BUSINESS TERMS & CONDITIONS.
Buccaneer Business and Professional Users Terms and Conditions
This agreement governs your use of services from Opus lounge Ltd (Buccaneer Sessions) (“Buccaneer”).
By accepting this agreement, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION
Definitions
The following terms, as used herein, have the following meanings:
“Agreement”
means this agreement and its schedules.
“Availability”
means the ability of the Software to be accessed via the Internet during Working Hours.
“Business Day”
a day other than a Saturday, Sunday or public holiday in England.
“Buccaneer Sessions”
means the mobile application designed and hosted by Opus Lounge Limited.
“Community Sessions”
Functionality in the application that allows none professional users to organise none paid sessions.
“Commercial Terms”
means the various terms set out on page 1 of this Agreement headed Commercial Terms.
“Company”
means an organisation or individual using the Buccaneer Sessions application for commercial use. Including but not limited to Location Listing and Paid Sessions
“Company Data”
means all data, information, text or images which are provided by the Company to Opus Lounge Limited for the purpose of this Agreement.
“Company Representative”
means such person as the Company may nominate from time to time who will have authority to bind the Company in relation to the Services.
“Effective Date”
means the date these terms are accepted.
“Expiry Date”
the date the Initial Term expires.
“Fees”
means all of the fees payable under this Agreement.
“Hosting Facility”
means the location at which the Software is physically located.
“Live Date”
means the date on which Opus Lounge Limited notifies the Company that it can access the Software in the course of its business.
“Intellectual Property Rights”
means any and all patents, trade marks, trade names, service marks, copyright, moral rights, rights in design, rights in databases, know-how, Information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating thereto.
“Initial Term”
means a minimum period of 1 year from the date these terms are accepted.
“Insolvency Event”
means where a party ceases or threatens to cease to carry on business, becomes insolvent, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up or undergoes any similar or equivalent process in any jurisdiction and a person shall be “solvent” where it has not undergone (or having undergone, is discharged from all aspects of) an Insolvency Event.
“Location Listing”
means the listing of business or person against a location record in the Buccaneer Sessions application
“Monthly Fee”
means the monthly fee as specified in accordance with the Location Listing requested by the Company.
“Paid Sessions”
means the organisation, creation and listing of an event or activity in the Buccaneer Sessions application that other application users will pay to attend.
“Personal Data”
means personal data as defined by the Act.
“Rules of Service”
Opus Lounge Limited’s rules relating to the use of the Software Service as set out in:
http://www.buccaneersessions.com/application-use-policy/
“Service Interruption”
means the inability of the Software to be accessed via the Internet during Working Hours.
“Software Service”
means the provision by Opus Lounge Limited to the Company of the Buccaneer Sessions application
“Services”
means the Software Service, the Support Services and any other services which Opus Lounge Limited agrees to provide.
“Software”
means Opus Lounge’s standard computer program known as Buccaneer Sessions together with any additional modules operating over the internet.
“Source Code”
means the proprietary source code of the Software.
“Support Services”
means the support services set out in this Agreement.
“Term”
the term of this Agreement as set out in clause 2.
“the Act”
means the Data Protection Act 1988.
“Third Party Software”
any software which is embedded in the Software the Intellectual Property Rights in which are owned by a party other than Opus Lounge Limited .
“Unavailable”
means the Software cannot be accessed via the Internet during Working Hours.
“Users”
means people who have downloaded and use the Buccaneer sessions application.
“Virus”
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Working Hours”
means 9.00 am to 17.30 pm on each Business Day.
Interpretation
In this Agreement
1.2.1 Clause headings do not form part of or affect the interpretation;
References to any legislation shall include any statutory, or other re-enactment or modification thereof (whether before or after the date of this Agreement);
Where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders;
References to Clause and Schedule numbers are to Clauses and Schedules in this Agreement, so numbered; and
References to parties include references to their respective successors in title, permitted assignees and novatees.
2. Term
This Agreement shall commence on the Effective Date.
Both parties shall have the right to terminate this Agreement by serving not less than one months’ written notice on the other.
If no notice is served in accordance with clause 2.2, the Agreement shall continue indefinitely subject to either party having the right to terminate by serving one months written notice on the other.
3. Restrictions
Subject to the Company paying the Fees in accordance with clauses 7 and 8, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Opus Lounge Ltd hereby grants to the Company a non-exclusive, non-transferable right to permit the Users to use the Software Service during the Term solely for the Company's business operations.
In relation to the Users, the Company undertakes that:
(a) only its employees shall access and use the Software Service;
(b) each User shall keep the password secure for use of the Software Service.
The Company shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Service that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Opus Lounge Limited reserves the right, without liability or prejudice to its other rights to the Company, to disable the Company’s access to any material that breaches the provisions of this clause.
The Company shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software Service, the Software (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software Service or the Software; or
(b) access all or any part of the Software Service in order to build a product or service which competes with the Software Service and/or the Product Schedule; or
(C) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software Service available to any third party except the Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Software Service and/or Product Schedule, other than as provided under this clause 3.
