AGENCY TERMS AND CONDITIONS
This is why reading and understanding these terms is important
This page sets out the legal terms and conditions (Terms) on which advertising, marketing and other agencies and service providers can use our free listing service (FLS) or subscribe to make their details available to potential clients via our 'shop window' web platform known as "the Haystack" (http://www.haystackonline.com)
These Terms will apply to your use of the FLS and to any subscription contract (Contract) between us. Please read these Terms carefully and make sure that you understand them, before subscribing. If you refuse to accept these Terms, you will not be able to use the FLS or subscribe for any Services on our Website.
We may amend these Terms from time to time as set out in clause 5. Each time you subscribe for Services and when your subscription is about to renew, please check these Terms to ensure you understand the terms which will apply at that time.
1 How we are using specific expressions
1.1 When the following words with capital letters are used in these Terms, they will mean:
your clients, suppliers and/or other third parties who own the intellectual property rights to any of Your Data.
the minimum term of your subscription commencing on formation of the Contract and ending on the date 12 months from the date when Payment is made.
receipt by us in full in cleared funds of (a) your Subscription Fees or (b) where monthly instalments have been agreed, the first monthly instalment.
your employee, agent or independent contractor who is authorised by you to use our Website and the Services.
a numerical value that matches your services to the client’s requirements and is calculated algorithmically from Your Data with no judgement input from us.
any Services you subscribe for under these Terms.
any subscription for Services you make on our Website.
if applicable to your chosen subscription package, the fees payable by you to us for your Subscription, as set out on our Website when you submit your subscription application or, as the case may be, when your Subscription is renewed.
data about your business which you or your Profile Administrator or we (on your behalf) input into our Website's database or allow you to link to from our Website.
our website, as described in clause 2.1 below.
1.2 References to clauses are to the clauses of these Terms and clause headings shall not affect the interpretation of these Terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 A reference to writing or written includes, without limitation, e-mail and, in the case of notice by us to you only, posting a notice on our website but excludes faxes.
2 Information about us
2.1 We operate the website www.haystackonline.com. We are Haystack Limited, a company registered in England and Wales under company number 04069102 and with our registered office at Slade's First Floor, Church Road, Penn, HP10 8LY. Our VAT number is 766744780.
2.2 Contacting us. You may contact us by telephoning our team at +44 (0)1494 819839 or by e-mailing us at firstname.lastname@example.org or writing to us at First Floor, Slades, Church Road, Penn, Bucks HP10 8LY. If you wish to give us formal notice of any matter in accordance with these Terms, please see clause 18.
3 Your authority
3.1 You confirm that you have the authority to bind the business or organisation on whose behalf you use the FLS or subscribe for Services.
4 How the contract is formed between you and us
4.1 Our subscription pages will guide you through the steps you need to take, to select a subscription package and subscribe for Services. Our subscription process allows you to check and amend any errors before submitting your subscription application to us. Please take the time to read and check your application at each page of the subscription process.
4.2 Your use of the FLS or subscription application is subject to our approval. If you log onto our system to input, review or amend Your Data and we approve Your Data, the Contract between us will be formed when we confirm approval.
5 Our right to vary these terms
5.1 We may amend these Terms from time to time. Please look at the top of the terms and conditions page on our Website to see when these Terms were last updated and which Terms were changed. Any change we make shall take immediate effect.
6 The Services
6.1 Subject to you meeting your obligations under the Contract, we shall, during the term of your Subscription, on and subject to these Terms:-
6.1.1 provide your Profile Administrator with access to Your Data on your profile pages on our Website solely for the purposes of adding and updating the details of your business;
6.1.2 publish on our Website the profile information about your business included within your subscription package, as described on our Website;
6.1.3 for paid subscription packages only, provide certain other Services, such as reporting and comparative information, as described on our Website;
6.1.4 allow you the right to use our Website's software through which Your Data is stored, distributed, displayed and manipulated; and
6.1.5 provide you with access to our user guidance.
6.2 We reserve the right at our discretion to make reasonable changes to our Services and/or the computer system through which our Website's data is stored and made available, provided that any such changes will not materially and detrimentally affect your use of the Services.
7.1 You agree to adhere to the Terms of Website Use (Website Terms) as located here: http://www.haystackonline.com/haystackonline-terms-of-use/ and we advise you to familiarise yourself with these Website Terms and to ensure that the content of Your Data is in accordance with these Website Terms and clause 8 below.
7.2 You will ensure that your Profile Administrator keeps your password for the use of the Services confidential.
7.3 During your use of the Services you shall not, and you shall not permit your Profile Administrator to, access, store, distribute or transmit any virus or other material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property, and we reserve the right, without liability or prejudice to our other rights, to remove, edit and / or disable any material that breaches the provisions of this clause.
