Last updated 10 February 2021
Bowimi has developed software applications and a platform through which it makes promotions from Brands and Venues available to Bowimi Users. These Terms and Conditions (Terms) will apply to the Venue’s use of Bowimi’s services to offer its own promotions or third-party Brands’ promotions to its customers.
DEFINITIONS AND INTERPRETATION
The following definitions apply in these Terms:
Bowimi: Bowimi Limited (registered number 11641407) whose registered office is at 1 Widcombe Crescent, Bath, England, BA2 6AH.
Bowimi Guest WiFi: the guest WiFi service to be set up and provided by Bowimi at the Venue’s premises in accordance with Clause 11.
Bowimi Platform: Bowimi’s proprietary platform through which it provides the Services.
Bowimi Users: individuals who have registered to receive promotional offers from Bowimi.
Brand: a third-party Brand who has registered an account with Bowimi to offer Brand Promotions via the Services.
Brand Promotion: a promotional campaign being offered by a Brand for promotion to Bowimi Users through the Services.
Confidential Information: all confidential and proprietary information belonging to a disclosing party including (without limitation) any content, document, image or any information relating to the (i) the Services, (ii) the financial affairs, business, clients, suppliers or market opportunities of the disclosing party and (iii) the data, operations, processes, product information, know how, technical information or trade secrets of the disclosing party, in whatever medium (including oral, visual or electronic form) and including all confidential information identified at the time of disclosure or confirmed in writing as confidential, as well as any information that, due to the circumstances under which it is disclosed, a reasonable person would infer as being confidential.
Confirmation: a written confirmation issued by Bowimi with full details of any Services to be provided from time to time.
Contract: the contract between Bowimi and the Venue for the supply of Services in accordance with these Terms.
Gifts: free gift made available to Bowimi Users as part of a Brand Promotion or Venue Promotion.
Minimum Term: the minimum term (if any) of the Contract, as agreed in writing between Bowimi and the Venue.
Services: the services to be provided by Bowimi under these Terms via its Software and the Bowimi Platform which may include: (i) making Bowimi Guest WiFi available to the Venue’s customers; (ii) making Venue Promotions available to Bowimi Users; (iii) making Brand Promotions available to Bowimi Users within the Venue’s premises; and (iv) providing the Venue with anonymised information in relation to the take-up of any Venue Promotion by Bowimi Users. Full details of any Services to be provided from time to time will be set out in a Confirmation.
Software: the proprietary software and tools used by Bowimi to provide the Services.
Venue: a venue who has registered an account with Bowimi to promote Venue Promotions and Brand Promotions in its premises in accordance with these Terms.
Venue Promotion: a promotional campaign being offered by a Venue that the Venue wishes to promote to Bowimi Users using the Services.
Venue Content: means any content, documents, files and materials detailing Venue Promotions uploaded to the Bowimi Platform or provided to Bowimi by the Venue.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and their respective personal representatives, successors and permitted assigns.
Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
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 writing or written includes email.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
A reference to these Terms (or to any other agreement or document referred to in these Terms) is a reference of these Terms (or such other agreement or document) as may be varied from time to time.
Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
References to Clauses and Schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant Schedule to these Terms. Clause and Schedule headings will not affect the interpretation of these Terms.
By registering an account with Bowimi via the Bowimi Platform, the Venue enters into the Contract with Bowimi and agrees that these Terms will apply to its use of the Services to the exclusion of any other terms the Venue seeks to include or which are implied by law, practice or course of dealing. The Venue agrees to comply with these Terms at all times in its use of the Services.
Each party warrants that it has all requisite power and authority to enter into the Contract and its entry into the Contract does not violate or constitute a breach of any other agreement to which it is a party or otherwise bound.
Full details of any Services that are requested by a Venue via the Bowimi Platform or otherwise will be confirmed by Bowimi via a Confirmation. Bowimi will not be under any obligation to provide any Services unless and until such Confirmation has been issued.
SUPPLY OF SERVICES
Bowimi warrants as follows:
the Services will conform substantially with any specification or description provided by Bowimi;
it will provide the Services with reasonable care and skill and in accordance with current best practice within Bowimi’s industry; and it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
If the Services do not conform with the warranties in Clause 3.1, Bowimi will use reasonable commercial endeavours to correct any non-conformance promptly or provide the Venue with an alternative means of accomplishing the desired performance. If Bowimi is unable to provide either of these solutions within a period of thirty (30) days from notification of the non-conformance, the Venue will be entitled to terminate the Contract by immediate written notice. Such correction or remedy constitutes the Venue’s sole and exclusive remedy for breach of the warranties in relation to the Services.
