Version 1.01 (March 2007)
These Terms
and Conditions constitute a legal agreement between you (the "User" or "you") and TSE Development Limited.
By
installing, copying, downloading, accessing, or otherwise using the Software to
access the
----------------------------------------------------
THIS AGREEMENT is
BETWEEN:
(1) TSE
DEVELOPMENT LIMITED with its registered office at Waterfront, Hammersmith
Embankment, Chancellors Road, Hammersmith, London W6 9HP ("Betfair"); and
(2)
the USER.
1. DEFINITIONS AND INTERPRETATION
|
"Access
Fee" |
means
the fee that Betfair may levy for your access to the Betfair API; |
|
"Agreement"
|
means
the Term Sheet, these Terms and Conditions and any associated schedules; |
|
"Betfair
API" |
means
the data and functionality (commonly referred to as the application
programming interface or API) contained on the Betfair betting exchange
platform together with access to the relevant Web Services Definition
Language (WSDL) file where required; |
|
"Betfair
Terms and Conditions " |
means
the terms and conditions, rules and regulations, privacy policy and the trust
deed governing the use of the www.betfair.com web site as available for
inspection at that site and as are updated from time to time; |
|
"Business
Day" |
means
any day (excluding Saturdays and Sundays) on which banks generally are open
in the City of |
|
"Code"
|
means
encrypted data that enables Betfair to identify circumstances in which a
particular software application is in use; |
|
"Commencement
Date" |
means
the date on which this Agreement is agreed to by the parties; |
|
"Commercialise"
|
means
sell, rent, lease, license or publish all or any part of the Betfair API for
profit or otherwise use in a commercial or business context that does not
equate to personal use or enable others to do so; |
|
"Confidential
Information" |
means
all information which is not publicly known and that is disclosed (by
whatever means, directly or indirectly) by one party to another, whether
before or after the date of this Agreement including any information relating
to the IPR, products, operations, processes, plans, intentions, product
information, a party's customer data the terms of this Agreement, market
opportunities or business affairs of the disclosing party or any of its
sub-contractors, suppliers, customers, clients or other contacts; |
|
"Content"
|
means
all Confidential Information, data and/or functionality accessible from the
Betfair API; |
|
"Designated
Equipment" |
means
the hardware upon which the Software is loaded and operated and which the
User is responsible for ensuring is compatible with the Software in each case
a phone/handset/organiser or similar piece of equipment; |
|
"Force
Majeure" |
means
any event outside the reasonable control of a party affecting its ability to
perform any of its obligations (other than payment) under this Agreement; |
|
"Good
Industry Practice" |
means
the exercise of that degree of skill, diligence, prudence and foresight which
would reasonably and ordinarily be expected from a skilled and experienced
contractor acting in good faith; |
|
"Group"
|
means,
in relation to a company, any entity directly or indirectly controlling,
controlled by or under common control of a party; |
|
"IPR"
|
means
any and all patents, trade marks, service marks, rights in designs (including
semiconductor topography design rights and circuit layout rights), get-up,
trade, business or domain names, goodwill associated with the foregoing,
e-mail address names, copyright including rights in computer software (in
both source and object code) and rights in databases (in each case whether
registered or not and any applications to register and rights to apply for
registration of any of the foregoing), rights in inventions and
web-formatting scripts (including HTML and XML scripts), know-how, trade
secrets and other intellectual property rights which may now or in the future
subsist in any part of the world including all rights of reversion and the
right to sue for and recover damages for past infringements; |
|
"Licensed
Materials" |
means,
together, the Betfair API and the Software; |
|
"Software" |
means
the software product (and any subsequently available modification thereto)
owned by Betfair or its licensors that enables a User to access the Betfair
Exchange via a mobile telephone; |
|
"Use" |
means
download, load, store, run, display and execute the Software in object code
form on one item of Designated Equipment in accordance with the terms of this
agreement. |
|
"UserID"
|
means
the confidential security keys specific to the User issued by Betfair to
enable access to the Betfair API. |
1.2 Headings
to clauses are inserted for convenience only and shall not affect the
interpretation or construction of this Agreement.
