Advertising Services Agreement

INTRODUCTION

These terms and conditions together with the Registration Form (collectively referred to as the Agreement) set out the entire terms and conditions upon which SeenMachine has agreed to licence the Licensee to access and use the Service. By ticking the relevant box on the Registration Form, you agree to these terms and conditions. If you do not agree to these terms and conditions, you cannot access the Service. 

IT IS AGREED THAT:

  1. DEFINITIONS AND INTERPRETATION
    1. In this Agreement the following words have the following meanings:
      1. Advertisement means any advertisement or other content that is supplied to SeenMachine by the Licensee which is intended to be published as part of the Service on the Website.
      2. Charges means the charges as detailed on the Service as may be adjusted by SeenMachine from time to time. 
      3. Commencement Date means the date on which the Registration Form is submitted by the Licensee. 
      4. Force Majeure means in relation to either party, any circumstance beyond the reasonable control of that party (whether or not known or in existence and/or whether or not reasonably foreseeable as at the date of this agreement) including any act of God; illness, epidemic and/or pandemic (including Covid-19); war; riot; terrorism; explosion; abnormal, extreme or unusual weather conditions; loss of utilities (excluding where as a result of non-payment); fire or flood; strike, lock out or industrial dispute; general market unavailability or shortages of raw materials or products; and/or general market unavailability or shortages of labour.  
      5. Intellectual Property Rights means patents, trade marks, service marks, trade names, registered and unregistered designs, trade or business names, copyright (including rights in software), database rights, design rights, rights in confidential information and any other intellectual property rights whatsoever irrespective of whether such intellectual property rights have been registered or not which may subsist in any part of the world.
      6. Licensee means the licensee to whom SeenMachine has agreed to licence the right to access and use of the Service to in accordance with this Agreement who is as detailed on the Registration Form.
      7. Licensee Data means any data, materials, photographs and videos provided by the Licensee which is uploaded to or processed via the Service or which is otherwise collected or generated by the Licensee as a result of its use of the Service.
      8. Minimum System Requirements means the minimum requirements for hardware and third party software which the Licensee must have in place in order to access and make use of the Service. 
      9. Registration Form means the registration form that has been submitted by the Licensee on the Website which accompanies these terms and conditions.
      10. Service means the provision of the SeenMachine online portal service made available by SeenMachine which enables the Licensee to upload and submit Advertisements for inclusion on the Website.
      11. SeenMachine means SeenMachine Limited (Company Number 13194480) whose registered office is at Belmont House Silver Street, Whitley, Goole, England, DN14 0JG and whose e-mail address for service of notices is [email protected]. 
      12. SeenMachine Advertising Content Guidelines means the advertising content guidelines of SeenMachine from time to time, the version in force as at the Commencement Date being as set out in Schedule 1 of this Agreement. 
      13. SeenMachine Materials means any materials created, commissioned or licensed by or on behalf of SeenMachine under this Agreement including artwork, copy, designs, photographs, video recording, character, music, voice over, sound recording, performance, painting, logo, active URLs, software, methodology, know-how and processes, or any other materials protected by Intellectual Property Rights.
      14. SeenMachine Privacy Notice means the privacy notice accessible at https://seenmachine.com/privacy-policy
      15. Website means https://seenmachine.com
    2. In this Agreement: headings are inserted for convenience only and shall not affect the construction or interpretation; references to Clauses are to the Clauses of these terms and conditions; words denoting the singular shall include the plural and vice versa; words denoting any gender shall include all genders; any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.
  2. TERM
    1. SeenMachine reserves the right to accept or reject (at its discretion and without the need to give any reason) any application to register to use the Service and/or publish an Advertisement. 
    2. This Agreement shall come into force on the Commencement Date and shall remain in force thereafter unless and until terminated by either party in accordance with the provisions of Clause 11 of this Agreement. 
  3. LICENCE TO USE THE SERVICE
    1. In consideration for payment of the Charges by the Licensee in accordance with this Agreement (or where no Charges are payable, payment by the Licensee of the sum of £1.00 if requested by SeenMachine), SeenMachine hereby grants to the Licensee a non-exclusive and non-transferable licence to access and use the Service in accordance with the terms and conditions of this Agreement for the term of this Agreement only. 
    2. The Licensee shall maintain in strict confidence at all times any user names, access codes or other authorisations which may be provided or allocated to it by SeenMachine and/or via the Service from time to time together with any associated passwords (and, where the Licensee is responsible for setting its own password shall ensure that those are sufficiently robust in accordance with generally accepted password security recommendations in the IT industry from time to time) and shall not disclose the same to any other person. The Licensee shall not adopt any username which is offensive or in the name of any other individual. 
    3. The Licensee shall immediately inform SeenMachine of any actual or suspected loss, theft, publication or disclosure of any of its user names, access codes, other authorisations or passwords for the Service and/or of any actual or suspected unauthorised access to or use of the Service using the same of which the Licensee becomes aware.
    4. The Licensee shall not: 
      1. use or attempt to use the Service for any illegal or unlawful purpose including, without limitation, money laundering purposes;
      2. use or attempt to use the Service in any way which disrupts, restricts or interferes with the provision of the Services by SeenMachine and/or its availability to and use by other users authorised by SeenMachine;
      3. access or attempt to access any part of the Service which the Licensee is not authorised to access and/or to access any data which is held on or accessible via the Service other than the Licensee Data and any data which is made publicly available by SeenMachine to all users on or via the Service; and/or
      4. reverse engineer, decompile, copy, distribute, disseminate, sub-licence, modify, translate, scan and/or adapt any software or other code or script which forms part of or is accessible via the Service.
