Standard terms & conditions for membership of the Student Beans network
These terms and conditions apply to the Agreement made between THE BEANS GROUP LTD, incorporated and registered in England and Wales with company number 5486885 whose registered office is at 6 Breams Buildings, London EC4A 1QL (“TBG”) and the Client as stated on the booking form (whether electronically or otherwise) by or on behalf of TBG and the Client and which forms an integral part of this Agreement.
1. DEFINITIONS AND INTERPRETATION
- In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:
- “Annual Membership Fee” means the annual membership fee as specified in the booking form.
- “Applicable Law” means all applicable laws, legislation, statutes and statutory instruments, existing from time to time.
- “Authorised User” means a Customer who accesses the SBiD Platform via the Client Website(s);
- “Brand” means one or more of the brands of the Client
- “Brand Data” means data in any form whatsoever associated with any Brand
- “Brand Marks” means the brand names, logos and/or marks of the Client.
- “Brand Materials” means all visual content and copy, including any Brand Marks owned by the Client and given to (or made accessible to) TBG for use in connection with the Services;
- “Client’s Affiliate Programme” means any affiliate programme owned or operated by or on behalf of the Client;
- “Client’s Website” means any one or more websites which is owned or operated by or on behalf of the Client to market goods or services and shall include any technologies or devices on which such websites may be accessed from time to time during the Term of this Agreement;
- “Business Day” means each day which is not a Saturday or Sunday or a bank or public holiday in England;
- “Business Hours”: 9am until 5pm on Business Days;
- “Charges” means the Annual Membership Fee and other charges for the Services set out in the booking form;
- “Commencement Date” means the date stated in the booking form;
- “Charges”means the charges for the Services set out in the booking form.
- “Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other party’s or its Group Companies’ business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which (a) is available to the public other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
- “Content” means any content provided by TBG to the Publisher relating to Student Vouchers
- “Customer” means a consumer who uses a Client Website;
- “Data Protection Legislation” means all applicable data protection legislation, including without limitation the Data Protection Act 1998 and all orders made, and codes of practice issued, under it, including without limitation the Privacy and Electronic Communications (EC Directive) Regulations 2003;
- “Initial Term” means the period specified in the booking form;
- “Insolvency Event” means in relation to either party, any of the following events: (a) a meeting of creditors of that party being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that party; (b) a chargeholder, receiver, administrative receiver or other similar party taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that party; (c) that party ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (d) that party or its directors or the holder of a qualifying floating charge or any of its creditors giving notice of their intention to appoint, appointing or making an application to the court for the appointment of, an administrator; (e) a petition being advertised or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that party; and/or (f) the happening in relation to that party of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;
- “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
- “List Territories” means the territories listed in the booking form;
- “Publisher” means any publisher to whom TBG distributes Student Vouchers
- “Renewal Term” means any period beyond the Initial Term as stipulated in accordance with the terms of this Agreement;
- “SBiD mark and logo” means the mark and logo owned or operated by or on behalf of TBG;
- “SBiD Data” means the information collected and/or generated through Authorised Users’ registration for and use of the SBiD Platform (including but not limited to Authorised Users’ email address and password), but excluding any Brand Data and Brand Materials;
- “SBiD Platform” means the digital student verification ‘Student Beans iD’ software tool and all associated software as may be modified or updated from time to time;
- “Services” means the following services made available to the Client as a member of the Student Beans Network or as maybe otherwise agreed in writing: (1) the Smart Overlay (2) the SBiD Platform (3) the Student Discount Syndication Platform;
- “Smart Overlay” means the service owned by TBG that can identify the probability of a Customer on the Client’s website(s) being a student and then show them a customised message
- “Student Beans Network” means TBG and is the company that provides the Services to the Client
- “Student Discount Syndication Platform” means any digital method use by TBG, in its sole discretion, to transfer the Content to Publishers for the purposes of the Publisher’s distribution on the Site(s) and/or Application(s) pursuant to this Agreement, including, without limitation, transmission via a direct connection, individual links, API, feeds, web interface, FTP, plugin, widget, module, iframe, extension or such other method as determined by TBG;
- “Student Voucher” means any offer, voucher, discount, or promotion of the Client made available by the Client to TBG for the purpose of distribution to Publishers;
- “TBG Marks” means the brand names, logos and marks of TBG including any referred to in this Agreement;
- “Term” means the duration of this Agreement including any Renewal Term.
- “User Data” has the meaning set out below
- “VAT” value added tax chargeable under English law for the time being and any similar, additional tax.
- “Virus” means any computer software intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised access to or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices.
- In this Agreement unless the context otherwise requires:
- reference to a person includes a legal person (such as a limited company) as well as a natural person;
- clause headings are for convenience only and shall not affect the construction of this agreement;
- reference to “including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;
- reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; and words in the singular shall include the plural and vice versa.