Bowimi will fix any faults and errors in the Software which it becomes aware of as soon as reasonably possible, however, Bowimi does not warrant: (a) that the Venue’s use of the Services will be uninterrupted or will be free from minor non-critical faults or errors which do not materially affect the functionality of the Services; or (b) that the Services will meet the Venue’s business requirements.
The warranties given at Clause 3.2 above will not apply to any non-conformance which is caused by the use of the Services contrary to Bowimi’s instructions, or due to any modification or alteration of the Services by any party other than Bowimi or its authorised contractors.
Bowimi will not be responsible for any delays, delivery failures, or any other loss or damage resulting from the Services or the transfer of data over communications networks and facilities, including the internet, and the Venue acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Bowimi will provide the Services using infrastructure, software and services as selected by Bowimi. Such specification is subject to change at any time at Bowimi’s sole discretion provided this does not have a material detrimental effect on the delivery of the Services.
Except for the express warranties contained in these Terms, neither party makes any warranties to the other party, express or implied, including, without limitation, any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. All such other conditions, warranties and terms are hereby disclaimed.
USE OF THE SERVICES
Subject to the Venue’s compliance with these Terms, Bowimi hereby grants to the Venue a non-exclusive, non-transferable right to access and use the Services solely to promote Venue Promotions and Brand Promotions for the Venue’s internal business operations.
The Venue will:
provide Bowimi with all necessary information, access and co-operation as may be required by Bowimi in order to provide the Services;
comply with all applicable laws and regulations with respect to its use of the Services including all applicable law in any relevant jurisdiction where the Venue promotes any Venue Promotion or Brand Promotion via the Bowimi Platform;
be solely responsible for: (a) procuring and maintaining the availability of network connections and telecommunications links to or from the Venue’s systems for Bowimi to provide the Services; (b) maintaining the availability of any guest WiFi service (unless Bowimi is providing Bowimi Guest WiFi as part of the Services); and (c) any problems, conditions, delays, delivery failures and all other loss or damage arising from the network connections and telecommunications links to or from to or from the Venue’s systems.
The Venue is at all times responsible for protecting the security of its network and systems and will take all necessary steps to ensure that it has in place appropriate protective security measures.
The Venue will not, except to the extent expressly permitted by these Terms or by applicable law: attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
The Venue will not:
access or use all or any part of the Services or Software in order to: (a) build a product or service which competes with the Services; or (b) copy any ideas, features, functions or graphics of the Services; or
use the Services or Software to provide services to third parties (other than as expressly permitted under these Terms); or
licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third party; or
attempt to obtain, or assist third parties in obtaining, access to the Services or Software, other than as provided under these Terms.
The Venue will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Bowimi.
The Venue is responsible for ensuring that its network and systems and telecommunications links meet any hardware, operating system, browser and other technical requirements notified by Bowimi which are necessary to properly use and access the Services.
VENUE PROMOTIONS The Venue may promote Venue Promotions to Bowimi Users via the Services. The Venue acknowledges that each Venue Promotion is made available to Bowimi Users by the Venue and the Venue is solely responsible to Bowimi Users for complying with the terms of each Venue Promotion, redeeming all Gifts and for any liability to Bowimi Users which may result from a Bowimi User’s participation in a Venue Promotion.
The Venue may at any time add a Venue Promotion to the Bowimi Platform via its account and will provide all necessary Venue Content (including all relevant terms) for each Venue Promotion. Bowimi will confirm the details of each Venue Promotion to be included in the Services via a Confirmation and it is the responsibility of the Venue to check that all the details (including all Venue Content) are correct and notify Bowimi immediately if there are any discrepancies. The Confirmation will set out details of the fees payable to Bowimi and the terms of the Venue Promotion (including in relation to the number of Gifts available or period of availability).
The Venue acknowledges and agrees that it will be bound to comply with the terms of any Venue Promotion it uploads to the Bowimi Platform and undertakes to ensure that any of its employees or representatives who provide Venue Content have the requisite authority to do so.
The Venue will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Venue Content provided to Bowimi by or on behalf of the Venue. The Venue undertakes that each Venue Promotion will comply with all applicable law in the country where the Venue Promotion is made available.
