Terms & Conditions of Service Use

This sets out the terms of engagement between Vibrant Media Limited ("Vibrant Media") and any person using the service offered by this Vibrant Media site (the "Site"). By submitting a registration form Clients are deemed to accept these terms. 

Amendments - All amended terms shall automatically be effective 30 days from when they are posted on the web site.   If we hear nothing back from you, your use of the service after the posting of an amendment implies your consent to the amended terms.

1.  Definitions & Interpretation

1.1 Definitions-
In this agreement:
“Advertising Units” shall mean material that promotes a brand or products or services.  The sizing and number of such units shall be at the sole discretion of Vibrant Media.
“Affiliates” of any party shall mean any entity that controls, is controlled by or is under common control with such party.  For the purposes of this definition, ‘control’ shall mean the possession, directly or indirectly of a majority of the voting power of such entity (whether through ownership of securities, partnership or other ownership interests, by contract or otherwise).
“Client” shall mean any Person who has registered to access the Services.
“Client Sites” shall mean the web site of any Person who has registered to access the Services.
“Content” shall mean collectively, all written, visual and audio materials, including any Links supplied by any Content Provider to Vibrant Media to make available for display on Client Sites.
“Content Providers” shall mean the companies that provide Content to Vibrant Media to make available for display on Client Sites via the Site.
“Customer” shall mean any user of the Client Sites.
“Intellectual Property Rights” shall mean trade secrets, patents, copyrights, trademarks, service marks, know-how, moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications and registrations relating to any of the foregoing.
“Links” shall mean any summary or headline (such summary or headline having been provided by Vibrant Media or the Content Provider) attached to the Content which enables the Client to display the Content.
“Person” shall mean any person, individual, company, firm, partnership, corporation, government, state agency of a state or any undertaking (whether or not having any separate legal personality) and irrespective of the jurisdiction in or which law of which it was incorporated or exists.
“Services” shall mean making available Content for display on Client Sites.
“Site” shall mean the web site located at http://www.vibrantmedia.com which provides the Services.

1.2 Interpretation
In this agreement:
(a) words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
(b)"includes"and "including" shall mean including without limitation;
(c) any statute, statutory instrument, regulation or other requirement of English law and to any English legal term for any action, remedy, method of judicial proceeding, court, tribunal, legal status, procedure, concept or doctrine or other expression shall in respect of any jurisdiction other than England be deemed to include that which most nearly approximates in that jurisdiction to the English term; and
(d)  "clauses" or "paragraphs" refer to clauses and paragraphs of this agreement.

2. Registration
To use the Site, you must submit a complete application form on behalf of the entity or business you represent.  By submitting a registration form, you represent and warrant:
(a) that you or the person or company you represent is legally capable of entering into a contract in your jurisdiction;
(b) that you are  authorized to sign for the entity you claim to represent;
(c) that any agreement you or the person or company you represent enters with Vibrant Media using this service will legally bind your business or entity and be enforceable against such business or entity;
(d) that the business or entity is authorized to operate as identified on the registration form;
(e) that the person or company you represent is solvent and able to meet its obligations under this agreement.

The Client must provide current, complete and accurate information. Vibrant Media will evaluate the submitted application form and will notify Clients of their acceptance or rejection. Vibrant Media may reject a submitted application form if it determines (in its sole discretion) that the Client Site is unsuitable for the Vibrant Media Service.

The Client Site will be unsuitable if, in Vibrant Media’s view, it :
(a)               contains, promotes or links to sexually explicit or violent material;
(b)               promotes, depicts or links to material that promotes or depicts discrimination based on race, gender, religion, national origin, physical or mental disability, sexual orientation or age;
(c)               contains unlawful material, including but not limited to materials that may violate another’s intellectual property rights, or links to a site that contains such material;
(d) contains information regarding, promotes or links to a site that provides information or promotes illegal activity; or
(e)               for any other reason that is deemed by Vibrant Media to be unsuitable.

