CONNEXTRA SERVICE TERMS AND CONDITIONS
These Terms and Conditions together with your signed service order form (“Service Order Form”) constitute the agreement (“Agreement”) between you (the “Customer”) and Betgenius Limited (“ Betgenius”) in respect of your use of the Connextra Service as more fully described in clause 1 of these Terms and Conditions (the “Connextra Service”).
Capitalised terms used in these Terms and Conditions but not defined herein shall have the meanings given in the Services Order Form.
In the event of any conflict between the terms contained in the Services Order Form and these Terms and Conditions, these Terms and Conditions shall take precedence, with the exception of the Special Terms in the Order Form, which shall, in the event of any conflict, take precedence over both these Terms and Conditions and any other terms of the Services Order Form.
Clause headings are inserted for convenience of reference only and shall not affect the interpretation of these Terms and Conditions.
1. THE CONNEXTRA SERVICE
1.1 The Connextra Service is the delivery of adverts by Betgenius via Betgenius software for use on third party and affiliate sites and display campaigns.
1.2 The Connextra Service shall include the provision of support and assistance via a telephone helpdesk service which shall be available 0800-1800 Monday to Friday.
1.3 Terms used in the Service Order Form (if applicable) shall mean the following:
1.3.1 “Ad Impression” means the initial request of an advertisement from the browser as measured by Betgenius’ Connextra ad server when it redirects the browser to the specific location of the advertisement (exclusive of non-qualifying activity and internal users);
1.3.2 “Ad Click” means the initiation of a user presence at Customer’s website (including but not limited to any site owned, controlled or operated by Customer and any site to which the relevant advertisements are linked) that originates from any of the advertisements served by Betgenius pursuant to the agreed instructions set out in the Services Order Form;
1.3.3 “CPM” means cost per thousand Ad Impressions;
1.3.4 “On Demand Services” are services undertaken by Betgenius on Customer’s request (subject to availability) and include flash design; bespoke programing (covering trafficking, XML query transformation, creative and production services); and support services training. Customer shall pay for the On-Demand Services at the rates set out in the Service Order Form.
1.4 Customer acknowledges that Ad Impression and/or Ad Click delivery statistics provided by Betgenius are the official, definitive measurements of Betgenius’ performance on any delivery obligations provided in the Services Order Form. No other measurements or usage statistics (including those of Customer or a third party ad server) will be accepted by Betgenius or have bearing on this Agreement.
2.1 The prices for the Connextra Service shall be as set out in pounds sterling in the Services Order Form (the “Price”).
2.2 The Price and all other sums payable hereunder are exclusive of Value Added Tax (“VAT”) and all other taxes or duties and VAT and all such taxes or duties (with the exception of any tax levied or based upon the income of Betgenius) shall be paid by Customer as additional charges hereunder.
3. PAYMENT TERMS
3.1 Invoices for any set up fees or integration fees payable by Customer shall be submitted by Betgenius to Customer on receipt of signed the Services Order Form from Customer.
3.2 Monthly recurring fees shall begin accruing from and including the Commencement Date specified in the Services Order Form at the rate specified in the Services Order Form or on a pro rata basis if the Commencement Date is not the 1st of the applicable month. Invoices for monthly recurring fees shall be submitted at the frequency specified in the ‘Invoice Frequency’ field in the Contract Information section of the Services Order Form or, if no such frequency is specified, quarterly in advance. Any other invoice shall be submitted monthly in arrears.
3.3 Customer shall make payment of each invoice in pounds sterling within the number of days specified in the ‘Credit Terms’ field of the Contract Information section of the Services Order Form after the date of the invoice or, if no such number is specified, on receipt of invoice.
3.4 In the event that any invoice is outstanding for a period in excess of the Credit Terms set out in the Service Order Form agreed herein interest will be charged on any such invoice at the rate of 8% per annum above base rate pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 together with compensation pursuant to the Late Payment of Commercial Debts Regulations 2002; in addition all invoices will become due and payable immediately.
3.5 If Customer fails to pay any sum due under this Agreement, Customer will be responsible for all expenses (including legal fees) incurred by Betgenius in collecting the amounts due. If Customer fails to pay any sum due under this Agreement, Betgenius may, without prejudice to any other remedy, withdraw the provision of the Services or any part thereof until the payment is made. Customer warrants that it contracts with Betgenius as principal notwithstanding that Customer may be acting as an advertising agency or media buyer or in some other representative capacity.