The Venue will own all rights, title and interest in and to all of the Venue Content. The Venue grants Bowimi a worldwide, non-exclusive, royalty-free licence to access, use, host, copy, distribute, display and transmit the Venue Content solely for the purpose of providing the Services. Other than this limited licence, Bowimi acquires no title, right or interest in or to any Venue Content.
The Venue will not access, store, distribute or transmit any material via the Services that:
infringes any applicable laws, regulations or third party rights;
is harmful, threatening, defamatory, obscene or blasphemous;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is liable to incite racial hatred;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property,
and Bowimi reserves the right, without liability or prejudice to its other rights to the Venue, to remove and/or to disable the Venue’s access to any material that breaches the provisions of this Clause 5.
Bowimi will not be responsible for any loss or destruction of any Venue Content that is uploaded to the Bowimi Platform and the Venue acknowledges that it is solely responsible for backing up all Venue Content. In the event of any loss or damage to Venue Content uploaded to the Bowimi Platform as part of the Services, the Venue’s sole and exclusive remedy against Bowimi will be for Bowimi to use reasonable endeavours to restore the lost or damaged Venue Content from the latest back-up maintained by Bowimi.
After termination of the Contract, Bowimi will have no obligation to maintain or provide any Venue Content and will delete or destroy any copies of such materials stored within the Bowimi Platform after one (1) month from the date of termination.
The Venue undertakes to comply with the terms of any Venue Promotion that it promotes to Bowimi Users through the Services, including to redeem all Gifts validly claimed by Bowimi Users as part of and in accordance with the terms of any Venue Promotion. The parties acknowledge that the Venue shall have discretion to refuse to redeem a Gift if the redemption would be in breach of the terms of the Venue Promotion or any other rules that apply to the Venue (e.g. under a Venue’s premises licence).
If there is any dispute between a Bowimi User and the Venue about whether a Gift can be validly claimed and redeemed under a Venue Promotion, the Bowimi Subscriber may notify Bowimi in which case Bowimi may contact the Venue to verify the position and suggest an appropriate resolution. The Venue agrees to provide all information requested and co-operate fully with Bowimi in these circumstances.
The Venue may send or accept requests to promote Brand Promotions within its premises via the Bowimi Platform. Details of all current Brand Promotions will be available for the Venue to access via the Bowimi Platform together with the terms of each Brand Promotion.
Bowimi will confirm the details of any Brand Promotion selected by the Venue via a Confirmation and it is the responsibility of the Venue to check that all the details are correct and notify Bowimi immediately if there are any discrepancies.
The Confirmation will set out details of the fees payable to Bowimi for the Venue to participate in the Brand Promotion and any obligations of Bowimi to pay the Venue a fee for redemption of Gifts (“Redemption Fee”) under each Brand Promotion. If any other terms relating to the Brand Promotion are agreed directly between the Venue and the Brand, these will be solely between the Venue and the Brand and Bowimi will not be responsible for ensuring they are complied with.
The Venue acknowledges that, where it is receiving stock for redemption of Gifts direct from the Brand, it is the Venue’s responsibility to ensure it has sufficient stocks for the Brand Promotion at all times. If it runs out of stock for a Brand Promotion, the Venue will immediately pause the Venue Promotion via the Bowimi Platform.
Where Redemption Fees are payable under a Brand Promotion, Bowimi will collect the Redemption Fees payable under the Brand Promotion from the Brand and will forward such Redemption Fees to the Venue via its third party payment provider, in accordance with the details and timescale set out in the Confirmation. The Venue acknowledges that Bowimi is not under any obligation to forward any Redemption Fees to the Venue until it has received such payment from the Brand.
Other than as set out above, Bowimi makes no representation or commitment and will have no liability or obligation whatsoever in relation to:
the Venue’s promotion of any Brand Promotion; or
the accuracy of the content of any Brand Promotion,
and it is the responsibility of the Venue to satisfy itself that any Brand Promotion is suitable to be promoted by the Venue through the Services.
The Venue undertakes to comply with the terms of any Brand Promotion that it chooses to promote to Bowimi Users via the Bowimi Platform, including to redeem all Gifts validly claimed by Bowimi Users as part of and in accordance with the terms of any Brand Promotion. The Venue shall have discretion to refuse to redeem a Gift only if the redemption would be in breach of the terms of the Brand Promotion or any other rules that apply to the Venue (e.g. under a Venue’s premises licence).