2. COMMENCEMENT DATE AND TERM OF AGREEMENT
- This Agreement shall come into force on the Commencement Date and unless terminated earlier in accordance with the provisions set out below or as otherwise permitted as a matter of law shall continue and remain in effect for the Initial Term and shall be automatically renewed for successive periods of 12 months commencing at the end of the Initial Term or Renewal Term unless either party gives at least 30 days’ written notice to the other prior to the expiry of the existing term, in which case this Agreement shall terminate upon the expiry of the existing Term (the “Term of the Agreement”).
3. TBG’S RESPONSIBILITIES
- Following receipt of the Annual Membership Fee plus any applicable VAT and subject to the continuing performance by the Client of its obligations under this Agreement, TBG agrees during the Term of the Agreement to provide the Client with the Services and, in that connection, to grant the Client a non-exclusive, non-transferable right to use the Services subject always to the terms of this Agreement.
- TBG may, at its sole discretion, choose to modify or update the Student Discount Syndication Platform, the Smart Overlay and the SBiD Platform from time to time.
- TBG reserves the right in its sole discretion to determine all matters concerning the configuration and other administrative or operational issues for the Student Discount Syndication Platform, the Smart Overlay and the SBiD Platform as it deems necessary or helpful in the normal course of business
- The Annual Membership Fee plus any applicable VAT shall be due and payable as set out in the booking form and, unless otherwise stated, shall be due and payable immediately.
- Without prejudice to any other right or remedy TBG may have and unless otherwise stated, if the Client fails to make payment of the Annual Membership Fee under this Agreement on or before the due date for payment, then TBG shall be entitled to claim interest on the unpaid amount under the Late Payment of Commercial Debts (Interest) Act 1998.
- TBG shall be entitled to increase or change the Annual Membership Fee and/or the terms of this Agreement on or after the start of each Renewal Term upon 30 days’ prior notice to the Client and, unless the Client otherwise gives written notice of objection within such 30 day period, the Charges set out in the booking form and the terms of this Agreement shall be deemed to have been amended accordingly.
- Affiliate commission shall be payable by the Client on sales made via the Client’s website(s) by Customers referred by Publishers. The affiliate commission shall be tracked, charged and payable in accordance with the Client’s Affiliate Programme run by its preferred affiliate network and (unless otherwise agreed in writing) at its most favourable rate of affiliate commission.
5. CLIENT’S OBLIGATIONS
- The Client acknowledges that on sales of any goods and services using the Services, it and not TBG is the selling contracting party and is solely responsible for supplying the relevant goods or services, providing refunds to customers and calculating payment of VAT and, in doing so, complying with all Applicable Laws.
- The Client shall:
- Pay the Annual Membership Fee set out in the booking form plus any applicable VAT and any other applicable Charges as may be due from time to time under this Agreement without deduction, withholding or set-off.
- Use the SBiD Platform on the Client’s website(s) in the List Territories to offer its Customers a student discount.
- Use the Smart Overlay on the Client’s website(s) to promote the availability of its student discount to relevant Customers with targeting and frequency to be agreed between the parties.
- Provide such Brand Materials, Brand Data and Brand Marks as is reasonably required by TBG for the purposes of the Services;
- Provide access to the SBiD Platform from the Client’s website and unless otherwise agreed provide a link from the homepage of Client’s website;
- Provide such information as TBG may reasonably require from time to time in order to perform its own obligations under this Agreement and generally co-operate in an efficient and timely manner with TBG in the design, setup and maintenance of the SBiD Platform and the Smart Overlay on the Client’s website.
- Ensure TBG is accepted on its affiliate programme run via its prefered affiliate network.
- Ensure that whenever the Client promotes the availability of its student discount including (without limitation) via its websites, email, social media, off line media or via 3rd parties to feature information about its use of the SBiD Platform
- Ensure that Customers using the SBiD Platform can access the Client’s best available Student Voucher or other discount. For purposes of clarity this means that if the Client provides a more advantageous Student Voucher or other discount to students elsewhere this same Student Voucher or other discount must also be available to Customers via the SBiD Platform.
- Be solely responsible for providing configuring and maintaining its systems and all hardware, software and network connections necessary to enable it to connect to the internet to use the Services and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
- Promote the availability of its student discount at least once per quarter either online or offline;
- Provide TBG with a monthly performance report that includes the value and number of sales generated via the SBiD Platform.
- The Client shall not:
- except as expressly permitted by this Agreement, permit any third party to access or use the Services or use the same on behalf of any third party;
- copy, translate, modify, adapt or create derivative works from the Services;
- attempt to discover or gain access to the source code for the Services or reverse engineer, modify, decrypt, extract, disassemble or decompile the Services;
- obscure, amend or remove any copyright notice, trademark or other proprietary marking on, or visible during the operation or use of, the Services;
- use the Services for any unlawful purpose or to upload, store, post, email, transmit or otherwise make available any Viruses or Inappropriate Content.
