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Definitions and interpretation In these conditions of sale the following terms have the following meanings:
Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships. The word “including” is not to be treated as a word of limitation.
Basis of Contract
These Conditions apply to all contracts for the provision of Services entered into by the Supplier to the exclusion of all others including, without limitation, any terms or conditions provided by the Customer at any time.
Without prejudice to clause REF _Ref221599026 \r \h \* MERGEFORMAT 2.1 above, the terms of an Order will override the corresponding term in these Conditions where a specific reference to the term being overridden is made and such Order is signed on behalf of each of the Supplier and the Customer.
All Orders are subject to acceptance at the Supplier's absolute discretion and are not binding upon the Supplier until accepted by the Supplier in writing. The Customer may not cancel or vary any Order which the Supplier has accepted
Each Contract is a separate legal contract and contains all the terms agreed by the parties in relation to its subject matter and supersedes all prior agreements, understandings and arrangements whether oral, in writing or arising from a course of dealing. Each party acknowledges that in entering into a Contract it has not relied upon any matter not set out therein.
The Supplier may make changes to these Conditions, from time to time. Any such change shall apply to all Orders placed by the Customer after the date of the change. The Customer is reminded of the need to periodically check these Conditions for changes.
Supply of Services
The Supplier shall use reasonable efforts to commence the provision of the Services on or around the Start Date, but time of performance shall not be of the essence.
To enable the Supplier to perform its obligations under the Contract, the Customer shall co-operate fully with the Supplier, provide the Supplier with Customer Material and any information that it reasonably requires and obtain all necessary permissions and consents which may be required prior to commencement of the Services.
The Customer shall retain copies of Customer Material and the Supplier shall not be liable for any loss or damage to any Customer Materials provided to it.
The Supplier reserves the right to make any changes to the Services which are necessary to comply with applicable laws. The Supplier further reserves the right to make changes to the Services if, in its reasonable opinion, such changes will assist in the delivery of the Customer's objectives.
If a Contract is for SEO services in whole or in part, the Customer agrees to comply fully and promptly with any recommendations that the Supplier makes as part of the Services.
Delivery and Acceptance
In respect of SEO services, the Supplier shall use tracking mechanisms to verify delivery of the Services and shall provide the Customer with a monthly ranking report to evidence the results.
Upon delivery of the Services, the Customer shall inspect the Services and notify the Supplier within 10 days of any non-conformance with the Contract. For the avoidance of doubt, if the Customer does not notify the Supplier of any non-conformance in accordance with this clause, the Customer will be deemed to have accepted the Services.
Any Intellectual Property in or arising out of or in connection with the provision of the Services shall be owned by, and where applicable, vest in the Supplier. Solely to the extent strictly necessary to give effect to the intentions of any Contract, the Supplier shall provide a non-exclusive, non-transferrable licence of its Intellectual Property to the Customer, for the lifetime of that Contract (such licence to terminate on the termination or expiry of such Contract, howsoever arising).
In respect of SEO services conducted in relation to the Customer's website, all SEO improvements will remain the property of the Supplier and upon termination or expiry of the Contract, the Supplier reserves the right to access the Customer's website and delete any improvements made by the Supplier. For the avoidance of doubt, where as part of the Services, a website has been created for the Customer by the Supplier, the website, including any SEO improvements, with the exception of any Customer Materials appearing on the Website (which shall be removed and, where possible or necessary returned to the Customer), shall be and remain the property of the Supplier and the Customer shall, further to clause 5.1 above, cease to have any rights to the same post termination pending further agreement between the parties.
The Customer agrees to indemnify the Supplier against all losses, liabilities, damages and expenses arising out of or in connection with any third party claims of Intellectual Property infringement caused as a result of the Customer's failure to obtain the necessary consents and permissions pursuant to clause 3.2.
Price and payment
The Price and the Budget are exclusive of any applicable VAT, which the Customer shall be additionally liable to pay to the Supplier.
The Price will be invoiced monthly. Each invoice must be paid in full and cleared funds without set-off or deduction in pounds sterling within 7 days of the date of the invoice. Time of payment shall be of the essence of the Contract.
In respect of Services relating to PPA Campaigns or PPC Campaigns, the Customer shall be liable for the Price upon an Action or a Click occurring as applicable, regardless of whether the Customer's website is in operation at this point.