If there is any dispute between a Bowimi Subscriber and the Venue about whether a Gift can be validly claimed and redeemed under a Brand Promotion, the Bowimi Subscriber may notify Bowimi in which case Bowimi may contact the Venue to verify the position and suggest an appropriate resolution. The Venue agrees to provide all information requested and co-operate fully with Bowimi in these circumstances.
As part of the Services, Bowimi will collect and store data in relation to the take-up of each Venue Promotion and Brand Promotion by Bowimi Users. Bowimi will use this data to keep the Venue informed about the number of Gifts that have been redeemed at any time under a Venue Promotion or Brand Promotion and make available anonymised information to the Venue relating to the effectiveness of each campaign including demographic factors such as age group and gender.
Bowimi will not, as part of the Services, disclose to the Venue any personal data (i.e. details that identify any individual person) relating to Bowimi Users. Bowimi will only provide personal data relating to Bowimi Users to the Venue for Bowimi Users who have expressly consented to Bowimi providing their personal details to the Venue.
The Venue acknowledges that Bowimi will not be liable for any acts or omissions based on the Venue’s reliance on any reports produced by Bowimi in accordance with this Clause 7.
Bowimi will ensure that any user credentials (which may include usernames and passwords or other authentication information) necessary for the Venue’s employees or representatives to use or access the Services are issued.
The Venue will be responsible and liable for all use of the Services by its employees or representatives (including any misuse of the Services via its account) and undertakes to ensure that:
each user keeps confidential and secure the password and/or other authentication information assigned to then for their use of the Services;
each user uses and accesses the Services in compliance with these Terms, in particular, Clause 4.
Bowimi will use commercially reasonable endeavours to maintain availability of the Services 24 hours a day, seven days a week, excluding where availability is interrupted due to:
necessary maintenance (which will be kept to the minimum time possible); or
interruption relating to or the Venue’s network or internet connections.
Bowimi may update the Services from time to time to correct any errors or add new functionality. Bowimi will ensure that no maintenance update or new version will adversely affect the existing facilities or functionality of the Services. If it is necessary for Bowimi to remove any affected functionality in order to mitigate against a virus or vulnerability, Bowimi will inform the Venue in writing as soon as possible and will take all reasonable steps to restore functionality as soon as possible.
The Venue will pay all fees and other amounts payable under these Terms as notified by Bowimi in accordance with this Clause 10.
Fees for any Services to be provided by Bowimi to the Venue will be as set out in a Confirmation. Bowimi will invoice the Venue for the amounts and according to the timescales set out in the Confirmation.
Unless otherwise expressly agreed to in writing by Bowimi, all invoices will be due within thirty (30) days from date of invoice. All amounts and fees stated or referred to in these Terms are: (a) payable in pounds sterling (unless expressly stated otherwise) to Bowimi’s nominated bank account; (b) exclusive of VAT (which will be added to Bowimi’s invoice(s) at the appropriate rate); and (c) non-cancellable and non-refundable (except as set out in Clause 16.7).
If Bowimi has not received payment by the due date, without prejudice to any other rights and remedies of Bowimi: (a) Bowimi may, without liability to the Venue, disable the Venue’s account and access to all or part of the Services and Bowimi will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest will accrue on a daily basis on such due amounts at an annual rate of 4% above the Bank of England base lending rate from the due date until paid.
BOWIMI GUEST WIFI
To the extent that Bowimi has agreed to provide Bowimi Guest WiFi as part of the Services, Bowimi warrants that it will:
set up Bowimi Guest WiFi using suitably experienced, qualified and trained personnel; and
use its reasonable endeavours to ensure that Bowimi Guest WiFi is set up at the Venue’s premises within any timescale set out in the Confirmation and will notify the Venue as soon as possible if it anticipates that completion of the Bowimi Guest WiFi might not be achieved within the time specified.
The Venue acknowledges that it remains responsible at all times for maintaining a suitable internet connection to all premises where Bowimi has agreed to provide Bowimi Guest WiFi.
The Venue acknowledges that the following matters are the sole responsibility of the Venue:
provision of an access point for Bowimi Guest WiFi (unless the Confirmation states that Bowimi will supply an access point as part of the Services);
maintaining an active internet connection to the access point for the Bowimi Guest WiFi; and
maintaining the security of its own networks, systems and any data stored or accessible via the Venue’s own networks.
In the event of any failure or delay by the Venue which means that Bowimi is unable to complete the set-up of Bowimi Guest WiFi as planned, Bowimi reserves the right to charge the Venue any additional costs it incurs. Bowimi will notify the Venue of any such additional costs in writing which will be payable by the Venue in accordance with Clause 10.