The Company shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software Service and, in the event of any such unauthorised access or use, promptly notify Opus Lounge Ltd.
The rights provided under this clause 3 are granted to the Company only, and shall not be considered granted to any subsidiary or holding company of the Company.
4. Services
Opus Lounge Limited shall provide the Software Service to the Company during the Term on the terms of this Agreement.
For the avoidance of any doubt the Source Code is proprietary to Opus Lounge limited and the Company shall have no right to it and no access to it.
5. Opus Lounge Limited Obligations
Opus Lounge Limited undertakes that the Software Service will perform.
The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Software Service contrary to Opus Lounge Limited’s instructions If the Software Service does not conform with the foregoing undertaking, Opus Lounge Limited will, at its expense use all reasonable commercial endeavours, to correct any such non-conformance promptly. Notwithstanding the foregoing, Opus Lounge Limited:
(a) does not warrant that the Company's use of the Software Service will be uninterrupted or error-free; or that the Software Service and/or the information obtained by the Company through the Software Service will meet the Company's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Company acknowledges that the Software Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent Opus Lounge Limited from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Opus Lounge Limited warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6. Company’s Obligations
The Company shall:
(a) provide Opus Lounge Limited with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Opus Lounge Limited; in order to provide the Software Service, including but not limited to Company Data and security access information;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Company responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Company's provision of such assistance as agreed by the parties, Opus Lounge Limited may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use the Software Service in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Opus Lounge Limited, its contractors and agents to perform their obligations under this Agreement;
(f) not use the Community Sessions functiolnaity of the Buccaneer Sessions application for commercial purpose.
7. Fees
Opus Lounge Limited shall start taking payments via credit card from the Effective Date and then monthly thereafter during the Term.
Opus Lounge Limited will add on a charge per person per Paid Session. This charge may either be a small % of the Companies fees charged to the User for the Paid Session or in addition to the charges to the User by the Company. These payments will be taken in real time as Users confirm their attendance of Paid Sessions.
Opus Lounge Limited may increase the Monthly Fee and/or Paid Session charges at any point.
8. Payment
If any sum due from the Company is not paid on the due date for payment as set out in this Agreement then without prejudice to any other right or remedy available to Opus Lounge Limited, Opus Lounge Limited shall be entitled to:
(a) charge the Company interest (both before and after any judgment) on the amount outstanding on a daily basis at the annual rate of four percentage points above Barclays Bank PLC base rate from time to time in force, such interest to be calculated from the date or last date for payment thereof to the date of actual payment (both dates inclusive) compounded quarterly;
(b) suspend the performance or further performance of its obligations under this Agreement without liability to the Company after the Company has been notified in writing of the non-payment and has been given 10 Business Days to correct the late payment.
9. Limitation of Liability
This clause 9 sets out the entire financial liability of Opus Lounge Limited (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Company in respect of:
(a) any breach of this Agreement;
(b) any use made by the Company 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 this Agreement.
Except as expressly and specifically provided in this Agreement:
(a) the Company assumes sole responsibility for results obtained from the use of the Software Service by the Company, and for conclusions drawn from such use. Opus Lounge Limited shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Opus Lounge Limited by the Company in connection with the Software Service, or any actions taken by Opus Lounge Limited at the Company's direction;
(b) 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 this Agreement.
Nothing in this Agreement excludes the liability of Opus Lounge Limited:
(a) for death or personal injury caused by Opus Lounge Limited negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be limited or excluded by law.
Subject to clause 2, clause 9.3 and clause 9.5:
(a) Opus Lounge Limited 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, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Opus Lounge Limited’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by the Company during the 12 months immediately preceding the date on which the claim arose.
Opus Lounge Limited’s entire liability in aggregate in relation to all and any claims under clause 11.2 below (inclusive of interest and costs) shall in no circumstances exceed £50 thousand.
The Company acknowledges that Opus Lounge Limited has calculated the Fees on the basis that Opus Lounge Limited will exclude or limit its liability as set out in this Agreement and the Company agrees and warrants that:
(a) the Company shall insure against or bear itself any loss for which Opus Lounge Limited has excluded or limited its liability in this Agreement; and
(b) Opus Lounge Limited shall have no further liability to the Company.
10. Proprietary Rights
The Company acknowledges and agrees that Opus Lounge Limited owns all the Intellectual Property Rights in the Software Service,. Except as expressly stated in this Agreement Opus Lounge Limited does not grant the Company any right or licence in respect of the Software Service.
Opus Lounge Limited confirms that it has all the rights in relation to the Software Service that are necessary to grant all the rights it purports to grant under and in accordance with the terms of this Agreement.
11. Indemnity
The Company shall defend, indemnify and hold harmless Opus Lounge Limited against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Company's use of the Software Service:
(a) the Company is given prompt notice of any such claim;
(b) Opus Lounge Limited provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company's expense; and
(c) the Company is given sole authority to defend or settle the claim.
