Last updated: 16 December 2020
In these conditions “the Publisher” means https://omegawatermarine.com Limited (trading as “OmegaWaterMarine” and “OmegaWaterMarine.com”), “you” or “the Customer” means the person or organization who is the advertiser of a water craft or other product or service and any , broker or trader acting on behalf of such a person, or organization. The Publisher is the owner/content provider of the OmegaWaterMarine.com (“the Website”), which provides advertising space on its own Website, to other websites, and via other media channels (“the Service”).
The Customer wishes to purchase advertising space for the insertion of advertisements on the Website or the Publisher’s other media channels and the Publisher is permitted to sell advertising space to the Customer.
The Publisher agrees to provide this Service to the Customer subject to:
- these Standard Terms and Conditions of Trading;
- Data Processing Agreement
The Agreement is personal to the Customer, and the Customer may not assign or transfer or otherwise part with the Agreement without the Publisher’s prior written consent. Where two or more persons are named as the Customer, their liability shall be joint and several.
THE SERVICES AND OBLIGATIONS
In consideration of the payment of a Fee (+ VAT where applicable), the Publisher agrees to perform the Service. These terms and conditions shall apply to the provision of the Service to the exclusion of all other agreements and the Customer agrees that the uploading of the Advertising to the Website, or provision of Advertising assets via other means, shall be deemed acceptance of the Agreement. The Publisher provides the facility for receiving materials and updates for the website via transmission over the Internet if appropriate. However, a Customer using this facility to update the website shall do so at its own risk and the Publisher will not be liable or responsible for non-receipt or corruption of any text, font, image or material.
The Customer undertakes and warrants to the Publisher that:
- in relation to any Advertising the Customer enters into the Agreement as a principal notwithstanding that the Customer may be acting directly or indirectly for the person whose product(s) or services are being advertised by the Publisher;
- the reproduction and/or publication of the Advertising by the Publisher as originally submitted or as amended will not breach any agreement or infringe or violate any copyright, trade mark, or any other personal or property of any person or render the Publisher liable to any proceedings whatsoever;
- any information supplied by the Customer in connection with the provision of the Service is accurate, complete and true in all respects;
- in respect of any Advertising which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified the Customer has obtained the authority of such living person to make use of such name, representation and/or copy;
- the Advertising complies with the requirements of all relevant legislation (including subordinate legislation and the rules of statutory regulatory authorities) for the time being in force or which may be applicable in such jurisdiction as the Advertising shall be made available;
- the Advertising is legal, decent, honest and truthful and complies with the rules of English national law and international codes and all other such relevant codes relating to advertising as may be appropriate;
- it has authority to enter into and implement the Agreement;
- it will not re-sell any of the Publisher’s services unless a written agreement between the Publisher and the Customer permitting the re-sale is in place.
- the Advertising shall not contain any data, image or other material which:
- is offensive, obscene or indecent, or is capable of being resolved into obscene or indecent images or material;
- is defamatory, sexist, threatening or racially, ethnically or otherwise objectionable;
- is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
- is designed to or is likely to cause disruption to any computer system or to any network;
- is illegal or is likely to induce an illegal act.
The Customer shall provide to the Publisher the Advertising in the format expressly specified (if any) by the Publisher (‘the Required Format’).
The Customer agrees that questions and complaints from individuals accessing the website or any materials, editorial, goods or services offered by the Customer on the website are the exclusive responsibility of the Customer and the Customer shall indemnify the Publisher in respect of any claims or complaints brought against the Publisher by any such individuals.
Where the Customer is an advertising agency or broker it warrants that it is authorized by its client to place the Advertising with the Publisher and the Customer will indemnify the Publisher against any claim made by the client against the Publisher arising from the publication of the Advertising Material.
The Publisher shall be entitled at any time without notifying the Customer to make changes to the Services which are necessary to comply with any applicable security or other statutory requirements and shall determine the manner in which the Services are provided.
The Publisher shall bear any and all costs of supplying, updating, owning and operating the Website.
The Publisher shall use reasonable commercial efforts to maintain the availability of the Publisher Website, and other media channels under its control, 24 hours per day, 7 days per week.
- shall, upon receipt of the Fee and the Publisher’s acceptance of the Advertising, perform the Services on the Publisher Website and/or other media channel(s) appropriate to the particular Service for the Term subject to the provisions of the Agreement;
- has the right and sole discretion to decline to publish or to omit, suspend or change the position of any Advertising accepted by it;
- may, without derogation from the warranties and obligations set out above, refuse or require to be amended any artwork, materials or copy for or relating to an Advertising so as to comply with the legal or moral obligations placed upon the Publisher or the Customer or to avoid infringing a third party’s rights or any statutory or regulatory requirements;
- reserves the right at any time to remove/modify without notice the Advertising from the Publisher Website and/or other media channels in the event that the Publisher considers the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of the Publisher or is of poor quality or is deemed unsuitable for any other reason by the Publisher.