With reference to this clause, Vibrant Media reserves the right to conclude that the Client Site is unsuitable in accordance with Vibrant Media standards.  Such conclusion may be reached based on Vibrant Media’s opinion or suspicion or belief, without any duty to prove that such opinion, suspicion or belief is well-founded.  Vibrant Media reserves the right to conclude that the Client Site is unsuitable even if other sites have been accepted despite having the same or similar characteristics as the Client Site.

3. Vibrant Media Service
3.1              The Service provides Links which allow the Customer to access the Content that will be displayed on the Client Site.  The Links are protected by copyright, trademarks or other proprietary rights of Vibrant Media and Content Providers.
3.2              The Content provided will include Advertising Units.  The Client shall not modify delete or hide such Advertising Units.  Any revenue generated from such Advertising Units shall solely be for the benefit of Vibrant Media and any Content Providers.
3.3              The Client is responsible for ensuring that materials posted on the Client Site do not violate or infringe upon the rights of any third party (including but not limited to copyrights, trademarks, privacy or other personal or proprietary rights).  The Client is responsible for ensuring that the Client Site does not:
(1) contain, promote or link to sexually explicit or violent material;
(2) promote, depict or link to material that promotes or depicts discrimination based on race, gender, religion, national origin, physical or mental disability, sexual orientation or age;
(3) contain unlawful material, including but not limited to materials that may violate another’s Intellectual Property Rights, or links to a site that contains such material; or
(4) contain information regarding, promotes or links to a site that provides information or promotes illegal activity.
3.4              The Links and the Content may not be published, transmitted, transferred or sold, reproduced, distributed, displayed, or in any way exploited, in whole or in part, except as expressly permitted in these Terms and Conditions.
3.5              The Links and the Content may be displayed on pages which are not controlled by Vibrant Media.  The Client is not authorized to copy or reproduce the text from any Content, without express permission of the owner.
3.6              The Vibrant Media Service contains a link to the Site.  This may not be deleted, modified or hidden without the written permission of Vibrant Media.  If the Client uses this Service in any way that does not automatically include a link to the Vibrant Media site, the Client must credit Vibrant Media for the Service and include a link to the Vibrant Media Site within the same document or Client Site page which includes the Service.

4. Content provided by the Vibrant Media Service
4.1              Vibrant Media does not warrant that the Content is error free and accepts no responsibility for the Content.  The views and opinions expressed therein do not necessarily reflect those of Vibrant Media.  The Content is not usually reviewed in any way before it is made available for display on Client Sites.
4.2  Vibrant Media will use its reasonable endeavours to ensure that all Advertising Units included with the Content (i) does not infringe any intellectual property, publicity or privacy rights of any third party; (ii) is not defamatory; (iii) is not lewd, pornographic or obscene; (iv) is in compliance with all applicable laws; (v) does not violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) does not contain any virus, worm, “trojan horse”, time bomb or similar contaminating or destructive feature.
4.3 Vibrant Media does not guarantee that the Content provided by the Service : (i) does not infringe any intellectual property, publicity or privacy rights of any third party; (ii) is not defamatory; (iii) is not lewd, pornographic or obscene; (iv) is in compliance with all applicable laws; (v) does not violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) does not contain any virus, worm, “trojan horse”, time bomb or similar contaminating or destructive feature.
4.4 Vibrant Media may, in its sole discretion, restrict access by the Client to certain Content.
4.5 Vibrant Media hereby grants to the Client a non-exclusive, non-sublicencable world-wide sub-licence to publicly display the Content in accordance with these Terms and Conditions.  The Client may not alter, modify reproduce or change the Content in any way.
4.6  Vibrant Media will retain all right, title and interest in and to the Vibrant Media Site world-wide (including, but not limited to, ownership of all copyrights, functionality, design and presentation and other Intellectual Property Rights therein).
4.7 Client will retain all right, title and interest in and to the Client Site world-wide (including, but not limited to, ownership of all copyrights, functionality, design and presentation and other Intellectual Property Rights therein).          
4.8 Each of Vibrant Media and the Client will retain all right, title, interest in and to its trade marks, service marks, logos, trade names and any other intellectual property rights world-wide, including any goodwill associated therewith, subject to the limited licence granted hereunder.
4.9 Each of Vibrant Media and the Client hereby grant to the other a non-exclusive, limited licence to use its trade marks, service marks, logos, trade names and any other intellectual property rights only for the purposes of these Terms and Conditions and for the purposes of any promotions or public announcements relating to the relationship set forth in this Contract.
4.10 Upon the expiration or termination of this agreement, each party will cease using the trade marks, service marks, logos, trade names and any other intellectual property rights of the other except:
(i) as the parties may agree in writing; or
(ii) to the extent permitted by applicable law.