INTELLECTUAL PROPERTY The Venue acknowledges and agrees that Bowimi and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated, these Terms do not grant the Venue any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
Bowimi confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
INDEMNITIES The Venue will defend, indemnify and hold harmless Bowimi against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any use by the Venue of the Services in breach of these Terms, including any breach by the Venue of Clause 5.9.
The Venue will promptly notify Bowimi if it becomes aware of any claim that its use of the Services infringes the rights of any third party. Bowimi will defend the Venue against any such claim and will indemnify the Venue against any amounts awarded against the Venue in judgment or settlement of such claims, provided that:
Bowimi is given prompt notice of any such claim;
the Venue provides reasonable co-operation to Bowimi in the defence and settlement of such claim, at Bowimi’s expense;
the Venue immediately ceases to use the Services; and
Bowimi is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Bowimi may procure the right for the Venue to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on immediate written notice to the Venue without any additional liability or obligation to pay liquidated damages or other additional costs to the Venue.
Bowimi’s indemnification obligations under Clause 13.2 do not cover third-party claims arising from:
a modification of the Services or Software by anyone other than Bowimi;
the Venue’s use of the Services or Software in a manner contrary to the instructions given by Bowimi or in breach of these Terms;
the Venue’s use of the Services or Software in combination with any software or products which have not been approved by Bowimi; or
the Venue’s use of the Services or Software after notice of the alleged or actual infringement from Bowimi or any appropriate authority.
Each party acknowledges that it may receive or be given access to Confidential Information of the other party in performance of its obligations or exercise of its rights under these Terms. Neither party will disclose any Confidential Information belonging to and received from the other to any third party or use any such Confidential Information for any purpose other than as necessary for the purposes of these Terms. This obligation will not apply to Confidential Information which is: (i) in the public domain other than due to a breach of an obligation of confidence; (ii) known to both parties prior to disclosure; or (iii) required to be disclosed by law.
Each party will protect the other party’s Confidential Information from unauthorised disclosure and use with the same degree of care that party uses to protect its own like information, but in no event less than a reasonable degree of care.
Neither party will disclose or circulate the other party’s Confidential Information within its own organisation except to those employees, agents, sub-contractors or consultants who (i) need to know such information in connection with the performance of these Terms and (ii) are subject to confidentiality obligations with terms no less restrictive than as set out in this Clause 14.
The Venue acknowledges that details of the Services and the pricing under these Terms and any Confirmation constitute Bowimi’s Confidential Information and may not be used by the Venue other than as authorised under these Terms.
The Venue agrees that Bowimi will be entitled to include the Venue’s name and logo on its website and materials in order to publicise and describe its business.
This Clause 14 will survive any termination of these Terms and each party will promptly action any requests from the other to securely destroy or return Confidential Information in its possession or under its control as appropriate and to certify in writing to the other that it has done so.
LIMITATION OF LIABILITY
This Clause 15 sets out the entire financial liability of the parties (including any liability for the acts or omissions of employees, agents and sub-contractors) to the other: (a) arising under or in connection with these Terms; (b) in respect of any use made by the Venue of the Services or any part of them; and (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
Nothing in these Terms excludes the liability of either party:
for death or personal injury caused by that party’s negligence;
for fraud or fraudulent misrepresentation; or
for any other matter which cannot be limited or excluded by law.
Except as expressly and specifically provided in these Terms:
the Venue is solely responsible for any liability incurred in relation to Bowimi Users’ participation in any Venue Promotion, the redemption of Gifts as part of a Venue Promotion or Brand Promotion or otherwise in relation to a Bowimi User’s visit to a Venue. The Venue acknowledges that Bowimi excludes all liability whatsoever in relation to the consumption of any free food or drinks provided to Bowimi Users under a Venue Promotion or Brand Promotion, including for any resulting physical injury or death for which the Venue or Brand (as appropriate) shall be liable.
the Venue assumes sole responsibility for results obtained from the use of the Services and for the conclusions drawn from such use. Bowimi will have no liability for any damage caused by errors or omissions in any information, materials, content or instructions provided to Bowimi by the Venue or generated through the Venue’s use of the Services, or any actions taken by Bowimi at the Venue’s direction; and
the Services are provided to the Venue on an “as is” basis.
Neither party will be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, revenue, business, goodwill and/or similar losses or loss or corruption of data or information, pure economic loss, or for any special, or indirect loss, costs, damages, charges or expenses however arising under these Terms.
