Auction Marketer Ltd Terms & Conditions of Business

Last Updated - February 2017

Auction Marketer Ltd is a registered Company in England & Wales no. 10358855.

VAT registration: GB 253 2984 89

Please note all transactions are bound by these terms and conditions of business

1. Definitions

The following definitions shall apply to these Conditions:

"Client" or "client": the person or company who agrees to buy products & Services from the Seller.

"Conditions": the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the parties.

"Effective Date": the date of signature of these Conditions by the last signing party.

"Intellectual Property Rights": patents, utility models, inventions, copyright, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights (registered or unregistered, including all extensions and renewals thereof).

"Products & Services": the articles or services which the Client agrees to buy from the Seller.

"User Licence": the definition of user licences to provide ongoing access to the Auction Marketer Software, excluding VAT.

"Support & Maintenance": the supply of software support and ongoing upgrades, excluding VAT.

"SLA": the standard service level agreement that applies to provision of support relating to the Auction Marketer software.

"Price": the price for the Products, Licenses & Services, excluding VAT.

"Quotation": the quotation document scheduled to these Conditions and as amended by the parties from time to time.

"Seller" or "Auction Marketer Ltd" : Auction Marketer Ltd of The Long Barn, Sywell Road, Overstone, Northamptonshire, NN6 0AB.

"Specification": The specification that forms part of the Quotation and which is scheduled to these Conditions setting out the functionality, scope and other features relating to the Products & Services as amended by the parties from time to time.

2. Conditions

2.1 These Conditions shall form the basis of the contract between the Seller and the Client in relation to the sale of Products, Licenses & Services, to the exclusion of all other terms and conditions including the Client's standard conditions of purchase or any other conditions which the client may purport to apply under any purchase order or confirmation of order or any other document.

2.2 All orders for Products & Services shall be deemed to be an offer by the client to purchase Products, Licenses & Services from the Seller pursuant to these Conditions.

2.3 Acceptance of delivery of the Products, Licenses & Services shall be deemed to be conclusive evidence of the Client's acceptance of these Conditions.

2.4 These Conditions may not be varied except by the written agreement of a director of Auction Marketer Ltd.

2.5 These Conditions represent the whole of the agreement between the Seller and the Client. They supersede any other conditions previously issued.

3. Price

The Price shall be the price quoted on the Quotation. The Price is exclusive of VAT which shall be due at the rate in force on the date of the Seller's invoice.

Pricing can be reviewed from time to time (for example if there is an increase in the Seller’s costs). If there is an increase in price the Seller will give the Client at least 30 days notice of such a change.

4. Payment and Interest

4.1 Payment of the Price and VAT shall be due and payable by the client within 30 days of acceptance by the client of the applicable Products & Services set out in the Quotation.

4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 12% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any final judgment of a court of competent jurisdiction.

4.3 The Client shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by the Seller.

4.4 Late payment will result in suspension of service and access to the Software in all cases.

5. Products & Services and Intellectual Property Rights

5.1 The quantity and description of the Products & Services shall be as set out in the Specification.

5.2 The SLA outlines the support provided by Auction Marketer Ltd to clients that have a valid and up to date software maintenance schedule in place. Working hours are 9am - 5.30pm, Monday to Friday. Any work undertaken outside these working hours must be agreed between the parties and added as an addendum to the client SLA.

5.3 All Intellectual Property Rights in the Products, Licenses & Services developed by Auction Marketer Ltd shall be the property of Auction Marketer Ltd unless expressly agreed between parties. The parties shall do all things and execute all documents necessary to give effect to this clause. The Client acknowledges that the Products & Services may include certain Intellectual Property Rights that are owned or controlled by third parties and which cannot form part of any Client IP Rights, namely: (i) Open source software; and (ii) certain Intellectual Property Rights that Auction Marketer Ltd has developed for other clients that have an agreed ‘lockout period’ before being released to the general market.