1.3 Words
importing the singular shall include the plural and vice versa. Words importing
a gender include every gender and references to persons include an individual,
company, corporation, firm or partnership.
1.4 The
words and phrases "other", "including" and "in
particular" shall not limit the generality of any preceding words or be
construed as being limited to the same class as any preceding words where a
wider construction is possible.
1.5 Any
obligation to do or not to do something shall include an obligation to procure
that it be done or not done.
1.6
References to a party include that party's successors and permitted assignees.
1.7 In this
Agreement, "control" shall have the meaning given to it in section
840 of the Income and Corporation Taxes Act 1988.
THE
PARTIES AGREE AS FOLLOWS:
2. LICENCE
2.1 In
consideration of the warranties given and obligations assumed herein and subject
to the terms and conditions of this Agreement, Betfair hereby grants to the
User a non-exclusive, non-transferable, terminable licence:
(a) to
access the Betfair API; and
(b) to Use
the Software on Designated Equipment,
in each
case, solely for its own internal business purposes and in accordance with such
other limitations and restrictions as set out in this Agreement
2.2 Betfair
agrees to enable the User's UserID with access to the Betfair API during the
term of this Agreement. The UserID shall remain the property of Betfair and may
be disabled from access to the Betfair API upon termination of this Agreement
or upon occurrence of any of the events described in clause 2.3 below.
2.3 It is a condition of this Agreement that
the User shall not do any of the following:
(a) assign, transfer, sub-license or disclose the UserID to a third party;
(b) assign, transfer, sub-license, disclose or otherwise provide any of the
Content to a third party;
(c) collect personally identifiable information of any other user of the
Betfair API;
(d) Commercialise the Content or access to the Betfair Exchange Platform;
(e) use the Betfair API in a manner which might enable a third party to
interact with the web site www.betfair.com or any other web site owned or operated
by Betfair;
(f) use the Content to provide market
information to a third party for business or commercial use;
(g) display data from the
(h) create freeware, shareware or commercial software applications for use in
connection with the
(i) utilise software applications made available by third parties and intended
for use specifically in relation to betting exchange functionality and/or the
(j) use the Licensed Material in a way which proves or is likely to prove
detrimental to
(k) copy, reproduce, modify or use the Licensed Material in any bureau,
timeshare, or outsourcing arrangement or reproduce or on sell the whole or any
part of the Licensed Material whether aggregated with other data or otherwise.
(l) use
2.4 By
entering into this Agreement the User hereby agrees to the Betfair Terms and
Conditions.
2.5 Betfair
will use its reasonable endeavours to provide support to the User, with such
support made available as detailed at the Contact Us page
3.
WARRANTIES OF THE USER
3.1 The
User, warrants and undertakes that:
(a) it has full capacity and authority and all necessary licences, permits, IPR
rights and consents to enter into this Agreement and any other documents
executed by it that may be associated with this Agreement;
(b) this Agreement constitutes valid, binding and enforceable obligations of
the User in accordance with its terms;
(c) it shall at all times conduct itself with all due skill, care and
diligence, including Good Industry Practice, and in accordance with its own
established procedures and all applicable laws, enactments, orders, regulations
and other similar instruments;
(d) it shall comply with Betfair's security guidelines and requirements as may
be issued by Betfair from time to time whether in writing or otherwise.
4. ACCESS
FEE
4.1 Betfair
agrees to waive any User fees for the Betfair API access while User accesses it
via the Software, but Betfair reserves the right to levy a fee which shall take
effect 10 Business Days after the service of notice to the User, which shall be
served in accordance with the Betfair Terms and Conditions.
4.2 Nothing
in this Agreement shall require Betfair to make any payment to the User with
respect to this Agreement.
4.3 The User
acknowledges that any charges levied by any network operators or other third
parties are outside the scope of this agreement and the responsibility of the
User.
5.
INTELLECTUAL PROPERTY RIGHTS
5.1 All IPR
in the Licensed Materials shall belong to Betfair or its licensors. All IPR in
any third party materials shall belong to the third party owner thereof.