5. General

5.1 Data Collection
Client will own all user registration data generated through the Client Site. 
During the Term and after the termination of this agreement, the Client may use the registration data to deliver a reasonable amount of information regarding the Client’s services, provided that
(a) such information will not refer to Vibrant Media or any Vibrant Media property without Vibrant Media’s prior written consent, and
(b) such registration data may be provided to third parties only if the user has affirmatively ‘opted-in’ to allow such data to be disclosed.  All use of the registration data will be consistent with Vibrant Media's privacy policy and the Client’s reasonable privacy policies. This clause will survive the termination of this agreement. 

5.2 Security
Clients must maintain the confidentiality of their Client names and passwords. If the user is a corporation or other legal entity, then it may allow employees to use Client names and passwords, but the corporation is responsible for all activity and all charges incurred by such employees. Permitting use of the Site by a third party is prohibited and is a violation of this agreement. If there is a breach of security through the Client's account, they must immediately contact Vibrant Media. The Client will be liable for any unauthorized use of the site.

5.3              Termination of Agreement
Suspension or Termination of service by Vibrant Media
If the Client breaches any of the Terms and Conditions of this Site, Vibrant Media may, at its sole discretion, with immediate effect, suspend access to site functions or terminate this agreement. Furthermore Vibrant Media may terminate this agreement forthwith if: 
a)  the Client ceases or threatens to cease to carry on its business
b) the Client makes an assignment for the benefit of, or a composition with, its creditors, or another arrangement of similar import
c) a receiver, administrative receiver, administrator or similar officer is appointed to the Client or over all or any part of the assets or undertaking of Client
d) the Client shall go into liquidation (otherwise than for the purposes of an amalgamation or reconstruction)
e) the Client is dissolved, adjudged insolvent or is otherwise rendered incapable of performing its obligations under this agreement without the consent of a third party.

5.3.2 Termination by either Party
Either party may terminate this agreement by providing notice to the other.

5.4  Performance Indemnity
Vibrant Media does not guarantee that the site will be secure or be continuously available, or that information provided will be accurate.

5.5 Assignment
Neither party may assign or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of Vibrant Media.
(b) IN NO EVENT SHALL VIBRANT MEDIA BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL LOSS, DAMAGE OR LIABILITY ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE SITE WHETHER IN CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE.
(c) THE EXCLUSIONS IN THIS CLAUSE SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY ENGLISH LAW AND THE CLIENT ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THE ABOVE EXCLUSIONS AND LIMITATIONS ON VIBRANT MEDIA'S LIABILITY AND ACCEPTS THEM AND AGREES THAT THEY ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES OF THIS AGREEMENT.
(d)               VIBRANT MEDIA MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROVISION OF THE SITE OR ANY PRODUCTS OR SERVICES SOLD (INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS, SATISFACTORY QUALITY, NONINFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE).

5.6              Confidentiality

The Client undertakes that it will use its best endeavours to keep the Confidential Information confidential and to restrict the use of such Confidential Information to employees who reasonably need such access in order to use the Site in accordance with this agreement.  The Client is not permitted to disclose any of the Confidential Information to any third party not previously authorized to receive Confidential Information under written agreement with Vibrant Media.  The Client further undertakes that it and its employer will not change, dissemble, de-compile or otherwise reverse engineer, copy or substantially copy the Confidential Information in order to create or attempt to create a competitive product or allow others to so create a competitive product and will not make or permit others to make copies or reproduce any part of the Site or related documentation in any form without the prior written consent of Vibrant Media. This clause will survive for a period of two years from the date of termination of this agreement.