6. Schedule of the Products & Services

6.1 Auction Marketer Ltd shall deliver the Products & Services to the Client to the Specification. The Specification shall allow for reasonable (but not material) variations in design across multiple browser and device applications

6.2 The agreed scope and Specification of the Products, Licences & Services to be included in any project is scheduled to these Conditions. Any work that falls outside of this scope will be deemed chargeable at the prevailing rate for that service. Auction Marketer Ltd shall inform the Client prior to performing any work deemed outside of scope, and will give the Client an accurate prior indication of expected cost overrun.

6.3 Auction Marketer Ltd shall endeavour to complete and deliver the Products & Services to the Client within a set time frame as outlined in the Quotation scheduled to these Conditions. Where there is a Specification it will define the minimum standard of the Products & Services and Website that Auction Marketer Ltd shall deliver to the Client.

6.4 The Seller undertakes to use all reasonable endeavours to deliver the Products & Services on an agreed delivery date, but does not guarantee to do so.

7. Project Management

Each party shall appoint a project manager who shall: (i) provide professional and prompt liaison with the other party; and (ii) have the necessary authority to commit the relevant party.

8. Development and Acceptance of the Products & Services

8.1Once Auction Marketer Ltd has completed design and development of the Products & Services in accordance with each agreed phase of the project, Auction Marketer Ltd and the Client shall co-operate to conduct an acceptance test.

The procedure set out in this clause shall be repeated in respect of the applicable phase and any further development works agreed by the parties from time to time. Acceptance tests are further detailed in Product Functional Specifications to these Conditions as applicable.

8.2 The acceptance tests shall test the compliance of the Products & Services with the Specification. The parties shall carry out a thorough inspection of the Products & Services as part of each acceptance test.

8.3 Acceptance of the Products & Services shall occur when those Products & Services have passed the acceptance tests. The Client shall confirm its acceptance of those Products & Services in writing to Auction Marketer Ltd as soon as reasonably practicable following acceptance of those Products & Services.

8.4 If the Products & Services do not pass an acceptance test, the failures that cause relevant acceptance test to be failed ( "Defects" ) shall be drawn up and documented by Auction Marketer Ltd and presented to the Client for discussion as to how to best rectify such Defects. Auction Marketer Ltd shall remedy and Defects promptly in order to ensure that the Products & Services which are not in accordance with these Conditions.

9. Third Party Products

Where Auction Marketer Ltd supplies any third party products or services as part of the Products & Services, it shall do so in accordance with the relevant third party's standard licence terms.

10. Alteration of Products & Services

10.1 Auction Marketer Ltd may charge additional reasonable fees for carrying out work pursuant to material changes that are additional to the scope set out in the Quotation.

10.2 Where the parties agree to materially alter the scope of the Products & Services that Auction Marketer Ltd is to provide under the Quotation, Auction Marketer Ltd shall notify the Client as to whether it requires an alteration to the original deadline to provide such Products & Services. The parties shall then attempt to negotiate (acting reasonably and in good faith) an alteration to the original deadline with a view to minimising the impact on the progress of the provision of the Products & Services and the Website, Where the parties cannot agree an alteration to the original deadline, Auction Marketer Ltd shall use reasonable endeavours to meet the original deadline.

11. Warranties

11.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these Conditions.

11.2 Auction Marketer Ltd warrants that it shall provide the Products & Services and the Website to the Client using reasonable care and skill and in accordance with generally recognised commercial practices and standards.

11.3 Auction Marketer Ltd warrants that the operation of any completed Software will be uninterrupted, free from material errors and otherwise materially in accordance with the Specification for a period of 1 month from Client acceptance of the completed Software. If the Software does not so perform, Auction Marketer Ltd shall, for no additional charge, promptly ensure that the Website complies the Specification on provision that all outstanding payments are up to date.