4.1 Each party agrees that when any member of its staff is present on the premises of the other party they shall comply with such rules and regulations as are notified to them for the conduct of staff on those premises.
4.2 Each party agrees that during a period from the commencement of the Services to twelve months after the termination of this Agreement it shall not employ or engage on any other basis or offer such employment or engagement to any of the other party’s staff who have been associated with the provision of the Services without the other party’s prior agreement in writing. Each party agrees that if it employs or engages any person contrary to this clause 4.2 the party in default shall be liable to pay to the other party liquidated damages in an amount equal to such person’s salary per annum at the time of leaving the employment of the other party.
5. CUSTOMER OBLIGATIONS
5.1 Customer acknowledges that Betgenius may rely on access to Customer’s technical personnel and systems, information provided by Customer, the functionality of certain files, the accuracy and functionality of XML or other data feeds provided by Customer, as well as any other resource or service provided by Customer to enable the performance of the Connextra Service all of which are defined herein as “Customer Resources”.
5.2 Without prejudice to the generality of any other clause in this Agreement, Customer hereby accepts that Betgenius cannot be held liable in any way, whether in respect of a claim pursuant to this Agreement or for negligence, for any loss, damage or liability suffered by Customer which results directly or indirectly from any defect, inaccuracy, interruption in the supply of, fault, change in the structure of, modification, or any other act or omission beyond the reasonable control of Betgenius, in relation to the Customer Resources and/or their supply. Customer acknowledges that the successful and timely performance by Betgenius of the Connextra Service is dependent upon Customer’s prompt and accurate supply of the Customer Resources by Customer including access to any betting platform whether proprietary or third party for purposes of integration only. Customer agrees that Customer’s data may be used for Betgenius’ Event Creation and Event Pricing software by Betgenius and for Betgenius’ price-comparison banners and other tools or products created by Betgenius by Betgenius’ clients from time to time.
5.3 Customer agrees not to develop a similar service to the Services or work with a third party to develop similar software to the Services and to provide Betgenius with any source code from any such software development similar to the Connextra Service with a third party.
5.4 Betgenius shall not be liable to Customer or any third party for any modifications, changes, content, code or other manipulations made to the Services not made by Betgenius.
5.5 Customer warrants that any advert it provides to Betgenius will not infringe the rights of any third party and will comply with all applicable laws.
6. CUSTOMER WARRANTY IN RESPECT OF FORBIDDEN JURISDICTIONS
“Remote Gambling Service” means the provision of a sports or event wagering service or game of skill and chance combined (including casino banker’s games), peer to peer game or random number generator game service via remote communications (e.g. online, via telephone) (which, for the avoidance of doubt shall not include fantasy games). The Customer warrants to Betgenius (with such warranties given on the date of execution of this Agreement and deemed repeated throughout the term of the Agreement) that:
6.1 it will not provide anyone located in a jurisdiction in which it is illegal for that Customer to provide Remote Gambling Services to (a ‘Forbidden Jurisdiction’) (whether resident, citizens or otherwise) with access to a Remote Gambling Service; and
6.2 it will not knowingly accept from anyone located in a Forbidden Jurisdiction (whether resident, citizens or otherwise) in consideration of the provision of a Remote Gambling Service:
(a) credit or the proceeds of credit (including credit cards);
(b) an electronic fund transfer, or funds transmitted by or through a money transmitting business (or the proceeds of either of these);
(c) a cheque, draft or similar instrument payable through a financial institution; or
(d) any other form of financial transaction prescribed by Betgenius acting reasonably; and
6.3 it is not funded or owned in part or in whole by a person or entity that provides a Remote Gambling Service to anyone located (whether resident, citizens or not) in a Forbidden Jurisdiction.
6.4 Without prejudice to any other right that it may have (under this Agreement or pursuant to law), Betgenius may terminate this Agreement with immediate effect, by serving notice, if it has a reason to believe that the Customer is in breach of any of the warranties given in clause 6.1 to 6.3 above.
7. SERVICE EXCLUSION
7.1 The Connextra Services do not include the following, save as may be specifically agreed in writing by Betgenius to the contrary:
(a) the provision of any new modifications to the Connextra Service except as necessary to fulfil Betgenius’ obligations set out in the Services Order Form;
(b) the correction of errors or loss of functionality due to or arising from any modifications, changes, enhancements, additions or any alterations whatsoever made to the Connextra Service or the Customer Resources by Customer or any third party, except where such third party modifications have been notified to Betgenius and Betgenius has specifically agreed in writing to include such Modifications within the scope of the Services; and
(c) the correction of errors due to or arising from accident, misuse, fault or negligence of Customer,
(d) its employees, agents, contractors or visitors, or any other third party or operator error or by causes external to the Connextra Service or otherwise beyond Betgenius’ reasonable control.