7.4 You shall not, except to the extent expressly permitted under these Terms or by applicable law which cannot be excluded, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of our Website or its software (as applicable) in any form or media or by any means; or attempt to reverse compile, disassemble or reverse engineer all or any part of our Website or its software; or access all or any part of the Services in order to build a product or service which competes with the Services.
7.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
8 Our Website and Your Data
8.1 You and your Licensors shall own all right, title and interest in and to all of Your Data and you shall ensure and have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
8.2 You agree not to reproduce, duplicate, copy or re-sell any part of our Website and not to access without authority, interfere with, damage or disrupt any part of our Website, any equipment or network on which our Website is stored, any software used in the provision of our Website or any equipment or network or software owned or used by any third party.
8.3 You agree to use our Website only for lawful purposes. You may not use our Website in any way that breaches any applicable local, national or international law or regulation, or in any way that is unlawful or fraudulent, or for the purpose of attempting to harm others or for the purpose of sending any data that contains viruses or any other harmful programs or code designed to adversely affect the operation of any computer software or hardware.
8.4 In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Your Data from the latest back-up of such Your Data maintained by us in accordance with our normal back-up procedures.
8.5 You acknowledge that our service to clients includes providing a Score that matches your services to their requirements.
8.6 You confirm that you consent to us viewing, monitoring, collecting and recording information about how potential clients search for and view your business profile on our Website and about any resulting sales leads which arise and you further consent to us collating, compiling, reformatting, reproducing, adapting, translating, arranging, publishing, selling, distributing, dealing with or otherwise commercially exploiting any part of such information or otherwise making it available to other agencies and any other third parties on such terms as we deem appropriate.
9 Third party providers
10 Our obligations
10.1 If you subscribe and pay for a paid-for subscription package, we warrant that the Services will be provided with reasonable skill and care.
11 Matters we are not responsible for
11.1 You acknowledge that our Website's database is populated with information supplied to us by you and other third party subscribers and, as such, we cannot guarantee the accuracy of such information. We do not monitor the information uploaded into the database, nor do we take any steps to verify its accuracy.
11.2 You acknowledge that we have no control over the internet or the services supplied by our internet service provider and cannot guarantee uninterrupted or error free access to our Website or the Services.
11.3 If you are using the FLS, the Services are provided "as is" and without any warranty whatsoever and this clause prevails over any inconsistent clause in these Terms, except for clause 15.2.
11.4 In return for the benefit of the warranties expressly set out in these Terms, you agree that all other warranties, express or implied, including but not limited to all warranties, conditions or other terms implied by statute, common law, custom, trade, usage, course of dealing or otherwise are excluded to the fullest extent permitted by the law applicable to the Contract.
12 Your obligations
12.1 provide us with all necessary co-operation; and all necessary access to such information as may be required by us; in order for us to provide the Services, including but not limited to Your Data and your Profile Administrator;
12.2 ensure that your Profile Administrator uses the Services and our Website in accordance with these Terms and you shall be responsible for your Profile Administrator's breach of these Terms;
12.3 obtain and maintain all necessary licences, consents, and permissions necessary for us to display Your Data on Our Website and you will indemnify us against any claim, action, proceeding, loss, damage, expense and cost (including without limitation court costs and reasonable legal fees) arising out of any allegation that any of Your Data appearing on Our Website infringes a third party's legal rights or breaches any law, regulation or rule; and
12.4 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our computer system and ensuring that all computer equipment or software which you use to access the Services and our Website is adequate for such purpose.
13 Charges and payment
13.1 If you have chosen a paid for Subscription package, we shall invoice you in advance (normally annually) for the Subscription Fees payable in respect of the forthcoming Subscription period. For renewals, we will send you our invoice at least 90 days prior to the expiry of your then current subscription period.
13.2 You must pay your annual Subscription Fees by BACS or direct debit either:
13.2.1 annually in advance of the start of the relevant Subscription year; or
13.2.2 by monthly instalments in advance of the start of each month during the relevant Subscription year.
13.3 Services will not commence until Payment has been made.
13.4 If we have not received Payment, Commission or any agreed instalment payment within 7 days of the due date, without affecting or limiting any other rights and remedies of ours, we may, without liability to you:
13.4.1 suspend any or all Services and/or disable or make your profile invisible on our Website while the invoice(s) concerned remain unpaid; and/or
13.4.2 downgrade your subscription package to a free-of-charge package.
13.5 We shall be entitled to increase the Subscription Fees at the start of each subscription renewal period upon giving you at least 90 days' prior notice (and sending you an invoice for the increased Subscription Fees shall constitute valid notice for such purposes).
