apply to any information to the extent that such information:
12.2.1 is publicly available or becomes publicly available through no act or omission of that party;
12.2.2 which was in the possession of the receiving party prior to the information being disclosed by the disclosing party to the receiving party;
12.2.3 which was obtained from a third party who is free to disclose the same; and/or
12.2.4 is required to be disclosed by law.
12.3 The obligations in this Clause 12 shall continue in force notwithstanding the termination of these Terms.
13.1 No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.1 No delay in enforcing these Terms shall prevent Dribble from enforcing these Terms at a later date. No absence of immediate insistence or steps taken by Dribble for the Client to perform its obligations under these Terms shall prevent Dribble from taking those steps at a later date.
15.1 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
16 Entire Agreement
16.1 Except where otherwise provided in these Terms, these Terms constitute the entire agreement between Dribble and the Client, and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and undertakings between them, whether written or oral, relating to their subject matter.
17.1 Any notice under these Terms shall be in writing and shall be sent by pre-paid, first class, recorded delivery post, hand delivery to the address/number for the relevant party as stated in the Order or otherwise notified to the other party for this purpose. Any such notice shall be deemed to have been duly received (provided it was sent to the proper address/number):
17.1.1 if despatched by first class, recorded delivery post – 48 hours from the time of posting (subject only to any delays caused by industrial action affecting the postal service);
17.1.2 if delivered by hand – at the time of actual delivery;
provided that in each case if the deemed receipt time occurs either on a day that is not a working day or after 5:00pm on a working day, then the notice shall not in fact be deemed to have been received until 10:00am on the next working day.
18 Third party rights
18.1 These Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
19 Dispute Resolution
19.1 If any dispute arises in connection with these Terms, the parties agree to act in good faith to resolve the dispute before issuing legal proceedings with the courts.
20 Governing Laws and Jurisdiction
20.1 These Terms are governed by Scottish law and legal proceedings can be brought in respect of them in the Scottish courts.
Last updated 28/11/2019