    5. The Licence granted to the Licensee is personal and other than any individual employees of the Licensee who the Licensee authorises from time to time to access and use the Service on its behalf (and for whose acts and omissions the Licensee shall be vicariously liable to SeenMachine for under this Agreement as if those were the acts or omissions of the Licensee itself) the Licensee shall not permit any other person to access and use the Service, whether or not in return for payment.
  4. SERVICE STANDARDS
    1. SeenMachine shall use commercially reasonable efforts to supply the Services to the Licensee. Time shall not be of the essence with respect to the performance of the Services.  
    2. SeenMachine does not warrant that the Licensee’s access to and use of the Service will be uninterrupted or error free. 
    3. Notwithstanding Clause 4.2, SeenMachine shall be entitled to temporarily suspend access to the Service as may be reasonably necessary from time to time in order to carry out maintenance and upgrade work; in the event of any actual or suspected security breach; and/or in the event of any other emergency. 
    4. The Licensee accepts responsibility for the selection of the Service to achieve its intended results and acknowledges that the Service has not been developed to meet the individual requirements of the Licensee.
    5. The Licensee shall be solely responsible for ensuring at its own expense that: (i) its IT systems meet at all times any Minimum Systems Requirements notified to the Licensee by SeenMachine from time to time, (ii) it is fully licensed to use any third party software as specified in such Minimum Systems Requirements, (iii) it fully complies with the terms and conditions of all such third party software licences and (iv) its IT systems are subject to appropriate anti-virus and firewall software.
    6. The Service does not include the provision of any back-up, disaster recovery or business continuity services and to the extent that any Licensee Data is stored or hosted by SeenMachine in connection with the Service then the Licensee shall back-up such Licensee Data itself at frequencies which are appropriate to enable it to recover such Licensee Data with minimal impact on its business.
    7. This Agreement sets out the full extent of SeenMachine’s obligations and liabilities in respect of the design, development, testing, delivery and provision of the Service. All conditions, warranties or other terms concerning the same which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
  5. ADVERTISEMENTS
    1. SeenMachine will use reasonable endeavours to ensure that an Advertisement will feature on the Website within 48 hours of the Licensee submitting the Advertisement in question via the Service. However, SeenMachine makes no guarantee that such Advertisement shall be published and is not obligated to publish any Advertisement on a particular day or in a particular position and in the event of any failure or delay by SeenMachine to publish any Advertisement, its only liability to the Licensee shall be to refund to the Licensee the Charges (if any) actually paid by the Licensee in respect of the Advertisement in question.
    2. The Licensee shall be solely responsible for ensuring that the Advertisement meets the SeenMachine Advertising Content Guidelines, does not contain any errors and is in final form for publishing. Acceptance by SeenMachine of any Advertisement for publication does not constitute any confirmation on the part of SeenMachine that it accepts that the Advertisement in question is in compliance with the SeenMachine Advertising Content Guidelines.
    3. SeenMachine may decline to publish, omit, suspend, change the position of or require the amendment of any Advertisement uploaded via the Service at any time including, without limitation, when it considers (i) the Advertisement likely to be in breach of the SeenMachine Advertising Content Guidelines and/or (ii) the Advertisement or the Licensee’s activity when using the Service to be suspicious. In the circumstances whereby the Licensee has paid for the Service and the Advertisement is not published, the Licensee may be entitled to a refund of the Charges already paid by the Licensee to SeenMachine in accordance with this Agreement. 
    4. Published Advertisements shall be displayed on the Website for 30 day periods. At the end of each 30 day period, the Licensee shall be entitled to extend the Advertisement by an additional 30 day period on the Website by paying the applicable Charges.
    5. Where machinery displayed in an Advertisement is sold within a 30 day period, the Licensee shall terminate the Advertisement as soon as reasonably practicable. For the avoidance of doubt, the Licensee shall not be entitled to a refund of the Charges already paid by the Licensee to SeenMachine in accordance with this Agreement for that Advertisement.
  6. CHANGES
    1. SeenMachine reserves the right to amend or make any change or variation to this Agreement, the Service, the Charges or the SeenMachine Advertising Content Guidelines from time to time and shall publish any changes on the Service and/or Website (as applicable). 
  7. CHARGES
    1. The Licensee shall pay to SeenMachine the Charges in accordance with this Agreement.
    2. Unless otherwise agreed, payment of the Charges by the Licensee to SeenMachine shall be made up front and paid in full when the Licensee uses the Service and by the payment means accessible through the Service from time to time. To the extent permitted by law, SeenMachine shall not be liable for any loss or damage suffered or incurred by the Licensee from the use of the payment means accessible through the Service. 
    3. Without prejudice to any other rights or remedies available to it, SeenMachine shall be entitled to suspend without liability the Services and/or the publication of any Advertisements without notice in the event that payment of any Charges is overdue.
    4. The Charges and any other amounts which may become payable from time to time by one party to the other under this Agreement are stated exclusive of VAT which if applicable, shall be payable in addition by the party making payment at the applicable rate in force from time to time (subject to the provision of a valid VAT invoice by the party receiving the payment in question).
    5. The Charges and any other amounts which may become payable from time to time by one party to the other under this Agreement shall be paid by the applicable party in full in accordance with the terms of this Agreement without set off, deduction or withholding on any account.
  8. INTELLECTUAL PROPERTY RIGHTS
    1. The Licensee acknowledges that ownership of the Website, Service and all SeenMachine Materials (including all subsisting Intellectual Property Rights) shall remain vested in SeenMachine.
    2. SeenMachine hereby grants to the Licensee a revocable, non-exclusive, royalty-free (subject to payment of the Charges in accordance with this Agreement) licence to use the SeenMachine Materials for the term of this Agreement only and only for the purpose of receiving the Services.
    3. The Licensee shall indemnify SeenMachine on demand against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by SeenMachine arising out of or in connection with:
      1. any claim made against SeenMachine for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with any Licensee Data and/or Advertisement; and/or 
      2. any breach by the Licensee of the SeenMachine Advertising Content Guidelines.  