13.6 If you have chosen FLS you will pay us commission in advance, by credit or debit card, at the rate agreed between you and us (Commission) for any validated (by us) enquiry for your services which a potential client makes through us and/or Our Website and which you request us to refer on to you.
13.7 All Subscription Fees and Commission shall be payable in pounds sterling; are non-cancellable and non-refundable; and are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
14 Proprietary rights
Except for Your Data and the data belonging to other subscribers, you acknowledge and agree that we and/or our licensors own all intellectual property rights in the Services and Our Website. Except as expressly stated herein, these Terms do not grant you any rights to, or in, any rights or licences in respect of the Services or Our Website or our intellectual property rights.
15 Limitation of liability
15.1 Except as expressly and specifically provided in these Terms, you assume sole responsibility for results obtained from your use of the Services and for any client enquiries you receive as a consequence; and the Services are provided to you on an "as is" basis.
15.2 Nothing in these Terms excludes our liability for death or personal injury caused by our negligence; or for fraud or fraudulent misrepresentation.
15.3 Subject to clause 15.2:
15.3.1 we 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 the Contract;
15.3.2 we shall not be liable for any loss, costs, damages or expenses arising out of your Score; and
15.3.3 our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 125% of the total Subscription Fees paid by you for your Subscription for the 12 month Subscription Term during which the relevant loss or liability arose.
16 Term and termination
16.1 The Contract shall commence on the date we confirm your Subscription application and, unless you or we terminate it earlier in accordance with these Terms, shall continue for the Minimum Term and shall thereafter automatically renew for successive periods of 12 months, unless and until either you or we notify the other of termination, such notice to expire (and the Contract to end) at the end of your then current Subscription term.
16.2 Without affecting any other right or remedy available to you or us, either you or we may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
16.2.1 fails to pay any amount due under the Contract on the due date for payment and remains in default on the date falling 7 days after the due date;
16.2.2 commits any other material breach of the Contract which is either irremediable or, if remediable, which that party fails to remedy within a period of 30 days after being notified in writing to do so;
16.2.3 suspends, or threatens to suspend, payment of its debts or is unable or deemed unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; or enters into any insolvent compromise or arrangement with any of its creditors; or makes or suffers any application or petition (which is not discharged within 14 days) for its winding up or for the appointment of an administrator or receiver over any of its assets or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.3 In addition to our above rights, we reserve the right to cease providing the Services and/or terminate your subscription on notice to you at any time and without cause or any requirement to give you a reason, provided that if we exercise our right to terminate under this clause 16.3, or if you lawfully exercise your right to terminate the Contract under clause 16.2, we will refund you a pro rata proportion of your pre-paid Subscription Fees to cover any unexpired part of your then current subscription term. This is the only obligation or liability we shall have to you in respect of such termination.
16.4 On termination of the Contract for any reason:
16.4.1 all licences and rights granted to you under these Terms shall immediately terminate;
16.4.2 you shall make no further use of the Services or our Website;
16.4.3 subject to clause 16.3, we may make Your Data invisible on Our Website and/or permanently delete Your Data from Our Website's database; and
16.4.4 any rights, remedies, obligations or liabilities of ours or yours that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17 Events outside our control
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an event outside our reasonable control. If an event outside our reasonable control takes place that affects the performance of our obligations under a Contract we will endeavour to notify you as soon as reasonably possible; and our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of such event.
18 Communications between us
Any notice given by you to us, or by us to you, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or by e-mail or, in the case of a notice by us to you only, by posting a notice on our Website. A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second English business bay after posting; or if sent by e-mail, one English business day after transmission; or if sent by us posting a notice on our Website, 10 days after the posting appears on our Website. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
19 Other important terms
19.1 These Terms and any documents referred to in them, constitute the whole Contract between you and us and supersede any previous arrangement, understanding or agreement between you and us relating to the subject matter they cover. Nothing in this clause limits a party's liability for fraud.
19.2 We may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under the Contract. We will always notify you in writing or by posting on this website if this happens. You may only transfer your rights or your obligations under a Contract to another person if we agree in writing.
19.3 This Contract is between you and us. Except as expressly and specifically referred to in these Terms, no other person shall have any rights to enforce any of its terms,
19.4 Each of the provisions of the Contract operates separately. If any court or relevant authority decides that any of them (or any part of any of them) is unlawful or unenforceable, the remaining provisions will remain in full force and effect. If any unlawful or unenforceable provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to your and our commercial intention.
19.5 If we fail to insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
19.6 Nothing in these Terms is intended to or shall operate to create a partnership between you and us, or authorise either you or us to act as agent for the other.
19.7 The Contract 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.
19.8 You and we both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).