me:now Platform Evaluation Terms

BACKGROUND:

  1. me:now has developed a platform which allows consumers to locate traders and businesses who can provide services to them at a time and place which is convenient for the consumer rather than the trader or business (“Platform”).
  2. me:now is the entire legal and beneficial owner and licensor of the Platform.
  3. The Platform at beta.menow.co.uk is now in pre-launch form.
  4. me:now has invited the Evaluator to use and evaluate the Platform prior to launch.
  5. me:now has agreed to grant the Evaluator a licence to use and evaluate the Platform (including posting its Availability) upon these terms and conditions (“Permitted Purpose”).

NOW IT IS HEREBY AGREED as follows:

1              USING THE PLATFORM

In consideration of me:now allowing the Evaluator access to the Platform, the Evaluator accepts these Terms and agrees to comply with them.

2              PASSWORD AND LOG-IN

2.1          me:now will provide the Evaluator with the facility to create a user name and a password, enabling it to access the Platform for the Permitted Purpose.

2.2          The Evaluator undertakes that only the Evaluator’s employees will use the password and log-in to access the Platform and that it shall not, and shall procure that its employees shall not, provide the password and log-in details directly or indirectly to any other third party, including but not limited to me:now’s competitors.

3              THIRD PARTY PLATFORMS

3.1          The Evaluator acknowledges that:

3.1.1             it is required to have an account with the Third Party Platform to benefit from the full functionality of the Platform;

3.1.2             me:now has no control over the Third Party Platform and all matters relating to the Third Party Platform shall be subject to that Third Party Platform’s terms and conditions.

4              EVALUATION

4.1          me:now hereby grants to the Evaluator a non-exclusive, non-transferable, personal, royalty-free licence to use and evaluate the Platform and the Information solely for the Permitted Purpose (which includes posting its Availability on the Platform) subject to these Terms.

4.2          During the Evaluation Period the Evaluator shall participate in the evaluation of the Platform and the Information and shall report to me:now’s personnel all faults and problems with the Platform and Information which it discovers and shall co-operate with such personnel in diagnosing and correcting such faults and problems.

4.3          me:now shall during the Evaluation Period use its reasonable endeavours to provide the Evaluator with support services to resolve bugs and provide fixes in respect of the Platform that the Evaluator reports to me:now through the messaging service on the Third Party Platform (“Support Services”).

4.4          The Evaluator shall complete and return to me:now any evaluation forms provided with the Platform by the date specified on such evaluation forms.

5              TITLE AND RISK

5.1          The Platform and the Information is confidential and proprietary to me:now and title to the Platform and to any modifications which may be made to them shall remain with me:now at all times.

5.2          Risk in the Platform and the Information shall remain with me:now but the Evaluator shall take all reasonable steps to safeguard the Platform and Information from loss or damage.

6              EVALUATOR’S OBLIGATIONS

6.1          The Evaluator shall:

6.1.1        except as expressly provided in these Terms, not use, reproduce, dispose of, deal with, rent, lease, sub-license, loan, modify, adapt, reverse engineer, decompile or disassemble the whole or any part of the Platform or the Information;

6.1.2        keep the log-in and password details to the Platform in its exclusive possession and control and safeguard them from access by any unauthorised person;

6.1.3        not incorporate the Platform or the Information (in whole or in part) or allow them to be incorporated in any other software or documentation;

6.1.4        not undertake any action in relation to the Platform that may infringe any third party's Intellectual Property Rights, other proprietary rights or rights of privacy;

6.1.5        not, when using the Platform, violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);

6.1.6        not use the Platform to promote any illegal or unlawful activity;

6.1.7        not post anything on the Platform which is defamatory, discriminatory libellous, unlawfully threatening or unlawfully harassing;

6.1.8        not post anything on the Platform which is obscene or pornographic or involves child pornography;

6.1.9        not use the Platform in a manner that violates any laws regarding unfair competition, anti-discrimination or false advertising;

6.1.10      not introduce to the Platform any viruses or other computer programming routines that are damage, detrimentally or interfere with the Platform or surreptitiously intercept or expropriate any system, data or personal information from the Platform;

6.2          The Evaluator shall indemnify me:now against any claims, losses, liabilities, damages (including reasonable costs), charges and expenses of whatever nature arising out of or in connection with any claim or action made against me:now as a result of the Evaluator’s breach or failure to comply with clause 6.1.

