This Contract is made up of the following:
(a) The Contract Details.
(b) The Conditions.
If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
1 Bid: a bid by an Influencer to participate in an Opportunity.
2 Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales.
3 Charges: the charges payable by the Client for the supply of the Services by the Supplier, as set out in the Contract Details.
4 Client: has the definition that is as set out in the Contract Details.
5 Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Services, including the items provided pursuant to clause 4.1(b).
6 Conditions: these terms and conditions set out in clause 1 (Interpretation) to 9 (General) (inclusive).
7 Contract: the contract between the Client and the Supplier for the supply of the Services in accordance with the Contract Details and these Conditions.
8 Influencer: an influencer (or an agent or representative acting on their behalf where the context requires) who is a member of Room Unlocked.
9 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, logos, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
10 Opportunities: the opportunities presented by the Client relating to endorsement, marketing, advertisement, product placement and brand representation (the Client will detail what it is offering (e.g. product, campaign appearance) and what they are looking for (social media, press, personal appearances)).
11 Room Rules: the rules which govern the interaction of users and Room Unlocked as amended from time to time.
12 Services: the services to be provided by the Supplier pursuant to the Contract as described in the Contract Details.
13 Services Start Date: the day on which the Supplier is to start provision of the Services,
as set out in the Contract Details.
14 Supplier: has the definition that is as set out in the Contract Details.
15 Supplier IPRs: all Intellectual Property Rights of the Supplier relating to the Services.
16 Room Unlocked: the online platform and website operating via the domain name roomunlocked.com.
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
The Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 30 days' written notice to terminate, expiring on or after the first anniversary of the Services Start Date.
3.1 The Supplier shall supply the Services to the Client from the Services Start Date in accordance with the Contract.
3.2 In supplying the Services, the Supplier shall:
(a) (subject to its compliance with the Contract), grant the Client a limited, non-exclusive, revocable and non-transferrable licence to access and use Room Unlocked in the manner anticipated in the Contract;
(b) perform the Services with reasonable care and skill and carry out the pre-vetting checks for Influencers and any other checks agreed with the Client;
(c) comply with all applicable laws, statutes and regulations from time to time in force provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(d) only involve itself in a dispute between the Client and an Influencer if there is an alleged or actual misuse of Room Unlocked which may cause the Supplier to suspend or terminate a brand or influencer’s use and membership of Room Unlocked;
3.3 The Supplier shall not:-
(a)be responsible for the agreement reached between the Client and an Influencer (including any non-performance or bad performance, non-fulfilment, non-delivery or delay or completion of an engagement or Opportunity);
(b) disclose details of a particular Opportunity the Client has posted on Room Unlocked unless that information is already in the public domain (although the Client gives the Supplier authority to disclose to other members that the Client is a member of Room Unlocked);
(c) be responsible for and does not endorse any content posted on Room Unlocked and does not have any obligation to pre-moderate, monitor, edit or remove any content or contributions.
3.4 For the avoidance of doubt, save in respect of any membership of Room Unlocked, the Supplier is not associated with, endorsed by or affiliated with any particular brand or influencer.
3.5 Any help, guidance or input given by the Supplier to brands or influencers in connection with the use of Room Unlocked or the use of a particular brand or influencer shall be advisory only and the Supplier accepts no liability to the extent that such guidance is followed.
3.6 The Supplier makes no representation that the platform (or any element of the platform) is appropriate or available for use in all locations.
4.1 The Client shall:
(a) cooperate with the Supplier in all matters relating to the Services;
(b) provide, in a timely manner, such information as the Supplier may reasonably require (including without limitation, details of any specific requirements in relation to an Opportunity),
and ensure that it is accurate and complete in all material respects;
(c) be responsible for its interaction with Influencers whether via or outside of The Room and for the accuracy and content of any Opportunity (including its duration and the manner in which it appears);
(d) ensure that no campaign, Opportunity or post is false or misleading;
(e) at all times comply with all applicable laws and industry self-regulation including, without limitation, the CAP Code and ensure that any marketing posts or Opportunities posted by the Client or any Influencer acting on behalf of the Client are transparent and labelled with appropriate disclosures (if required by the Opportunity);
(g) be responsible for checking an Influencer’s credentials, profiles, listings and followings and performance of his/her obligations in fulfilling an Opportunity;
(h) use its allotted number of Opportunities in each relevant subscription period;
(i) inform the Supplier by emailing firstname.lastname@example.org if an Opportunity or Bid is not delivered or fulfilled in whole or in part.
4.2 The Client shall notify the Supplier if it already has a pre-existing commercial relationship with any Influencer and shall not create a commercial relationship with any Influencer outside of Room Unlocked.
4.3 In respect of any Opportunity the Client submits to the members of Room Unlocked, it will not contain anything that:-
(a) is illegal or contrary to any laws, applicable industry code or the requirements of any regulator;
(b) infringes the privacy rights, contract right or other rights (including Intellectual Property Rights) of any person or promotes an illegal or unauthorised copy of another person’s work;
(c) is indecent, immoral, threatening, discriminatory, defamatory or offensive.
4.4 The Client acknowledges that Influencers are independent third parties and as such, they are not directly controlled by the Supplier. The Client is responsible for determining whether any Bids and/or the use of a particular Influencer is acceptable and appropriate to the Client.
4.5 The Client acknowledges that the Supplier has not given any guarantee about the success or commercial performance of any Opportunity or campaign launched by the Client using Room Unlocked and/or the performance of any particular Influencer.
4.6 The Client agrees and undertakes that for a period of 12 months after this Contract ends or is terminated, it will not work with any Influencers who have become known to the Client via Room Unlocked or who have placed a successful Bid or expressed an interest in any Opportunity that went live for the Client during its membership of Room Unlocked.
4.7 The Client agrees that it shall not attempt to negotiate payment with the Influencer unless specified in an Opportunity.
4.8 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
5.1 The Supplier and its licensors shall retain ownership of all Supplier IPRs. All right, title and interest in all Intellectual Property Rights in all of The Room’s logos, images, buttons, codes, layout, text and content are the property of the Supplier and shall remain or be vested in the Supplier at all times. Nothing in this Contract shall be taken to constitute a transfer, assignment or grant of any ownership rights in any Supplier IPRs to a Client or an Influencer.
5.2 The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
5.3 The Client grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use the Client Materials for the term of the Contract for the purpose of providing the Services to the Client in accordance with the Contract.
5.4 The Supplier shall own all Intellectual Property Rights that arise or are obtained or developed in connection with the provision of the Services, including but not limited to the Deliverables. The Supplier shall grant the Client a non-transferable licence during the term of this Contract to use the Intellectual Property in the Deliverables, free of charge and on a non-exclusive, worldwide basis to such an extent as is necessary to enable the Client to use the Services.
5.5 Each party (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) in full against any and all claims, costs, expenses, damages, liabilities and losses, including all reasonable professional and legal costs and expenses, suffered or incurred by the Indemnified Party, arising out of, or in connection with, any actual [or alleged] infringement of a third party's Intellectual Property Rights arising out of:
(a) where the Indemnifying Party is the Client, the receipt or use of the Client Materials by the Supplier; and/or
(b) where the Indemnifying Party is the Supplier, the receipt or use of the Supplier’s Services by the Client.
6.1 In consideration for the provision of the Services, the Client shall pay the Supplier the Charges in accordance with this clause 6.
6.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 The Supplier shall submit invoices for the Charges plus VAT to the Client as set out in the Contract Details. Each invoice shall include all reasonable supporting information required by the Client.
6.4 The Client shall pay each invoice due and submitted to it by the Supplier, within the period set out in the Contract Details , to a bank account nominated in writing by the Supplier.
6.5 If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under 8 (Termination):
(a) the Supplier may suspend all Services until payment has been made in full.
6.6 All amounts due under the Contract from the Client to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms as to title and quiet possession, insofar as they are implied by law.
7.2 Subject to 7.1 and clause 7.4, the Supplier's total liability to the Client in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
7.3 In 7.2:
(a) cap. The cap is 100 per cent (100%) of the total charges in the contract year in which the breaches occurred;
(b) contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it;
(c) total charges. The total charges means all sums paid by the Client and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Client; and
(d) total liability. The Supplier's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
7.4 Notwithstanding clause 7.2, the following types of loss are wholly excluded:
(a) Loss of profits.
(b) Loss of sales or business.
(c) Loss of agreements or contracts.
(d) Loss of anticipated savings.
(e) Loss of use or corruption of software, data or information.
(f) Loss of or damage to goodwill.
(g) Indirect or consequential loss.
7.5 The Supplier has given commitments as to compliance of the Services with relevant standards in 3. In view of these commitments, the terms implied by any applicable law are, to the fullest extent permitted by law, excluded from the Contract.
7.6 The Supplier may not benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
7.7 The Client indemnifies the Supplier and any of its group companies and its and their respective directors, officers and employees from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of the Client’s direct activities using Room Unlocked):
(a) its access to and use of or inability to use Room Unlocked;
(d) any claim or allegation that an Opportunity infringes a third party’s rights, including Intellectual Property Rights;
(e) any violation of any applicable laws, rules or regulations; and
(f) any misrepresentation made by the Client.
8.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation
to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract (or suspend membership of Room Unlocked in the case of 8.2(b)) with immediate effect by giving written notice to the Client:-
(a) if the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) if the Client fails to fulfil its obligations as agreed between it and an Influencer as part of an Opportunity.
8.3 On termination of the Contract for whatever reason:
(a) the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) unless otherwise agreed, the Client shall carry out and fulfil any existing obligations under any agreed Opportunities as at the date of termination;
(c) subject as required by clause 8.3(b) above, all licences or rights granted to the other party under the Contract shall cease;
(d) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
(e) termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
9.2 Assignment and other dealings.
(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier's prior written consent.
(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by 9.3. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the
Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 9.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
9.4 Entire agreement.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
9.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
9.7 Severance. If any provision or part-provision of the Contract 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 to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Contract Details.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid national postal mail or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(iii) if sent by pre-paid airmail providing proof of delivery, at 9.00am on the fifth Business Day after posting; or
(iv) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this 9.8(b)(iv), business hours means
9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
9.9 No partnership, agency. Nothing in the Contract is intended nor does it create a partnership, agency, employment or fiduciary relationship between the Supplier and the Client.
9.10 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights for a third party to enforce any term of the Contract.
(b) The rights of the parties to terminate or vary the Contract are not subject to the consent of any other person.
9.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of England and Wales.
9.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
(a) This agreement is drafted in the English language. If this agreement is translated into any other language, the English language version shall prevail.
(b) Any notice given under or in connection with this agreement shall be in the English language. All other documents provided under or in connection with this agreement shall be in
the English language, or accompanied by a certified English translation.
(c) If such document is translated into any other language, the English language version shall prevail.