5.2 Nothing
in this agreement purports to grant a license, provide any warranty or offer
any indemnity in respect of any data that is not owned by Betfair. In the event
that the User does require access to any such data, it agrees that it shall
enable Betfair an opportunity to secure rights to the same and (if it becomes
necessary to do so) the User will cover the costs of securing a licence to the
same from the relevant third party data owner or either party may terminate
this agreement immediately.
6. INDEMNITY
6.1 The User
shall at its own expense indemnify Betfair against any claim against Betfair
alleging an infringement by Betfair of the IPR of any third party arising
through the User's use of the Licensed Materials and pay any final judgement
entered against Betfair in respect thereof except if and to the extent that any
such claim arises from any breach by Betfair of its obligations under this
Agreement. 6.2 Either party shall immediately notify the other party if any
claim or demand is made or action brought against it for any infringement or
alleged infringement of any IPR which may affect the supply or use of the
Licensed Materials.
7. DATA
PROTECTION AND SECURITY
7.1 The User
will duly observe all its obligations under the Data Protection Act 1998 and
any amendments thereto which arise in connection with this Agreement. In
particular the User shall ensure that it has adequate technical (and
organisational) security procedures in place to prevent the unauthorised or
unlawful disclosure of personal data.
7.2 The User
acknowledges that the security of Betfair's data and its systems is fundamental
to the business of Betfair and if the User becomes aware of a breach or
potential breach of security relating to the Betfair API, it shall immediately
notify Betfair of such breach or potential breach and use its best endeavours
to ensure that any potential breach does not become an actual breach and/or
remedy any actual breach and its consequences.
8.
CONFIDENTIALITY AND ANNOUNCEMENTS
8.1 During
the term of this Agreement and after termination or expiration of this
Agreement, the parties shall not use any Confidential Information for any
purpose other than in pursuance of its rights and obligations under this
Agreement nor disclose any Confidential Information to any person except with
the prior written consent of the other party and shall use the same standard of
security to prevent the use or disclosure of the Confidential Information as it
does for its own Confidential Information.
8.2 The
parties may disclose any Confidential Information to their directors, other
officers, employees, advisers and sub-contractors to the extent that such
disclosure is reasonably necessary and in accordance with the requirements set
out in clause 8.1.
8.3 On
termination the parties shall (on request) deliver up to the other party or
destroy all copies of Confidential Information in its possession, and (if so
requested) shall use all reasonable endeavours to destroy all copies of
Confidential Information stored electronically.
8.4 The
parties shall together determine the content of any communications concerning
the relationship between the parties. Such communications shall be issued at a
time and in a manner agreed by the parties (acting reasonably).
9.
LIMITATION OF LIABILITY AND EXCLUSIONS
9.1 Save as
provided by statute and to the fullest extent permitted by law, the following
provisions set out the entire liability of Betfair (including any liability for
the acts and omissions of its employees, agents and sub-contractors) to the
User whether in contract, tort, statute, equity or otherwise:
(a) The User acknowledges and agrees that (except as expressly provided in this
Agreement) the Licensed Materials are provided "AS IS" without
warranties of any kind (whether express or implied);
(b) All conditions, warranties, terms and undertakings (whether express or
implied, statutory or otherwise relating to the delivery, performance, quality,
uninterrupted use, fitness for purpose, occurrence or reliability of the
Licensed Materials are hereby excluded to the fullest extent permitted by law;
(c) The entire liability of Betfair in respect of any breach or default shall
be limited to £1,000; and
(d) Betfair shall not be liable to the User for loss of profit (whether direct
or indirect), loss of contracts or goodwill, lost advertising, loss of data or
any type of special, indirect, consequential or economic loss (including loss
or damage suffered by the User as a result of an action brought by a third
party) even if such loss was reasonably foreseeable or Betfair had been advised
of the possibility of the User incurring such loss.