Each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with these Terms will be limited as follows:
each party’s total aggregate liability in respect of damage to or loss of material and tangible property, breach of confidentiality or under the indemnities in Clause 13 will be limited to £1 million;
each party’s total aggregate liability in respect of any other loss will be limited to the aggregate fees payable by the Venue during the twelve (12) months immediately preceding the date on which the claim arose.
TERM AND TERMINATION
The Contract will commence when the Venue registers an account with Bowimi and will continue until or unless terminated by either party in accordance with this Clause 16 or otherwise under the Contract.
After the end of the Minimum Term (if any), either party may terminate the Contract at any time by giving at least thirty (30) days’ written notice to the other party.
Bowimi may terminate the Contract, in whole or in part, with immediate effect by giving written notice to the Venue if any licence on which Bowimi relies to provide the Services is revoked or expires and Bowimi is unable to provide the Services by an alternative means.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
the other party commits a material breach of any other term within these Terms for which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; and/or
the other party passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, trustee or similar officer appointed over any or all of its assets or ceases, or threatens to cease, to carry on business.
Bowimi may suspend the Venue’s access to the Services at any time with immediate effect in the following circumstances:
if the Venue fails to pay any invoice by the due date; or
if the Venue’s use of the Services violates any applicable laws or breaches any of these Terms.
For the avoidance of doubt, the Venue will remain liable to pay any fees due during the period of the suspension.
On termination of these Terms for any reason:
all rights and authorisations granted under these Terms will immediately terminate and the Venue will cease to use the Services;
the Venue will immediately pay to Bowimi any outstanding invoices and Bowimi will invoice the Venue in respect of any Services which have been provided but not previously invoiced, such invoice will be payable immediately on receipt.
Bowimi will immediately delete from the Services any stored Venue Content; and
any 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 Terms which existed at or before the date of termination will not be affected or prejudiced.
If Bowimi terminates these Terms under Clause 16.2 or 16.3, Bowimi will refund the Venue (on a pro rata basis) for any fees which the Venue has paid for Services that have not been provided.
In addition to those provisions which by their nature are intended to survive any termination of these Terms, Clauses 5, 12, 13, 14, 15, 18 and 20 of these Terms will survive such termination or expiration.
Bowimi will have no liability to the Venue if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events or omissions beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Bowimi or any other party), failure of a service, transport, telecommunications or internet network, act of God, epidemic or pandemic, war, riot, civil commotion, malicious damage, terrorism (or threats thereof), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Venue is notified of such an event.
The Venue undertakes that, whilst the Contract is in force and for twelve (12) months after termination, it will not, without the prior written consent of Bowimi, solicit or entice away from Bowimi or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Bowimi party in relation to the provision of the Services.
Any consent given by Bowimi in accordance with Clause 18.1 will be subject to the Venue paying to Bowimi a sum equivalent to 50% of the then current annual remuneration of Bowimi’s employee, consultant or subcontractor.
No variation of these Terms will be effective unless it is in writing and signed by the parties.
No failure or delay to exercise any right or remedy provided under these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each party agrees that it will 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 will have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
Subject to Clause 19.8, neither party may without the prior written consent of the other, assign, transfer, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms (such consent not to be unreasonably withheld or delayed).
sub-contract the provision of the Services provided that Bowimi will be liable for the acts and/or omissions of its subcontractors as if they were Bowimi’s acts and/or omissions; and
assign its rights under these Terms to any person to which it transfers its business.
The Contract does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Nothing in these Terms is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise either party to make or enter into any commitments for or on behalf of any other party.
Any notice required to be given under these Terms will be in writing and sent by first-class post or recorded delivery or by email to the other party at its address set out in these Terms, or such other address as may have been notified by that party for such purposes. A notice delivered by email will be deemed to have been received when delivered, or if delivery is not in business hours, at 9am on the first business day following delivery (provided that, in the case of email, the sender has not been notified that the email failed to be delivered). A correctly addressed notice sent by pre-paid first-class post or recorded delivery will be deemed to have been received at the time at which it would have been delivered in the normal course of post. This Clause 19.11 does not apply to the service of any proceedings or any documents in any legal action.
GOVERNING LAW AND JURISDICTION
The Contract and these Terms will be governed by and construed in accordance with the law of England and Wales. The courts of England and Wales will have exclusive jurisdiction to settle any matter arising out of or in connection with these Terms.
Last updated 10 February 2021