This indemnity shall survive any termination or expiry of this Agreement and shall apply whether or not the Licensee has been negligent or at fault. 

  1. LICENSEE DATA 
    1. Ownership of all Licensee Data including any Intellectual Property Rights in any Licensee Data shall at all times remain vested in the Licensee notwithstanding the uploading, collection or use of any such Licensee Data onto or via the Service.
    2. The Licensee hereby grants to SeenMachine a perpetual, irrevocable, non-exclusive, non-transferable, royalty free licence to use and process the Licensee Data for any purpose.
    3. The Licensee shall ensure that any Licensee Data which it: 
      1. uploads via the Service shall comply with the SeenMachine Advertising Content Guidelines; and
      2. collects or uses onto or via the Service is complete, accurate, and up-to date and does not contain any virus, worm, Trojan horse or other components which may be harmful to or disrupt the Service.
    4. Without prejudice to any of the other rights and remedies of SeenMachine, the Licensee acknowledges that SeenMachine shall not be liable for any failure or delay in complying with any of its obligations under this Agreement nor for any error or omission in the provision of the Service to the extent that any such failure, delay, error or omission is caused as a result of any failure by the Licensee to comply with its obligations under Clause 9.3.
  2. DATA PROTECTION
    1. The Licensee acknowledges that any personal data it provides to SeenMachine including, without limitation, in the Registration Form, shall be processed by the Licensee in accordance with the SeenMachine Privacy Notice.
  3. TERMINATION
    1. Without prejudice to any other rights or remedies available to it, either party may terminate this Agreement at any-time for convenience by written notice, provided that if SeenMachine terminates this Agreement for convenience, SeenMachine shall refund any Charges to the Licensee in relation to any Advertisements that have not been published. Subject to Clause 11.2, if the Licensee terminates this Agreement for convenience, then the Licensee will not be entitled to a refund of any Charges already paid.
    2. Where the Licensee is a consumer, the Licensee acknowledges and agrees that by submitting an Advertisement to SeenMachine to be published as part of the Services:
      1. the Licensee consents to SeenMachine publishing the Advertisement within the statutory 14-day cancellation period afforded to consumers, which begins on the day that the Advertisement is published via the Services; and
      2. the Licensee’s right to cancel the contract at no cost to the Licensee during the 14-day cancellation period shall be lost.
    3. Without prejudice to any other rights or remedies available to it, SeenMachine may terminate or suspend this Agreement and/or remove any Advertisement at any-time by giving written notice to the Licensee if any of the following events occur:
      1. the Licensee commits any material breach of this Agreement and either:
        1. that breach is not capable of remedy; or
        2. that breach is capable of remedy, but the Licensee fails to remedy it within 30 days of receiving a written notice from SeenMachine containing full particulars of the material breach and requiring it to be remedied; 
      2. the Licensee becomes bankrupt or goes into liquidation (whether voluntary or compulsory), becomes insolvent, is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of the Licensee or the Licensee suffers any similar process in any jurisdiction outside of England and Wales; 
      3. SeenMachine reasonably believes that the Licensee has acted illegally, fraudulently and/or been abusive to its staff and/or prospective buyers; or
      4. any competent law enforcement or compliance authority instructs, advises or makes a recommendation to SeenMachine to remove any Advertisements and/or suspend or terminate the provision of Services to the Licensee. 
    4. Upon termination or expiry of this Agreement for any reason all rights granted to the Licensee under this Agreement shall cease (save to the extent any such right is expressly stated to survive or extend beyond termination) and the Licensee shall:
      1. cease all use of and access to the Service and all other activities authorised under this Agreement, and if requested to do so by SeenMachine certify to SeenMachine in writing via a senior officer of the Licensee that it has done so; and
      2. immediately pay to SeenMachine without need for demand any sums due or accrued to SeenMachine from the Licensee under this Agreement (including any Charges) which are unpaid.
    5. Termination or expiry of this Agreement on whatever basis shall be without prejudice to any rights or obligations of either party which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of this Agreement which, whether expressly or by implication, is to continue in or come into force following expiry or termination.
  4. LIMITATION OF LIABILITY
    1. Neither party seeks to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; for any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; and/or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of this Agreement shall be read as subject to this Clause 12.1 and no provision of this Agreement is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
    2. Where the Licensee is a consumer:
      1. If SeenMachine fails to comply with this Agreement, SeenMachine shall be responsible for loss or damage the Licensee suffers that is a foreseeable result of SeenMachine breaching this Agreement or failing to use reasonable care and skill, but SeenMachine is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time this Agreement was made, both parties knew it might happen.