7              CONFIDENTIALITY

7.1          In consideration of the disclosure by me:now to the Evaluator of the Platform and the Information for the Permitted Purpose, the Evaluator undertakes that it will respect and preserve the confidentiality of the Information for a period of five years after the date of such disclosure (subject to clause 7.3 below). The Evaluator shall not without the prior written consent of me:now:

7.1.1             communicate or otherwise make available the Information to any third party; or

7.1.2             use the Information itself for any commercial, industrial or other purpose other than the Permitted Purpose; or

7.1.3             copy, adapt, or otherwise reproduce the Information save as strictly necessary for the Permitted Purpose.

7.2          The Evaluator may disclose the Platform and Information or any part thereof, with the prior consent of me:now, to any employee of the Evaluator who needs access to the Platform and the Information in connection with the Permitted Purpose. In such an event the Evaluator agrees to ensure, before such disclosure, that the employee in question is made aware of the confidential nature of the Platform and Information and understands that it is bound by conditions of secrecy no less strict than those set out here. The Evaluator agrees to monitor the use of the Platform and Information by these employees and to enforce their obligations of confidence at the request of me:now.

7.3          The obligations contained in this clause 7 shall not apply, or shall cease to apply, to such part of the Information as the Evaluator can show to the reasonable satisfaction of me:now:

7.3.1             has become public knowledge other than through the fault of the Evaluator or an employee or director of the Evaluator to whom it has been disclosed in accordance with clause 7.2 above; or

7.3.2             was already known to the Evaluator prior to disclosure to it by me:now; or

7.3.3             has been received from a third party who neither acquired it in confidence from me:now, nor owed the Evaluator a duty of confidence in respect of it.

8              TERM AND TERMINATION

8.1          These Terms shall be effective for the Evaluation Period unless extended by me:now in writing, but shall be subject to earlier termination as hereinafter provided.

8.2          These Terms may be terminated or suspended by me:now in accordance with clause 9 at any time.

8.3          These Terms may be terminated immediately by either party on giving notice in writing to the other party if the other party has any step, application, order, proceeding or appointment taken or made by or in respect of it for distress, execution, composition or arrangement with creditors, winding-up, dissolution, administration, receivership (administrative or otherwise), striking off, liquidation, or bankruptcy, or if it is unable to pay its debts or ceases to carry on business as a going concern.

8.4          These Terms may be terminated forthwith by me:now on giving notice in writing to the Evaluator if:

8.4.1        the Evaluator shall commit any material breach of these Terms; or

8.4.2        the Evaluator materially changes the nature of its business as carried out at the date of these Terms.

8.5          Any termination of these Terms (howsoever occasioned) shall not affect any accrued rights or liabilities of either party 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.

8.6          Upon termination of these Terms the Evaluator’s licence to use the Platform shall terminate automatically and the Evaluation shall surrender up to me:now any Information that me:now has provided to the Evaluator in relation to the Platform.

9              RESERVATION OF RIGHTS

9.1          me:now reserves the right to at any time at its sole discretion:

9.1.1        discontinue or suspend the Evaluator’s access to the Platform forthwith (by giving no less than 14 days’ notice in writing to the Evaluator), whereupon these Terms shall automatically terminate; and

9.1.2        restrict the Evaluator’s access to some of all of the Platform or withdraw, suspend or amend the Platform on reasonable notice.

10           INTELLECTUAL PROPERTY RIGHTS

The Evaluator acknowledges that all Intellectual Property Rights in the Platform and the Information and any modification to the Platform and the Information belong and shall belong to me:now and the Evaluator shall have no rights in or to the Platform or the Information other than the right to use them in accordance with the terms of these Terms and nothing in these Terms shall operate as an assignment to the Evaluator of the Intellectual Property Rights.

11           LIABILITY

11.1       Because of the developmental nature of the Platform and the Information, me:now does not warrant to the Evaluator that the Platform or Information is free from faults or defects.

11.2       Subject to clause 11.3, the Evaluator shall use the Platform and the Information at its own risk and in no event shall me:now be liable to the Evaluator for any loss or damage of any kind (except personal injury or death resulting from me:now’s negligence) arising from the Evaluator’s use of or inability to use the Platform or the Information or from faults or defects in either whether caused by negligence or otherwise.

11.3       The Evaluator shall only use the Platform and the Information for the Permitted Purpose and for no other purpose.