Opus Lounge Limited shall defend, indemnify and hold harmless the Company, its officers, directors and employees against any claim that the Company’s use of the Software Service infringes the Intellectual Property Rights of any third party provided that:
(a) Opus Lounge Limited is given prompt notice of any such claim;
(b) the Company provides reasonable co-operation to Opus Lounge Limited in the defence and settlement of such claim, at Opus Lounge Limited 's expense; and
(c) Opus Lounge Limited is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Opus Lounge Limited may procure the right for the Company to continue using the Software Service, replace or modify the Software Service so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Company without any additional liability or obligation to pay liquidated damages or other additional costs to the Company.
In no event shall Opus Lounge Limited, its employees, agents and sub-contractors be liable to the Company to the extent that the alleged infringement is based on:
(a) a modification of the Software Service by anyone other than Opus Lounge Limited; or
(b) the Company's use of the Software Service or Product Schedule in a manner contrary to the instructions given to the Company by Opus Lounge Limited; or
(c) the Company's use of the Software Service or Product Schedule after notice of the alleged or actual infringement from Opus Lounge Limited or any appropriate authority; or
(d) any Third Party Software.
The foregoing and clause 9.4(b) states the Company's sole and exclusive rights and remedies, and Opus Lounge Limited 's (including Opus Lounge Limited’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Confidentiality
12.1 Each party (the "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 party (the "Disclosing Party"), or the Disclosing Party's employees, agents, consultants or subcontractors and any other confidential information concerning the Disclosing Party's business or its products provided by the Disclosing Party to the Receiving Party.
12.2 The Receiving Party may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Receiving Party's obligations under this Agreement; and
(b) as may be required by law, court order or any governmental or regulatory authority.
12.3 The Receiving Party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 12.
12.4 The Receiving Party shall not use any such information for any purpose other than to perform its obligations under this Agreement.
12.5 Except as otherwise provided for under this Agreement, all information, drawings, specifications and data supplied by the Disclosing Party to the Receiving Party shall, at all times, be and remain the property of the Disclosing Party, but shall be held by the Receiving Party in safe custody at the Receiving Party's own risk and maintained and kept in good condition by the Receiving Party until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party's written instructions or authorisation.
13. Termination
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 20 Business Days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 20 Business Days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(d) if an Insolvency Event occurs in relation to the other party.
13.2 The parties acknowledge and agree that any breach of clause 3 shall constitute a material breach for the purposes of this clause 13.
13.3 On termination of this Agreement for any reason:
(a) the Company shall immediately pay to Opus Lounge Limited all of Opus Lounge Limited's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Opus Lounge Limited may submit an invoice, which shall be payable immediately on receipt;
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected;
14. Force Majeure
Opus Lounge Limited shall have no liability to the Company under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Opus Lounge Limited or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Company is notified of such an event and its expected duration.
15. Data Protection
Insofar as the Act applies to the Services provided under the terms of this Agreement, Opus Lounge Limited shall comply with the relevant provisions of the Act.
The Company shall be responsible for informing Opus Lounge Limited of any particular requirements under the Act in respect of any Personal Data and of the Company’s contractual obligations relating to such Personal Data.
Opus Lounge Limited warrants that it shall:
(a) only carry out processing of Personal Data for the purpose of performing its obligations under this Agreement and only in accordance with the instructions of the Company; and
(b) have in place throughout the term of this Agreement appropriate technical and organisational measures against accidental destruction, loss, alteration or disclosure of the Personal Data.
16. Company Data
18.1 The Company grants Opus Lounge Limited a non-exclusive licence to use the Company Data in the course of performing its obligations under this Agreement.
17. Waiver
17.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18. Severance
If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19. Entire agreement
19.1 This agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement.
19.2 Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
20. Assignment
Neither party shall , without the prior written consent of the other, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this Agreement.
21. No partnership or agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Rights of third parties
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
23. Contract Administration
23.1 Variation
No purported alteration or variation of this Agreement shall be effective unless it is in writing, refers specifically to this Agreement and is executed by an authorised representative of each of the parties to this Agreement.
23.2 Notices
(a) Any notices sent under this Agreement must be in writing and may be served by personal delivery or by sending the notice by registered post or facsimile transmission at the address given above or at such other address as the relevant party may give for the purpose of service of notices under this Agreement and every such notice shall be deemed to have been served upon delivery if served by hand or at the expiration of two (2) days after despatch of the same if delivered by registered post or at ten (10) hours am local time of the recipient on the next day following despatch if sent by facsimile transmission.
(b) To prove service of any notice it shall be sufficient to show in the case of a notice delivered by hand that the same was duly addressed and delivered by hand and in the case of a notice served by post that the same was duly addressed prepaid and posted in the manner set out above. In the case of a notice given by facsimile transmission, it shall be sufficient to show that it was despatched in a legible and complete form to the correct telephone number without any error message.
24. Governing law and jurisdiction
24.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).