      2. If defective digital content which SeenMachine has supplied pursuant to the Services damages a device or digital content belonging to the Licensee and this is caused by SeenMachine’s failure to use reasonable care and skill, SeenMachine will either repair the damage or pay the Licensee compensation. SeenMachine shall not be liable for damage which the Licensee could have avoided by following SeenMachine’s advice to apply an update offered to the Licensee free of charge or for damage which was caused by the Licensee failing to correctly follow installation instructions or to have in place the Minimum System Requirements.
    3. Where the Licensee is not a consumer:
      1. Subject at all times to Clause 12.1, the maximum liability of SeenMachine to the Licensee for all claims under or in connection with this Agreement howsoever arising shall be limited in aggregate to the value of the Charges actually paid by the Licensee to SeenMachine under this Agreement.
      2. SeenMachine shall not be liable for: loss of business; loss of use; loss of profit; loss of  anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; product recall costs; damage to reputation; and/or consequential, special or indirect loss or damage in any case, regardless of whether or not SeenMachine was aware (or ought reasonably to have been aware) of the risk that such loss or damage might occur. 
      3. For the avoidance of doubt, this Clause 12.3 shall not act so as to limit or exclude the right of SeenMachine to recover any overdue or unpaid Charges or other amounts owing from the Licensee to SeenMachine under this Agreement from time to time.
    4. Neither party shall be liable to the other for any failure or delay in complying with its obligations under this Agreement where such delay or failure is reasonably attributable to an event of Force Majeure provided that the obligation of the Licensee to pay the Charges in accordance with Clause 6 shall not be affected by the occurrence of any event of Force Majeure.
    5. For the avoidance of doubt, SeenMachine shall not be liable for any liabilities, costs, expenses, damages and losses suffered or incurred by the Licensee arising out of or in connection with:
      1. any loss of or damage to machinery displayed in the Advertisements; 
      2. any failure by the Licensee to sell machinery displayed in the Advertisements; and/or
      3. any acts or omissions of buyers who purchase machinery displayed in the Advertisements from the Licensee. 
  5. CONFIDENTIALITY
    1. Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party, except in the case of: (a) its professional advisors, potential purchasers, investors or funders who have a need to know the same for the purposes of the implementation and operation of this Agreement and/or the exercise of that party’s rights under this Agreement and/or the exercise of that party’s rights under this Agreement (or, in the case of potential purchasers, investors or funders for the purposes of carrying out due diligence on the business of the party in question) but not otherwise or further; or (b) as may be required by any law or any legal or regulatory authority, any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates or group companies, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
  6. GENERAL
    1. Any notices to be served on either party by the other shall be in writing and sent by pre-paid registered post to the address and/or e-mail address of the other party as set out in Clause 1.1(k) (in the case of SeenMachine) and in the Registration Form (in the case of the Licensee) or such other address as is notified in writing by that party from time to time. Such notice shall be deemed to have been received by the addressee 72 hours after posting provided applicable evidence of posting is retained and produced on request or if sent by email, at the time of issue by the sender’s IT system of a notice of successful delivery.
    2. The parties are with respect to each other independent contractors and nothing in this Agreement and no actions taken by the parties under it shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties. 
    3. This Agreement together with any documents referred to or incorporated into it in accordance with its terms represents the entire agreement between the parties relating to its subject matter and supersedes all previous presentations made and/or agreements, negotiations and discussions between the parties relating to the same. 
    4. The Licensee may not sub-licence, assign, transfer, novate, charge or sub-contract the performance of any of its rights and/or obligations under this Agreement without the prior written consent of SeenMachine. The Licensee acknowledges and agrees that any breach by it of the restrictions imposed on it under this Clause 14.4 shall constitute a material breach of this Agreement which is not capable of remedy.
    5. SeenMachine may at any-time sub-licence, assign, transfer, novate or charge the performance of any of its rights and/or obligations under this Agreement. 
    6. If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
    7. The failure to exercise or delay in exercising any right or remedy under this Agreement shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies.  No single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or any other right or remedy.
    8. A person who is not a party to this Agreement shall have not right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
    9. This Agreement shall be governed by English law. 
    10. If the Licensee is a consumer, the Licensee can bring legal proceedings in respect of the Services in the English courts. If the Licensee lives in Scotland, the Licensee can bring legal proceedings in respect of the Services in either the Scottish or the English courts. If the Licensee lives in Northern Ireland, the Licensee can bring legal proceedings in respect of the Services in either the Northern Irish or the English courts. 
    11. If the Licensee is not a consumer, save in respect of the enforcement of any judgment, the parties agree to submit to the exclusive jurisdiction of the English courts.