7.2 The time spent by Betgenius staff in investigating and fixing errors and loss of functionality from causes described in this clause and not agreed in advance by Betgenius shall be charged to Customer on a time and materials basis according to Betgenius’ tariff at that time.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 For the purposes of this Agreement, “Intellectual Property Rights” means: (a) patents, trade marks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights of the same or similar effect or nature as those in the preceding point (a); in each case in any jurisdiction.
8.2 The Intellectual Property Rights in the Connextra Service are and shall remain vested in Betgenius or its licensors.
8.3 Betgenius may check the use of the Connextra Service by Customer at all reasonable times and on reasonable notice during the Term and Betgenius is permitted to enter any of Customer’s premises (and Customer irrevocably licenses Betgenius, its employees and agents to enter Customer’s premises) for that purposes.
8.4 Betgenius has no liability to Customer in respect of any claim whatsoever, whether it relates to Intellectual Property Rights or not, to the extent that it relates to the use of the Connextra Service in combination with programs or data not supplied by Betgenius or to the use of other than the latest unaltered release of the Connextra Service provided by Betgenius to Customer or where the Connextra Service has been subject to any alteration or modifications not authorised by Betgenius in accordance with the terms of this Agreement.
Customer shall not without the prior written consent of Betgenius: alter, enhance or modify or in any other way change the Connextra Service; combine the Connextra Service with or incorporate it in any other programs; sell, market, exploit, transfer, distribute, gift or make the Connextra Service available to another person or permit another person to use the Connextra Service, except as provided by this Agreement; use the Connextra Service on behalf of or for the benefit of another person; reconfigure, decompile or disassemble the program code or any other part of the Connextra Service; make copies of the Connextra Service; charge or otherwise deal in or encumber the Connextra Service; or delete, remove or in any way obscure Betgenius’ proprietary notices on any copy of the Connextra Service; and shall not attempt to do so or permit others to do so.
10.1 All Confidential Information given by Betgenius to Customer, or otherwise obtained or developed by one party relating to the other, shall be kept secret and confidential by the receiving party throughout the Term and following the termination or expiry of this Agreement and shall not be used or disclosed other than for the purposes of the proper performance of this Agreement or with the prior written consent of the other party. For the purposes of this Agreement, “Confidential Information” means all information which is disclosed before or after the date of this Agreement by Betgenius to the Customer (however conveyed) and would appear to a reasonable person to be confidential and which relates to the business affairs of the party disclosing it including, products, operations, processes, plans or intentions, developments, trade secrets, know-how, design rights, market opportunities, personnel, customers and suppliers of the party disclosing it, and all information derived from the above together with the existence or provisions of this Agreement and the negotiations relating to it.
10.2 The obligations of confidentiality in this clause 10 shall not extend to any matter which Customer can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement;
(b) was independently disclosed to it by a third party entitled to disclose the same; or
(c) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
11. TERM AND TERMINATION
11.1 This Agreement is effective from the date set forth in the ‘Commencement Date’ field in the Contract Information section of the Services Order Form or, if no such date is set forth, from the signature dated last on the Services Order Form (the “Commencement Date”) and shall continue in force for the Initial Term specified in the Services Order Form. This Agreement shall automatically renew at the end of the Initial Term for successive periods equal in duration to the Initial Term (each a “Subsequent Term”), unless and until either party provides written notice to the other of its intent not to renew this Agreement at least 30 days prior to the expiration of an Initial Term or a Subsequent Term.
11.2 Either party may terminate this Agreement forthwith by written notice to the other party if:
(a) the other party shall commit a material breach of any of its obligations under this Agreement and shall not have remedied such breach within thirty days of receiving written notice of the breach; or
(b) the other party shall become bankrupt or enter into liquidation (other than for reconstruction or amalgamation) or have a receiver appointed of its assets or any part thereof or an administration order is served upon it.
11.3 Termination or expiry of this Agreement, however caused, shall be without prejudice to any obligations or rights of either of the parties which may have accrued before termination or expiry and shall not affect any provision of this Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination or expiry, including clauses 4, 6, 8, 9, 10, 11, 12, 13, and 17.
