SHOOT PLANT DATA
MASTER SERVICES AGREEMENT
SHOOT LIMITED a company incorporated inEngland
and Wales with company number 05151614 and whose registered office is at Gunpowder House, 66-68 Great Suffolk Street, London SE1 0BL (Shoot). Shoot operates a website and database of plant types & varieties.
Your organisation wishes to gain access to Shoot's plant database to offer plant information on up to 2,000 plants on your own website only and to obtain Shoot's hosting services for this information. The Shoot Plant Data is owned and operated by Shoot Limited and is made available on the following terms, and by using the Shoot service you accept these terms:
NOW IT IS HEREBY AGREED as follows:
1. Definitions
1.1
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
"Acceptance Date" means the date on which you accept the terms of this Agreement with Shoot and submit your order;
"Agreement" means this agreement and each of the schedules hereto;
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for business in London;
"Commencement Date" means the date of this Agreement;
"Confidential Information" means the existence and terms of this Agreement and any and all information (in any form or media, whether oral or written) acquired by a party (whether before or after the date of this Agreement and whether directly or indirectly) as a result of negotiating, entering into or performing this Agreement, which relates to the affairs, business, trade secrets, customers or suppliers of the other party or its products, operations or know-how;
"Data" means all data, information, addresses, telephone numbers, texts, drawings, diagrams, images or sounds embodied in any electronic or tangible medium (excluding any computer software) and which is obtained by or made available to Shoot and you;
"Data Protection Legislation" means the Data Protection Act 1998 and The Privacy and Electronic Communications (EC Directive) Regulations 2003;
"Database" means the Shoot proprietary plant database as amended, altered, changed or adapted from time to time;
"Deliverables" means all items to be delivered to you by Shoot under the terms of this Agreement as set out in the Services;
"Due Date" has the meaning given to it in Clause 4.4;
"Fees"means all sums due under this Agreement;
"Force Majeure Event" means any of the following events: act of God, fire, flood, act of government or state, war, act of terrorism or threat thereof, civil commotion, insurrection, embargo and labour dispute (other than a labour dispute involving the staff of the party seeking to rely on the Force Majeure Event);
"Good Industry Practice" means, in relation to any undertaking in any circumstances, the exercise of the degree of skill, care, produce and foresight which would be expected from experienced personnel engaged in the same type of undertaking under the same or similar circumstances;
"Hosting Services" means the hosting of the Site by Shoot on the Shoot website as agreed between the parties in writing from time to time;
"HTA"means the Horticultural Trades Association who acts as the sales & marketing, invoicing and billing agent of Shoot for the purposes of this Agreement.
"Intellectual Property Rights" means copyrights (including rights in computer software), patents, trade marks, trade names, service marks, business names (including internet domain names), design rights, database rights, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)) and all other intellectual property or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration) all extensions, revivals and renewals thereof which may now or in the future subsist anywhere in the world;
"Late Payment Date" has the meaning given to it in Clause 4.3;
"Licence" means as defined in Clause 5.2;
"Ratecard" means fees as defined at hta.shootgardening.co.uk;
"Shoot IPR" means the Intellectual Property Rights in and to any software, routines, software designs, user interface conventions, interfaces to third party products, user-interface design patterns, other development and design tools and documentation that existed and were owned by or licensed to Shoot prior to the date of this Agreement (and can be shown by Shoot to have existed prior to the date of this Agreement) and which is comprised in any Deliverable and, for the avoidance of doubt, includes the Third Party Software;
"Services" means the services to be provided by Shoot to you as set out in Schedule 1 and as agreed in writing between the parties from time to time;
"Site Specification" means the specification for the site as detailed in Schedule 1;
"Term"means either one (1) or three calendar (3) years from the Commencement Date and specified by you at the time of order;
"Third Party Software" means any software comprised in any Deliverable that is owned by third parties;
"Virus" means any backdoor, time bomb, Trojan horse, worm, drop dead device, or any other computer software designed or intended to disable, damage, erase, destroy, disrupt or impair the normal operation of any Deliverable; and
"Your IPR" means all Intellectual Property Rights created by you and which existed and were owned by or licensed to you prior to the date of this Agreement (and which can be shown by you to have existed prior to the date of this Agreement).
In this Agreement unless the context otherwise requires:
(a) the contents table and headings are for convenience only, have no legal effect and shall not affect its construction;
(b) words in the singular shall include the plural and vice versa;
(c) the Schedules to this Agreement shall form part of this Agreement as if set out in the main body of this Agreement. In the event of any conflict between the provisions of the main body of this Agreement and the provisions of the Schedules the former shall prevail;
(d) with the exception of sections 736 and 736A Companies Act 1985 any reference in this Agreement to any enactment or statutory provision or subordinate legislation shall be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders or instruments made under such enactment;
(e) references to a Clause or a Schedule are to a Clause of or a Schedule to this Agreement; and
(f) references to
"content" include any kind of text, information, image, audio, visual or audio-visual material which can be incorporated in a website for access by a visitor to that website.