- agrees that use of the Publisher’s services constitutes agreement to these Standard Terms and Conditions of Trading. Where use of the services includes but is not limited to:
- logging into the Customer’s account on TheYachtMarket.com and/or performing any actions within it;
- the commencement publication of any advertising booked by the Customer, for example, the first date of publication of a featured boat, banner advert, or sending of a marketing email;
- understands that advertising using the Publisher’s services does not guarantee sales of the Customer’s products/services and therefore agrees to pay the Fee regardless of the results of the advertising;
- agrees to pay for the services the Customer has agreed to buy, regardless of whether the Customer uses those services or not.
The Publisher will charge the Customer a Fee (+ VAT where applicable). This can be either:
- a one-off Fee charged for delivery of one-off Advertising; or
- a recurring subscription Fee for delivery of continuous Advertising; or
- by charging a sales commission based on sales generated from net revenues of the Customer which result from the provision by the Publisher of its Services.
The applicable Fees will be detailed in a Sales Agreement which will be emailed to the Customer. For the avoidance of doubt, the Publisher will not charge the Customer any commission unless the Sales Agreement explicitly states that a commission will be charged.
The Publisher may invoice the Customer for the Fees for the Term upon its acceptance of the Advertising prior to commencement of the Services. The invoice for the Fees shall be payable in full prior to the Advertising being published unless otherwise agreed by the Publisher. All sums due in respect of the Fees are exclusive of Value Added Tax or other applicable sales tax, for which the Customer shall be additionally liable. All sums due from the Customer which are not paid on the due date (without prejudice to the Publisher’s other rights under this Agreement) shall bear interest at the annual rate of 3% over the prevailing base rate of National Westminster Bank, UK. Such interest shall accrue from the due date until payment is made in full. In the event that sums due from the Customer are not paid by the due date, the Publisher may enlist the services of a third party to collect the debt. The Customer will be liable for any expenses incurred by the Publisher as a result of enlistment of such a third party.
The Publisher reserves the right to make changes to Fees including reviewing discounts. For services sold on a one-off basis, the new Fee becomes applicable next time the Customer purchases the service. For services sold on a subscription basis, changes to fees become applicable at the next billing date provided that the Publisher has provided at least one calendar month’s notice of such changes to the Customer.
TERM AND TERMINATION
The Advertising shall be included in the Publisher’s Website and/or other media channels for the Term or as otherwise expressly agreed by the Publisher. The Publisher may terminate this Agreement by notice in writing to the Customer in the event that:
- the Customer fails to pay any amount to the Publisher due under this Agreement and does not make that payment within 7 days after receiving notice requiring the Customer to do so;
- the Customer fails to perform any of the obligations on its part to be observed or performed pursuant to this Agreement and such failure is not remedied by the Customer within 14 days after receipt by it of a notice in writing requiring the default to be remedied;
- any of the warranties or representations made by the Customer contained in this Agreement are false or inaccurate in any material way;
- the Advertising breaches any applicable laws or the rights of any third party or is prejudicial to the interests of the Publisher.
Either party shall be entitled to terminate this Agreement immediately by notice in writing to the other if the other party shall:
- commit any material breach of any of its obligations under this Agreement which (in the case of a breach capable of being remedied) shall not have been remedied within 14 days after receipt of a written request to do so;
- pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;
- make any voluntary arrangement with its creditors or become subject to an administration order;
- have a receiver or administrative receiver appointed;
- cease or threaten to cease to carry on business;
- have any similar event occur under the law of any other relevant jurisdiction in respect of it.
Services purchased by the Customer from the Publisher:
- on a one-off basis will be billed in advance and will automatically terminate at the end of the Term;
- on a subscription basis will be billed monthly, quarterly or annually in advance and will continue indefinitely until cancelled by the Customer by providing notice at any time before the Customer’s next billing date.
UPGRADES AND DOWNGRADES
Upgrades to subscriptions will be applied as soon as possible after the request is made to upgrade. The recurring billing amount will be updated at the next billing date and a one-off pro-rated fee will be charged to cover the upgraded period of service between the date of the upgrade and the next billing date.
Downgrades to subscriptions will be applied at the next billing date. Therefore, there is no refund for the difference in cost for the period between the date the downgrade was requested and the next billing date.
- Contact details are not permitted to be entered into boat listings, for example adding a telephone number or email address into the description. Doing so may contravene data protection legislation and enables potential buyers to circumvent trackable methods of communication affecting the accuracy of the Customer’s performance statistics.
- Sales enquiries generated using the contact form on boat listings are stored in the Customer’s account on TheYachtMarket.com. They are also emailed to the nominated contact(s) for convenience. However, for various reasons an email may not reach the recipient’s inbox, therefore the Customer is recommended to log into their account on TheYachtMarket.com regularly to check for enquiries. The Publisher is not responsible for any Customer’s loss resulting not receiving an enquiry via email.