 


  •      SeenMachine Advertising Content Guidelines

Advertisements must only feature one item of machinery for sale at any time. 

 

Content must:

  • Be accurate, clear and conspicuous and all claims can be substantiated.
  • Be genuinely held (where it states opinions).
  • Comply with applicable law, rulings, practices and codes (including advertising codes and practices) in the UK and in the territory where the content is being served, displayed or published. This includes, without limitation, confirming whether machinery in an Advertisement is being sold by a private or trade seller. 

 

Content must not:

  • Contain any material which is defamatory or libellous of any person.
  • Contain any material which is obscene, offensive, hateful or inflammatory.
  • Promote sexually explicit material.
  • Promote violence.
  • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Infringe any copyright, database right, trade mark or other intellectual property right of any other person.
  • Be likely to deceive or mislead any person.
  • Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
  • Promote any illegal activity.
  • Be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety.
  • Be likely to harass, upset, embarrass, alarm or annoy any other person.
  • Be used to impersonate any person, or to misrepresent the advertiser's identity or affiliation with any person.
  • Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
  • Contain any personal data relating to any individual other than the Licensee or the Licensee’s authorised representative. 
  • Contain any spam.
  • Contain descriptions or audio not relating to the machinery being advertised.
  • Be written in any other language than English.
  • Be detrimental to SeenMachine’s reputation. 
  • Relate to machinery that the Licensee does not have the right to sell.
  • Relate to machinery that has been subject to severe past damage or write-off, where this is not declared in the Advertisement. 

 

For the purposes of Clause 11.3(a)(i), any breach of this Schedule 1 shall constitute a material breach of this Agreement that is not capable of remedy.