11.4 Both parties shall not, and shall procure that its directors, employees, agents, representatives, contractors or sub-contractors shall not, engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption laws, regulations and codes, including but not limited to the Bribery Act 2010. Both parties shall have in place adequate procedures designed to prevent any person working for or engaged by Betgenius or any other third party in any way connected to this Agreement, from engaging in any activity, practice or conduct which would infringe any anti-bribery and anti-corruption laws, regulations and codes, including but not limited to the Bribery Act 2010. Breach of this clause shall entitle either party to terminate this Agreement forthwith by written notice to the other.
11.5 In the event that the provision of the Connextra Service becomes illegal under any applicable laws Betgenius shall have the right to terminate this Agreement with immediate effect by providing written notice to Customer.
12. WARRANTY AND LIMITATION OF LIABILITY
All remedies for disputes arising out of this agreement are contractual. Betgenius warrants that in providing the Services to Customer it shall use reasonable skill and care. Customer agrees that Betgenius’ liability for damages under or in connection with this Agreement, howsoever arising (including, without limitation, for breach of contract, for negligence or other tort, or concerning the use or inclusion of any document, material, idea, data or other information in the Services), shall in no circumstances exceed in aggregate the sum of the fees paid and payable by Customer during the Initial Term or £100,000 whichever is the less and (provided that such aggregate is not exceeded) shall for individual incidents or series of incidents arising from the same event be limited to the following sums: (a) £50,000 for physical damage to or loss of tangible property caused by Betgenius’ negligence; or (b) £10,000 for all other incidents, provided however that Betgenius shall have no liability under or in connection with this Agreement, howsoever arising, for damages in respect of loss of profits, sales or turnover or contracts or loss of or damage to business, loss of data, loss caused by business interruption or for indirect or consequential loss or damage. This limitation will apply even if a party has been advised or is aware of the possibility of such loss or damage. The limitations and exclusions set out previously in this clause 12 shall not apply to personal injury, including death, caused by Betgenius’ negligence.
13. ENTIRE AGREEMENT
13.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement.
13.3 No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.
13.4 Nothing in this clause shall limit or exclude any liability for fraud.
14. FORCE MAJEURE
14.1 If Betgenius is delayed or prevented from complying with its obligations under this Agreement by a Force Majeure Event then the requirement to comply with those obligations shall be suspended to the extent that performance is delayed or prevented by that event.
14.2 If the suspension continues for more than thirty (30) days Betgenius party may terminate this Agreement by giving not less than thirty (30) days’ notice in writing to the other party. If the suspension comes to an end during that notice period the notice of termination shall immediately be extinguished and ineffective, the Agreement continuing as if it had never been served.
14.3 For the purposes of this Agreement, “Force Majeure Event” means an event which is beyond the reasonable control of the party liable to effect performance, and includes strike, lock-out, or labour disputes, act of God, fire, flood, storm, war, military action, riot, civil commotion, terrorism, epidemic, explosion or malicious damage and accident or breakdown of machinery.
Any notice, which expression includes any other communication whatsoever which is made in accordance with this Agreement shall without prejudice to any other method of giving it, be sufficiently given if it is sent by registered or recorded delivery first class post to the one of the addresses specified in the Services Order Form or to such other address as the respective party may advise by notice in writing from time to time. Notices shall be deemed to have been properly given after three working days in the case of notices posted from the United Kingdom to a destination therein and eight working days in the case of all other notices posted internationally.
16. ASSIGNMENT AND DELEGATION
No right under this Agreement shall be assigned by either party without the prior written approval of the other party, except that either party shall be entitled to assign its rights and obligations under this agreement without consent to a subsidiary or holding company (as defined in section 1159 of the Companies Act 2006) or a purchaser of all or a substantial part of its assets. Betgenius may delegate the performance of any of its obligations hereunder to third parties without Customer’s consent, provided however that Betgenius shall remain liable in contract for the performance of the Services notwithstanding such delegation.
17.1 Betgenius reserves the right to amend these Terms and Conditions from time to time by posting an amended Terms and Conditions on its website at:
Connextra Terms and Conditions. Betgenius shall notify Customer of any significant changes. Customer’s failure to communicate any objection to the amended Terms and Conditions within 30 days of the notice shall constitute agreement to the new Terms and Conditions.
17.2 No delay or failure of either party in enforcing against the other party any term or condition of this Agreement, and no partial exercise by either party of any right hereunder, shall be deemed to be a waiver of any right of that party under this Agreement.
17.3 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement. This clause does not affect any right or remedy of any person which exists, or is available, other than pursuant to that Act.
17.4 This Agreement shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts.