Presence Terms of Service
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These terms ("Standard Terms") and the Customer Order Confirmation Form ("Order Form") form the "Contract". In the event of any inconsistency between the Order Form and the Standard Terms, the latter shall prevail. "Advertisement(s)" means the message or other content transmitted with the Listings Details; “Commencement Date” means the date on which provision of the Service will commence. We will endeavour to commence provision of the Service within 30 working days from the date of Signature of the Order Form; “Company” means 118//Media Limited; “Content” means any and all content protected by Intellectual Property Rights; "Customer" means the person in the Customer Information part of the Order Form; “Customer Content” means the Content provided by Customer for inclusion on the Website as set out in the Order Form or any subsequent Content uploaded by the Customer on the Website (as the context requires); “Domain Name” means the internet domain name in the .tel top level domain; "End-User" means an end-user of the Service; “Fees” means the fees payable by the Customer for the provision of the Service during the term of this Contract, as specified in the Order Form; “Initial Term" means a period of 12 calendar months from the Commencement Date; “ICANN” means the Internet Corporation for Assigned Names and Numbers; “Intellectual Property Rights” means any intellectual property and/or proprietary rights, including without limitation copyright and any related rights, patent rights, rights to inventions, utility modals, database rights, topography rights, design rights, publicity rights, rights in confidential information including without limitation know how and trade secret rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue in passing off, unfair competition rights, rights in computer software, moral rights and any other rights of a similar nature subsisting anywhere in the world in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world; "Law" means any law, statute, subordinate legislation, direction, guideline, code (whether having the force of law or not) of any governmental or regulatory authority or agency as amended from time to time; "Listings Details" means the relevant search criteria set out in the Order Form used to trigger a Transmission in response to a given End-User search and the details for the Advertisement to be Transmitted accordingly; “Registrar” means an organisation accredited by ICANN with the authority to submit Domain Name registration requests to a Registry on behalf of registrants and to maintain Domain Names using the interface provided by such Registry; “Registry” means the registry operator for the .tel top level domain (currently Telnic Limited); “Renewal Term" has the meaning attributed to it in clause 1.1 below; “Republication” means the re-Transmission of the Website following Customer’s payment of the Republication Fee after Company’s termination or suspension of the Contract pursuant to clause 3.3 of the Contract; “Republication Fee” means the administration fee and associated payment terms/date as set out in the Order Form charged by Company to Customer for each event of Republication; “Service" means the service operated by Company as identified on the Order Form including any of (i) the relevant Transmission via voice directory enquiry service, text message or website(s) operated by the Company, or (ii) the provision of the Website or any combination of (i) and (ii); "Transmitted/Transmission" means the transmission of the Advertisement(s) via the Service (whether or not such transmission is completed) to an End-User in response to the relevant search criteria contained in the Listings Details; “Web Agency” means any third party agency engaged by Company to help provide the Website; “Website” means the 118118 branded website incorporating the Content and provided by or on behalf of Company and accessible via the Domain Name.
1. ACCEPTANCE OF ADVERTISEMENTS: (1.1) Customer accepts the Contract which is non-exclusive, non-cancellable (subject to clauses 6.1 and 6.2) and will become binding upon the earlier of (i) Customer signing the Order Form, or (ii) Customer returning to Company an email declaration in the form provided by Company signifying Customer’s agreement to the terms of the Contract, or (iii) Customer providing their payment details and accepting this Contract via the Recurly payment system at www.118.recurly.com. For the avoidance of doubt, any one of the events set out in clause 1.1 (i), (ii) or (iii) shall be deemed to constitute “Signature” of this Contract. (1.2) Provision of the Service will commence on the Commencement Date and, unless terminated earlier in accordance with these terms, will continue in force and effect for the Initial Term and thereafter for successive periods of twelve (12) calendar months (each a “Renewal Term”) until terminated by either party providing written notice to effect termination no sooner than sixty (60) days from the end of the calendar month in which the notice is given. Such notice may expire at the end of the Initial Term or any subsequent Renewal Term (1.3) Without prejudice to the terms of this Contract, Advertisements will only be Transmitted and Websites will only be made available if approved by Company which reserves the right, to reject, cancel or remove any Advertisement or Website from the Service. Neither acceptance/Transmission nor the provision of the Website constitute acceptance that an Advertisement or Website complies with the Contract nor a waiver of Company's rights hereunder or at law. Company reserves the right to do anything in respect of a Website and/ or Transmission (including without limitation editing, non-Transmission or delayed Transmission or removal from the Service thereof) which is considered unsuitable or to contravene any Law or any third party rights including without limitation Intellectual Property Rights , without liability to Customer. Company will (where permitted) advise Customer of action taken above. If an Advertisement or a Website is deemed unsuitable, Company shall notify Customer who shall supply an alternative Advertisement or suitable alternative Website Content at its own cost no later than 5 clear working days prior to the commencement of the Initial Term. (1.4) Company shall not be held responsible for any failure to make the Website available or for any changes in, deletions from, delay in Transmission or withdrawal of any Advertisement or Website required by any competent authority. (1.5) Customer will give the Company and/or the Web Agency clear briefings and instructions and co-operate fully with Company and/or the Web Agency as applicable to facilitate the provision of the Website. Customer shall also be responsible for providing suitable Customer Content to the Company and/or the Web Agency. (1.6). Save as set out in clause 1.7, any requests from Customer to Company and/or Web Agency to change the Website following delivery of the same to the Customer will be subject to the payment in advance of additional charges by Customer to Company. (1.7) In the event that the Website contains any Customer Content set out on the Order Form that is incorrect at the date of delivery of the Website and provided always that such Customer Content was provided to Company and/or the Web Agency in correct form, Customer shall have a period of two (2) working days from the date of delivery of the Website to notify Company of the same. In such event, if following investigation Company agrees that such Customer Content is incorrect notwithstanding that it was supplied by Customer in correct form, Company shall make arrangements as soon as is practicable for such incorrect Customer Content to be corrected.
3. PAYMENT: (3.1) During the term of this Contract the Customer shall pay to Company the Fees and the Republication Fee (as applicable) in accordance with the Order Form in full and without deduction. All payments, Fees and Republication Fees are stated exclusive of value added tax and all other similar taxes and duties payable unless otherwise specified in the Order Form in respect of such payments; (3.2) The Company shall invoice the Customer in accordance with the Order Form. (3.3) If Customer fails to pay the full amount by the due date as set out on the Order Form, Company shall be entitled (without limitation to any other rights or remedies that it may have) to: (i) terminate or suspend this Contract forthwith; and/or (ii) charge interest up to the date of actual payment after as well as before judgment at the rate under the Late Payment of Commercial Debts (Interest) Act 1998 (the "Act"), together with fixed sum compensation under the Act to accrue on a daily basis, compounded quarterly. Customer will be liable for all expenses (including legal fees) incurred by Company in collecting overdue Fees or other amounts; and/or (iii) apply a part or the whole of any advance payment received by it in satisfaction of any sums that are overdue for payment.
4. INTELLECTUAL PROPERTY RIGHTS: (4.1) As between the parties and for the avoidance of doubt, Company shall own all rights including without limitation Intellectual Property Rights in or to the Website save with respect to the Domain Name or any Customer Content that is incorporated into the Website. (4.2) Company hereby grants Customer a worldwide, royalty-free non-exclusive licence for the term of this Contract to use any Content provided by Company and/or Web Agency which has been be incorporated into the Website. (4.3) Customer hereby grants Company a worldwide, royalty-free and sub-licensable licence for the term of this Contract to use its names, logos, Advertisement content, the Customer Content and the Domain Name to perform its obligations under this Contract. (4.4) The Customer hereby further grants the Company the right to display, publish or otherwise incorporate the Customer’s identity and telephone number in any other media including, but not limited to, data that the Company may supply or distribute to third parties. (4.5) All Intellectual Property Rights in or to the Service or End-User data shall remain vested in Company and/or its licensors as relevant.
5. LIMITATION OF LIABILITY/ INDEMNITY: (5.1) Neither party shall be liable in contract, tort (including without limitation negligence) or for breach of statutory duty or in any other way for any economic losses (including, without limitation loss of revenues or profits, contracts, business or anticipated savings), loss of goodwill or reputation or any indirect, special, punitive or consequential losses suffered or incurred by the other arising out of or in connection with any matter under this Contract. The aggregate liability of the Company in respect of any loss or damage suffered by the Customer arising out of or in connection with this Contract in any other way, shall not exceed the Fees actually paid by the Customer to the Company in the preceding 12 months. Nothing in this clause shall limit either party's liability for death or personal injury resulting from its negligence or for fraud. Without limiting the foregoing Company shall have no liability for any failure or delay affecting the Website, production or Transmission of the Service and any Advertisements incorporated in it, in any manner where such failure or delay results from any condition or event beyond the control of the Company. (5.2) Customer represents, warrants and undertakes that: (i) it has the power and authority to enter into the Contract and grant all rights granted and fully perform its obligations hereunder; (ii) it has obtained all necessary rights (including without limitation Intellectual Property Rights), clearances and consents to use, broadcast and distribute the Customer Content and to enable Company to host or procure the hosting of the Website; (ii) neither the Website, the Domain Name, the Advertisement(s) nor their permitted use by Company will: (a) infringe the rights of any third party or any other agreements; (b) be used by Customer for any unlawful purpose or for publication of, linking too, issue or display of any unlawful material including without limitation any software that is pirated, or which contains any virus, worm, trojan horse or other harmful code or which infringes third party Intellectual Property Rights; (c) be defamatory, obscene, pornographic, threatening, malicious, harmful, abusive, offensive, misleading or encourage criminal acts in any way; (d) be prejudicial to the reputation of Company; or (e) it will not use the Website or any aspect of the Service except as permitted by Company; (iii) the Website will not be used in breach of generally accepted standards and codes of practice for the use of the Internet including without limitation for the sending of unsolicited emails , “mail bombing”, denial of service attacks or the impersonation of another person whether living or dead); (iv)_it will promptly provide all necessary assistance to Company in relation to the registration, transfer, renewal and management of a Domain Name and it shall provide copies of documentation requested to Company, Web Agency or any court or arbitrator, in the event that a Domain Name registration is disputed; (v) all Advertisements and Websites will comply with all applicable Law (including, without limitation, in respect of any competitions, prizes, offers or promotions contained in an Advertisement) and that, in the event that Customer offers any competition, prize, offer or promotion via the Service, it will ensure that all applicable restrictions and terms and conditions are appropriately communicated to End Users; (vi) Customer shall have or will have obtained in advance of the Commencement Date all necessary rights, consents, clearances and waivers in relation to the Website and/or the Advertisements to enable Company to Transmit and/or make the Website available; (vii) no Advertisement or Website will constitute an invitation or inducement to engage in investment activity within the meaning of the Financial Services and Markets Act 2000 as amended; (viii) all information provided by it to Company shall be accurate and up to date; (ix) it is registered under and shall comply with all relevant requirements of the Data Protection Act 1998 and other applicable Laws in relation to processing personal data; and (x) it shall be solely responsible for any correspondence and contact with any End-Users or other person in respect of any Website or Advertisement or its subject matter including fulfilment of all offers, and orders and Company shall not have any liability in relation to the same, (xi) where any Advertisement contains an offer or other promotion which does not specify an end date the Customer will honour such offer or promotion for a period of no less than 3 calendar months. (5.3) Customer indemnifies and shall indemnify Company on demand from and against any and all losses, demands, claims, damages, costs, expenses (including without limitation reasonable legal expenses) and liabilities ("Losses") suffered or incurred directly or indirectly by Company in consequence of: (i) breach by Customer of this Contract; (ii) breach of a warranty at 5.2; or (iii) any claim arising from the content of a Transmission, Advertisement or Website save to the extent that such Losses were caused by negligence, breach or fraud of Company. This clause will survive termination of the Contract. (5.4) Customer agrees to indemnify and hold harmless Web Agency, its affiliates and their respective officers, agents, partners, directors and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses (including without limitation reasonable legal fees and expenses) which any such party may incur arising out of or relating to (i) the Customer Content or the Customer’s modification, display and use of the Website and/or in connection with the Website (ii) claims that the Website and/or the Services are defective, injurious or harmful or violate the rights of any third parties and (iii) claims predicated on a breach by Customer of a Registry’s terms and conditions and/or in connection with its use of the Services.
6. TERMINATION/ MISCELLANEOUS: (6.1) Company reserves the right to terminate this Contract immediately in the event (i) Customer raises any objections and/or resistance to proceeding with any aspect of the Website that cannot be resolved by Company, or (ii) the contract between Web Agency and Company expires or terminates for any reason. (6.2) Either party may terminate this Contract and require payment of any Fees due (without prejudice to other rights and remedies) on notice to the other (the "Defaulting Party") if: (i) the Defaulting Party commits a material breach of this Contract and if the breach is capable of remedy, fails to remedy it during the period of 30 days starting on the date of receipt of notice from the other of such breach. For the avoidance of doubt, the parties acknowledge and accept that any failure on the part of the Company to commence provision of the Service within 30 working days from the date of signature of the Order Form shall not constitute an irremediable breach; or (ii) the Defaulting Party becomes insolvent, proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets; if any petition shall be presented, order shall be made or resolution passed for its winding up (except for a bona fide amalgamation or reconstruction), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers); it shall otherwise propose or enter into any arrangement with its creditors or any class of them or if it ceases or threatens to cease to carry on business. (6.3) Neither party shall without the consent of the other at any time use or disclose to any person, except to its professional representatives or advisers or as required by Law or relevant authority, the terms or existence of this Contract or any confidential information about the business of the other which now or in the future come to its knowledge including, without limitation, making any press release or other public announcement (save that nothing in this clause shall limit Company's right to publicise the Service or to use the Advertisements or Websites in case-studies for marketing purposes). This clause 6.3 shall survive termination. (6.4) By accepting the Contract, Customer hereby consents to the processing of all personal data (including without limitation sensitive personal data) supplied by it to Company and/or Web Agency solely in connection with the provision of the Website; (6.5) Nothing herein shall create a partnership or joint venture or authorise either party to act as agent for the other. No party shall have authority to act in the name of, bind the other or imply any such relationship unless agreed between the parties. This Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or arrangement between them relating to the subject matter of this Contract. Notices shall be in writing and served by hand, prepaid, recorded or special delivery post to the relevant addressee as per the Order Form. A court finding of invalidity or unenforceability of any provision of this Contract shall not affect the other provisions which shall remain in full force. Failure to exercise or delay in exercising a right or remedy does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. This Contract shall be governed by and construed in accordance with the laws of England and Wales and the exclusive jurisdiction of the English courts. The Company reserves the right change the Contract or any aspect of the Service. Where possible, Company shall give Customer prior notice of such change. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Contract. Neither party may declare itself a trustee of the rights under this Contract for the benefit of any third party.