2. Services
2.1
Shoot shall provide the Services and the Hosting Services to you in accordance with the terms and conditions of this Agreement including but not limited to the Site Specification in Schedule 1.
3. Acceptance
3.1
The delivery to you of the Deliverables shall be deemed to be the Acceptance Date unless you explain fully to Shoot in writing within 3 Business Days of receipt of the Deliverables why they do not comply with the description in the Services.
3.2
Where the Deliverables do not comply with the relevant description and you have set out its reasoning to Shoot in accordance with Clause 3.1 above, Shoot shall remedy such defects and redeliver the affected Deliverable to you in a timely fashion.
3.3
If, following such redelivery in accordance with Clause 3.2 above, you are still not satisfied that the Deliverables correspond with the description Shoot will remedy any such defects in and redeliver the affected Deliverable to you within a timely fashion.
4. Fees, Payment and Invoicing
You will pay to Shoot through its agent the HTA the appropriate fees in the Ratecard upon acceptance of this Agreement.
4.2
If you order a three year licence, you will pay to Shoot through its agent the HTA an semi-annual licence fee in consideration of the Licence payable on each 6
th month anniversary of the Agreement Date, which amount shall be invoiced by the HTA in each case more than thirty days beforehand.
4.3
If, you fail to pay any sums, properly due on an invoice by the Due Date, then the HTA shall notify you in writing of such late payment and shall request you to make such payment (the
"Late Payment Date") and the HTA shall be entitled to charge interest on the sums due at a rate of 4% above the base rate from time to time of the Bank of Scotland for the period commencing on the Late Payment Date and ending on the date that such payment is made in full. Shoot reserves the right to deny complete access to the Plant Data for the duration of such non-payment until all outstanding fees are paid in full together with any Interest thereon.
4.4
All sums payable pursuant to this Agreement are exclusive of VAT or any other applicable sales tax which shall be paid in addition by you.
5. Intellectual Property and Licence
5.1
You acknowledge and agree that, as between Shoot and you, Shoot owns all the Intellectual Property Rights in and to the Shoot IPR and the Database. Nothing in this Agreement shall be construed as an assignment or licence by Shoot of any Intellectual Property Rights in or to the Shoot IPR, or in or to the Database, to you.
5.2
Shoot hereby grants to you a non-exclusive, licence for the duration of this Agreement to use the Intellectual Property Rights comprised in the Shoot IPR and to use the Database both only as part of the Deliverables in which it is comprised and in respect of the Site (the "
Licence").
5.3
You shall not infringe or cause to be infringed any of the Shoot IPR or the Database whether in whole or in part
6. Data
6.1
Shoot shall, without prejudice to any of Shoot's other obligations under this Agreement, take adequate and prudent precautions to ensure the integrity of the Data and to prevent the corruption or loss of any such data.
6.2
Both parties shall at all times comply with the Data Protection Legislation.
7. Warranties and Indemnity
7.1
Each party represents, warrants and undertakes to the other that:
(a) it has the legal right and full power, capacity and authority to execute and deliver and to exercise its rights and perform its obligations under this Agreement and any amendment thereto as agreed in writing between the parties;
(b) its use of the other party's Intellectual Property Rights shall not infringe whether acting by itself or by any third party whether alone or in concert with others, any of the other party's Intellectual Property Rights or any third party Intellectual Property Rights;
7.2
Shoot represents, warrants and undertakes that:
(a) the Deliverables will, for a period of [30] days commencing on the relevant Acceptance Date, be Virus free and will comply with the Services description and the Site Specification; and
(b) it shall not alter, adapt, copy or publicise any of your IPR save to the extent that it is necessary for the performance of the Services, or as permitted under this Agreement, or as, in each case whether in whole or in part, otherwise expressly agreed to in writing by You.
7.3
You shall not alter, adapt, copy or publicise any of the Shoot IPR, the Shoot Database or the Deliverables, in each case whether in whole or in part, save to the extent that it is permitted to do so under this Agreement.
7.4
Subject to Clause 8.2 You will indemnify and hold Shoot harmless from and against all liabilities, losses, claims, damages, costs and expenses (including, without limitation, court costs and reasonable attorneys', consultants' and other expenses and costs of litigation), suffered by or asserted against Shoot, in connection with the breach of any representation or warranty contained in this Agreement.
7.5
Subject to Clause 8.2 Shoot will indemnify and hold You harmless from and against all liabilities, losses, claims, damages, costs and expenses (including, without limitation, court costs and reasonable attorneys', consultants' and other expenses and costs of litigation), suffered by or asserted against You, in connection with the breach of any representation or warranty contained in this Agreement.
8. Liability
8.1
Nothing in this Agreement shall exclude or limit the liability of either party:
(a) for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; or
(b) in respect of fraud or of any statements made fraudulently by that party or its directors, officers, employees, contractors or agents.
8.2
Neither party shall be liable to the other in connection with this Agreement whether in contract, tort (including negligence), under statute or otherwise for any of the following:
(a) loss of profits (whether direct or indirect);
(b) loss of revenues;
(c) loss of opportunities; or
(d) any indirect or consequential loss of any kind.