5.7              Limitation of Liability

(a)        VIBRANT MEDIA WILL NOT BE LIABLE TO THE CLIENT OR THE CUSTOMER OR ANY THIRD PARTY (WHETHER SUCH LIABILITY WOULD HAVE ARISEN UNDER THIS AGREEMENT OR UNDER GENERAL LAW) FOR ANY CONTRACTUAL OR TORTUOUS LOSS, DAMAGE, COST OR EXPENSE, INCLUDING LOSS OF TIME, MONEY AND GOODWILL ARISING FROM THE LOSS OR CORRUPTION OF DATA OR FAILURE TO DELIVER CONTENT OR FAILURE TO PROCESS DATA ADEQUATELY OR AT ALL WHICH MAY ARISE FROM THE USE, LOSS OF USE, OPERATION OR MODIFICATION OF THE SITE OR GOODS OR SERVICES PROVIDED BY THIRD PARTY CONTENT PROVIDERS OR ANY DEFECT THEREOF OR FROM ANY INTERFERENCE (WHETHER LAWFUL OR UNLAWFUL) BY ANY THIRD PARTY WITH EITHER THE SITE OR THE CLIENT'S USE OF THE SITE. 

5.8              Governing Law
This agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this agreement or its formation) shall be governed by and construed in accordance with English law, and each of the parties to this agreement irrevocably agrees that the courts of England shall have exclusive jurisdiction to hear and determine any such disputes etc arising out of or in connection with this agreement or use of the Site.

5.9              Indemnification
The Client agrees to indemnify, defend and hold harmless Vibrant Media and its successors and assigns, and their respective officers, directors and employees and representatives, from and against any and all actions, causes of action, claims, demands, costs, liabilities, losses, expenses (including reasonable legal fees) and damages arising out of or in connection with any claim which, if true, would be in breach of these terms and conditions, including, alleged or inadvertent defamation, passing off, mis-description, false trade description of products and services offered, error, omission or infringement of copyright trade mark, service mark, design, right or privilege. If any action or claim shall be brought against Vibrant Media in respect of which indemnity may be sought from the Client pursuant to the provisions of this clause. Vibrant Media shall promptly notify the Client in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. Vibrant Media shall have the right to employ separate legal counsel and participate in the defense thereof.

5.10 Force Majeure
Vibrant Media shall not be liable in respect of any breach of this agreement due to any cause beyond its reasonable control including (but without limitation): act of God, inclement weather, flood, lightning or fire, industrial action or lockouts; the act or omission of Government, highways authorities, or other competent authority; war, military operations or riot; the act or omission of any party for whom vibrant media is not responsible.

5.11          Notices
Any notice or other communication required to be given or served for the  purposes of this agreement except where otherwise provided shall be in writing and shall be deemed to have been duly given and served if sent by post or by telecopier or telex or delivered by hand.

Vibrant Media's address for service shall be:
42-46 Princelet Street
Spitalfields
London E1 5LP
United Kingdom
or such other address as may be notified to the Client.

5.12 Waiver
No failure or delay by any party in exercising or enforcing any right, power, or remedy which arises under the agreement or from any breach of its provisions shall operate as or be deemed to be a waiver of that or any other right, power or remedy or of any subsequent exercise of such right, power, or remedy.  No waiver or modification of any provision of the agreement shall be effective unless in writing and signed by the party against whom such waiver or modification is sought to be enforced.

5.13 Severability
If any of these terms and conditions is held by any competent authority to be illegal, invalid or unenforceable in any respect, whether in whole or in part such illegality, invalidity or unenforceability shall not prejudice the effectiveness of the rest of these terms and conditions or the remainder of any part of a term affected.

5.14          Entire Agreement/Third Parties
(a) All services provided by the Site are offered only pursuant to the terms and conditions contained herein, and this agreement constitutes the entire agreement between Vibrant Media and Clients.
(b) Pursuant to Section 1(2)(a) of the Contract (Rights of Third Parties) Act 1999 (the “Act”) the parties intend that no terms of this agreement may be enforced by a Third Party (as defined under the Act).

END