- Where the Customer fails to provide the required content by the agreed content deadline, the Publisher will attempt to reschedule broadcast of the Marketing Email to the next available date subject to availability.
- Where a Marketing Email is booked and subsequently cancelled by the Customer after the agreed content deadline has passed, or the Customer fails to provide the required content by the agreed content deadline and the Publisher and Customer are unable to agree an alternative broadcast date, the Publisher reserves the right to retain all or part of the fee.
- Will be published on TheYachtMarket.com website for three months, after which they will be removed.
- An introductory paragraph of the article will be included in one edition of TheYachtMarket.com’s monthly email newsletter, linking to the full article on the website.
It is the responsibility of the Customer to check the accuracy of the Advertising and the Publisher assumes no responsibility for the repetition of an error in an Advertising. For the purpose and duration of the Advertising the Customer grants to the Publisher a royalty-free non-exclusive licence to use, publish and reproduce the Advertiser’s name, logo, trademarks and brands to the extent necessary to enable the Publisher to comply with its obligations under the Agreement.
Each party undertakes to comply with its obligations under the data protection legislation and agrees to the terms set out in the Data Processing Agreement.
Personal data including that of sales leads and customers may be received by the Customer via use of the Publisher’s services. Upon receiving such personal data, the Customer becomes a Data Controller of the Customer’s copy of this data. Such personal data must be used by the Customer only for the purpose requested by the Data Subject. For example, where the Publisher’s service generates a sales enquiry for the Customer, the Customer may reply to the Data Subject but most not send bulk marketing information to the Data Subject unless additional consent for this is obtained.
The Publisher retains all right, title and interest in and to the content of the Publisher’s Website and other media channels, including without limitation copyrights, trade marks and other intellectual property rights.
The Customer in consideration of the Publisher agreeing to permit the Customer to use the Publisher’s Website and/or other media channels, you grant to the Publisher a non-exclusive world-wide licence in perpetuity to:
- edit, copy, adapt, translate or modify any content;
- reproduce and store copies of the content in such format and by such technology and/or media (whether now known or later devised) as the Publisher may require;
- publish, distribute, transmit, and otherwise reproduce all or part of the content in connection with, across and through the Website and/or other media channels;
- market or promote information or activity relating to or connected with the Website and/or other media channels;
- the exploitation of the content in accordance with the rights granted under this Agreement.
You agree to waive, and will procure that all of your subcontractors and employees waive, all moral rights in the content in favour of the Publisher in order of it to provide the Service.
Any ideas concepts know-how or techniques developed by the Publisher or obtained during the execution of the Services will be owned exclusively by the Publisher.
- Neither party excludes or limits its liability to the other for death or personal injury resulting from the proven negligence of either party, its employees or agents.
- The Publisher accepts no responsibility for any mistakes or errors whatsoever that arise during the course of publication of any Advertising and will not be liable for any loss of copy, artwork, photographs, data or other materials which the Customer supplies to it and the Customer shall be responsible for retaining in its possession sufficient quality and quantity of such materials for whatsoever purposes it may require.
- In no event shall the Publisher be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for these purposes mean (i) pure economic loss (ii) losses incurred by any client of the Customer or other third party (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses whether or not occurring in the normal course of business, wasted management or staff time (vii) loss or corruption of data.
- The Publisher’s total liability (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed 100% of the total Fee (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Publisher during the preceding 12 month period or, if the duration of the Agreement has been less than 12 months, such shorter period, as applicable.
The Customer undertakes to the Publisher that the Customer will, without prejudice to any other right of action which the Publisher may have, at times keep the Publisher fully and effectively indemnified against any liability (which liability shall include, without limitation, all losses, costs, claims, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which the Publisher may suffer or incur as a result of any Advertising, the infringement of any intellectual property rights of any third party, or by reason of any breach or non-fulfilment of any of the Customer’s obligations in respect of the Agreement.
DELIVERY, RETURNS, REFUNDS AND CANCELLATIONS
As the services purchased are digital, there is no physical product to be delivered. The Customer’s service will be activated/published once payment has been received or at the agreed time.
Returns, Refunds and Cancellations
As the services purchased are digital, there is no physical product to return. Services cancelled by the Customer will be terminated.
The Customer may cancel a service within 14 days of the purchase date. Cancellations made within this timeframe will be subject to a pro-rated refund for the portion of the service not used.
Cancellations must be received in writing, emailed to email@example.com
Refunds will be made to the same payment method used for the purchase and will be processed within 7 days of receiving the cancellation request.
Purchases of TheYachtMarket’s services are intended for persons who are eighteen (18) years or older, or business entities.
If proof comes to the attention of TheYachtMarket.com Limited that an individual user is under the age of eighteen (18) years, and has purchased our services without the consent, approval or authorisation of their parents or legal guardian, TheYachtMarket.com Limited reserves the right to terminate the account and associated services.
Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the Services is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
These terms and conditions shall be governed by and in accordance with English law and subject to the exclusive jurisdiction of the English Courts.