9. Term and Termination
9.1
This Agreement shall commence on the Commencement Date and, unless terminated earlier, shall continue in force for the Term.
9.2
Shoot reserves the right to reject an order at its discretion.
9.3
Notwithstanding anything else contained herein, either party may terminate this Agreement:
(a) on giving notice in writing to the other if the other commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within [20] Business Days after the receipt of a request in writing from the other party so to do, to remedy the breach; or
(b) by either party immediately on giving notice in writing to the other if the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or is deemed unable to pay its debts as they fall due in accordance with section 123 of the Insolvency Act 1986.
10. Effects of termination
10.1
Any termination of this Agreement, shall not affect any accrued rights or liabilities of either party pursuant to any of those agreements nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10.2
The parties undertake to keep confidential in accordance with Clause 13.1
the fact of and the reasons for any termination of this Agreement.
10.3
Upon any termination of this Agreement Shoot will immediately cease to provide the Services, the Hosting Services, any additional services so provided and the Licence shall immediately terminate.
11. Disclaimer
11.1
The following disclaimers are made by Shoot:
(a) the Database and the data contained therein are provided on an "as is" basis. Whilst every effort is made to ensure the accuracy of the information contained therein, Shoot will not be liable for any mistake, error or other inaccuracy contained therein or any act or omission caused by a reliance thereupon; and
(b) the Hosting Services are provided on an "as is" basis.
12. Force Majeure
12.1
Neither party shall be in breach of its obligations under this Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement to that extent that such failure results from a Force Majeure Event.
12.2
If either party is unable to perform all or any of its duties and obligations under this Agreement as a direct result of a Force Majeure Event, that party shall within 5 Business Days of such event taking place give written notice to the other party specifying the event and the steps taken by it to minimise or overcome the effects of such event.
12.3
If the Force Majeure Event continues for a period of more than 28 Business Days, the party not in default shall have the right to terminate this Agreement forthwith upon giving written notice of such termination to the other party.
13. Confidentiality
13.1
Each party hereby undertakes to:
(a) keep confidential and not without the other party's written consent disclose the other party's Confidential Information in whole or in part to any other person save (a) those of its employees, and authorised sub-contractors involved in the performance of this Agreement, a Development Agreement or any Consultancy Agreement and who have a need to know the same; (b) to any government authority as may be required by law; and
(b) use the Confidential Information solely in connection with the performance of its obligations hereunder and not for its own benefit or the benefit of any third party.
13.2
The provisions of Clause 13.1 shall not apply to the whole or a part of any Confidential Information to the extent that it is in the public domain other than as a result of a breach of this Clause.
14. Assignment and Sub-Contracting
14.1
This Agreement shall be binding on and shall enure for the benefit of the successors to the parties.
14.2
Neither party may assign or novate its rights or obligations under this Agreement, or any part thereof without the prior written consent of the other.
15. Severability
Each provision of this Agreement is severable and distinct from the others. If a provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, it shall to that extent be deemed not to form part of this Agreement but that will not affect the legality, validity or enforceability of any other provision of this Agreement which shall continue in force and effect provided that the operation of this Clause would not negate the commercial intent and purposes of the parties under this Agreement.
16. Entire Agreement
16.1
This Agreement together with all documents referred to herein constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements in regard thereto.
17. Contract (Rights of Third Parties) Act 1999
No term of this Agreement, is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
18. Relationship of the parties
18.1
Nothing in this Agreement, and no action taken by the parties under this Agreement, shall constitute a partnership, association, joint-venture or other co-operative entity between the parties.
18.2
Nothing in this Agreement shall be construed as preventing or restricting you from procuring consultancy, development or any other type of service from any third party.
19. Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of England.
20. Jurisdiction
This Agreement is made according to the laws of England and Wales and subject to Clause
25, the parties hereby submit to the exclusive jurisdiction of the English Courts.
Schedule 1
Services and Site Specification
Plant Data
Hosting & URL
Shoot will host the Plant Data on your behalf. The format for the address of each individual plant will be http://hta.shootgardening.co.uk/plant-data/view/plantid/[id]/accountid/[accountid]
When you use the Plant Data links we provide, we recommended that these links open a new window to remain open along side your main web site.
Branding
The Plant Data will display the logo you supply on the Agreement date. This logo must be for the retail organisation you represent and cannot be a third party logo. The font will be in your choice of colour as selected on the Agreement date.
The footer of each page will reference shoot with a 'powered by shoot' tag line, which is also a link back to the shoot website.
.CSV file provision
Shoot will provide the Plant Data links as a .csv file output containing all the plants currently available in the Shoot database at the Agreement date which will include each plant's botanical name, common English name and a deep web link to that plant.
The selection, uploading and formatting of up to 2,000 of these web links into your website will be conducted by your organisation.
Shoot will make best efforts to add additional plants not currently available in the database on receipt of a plant list of botanical names from you, although no guarantee can be made as to whether or when they will be added.