12. Limitations on Liability

12.1 Auction Marketer Ltd cannot be held responsible for any third party influence on the development of mobile applications that is beyond its reasonable control, such as the Apple store or Android store rejecting an application. Auction Marketer Ltd shall use all reasonable endeavours to ensure that applications are compatible and fit for purpose prior to build but does not take responsibility for third party policy changes and review procedures that are beyond its reasonable control.

12.2 Where Auction Marketer Ltd recommends a web hosting partner it is important to note that the partner terms and conditions apply to the Client, and Auction Marketer Ltd does not underwrite or guarantee any provision of service or data integrity. Auction Marketer Ltd shall provide on request a back to back SLA on hosting that mirrors that of the hosting provider. Clients are therefore advised to check the terms of the hosting partner's SLA.

12.3 Auction Marketer Ltd is not liable for: (i) any malicious code injection on Client websites, or (ii) issues arising from PCI compliance breaches, in either case for which it (or on of its employees, directors or officers) is not responsible. Any server based patching for PCI or application stability is outside of the scope of any support agreements and is chargeable. Penetration test fixes are chargeable and Auction Marketer Ltd offers no warranty following a web server penetration test.

12.4 Auction Marketer Ltd does not preform PCI spanning and Clients must use a trusted third party such as Trustwave or McAfee and provide reports to Auction Marketer Ltd where changes/patches are required. Auction Marketer Ltd shall be entitled to charge the Client an additional sum for provision of such changes/patches.

12.5 Auction Marketer Ltd is not liable for any losses incurred due to the failure of a bidding technology or bidder defaults. Auction Marketer will take reasonable endeavour to solve any issues that arise on its bidding platforms within the terms of the ‘SLA’

13. Data Protection

Auction Marketer Ltd warrants that, to the extent it processes any personal data (as defined in the UK Data Protection Act 1998 or any successor legislation) on behalf of the Client, it shall: (i) act only on instructions from the Client; (ii) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and (iii) only transfer the Client's personal data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject after written authorisation by the Client which may be granted subject to such conditions as the Client deems necessary.

Data stored in the Auction Marketer software relating to the client bidders and vendors remains the properly of the client.

Auction Marketer Ltd reserves the right to use anonymous data for the purposes of market research, insight and report generation. At no point, will identifiable data be shared or published.

14. Term

These Conditions shall commence on the Effective Date and shall (subject to earlier termination in accordance with these Conditions) terminate automatically on final acceptance of the Products & Services and completed Website by the Client and payment of all outstanding sums. Licence terms are subject to 12 month agreements (payable annually or monthly) and can be terminated at the end of the applicable period with 30 days’ written notice.

15. Termination

Without affecting any right or remedy available to it, either party may terminate these Conditions with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified to do so; or (ii) the other party becomes insolvent.

Access to the administration tools of the Auction Marketer will be suspended where a regular licence or maintenance payment is not made via the auto-payment portal or 30 days following the date of invoice (dependent on the agreed client billing schedule) and client access will be suspended until payments are up to date.

16. Consequences of Termination

Upon expiry or termination of these Conditions: (i) all licences granted by Auction Marketer Ltd to the Client under these Conditions shall terminate immediately; and (ii) Auction Marketer Ltd shall on request return all data relating to the Products & Services to the Client, and shall provide an electronic copy of all identifiable data relating to the client. A reasonable charge for provision of data will be levied to cover time and materials. Auction Marketer software remains the properly of Auction Marketer Ltd at all times and is not transferrable.

17. Force Majeure

Neither party shall be in breach of these Conditions nor liable for any delay in performing, or failure to perform, any of its obligations under these Conditions if such failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 30 days, the party not affected may terminate these Conditions by giving seven days' written notice to the affected party.

18. Confidentiality

18.1 In these Conditions, "Confidential Information" means all information whether technical or commercial (including the Specification and all drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information ought reasonably to be considered confidential given the nature of the information of a similar nature, being at least a reasonable degree of care.