9.2 No
exclusion or limitation set out in this Agreement shall apply in the case of:
(a) fraud or fraudulent concealment;
(b) death or personal injury resulting from the negligence of either party or
any of its employees, agents or sub-contractors; and/or
(c) any breach of the obligations implied by (as appropriate) section 12 of the
Sale of Goods Act 1979, section 2 of the Supply of Goods and Services Act 1982
or section 8 of the Supply of Goods (Implied Terms) Act 1973.
9.3 The time
limit within which the User must institute suit against Betfair to recover on
any claim shall be 2 years from the date the User should reasonably have become
aware or becomes aware of the relevant breach that would form the subject of
the claim.
9.4 This
clause 9 shall survive the termination of this Agreement for whatever reason.
10. FORCE
MAJEURE
10.1 If
either party is affected by Force Majeure it shall notify the other party in
writing of the matters constituting the Force Majeure and shall keep that party
informed of their continuance and of any relevant change of circumstances
whilst such Force Majeure continues. Neither party shall have any liability to
the other in respect of an event of Force Majeure provided it complies with
clause 10.2.
10.2 The
party affected by Force Majeure shall take all reasonable steps available to it
to minimise the effects of Force Majeure on the performance of its obligations
under this Agreement.
11. TERM
This
Agreement shall commence on the Commencement Date and, unless terminated
earlier in accordance with clause 12, shall continue until the User ceases to
pay the Access Fee specified in clause 4.1 at which time the User will
(provided it gives notice of an intention to renew) have 24 hours to secure
continued access by payment of the next instalment of the Access Fee or the
Agreement will terminate. Where no
Access Fee is levied, this agreement shall continue until terminated in
accordance with clause 12.
12.
TERMINATION
12.1 A party
(the "Initiating Party") may terminate this Agreement with immediate
effect by written notice to the other party (the "Breaching Party")
on the occurrence of an event specified in clause 12.2.
12.2 The
events referred to in clause 12.1 are:
(a) the Breaching Party committing an irremediable material breach of a
material obligation under this Agreement;
(b) the Breaching Party committing a remediable material breach of a material
obligation under this Agreement and failing to remedy the breach within 10
Business Days of the Initiating Party giving reasonable details of the breach
and requiring the Breaching Party to remedy such breach;
(c) the Breaching Party goes into liquidation, either compulsorily or
voluntarily or administration or a receiver, administrative receiver, receiver,
manager or similar officer is appointed in respect of the whole or any part of
its assets, or if Sub-Licensee make an assignment for the benefit of, or a
composition or arrangement with, its creditors;
(d) the Breaching Party failing to make a payment by such due date as may be
specified in this Agreement provided always that in relation to any
indebtedness of the Breaching Party, the failure to pay when due which shall be
deemed a remediable material breach to be determined in accordance with clause
12.2(b) above;
(e) there is a change in control of the User without the written consent of
Betfair;
(f) the User is in breach of any of the restrictions set out in clause 2.3.
12.3 For the
purposes of clause 12.2 a "material breach" means a breach which is
serious in the widest sense of having a serious effect on the benefit which the
Initiating Party would otherwise derive from a substantial portion of this
Agreement over the entire remaining period of this Agreement or a reasonable
portion thereof and a breach is remediable if the Breaching Party can comply
with the obligation within the 10 Business days period in sub-clause 12.2(b).
12.4 Either
party may terminate this Agreement on seven day's notice in writing at any time
for any reason provided always that if this clause is invoked by Betfair, it
returns any Access Fee payments already made by the User that relate to any
period that follows such termination date.
13.
CONSEQUENCES OF TERMINATION
13.1 On
termination of this Agreement all licences granted by Betfair to the User
pursuant to this Agreement shall immediately terminate and the UserID shall be
disabled for use in connection with the Betfair API.
13.2 Within
10 days of the termination of this Agreement the User shall at Betfair's sole
option return or destroy all copies of the Software and the Content in its
possession or control and a duly authorised officer of the User shall certify
in writing to Betfair that the User has complied with this obligation.
13.3 The
expiry or termination of this Agreement for whatever reason shall not affect:
(a)any party's accrued rights and obligations at the date of expiry or
termination;
(b) the coming into force or the continuance in force of any provision of this
Agreement which expressly or by implication is intended to come into or
continue in force on or after such expiry or termination.
