Save as expressly set out in these Horizon Terms, Diageo gives no warranty nor representation, either express or implied, of any kind in respect of Horizon or the Horizon Content or their use.
The Authorised User accepts that Diageo shall have no responsibility for any interruptions or capacity constraints affecting Horizon arising from any cause, including without limitation constraints arising from telecommunications networks or service providers and reasonable interruptions for testing, repair, maintenance and service integration.
- it shall use its reasonable endeavours not to introduce any software virus or other contaminant (including, without limitation, bugs, worms, Trojan horses or any other self propagating or other such program) into Horizon that may infect, damage or corrupt the Authorised User's systems; and
- it has taken and shall continue to take all reasonable steps to ensure that Horizon is secure.
Diageo agrees to indemnify and keep indemnified the Authorised User and its Affiliates, and their respective directors and employees (each an “Authorised User”) against any and all claims, liabilities, damages and losses and any and all third party claims and costs and/or expenses (including without limitation legal costs and expenses) incurred by the Authorised User arising out of or in connection with:
Subject to Clause 8.6, in no event shall any Diageo Group Member be liable for any special, indirect, consequential, punitive or exemplary damages, even if the Diageo Group Member has been advised of the possibility of such loss or damages.
The exclusions set out in Clause 8.5 shall not apply to sums for which Diageo is liable to indemnify the Authorised User pursuant to Clause 8.4 which have either been paid pursuant to a damages award by a competent court in respect of a third party claim or paid by an Authorised User (with Diageo’s prior written approval) in settlement of a third party claim.
- any breach by Diageo of its obligations under these Horizon Terms; and
- any third party claims alleging that use by Diageo of any Media Asset (other than Work in Progress) uploaded or supplied for upload onto Horizon by or on behalf of the Authorised User exceeds the usage rights acquired from third parties in respect of the Media Asset, where such use does not correspond to the associated Metadata and such Metadata is correct.
The indemnity in Clause 8.4 in respect of third party claims and any associated liabilities, damages, losses, costs and/or expenses (including without limitation legal costs and expenses) is conditional upon the Authorised User:
Where any claim or dispute arises in connection with any of the above, Diageo’s liability under Clause 8.4 shall be limited to the greater of (i) £5,000,000; or (ii) the amount of any cap on any Diageo Group Member’s liability under any agreement relating to the Authorised User’s or its Affiliates’ supply of services to any Diageo Group Member which is in force at the date of the claim or dispute. For the avoidance of doubt, this limit is not an aggregate but shall apply separately to each individual dispute or claim. Nothing in these Horizon Terms shall exclude or limit the liability of any Diageo Group Member in respect of death or personal injury caused by negligence of a Diageo Group Member.
- promptly notifying Diageo of any actual or threatened claim;
- making no admissions without Diageo’s prior written consent; and
- allowing Diageo control over any negotiations or litigation and/or the defence or settlement of any claim and providing Diageo with all reasonable assistance in this respect (with the reasonable costs of such assistance to be paid by Diageo), including the right to conduct any negotiations or litigation in the name of the Authorised User.
- Diageo does not endorse and is not responsible for any content of any website linked to or from any part of Horizon.
- If any provision of these Horizon Terms is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Horizon Terms and the remainder of the provision in question shall not be affected.
- Diageo may modify these Horizon Terms by written notice to the Authorised User. The Authorised User shall be deemed to have accepted such modifications by continuing, or its Authorised Representatives continuing, to access and/or use Horizon. In the event that the Authorised User does not accept any modifications to Horizon User Terms, the Authorised User’s licence under Clause 3 shall terminate with immediate effect.
- The notice referred to in Clause 9.3 may be given by way of the logon screen for Horizon. The Horizon User Terms and any amendments to them may be accepted by the Authorised User by way of electronic signature including without limitation clicking any on-screen “Confirm” or similar button.
- he Authorised User’s rights and obligations under these Horizon Terms are personal to the Authorised User and the Authorised User shall not assign such rights or obligations without the prior written consent of Diageo.
- As and when requested by Diageo, the Authorised User shall, and shall procure that its members of staff shall, do all acts and execute all documents as may be reasonably necessary to give effect to the provisions of these Horizon Terms.