18.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own Confidential Information of a similar nature, being at least a reasonable degree of care.

18.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisors, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

18.4 The obligations set out in this clause shall not apply to Confidential Information which the receiving party can demonstrate: (i) is or has become publicly known other than through breach of this clause; (ii) was in the possession of the receiving party prior to disclosure by the other party; (iii) was received by the receiving party from an independent third party who has full right of disclosure; or (iv) was required to be disclosed by governmental authority or court or tribunal of competent jurisdiction, provided by governmental authority or court or tribunal of competent jurisdiction, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

19. Publicity

Clients agree that all media releases, public announcements (including conversations with third parties) and public disclosures by Auction Marketer Ltd relating to these Conditions or their subject matter, including promotional or marketing material, shall be allowable. Auction Marketer Ltd may use its Client trademarks, trade names, business names or other indicia on the Website without the prior written consent of the Client.

20. Assignment

The Client may not assign or transfer any of its rights or obligations under these Conditions without the prior written consent of Auction Marketer Ltd

21. Entire Agreement

These Conditions (and any schedules to them that have been agreed by the parties) constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements between them, whether written or oral, relating to its subject matter.

22. Third Party Rights

A person who is not a party to these Conditions shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (The "Act") to enforce any term of these Conditions. This does not affect any right or remedy of a third party which exists, or is available, apart from the Act.

23. Variation

No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

24. Waiver

No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

25. Severance If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.

26. Governing Law and Jurisdiction

These Conditions and any disputes or claims 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. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to setle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).

27. Additional Terms

27.1 The Client shall provide Auction Marketer Ltd with everything it reasonably requires to complete the project as and when and in the format Auction Marketer Ltd reasonably requires it.

27.2 The Client shall review Auction Marketer Ltd's work, provide feedback and provide any approvals it decides to give in a timely manner.

27.3 Auction Marketer Ltd test its work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), Mozilla Firefox and Opera. Auction Marketer Ltd does not support older versions (pre-IE11) and Auction Marketer Ltd shall not be obligated to test in other older browsers unless the Client specifies otherwise. If the Client requires an enhanced design for an older browser, it shall make a written request to Auction Marketer Ltd, who shall provide a separate estimate for the work upon receipt of that request.

27.4 Auction Marketer Ltd acknowledges that testing popular small-screen devices is essential in ensuring that a person's experience of a design is appropriate to the capabilities in ensuring that a person's experience of a design is appropriate to the capabilities of the device they're using. Auction Marketer Ltd tests its work in: (i) iOS: Safari and/or (ii) Android 4.1: Google Chrome, Firefox. Auction Marketer Ltd does not currently test Opera Mini, Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If the Client requires Auction Marketer Ltd to test using these, the Client shall make a written request to Auction Marketer Ltd, who shall provide a separate estimate for the work upon receipt of that request.

27.5 If Auction Marketer Ltd has quoted for responsive web design, it shall test that the design changes to a good standard and provides a good user experience across mobile devices using the applications noted above.

27.6 As sgtandard Auction Marketer is hosted on a pre-configured web hosting system. If a client has agreed their own dedicated hosting in the schedule, the Client is responsible for checking Auction Marketer Ltd's server recommendations and takes responsibility for server support, security, hardening and uptime.

You have the authority to enter into this contract on behalf of yourself, your company or your organisation. You’ll give us with everything we need to complete the project as and when and in the format we need it. You’ll review our work, provide feedback and approval in a timely manner too. Deadlines work two ways, so you’ll also be bound by dates we set together. You also agree to stick to the payment schedule set out at in this contract.

We have the experience and ability to do everything we’ve agreed with you and we’ll do it all in a professional and timely manner. We’ll endeavour to meet every deadline that’s set and on top of that we’ll maintain the confidentiality of everything you give us. This contract is a legal document under exclusive jurisdiction of the United Kingdom courts.

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