- Procure, develop or use similar, alternative or competing Services for the duration of the term unless otherwise agreed in writing between the parties.
- approach Publishers directly with the aim of running, facilitating or verifying a student discount outside of the Student Beans Network or without the use of the Services.
- Run, promote or provide a student discount outside of the Student Beans Network that is stronger, deeper or better that the discount it makes available via the Services.
- TBG warrants and represents to the Client that:
- it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement;
- the Services shall be performed with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry and all Applicable Laws;
- it will use good industry practice to seek to avoid introducing any Viruses into the
- Client’s Website;
The Client warrants and represents to TBG that:
- it has all rights, licenses, consents and approvals necessary to enter into and to perform its obligations under this Agreement;
- it will perform its obligations under this Agreement with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry and all Applicable Laws; and
- it will use good industry practice to avoid introducing any Viruses into the Services.
7. CONFIDENTIALITY AND PUBLICITY
- The Client acknowledges and agrees that the Services and the terms of this Agreement including, in particular, the Annual Membership Fee and pricing structure, constitute Confidential Information of TBG. TBG acknowledges that the terms of this Agreement, including in particular the Annual Membership Fee and pricing structure, constitute Confidential Information of the Client.
- Subject to clause 7.3, each party shall:
- keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
- apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
- only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
- not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and subcontractors on a ‘need to know’ basis as strictly required for the purposes of this agreement and subject to each such person being bound by an obligation of confidentiality no less onerous than this clause); and
- promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
- Either party may disclose the other’s Confidential Information to the extent required by law or by any court, tribunal, regulatory or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
8. INTELLECTUAL PROPERTY AND DATA
- Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
- TBG and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the TBG Marks, the SBiD Platform, the Smart Overlay and the Student Discount Syndication Platform and all associated software and data; and all goodwill in the use of the TBG Marks the SBiD Platform, the Smart Overlay and the Student Discount Syndication Platform shall be owned by TBG.
- Subject always to the other terms of this Agreement, TBG hereby grants to the Client a perpetual royalty-free worldwide non-exclusive non-transferable licence to use that part of the name and email address of any Authorised Users who has given their consent to receive marketing emails from the Brand (“User Data”). TBG shall provide the relevant Brand with all User Data for Authorised Users who have consented to receive marketing emails from the Brand in that week.
- The Client and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Brand Data, Client Websites and Brand Materials. The Client grants TBG, a non-exclusive, non-transferable worldwide royalty-free licence to use the Brand Marks, Brand Data and Brand Materials to such extent as is necessary to enable TBG to provide the Services and to perform its obligations under this Agreement; and in the case of the Brand for the provision of marketing and promotional services.
9. LIMITATION OF LIABILITY
- Notwithstanding any provision to the contrary, nothing in this Agreement shall limit or exclude TBG’s liability for death, personal injury, fraud, fraudulent misrepresentation and any liability which may not be lawfully limited or excluded.
- Neither Party shall be liable in any circumstances to the other Party for consequential, special or indirect losses or the following losses whether direct or indirect: loss of profits, loss of revenue, economic loss, loss of business or contracts, loss of anticipated savings or goodwill, loss of data (or any losses arising from a claim by a third party for any of the above losses) whether arising under contract, statute, tort (including, without limitation negligence) or otherwise.
- Subject to Clauses 9.1, 9.2 and 9.4:
- The aggregate liability of TBG for all claims arising under or in connection with this Agreement (whether arising under contract, statute, tort (Including without limitation negligence) or otherwise) shall be limited to the actual charges paid to TBG by the Client under this Agreement during the 12 months immediately preceding the date on which the claim arose; and
- The liability of TBG for all claims arising from a single event or series of events under this Agreement (whether arising under contract, statute, tort (Including without limitation negligence) or otherwise) shall be limited to the charges actually paid to TBG by the Client under this Agreement which relate to the transactions in question i.e. relating to the particular event on or at a particular date and time.
- TBG will not be liable for:
- Any failure to comply with the provisions of this Agreement if such default is attributable to any extent to the acts or omissions of the Client its agents, employees or contractors including without limitation the failure of the Client to perform its obligations under this Agreement;
- Any consequences arising from TBG complying with the Client’s instructions or requirements;
- Any consequences arising from the Client failing to secure any necessary consents, licences or permissions;
- Any consequences arising from the Client failing correctly to enter information into its own system(s);
- Any act or omission of the Client in connection with the promotion and publicising of events.
- Nothing in this Clause shall exclude or restrict the Client’s obligation to pay the Charges.