11.4       The Evaluator acknowledges and agrees that any breach of these Terms would cause irreparable injury to me:now and damages alone may not be an adequate remedy. In the event of a breach or threatened breach by the Evaluator:

11.4.1      me:now shall be entitled to injunctive relief in any court of competent jurisdiction and the Evaluator shall not oppose any such application; and

11.4.2      the Evaluator shall indemnify me:now against all costs, claims, demands, losses, expenses and liabilities arising directly or indirectly out of a breach of these Terms.

11.5       me:now does not warrant that the use of the Platform will be uninterrupted or error-free and shall not be liable to the Evaluator for any losses or damages which may be suffered by the Evaluator as a result of any downtime or errors.

11.6       The Evaluator acknowledges and agrees that the Platform allows the Evaluator to make its Availability to Customers but that me:now is not responsible or liable in any way for:

11.6.1           any act or omission of a Customer, including the failure of a Customer to be available for an appointment made between the Evaluator and a Customer; and

11.6.2           any contract between the Evaluator and a Customer for the provision of any services or goods.

11.7       The express terms of these Terms are in lieu of all warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.

12           DATA PROTECTION

To the extent the Evaluator enters or processes any personal data in relation to the Platform, the Evaluator warrants that such personal data entered or processed in relation to the Platform by its employees or other users complies fully with the Data Protection Act 1998 and associated legislation and hereby indemnifies me:now against any infringement of such legislation.

13           ADVERTISEMENT AND PROMOTION

13.1       The Evaluator shall participate in any publicity, promotion or advertisements as reasonably requested by me:now at the cost of me:now.

13.2       The Evaluator shall not publicise, promote or advertise the Platform without the prior written consent of me:now.

14           WAIVER OF REMEDIES

No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15           ENTIRE AGREEMENT

15.1       These Terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.2       Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.

16           ASSIGNMENT

16.1       me:now may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Terms.

16.2       The Evaluator shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms.

17           NOTICES

17.1       Any notice given to a party under or in connection with these Terms shall be in writing and shall be:

17.1.1           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

17.1.2           sent by email to the following addresses:

17.1.2.1       in relation to me:now: info@menow.co.uk; and

17.1.2.2       in relation to the Evaluator: to the email address provided to me:now to allow the Evaluator to log into the Platform.

17.2       Any notice shall be deemed to have been received:

17.2.1           if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

17.2.2           if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

17.2.3           if sent by email, at 9.00 am on the next Business Day after transmission.

17.3       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.

18           SUB-CONTRACTS

The Evaluator shall not enter into any subcontract with any person for the performance of any part of these Terms.

19           SEVERABILITY

Notwithstanding that the whole or any part of any provision of these Terms may prove to be illegal or unenforceable the other provisions of these Terms and the remainder of the provision in question shall remain in full force and effect.

20           THIRD PARTIES

The parties confirm their intent not to confer any rights on any third parties by virtue of these Terms and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to these Terms.

21           GOVERNING LAW AND JURISDICTION

21.1       These Terms 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 law of England and Wales.

21.2       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 these Terms or its subject matter or formation..

22           INTERPRETATION

The following definitions and rules of interpretation shall apply in these Terms:

22.1       Definitions

“Availability” the Evaluator’s availability for specific time-slots to provide the Evaluator’s services to Customers;

“Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

“Customers” any users who may wish to use the Evaluator’s services following the Evaluator posting its Availability on the Platform;

“Evaluation Period” from 10 July 2017 until 1 September 2017;

“Evaluator” the company or other corporate entity provided access to the Platform following an invitation from me:now to evaluate the Platform for the Permitted Purpose;

“Information” any information or documentation owned by me:now and obtained by the Evaluator relating to the Platform;

“Intellectual Property Rights” patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;

me:now: means You Too Me Now Limited incorporated and registered in England with company number 10153607 whose registered office is at 61 Foxdene, Seasalter, Whitstable, Kent, CT5 4QY;

“Platform” as described in the Background at point B shall include any modified or updated version thereof made available to the Evaluator, where the context so requires, any other version supplied by me:now from time to time;

“Third Party Platform” Facebook

22.2       Clause headings will not affect the interpretation of these Terms.

22.3       Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

22.4       A reference to any party shall include that party's personal representatives, successors and permitted assigns.

22.5       A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time (including any subordinate legislation made from time to time under that statute or statutory provision).

22.6       Writing or written includes e-mail but not fax.

22.7       Any words following the terms including, include, in particular or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.

22.8       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).