Where applicable, the Budget will be payable as set out in the Order.
If there is any shortfall in any part of the Budget paid to the Supplier in advance, and the fees payable to third party service providers in respect of the Services, the Supplier shall invoice the Customer for the balance monthly in arrears.
If there is any excess in the Budget paid to the Supplier in advance, once third party costs have been accounted for, the Supplier shall issue a credit note of the balance, or use the balance to offset subsequent invoices or any other sums owing to the Supplier by the Customer, at the Supplier's discretion.
If the Order provides that the Customer shall pay the Budget (or any part of it) directly to any third party service provider:
the Customer acknowledges that it is a material provision of the Contract that it pays the Budget to the third party provider fully and promptly; and
the Customer shall comply with the Supplier's reasonable instructions and restrictions in relation to the access, operation and management of the Campaign account to which the Budget relates.
If the Customer fails to pay any amount under the Contract when it is due then without prejudice to any other rights and remedies, the Supplier may cease the provision of the Services without incurring any liability.
The Supplier reserves the right to increase the Price of the Services at any time prior to performing the Services due to any factors beyond its reasonable control. In this circumstance, the Supplier will use reasonable endeavours to inform the Customer of the Price change as soon as reasonably practicable.
The Supplier warrants that the Services will be performed with reasonable care and skill and in accordance with all statutory requirements and regulations. The Supplier does not warrant that all scripts or programs are free of errors.
The Customer's only remedy in respect of a breach of the warranty in clause REF _Ref221599268 \r \h \* MERGEFORMAT 7.1 will be (at the Supplier's sole discretion) re-performance of the Services or a refund of the Price (in respect of the affected Contract only).
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
Save as provided below:
the Supplier will not be liable for any delay in or failure to comply with its obligations to the extent that such failure results from circumstances beyond Supplier's reasonable control.
For the avoidance of doubt, the Supplier does not:
No provision of these Conditions shall limit or exclude the Supplier's liability for death or personal injury caused by its negligence or for fraudulent misrepresentation.
Term and Termination
The Contract shall commence on the Start Date and shall, subject to clause 9.3, continue for the Initial Term. If no Initial Term is specified in the Order the Contract shall continue until the Services are complete and clause 9.2 shall not apply.
Upon expiry of the Initial term, the Contract shall continue on a rolling basis unless one party gives to the other at least 30 days written notice to terminate, such notice not to expire prior to the end of the Initial Term.
The Supplier shall be entitled to terminate the Contract immediately by notice in writing to the Customer if:
the Customer commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same;
the Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere;
the Customer ceases or threatens to cease to carry on business; or
if the Supplier reasonably considers that any of the events specified in clauses 9.3.2 to 9.3.3 is about to occur in relation to the Customer and notifies the Customer accordingly.
In the event of termination by the Supplier pursuant to clause 9.3 above then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further performance of the Services to the Customer without any liability to the Customer and, if the Services have already been performed but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Supplier shall be entitled to charge interest at the statutory rate from the time of such cancellation or suspension until the Supplier receives payment.
The remedies available to the Supplier shall not limit or exclude any other rights that the Supplier may have against the Customer and the Supplier's failure to enforce or rely on or delay in enforcing or relying on any right will not prevent the Supplier from later enforcing or relying upon that or any other right.
If a court or other regulatory body finds that any part of these Conditions or any Contract is invalid or unenforceable, the remainder of them shall not be affected and shall be construed as if such invalid or unenforceable part did not exist.
All notices shall be given in writing and sent by email or by special delivery post to the recipient's address or email address detailed in the Order (or as may be notified to the other party in accordance with this condition from time to time). Notice will be deemed received and properly served immediately 24 hours after an e-mail is sent, or three days after the date of posting of any letter by special delivery post. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
The Customer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Supplier. The Supplier shall be entitled to assign, transfer, sub-contract or otherwise part with the whole or any part of the Contract or any right or obligation under it to any third party.
Nothing in any Contract shall confer any rights upon any person who is not a party to it, whether under the Contracts (Rights of Third Parties) Act 1999, or otherwise.
These Conditions and each Contract shall be governed by and construed in accordance with English law and the parties accept the exclusive jurisdiction of the English Courts.