- In the event of any conflict between the provisions of these Horizon Terms and the provisions of any other contract between any member of the Diageo Group and the authorised User, the provisions of these Horizon Terms shall prevail to the extent of any such inconsistency.
- Any provision of these Horizon Terms may, in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999, be enforced by any Diageo Group Member.
- Except as provided in Clause 9.8, no provision of these Horizon Terms is intended to confer a benefit on, or to be enforceable by, any person other than Diageo or the Authorised User.
- It is expressly agreed that Diageo may rescind or vary these Horizon Terms without the consent of any person who has a right to enforce any part of these Horizon Terms, notwithstanding that such rescission or variation may extinguish or alter that person’s entitlement under that right (but without prejudice to any rights accrued prior to any such rescission or variation).
Wherever these Horizon Terms require that notice, approval or consent be given in writing then such notice, approval or consent may be given by any of the following methods:
- by email, which in the case of communications with the Authorised User may be sent to any User Representative and in the case of communications with Diageo should be sent to such email address as Diageo may notify for this purpose from time to time;
- by post or fax to such addresses and fax numbers as the Authorised User and Diageo may notify to the other for this purpose from time to time; or
- by use of a log-on notice as referred to in Clause 9.4.
- These Horizon Terms are governed by English law. The courts of England are to have jurisdiction to settle any dispute in connection with these Horizon Terms. Any proceeding, suit or action arising out of or in connection with these Horizon Terms may therefore be brought in the English courts. Nothing in this Clause shall prevent either party from taking any proceedings, suit or action arising out of or in connection with these Horizon Terms in any other court or in the courts of more than one jurisdiction at the same time.
Diageo Horizon User Terms
Diageo Horizon is a system for the development, archiving and management of digital assets, such as websites, mobile apps and social apps. These terms apply to use of Horizon by Diageo group employees and consultants and representatives of third party Authorised Users of Horizon. If you are a Diageo group employee any references to instructions and consent shall means instructions or consent given by your line manager.
- You shall comply with any Horizon security requirements, Horizon user manual and any instructions regarding use of Horizon notified to you from time to time by Diageo and any Authorised User you represent.
- You shall keep confidential and not disclose to any other person the password provided to you and take reasonable steps to prevent others from using your username and password.
- You shall not permit any other person to access or use Horizon.
- You shall immediately notify email@example.com if you become aware of or suspect that your password has become known to any other person.
- You shall immediately notify firstname.lastname@example.org if you become aware of or suspect any unauthorised access to or use of Horizon.
- You shall use Horizon and the assets and information available on it only in accordance with instructions from Diageo and any Authorised User you represent.
- You shall use any asset you obtain from Horizon strictly in accordance with the usage rights and restrictions on the use of that asset which are evident from Horizon or are otherwise notified to you.
- You shall not remove from any copy of any asset, whether on Horizon or once downloaded from Horizon, any copyright notice, watermark or other identifying or security technology, metadata or other information associated with that asset except with the prior consent of Diageo or the Authorised User you represent.
- ou acknowledge that Horizon content is considered to be the proprietary, confidential material of Diageo and may contain trade secrets. You shall treat Horizon information and assets as confidential unless instructed otherwise by Diageo or the Authorised User you represent.
- You shall not corrupt or interfere with the operation of Horizon or expose Horizon to any viruses, worms or any other computer code, files or programs which might interrupt, limit or interfere with the functionality of any computer software or hardware or telecommunications equipment.
- Diageo reserves the right to monitor (with the assistance of any person hosting Horizon for Diageo) your use of Horizon and any assets or information you obtain from Horizon. Any such monitoring shall be solely for the purpose of ensuring compliance with these User Terms, the respect of intellectual property rights or other legitimate Diageo internal processes.
- If you are a Diageo group employee, Diageo reserves the right to take disciplinary action against you if you do not comply with these User Terms.
- You shall immediately discontinue your use of Horizon on notice from Diageo or the Authorised User you represent.
- Diageo may modify these User Terms from time to time by notice to you. Notice may be given by way of the logon screen for Horizon. You shall be deemed to have accepted such modifications by continuing to access and/or use Horizon and/or by clicking any on screen “Confirm” or similar button.
- If you are a Diageo group employee these terms are governed by the same law and jurisdiction as your employment contract. If you are a representative of an Authorised User these terms are governed by English law and non-exclusive jurisdiction is given to the English courts.