14.
ASSIGNMENT AND SUB-CONTRACTING
The User
shall not assign, novate, declare a trust of or otherwise dispose of this
Agreement, or any part thereof, without the prior written approval of Betfair.
15. ENTIRE
AGREEMENT
Subject to
clauses 9.2 and 2.4, this Agreement constitutes the entire and only agreement
between the parties with regards to its subject matter and each party confirms
that it has not been induced to enter into this Agreement in reliance upon, nor
has it been given, any warranty (including in particular any warranty as to
merchantability, fitness for purpose or uninterrupted functionality),
representation, statement, assurance, covenant, agreement, undertaking,
indemnity or commitment of any nature whatsoever other than as are expressly
set out in this Agreement and, to the extent that it has been, it
unconditionally and irrevocably waives any claims, rights or remedies which it
might otherwise have had in relation thereto.
16.
CUMULATION OF REMEDIES
Subject to
the specific limitations set out in this Agreement, no remedy conferred by any
provision of this Agreement is intended to be exclusive of any other remedy
except as expressly provided for in this Agreement and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
thereunder or existing at law or in equity, by statute or otherwise.
17. NO
PARTNERSHIP
Nothing in
this Agreement and no action taken by the parties pursuant to this Agreement
shall constitute, or be deemed to constitute, the parties as a partnership, association,
joint venture or other co-operative entity.
18. WAIVER
18.1 No
breach of any provision of this Agreement shall be waived or discharged except
with the express written consent of the parties.
18.2 No
failure or delay by a party to exercise any of its rights under this agreement
shall operate as a waiver thereof and no single or partial exercise of any such
right shall prevent any other or further exercise of that or any other right.
19.
INVALIDITY AND SEVERABILITY
19.1 If any
provision of this Agreement is or becomes (whether or not pursuant to any
judgment or otherwise) invalid, illegal or unenforceable in any respect under
the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any other
jurisdiction of that or any other provision, shall not be affected or impaired
in any way thereby.
19.2 If any
provision of this Agreement shall be held to be void or declared illegal,
invalid or unenforceable for any reason whatsoever, such provision shall be
divisible from this Agreement and shall be deemed to be deleted from this
Agreement and the validity of the remaining provisions shall not be affected.
In the event that any such deletion materially affects the interpretation of
this Agreement then the parties shall negotiate in good faith with a view to
agreeing a substitute provision which as closely as possible reflects the
commercial intention of the parties.
20. NOTICES
20.1 Notices
and communications shall be considered given or made:
(a) where personally delivered, upon delivery at the address of the relevant
party;
(b) where sent by first class post, three Business Days after the date of
posting;
(c) where sent by air mail, five Business Days after the date of posting; where
delivered by facsimile or email, at the time of transmission, provided that a
confirming copy is sent by first class post to the other party within 24 hours
after transmission.
21. THIRD
PARTY RIGHTS
The
Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement
and no rights or benefits expressly or impliedly conferred by it shall be
enforceable under that Act against the parties to it by any other person.
22. FURTHER
ASSURANCE
Each party
shall, upon request from the other, do and execute, or procure that there shall
be done and executed, all such documents, deeds, matters, acts or things as
that other may at any time require to give it the full benefit of this
Agreement.
23.
GOVERNING LAW AND JURISDICTION
23.1 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 the parties hereby irrevocably submit to the jurisdiction of the courts of
24. ACCEPTANCE
OF TERMS OF AGREEMENT AND CHANGES TO AGREEMENT
24.1 This
agreement is binding upon commencement of the Use of the Software and any
continued Use following changes to these terms and conditions shall constitute
acceptance of those changes.
24.2 If we make
significant changes to these terms and conditions we will take appropriate
steps to bring such changes to your attention (such as by placing a notice of
such change on a prominent position at www.betfair.com (the
"Website"), together with the changed terms and conditions). It is
your responsibility to check the Website from time to time to ensure that you
agree with them and your continued use of the Licensed Materials will be deemed
to be your acceptance of any changes to these terms and conditions.