- The Charges have been calculated on the basis that each Party will exclude and limit its liability as set out in this Agreement and the Parties expressly agree that the limitations and exclusions of liability in this Agreement are reasonable.
- Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement with immediate effect on written notice to the other if:
- the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
- the other party commits any act which causes or may cause reputational damage to the first party;
- the other party suffers an Insolvency Event;
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
- Upon termination of this Agreement for any reason, the Client shall immediately cease to utilise any of the Services;
- Without prejudice to the foregoing, clauses 6, 7, 8 and 9 shall survive termination of this Agreement.
11. FORCE MAJEURE
- Nothing in this Clause shall exclude or restrict the Client’s obligation to pay the Charges.
- Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, cyber-attack, act of terrorism, governmental act, war, fire, flood, explosion or civil commotion (“Force Majeure Event”).
- In the event of either party being delayed or prevented from performing its obligations under this Agreement as a result of a Force Majeure Event such party shall:
- give notice in writing of such delay or prevention to the other party as soon as reasonably possible stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
- use all reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under this agreement; and
- resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
- No variation of this Agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
- Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude 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 this agreement or by law shall preclude or restrict the further exercise of that right or remedy. A waiver (which may be given subject to conditions) of any right or remedy provided under this Agreement or by law shall only be effective if it is in writing.
- Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
- If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
- If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
15. ENTIRE AGREEMENT
- This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this Agreement.
- Each party acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- either party shall, without the prior written consent of the other party, assign, transfer, charge, mortgage or subcontract this agreement or all or any of its rights or obligations under this Agreement.
17. NO PARTNERSHIP OR AGENCY
- Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. RIGHTS OF THIRD PARTIES
- A person or body who is not a party to this Agreement has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement (but this does not affect any rights or remedies of a third party which exist or are available apart from that Act).
- A notice given to a party under or in connection with this Agreement:
- shall be in writing and sent for the attention of the person, at the address, email or fax number specified in this clause (or to such other address, email or fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and
- shall be delivered personally; or sent by commercial courier; or sent by email or fax; or sent by pre-paid recorded delivery; or sent by airmail requiring signature on delivery.
- The addresses for service of a notice are as follows:
- Unit 420 Highgate Studios, 53-79 Highgate Road, London, NW5 1TL
- for the attention of: The Commercial Director
- Client: Details as shown on the booking form.
- If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows: (a) if delivered personally, at the time of delivery; or (b) if delivered by commercial courier, at the time of signature of the courier’s receipt; or (c) if sent by fax, at the time of transmission; or (d) if sent by pre-paid recorded delivery, at 9.00 am on the second day after posting; or if sent by airmail, five days from the date of posting. For the purposes of this clause, all times are to be read as local time in the place of deemed receipt; and if deemed receipt under this clause is not within Business Hours on a Business Day, the notice is deemed to have been received on the next Business Day.
- The provisions of this clause shall not apply to the service of any process in any legal action or proceedings.
- Day to day communications under this Agreement in the ordinary course of the Services may be sent by email.
20. DISPUTE RESOLUTION
- The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or related to this Agreement (or its construction, validity or termination) (a “Dispute”). If a Dispute cannot be so settled within ten (10) Business Days after the Dispute has arisen, either party may give to the other a notice in writing that the Dispute has arisen (a “Dispute Notice”). Within five (5) Business Days of the Dispute Notice being given, the Dispute shall be referred to a senior executive of each of the parties for resolution. If the Dispute is not settled by agreement in writing between the parties within thirty (30) Business Days after the date of the Dispute Notice, then the parties may (but shall have no obligation to) agree to opt for mediation.
- Any mediations shall be in accordance with the procedures of the Centre for Effective Dispute Resolution (CEDR). The mediation shall be conducted by a single mediator appointed by the parties or, if the parties are unable to agree on the identity of the mediator within fourteen (14) days after the date of the request that the dispute be resolved by mediation, or if the person appointed is unable or unwilling to act, the mediator shall be appointed by CEDR on the application of either party. The mediation shall be conducted in English at the offices of CEDR in London or such other location as the parties agree in writing. Mediation is without prejudice to the rights of the parties to injunctive relief or to the rights of the parties in any future proceedings in the courts or otherwise.
- Nothing in this clause shall prevent either party from issuing legal proceedings.
- This Agreement may be executed in counterparts and delivered in electronic form by facsimile transmission, email or in original hard copy. Each such counterpart shall be deemed an original and when considered together shall be one agreement.
22. GOVERNING LAW AND JURISDICTION
- This Agreement shall be governed by English law. The parties shall endeavour to resolve any dispute arising out of or in connection with this Agreement in good faith failing which such dispute shall be referred to arbitration in London. It is hereby agreed that pursuant to s63(1) of the Arbitration Act 1996, the recoverable costs of any party shall be limited to £1000.