These terms and conditions (the “Terms”), together with the Quality Levels Agreement (the “Order”) and any document specifically referred to therein, set out the whole agreement between you and Reachology Ltd (“we”, “us”, “our”) for the supply of those services specified or referred to in the Order (the “Services”). In the event of a conflict between the Order and the proposal, the terms of the Order shall prevail. In the event of a conflict between the Order and the Terms, the Order shall prevail.
1.1 The Order constitutes an offer by you to purchase those services specified or referred to in it (the “Services”) in accordance with these Terms (which apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing). The Order shall only be deemed to be accepted when we sign the Order, or if sooner when we start to provide the Services, at which point and on which date a contract between us and you for the delivery of the Services (the “Contract”) shall come into existence. The Contract, together with any documents expressly referred to in the Order, constitute the entire agreement between us and you acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Contract.
1.2 We shall:
1.2.1 provide the Services in accordance with any agreed written specification in all material respects;
1.2.2 use reasonable endeavours to meet any performance dates but any such dates shall be estimates only;
1.2.3 have the right to make any changes to the Services which are necessary to comply with any applicable law or regulation, or which do not materially affect the nature or quality of the Services;
1.2.4 provide the Services using reasonable care and skill; and
1.2.5 use reasonable endeavours to ensure our availability during normal office hours.
1.2.6 guarantee to replace any link that has been removed by any party during the term of this contract and for a period not exceeding 6 months from date of completion of our Services.
1.3 You hereby accept and acknowledge that where the Services provide Q-Flux or ReachScore minimum levels (or any other metric), these will be agreed at the onset of the Contract. You also agree that we cannot guarantee results or performance for any particular keyword, phrase or search term or a client’s website traffic and that we cannot accept any liability whatsoever in respect thereof beyond our completion of such Services under this Contract. In particular but without prejudice to the generality of the foregoing, you acknowledge that we have no liability for any lack of performance caused (directly or indirectly) by the act or omission of a third party. Reachology accepts no liability for a client’s site being penalized or removed from any internet search engine or directory. You (the client) accept all potential risks associated with the services provided by Reachology.
1.5.1 shall ensure that the terms of the Order and any specification are complete and accurate;
1.5.2 shall co-operate with us in all matters relating to the Services;
1.5.3 shall provide us with such information, access and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
1.5.4 warrant that you have the right, whether as owner or licensee, to permit us to use any materials provided by you to us in connection with the Services and hereby indemnify and undertake to keep us indemnified against all costs, losses, damages, expenses, liabilities or claims that we may suffer or incur and that arise out of or that are in way connected with our use of such materials in delivering the Services; and
1.5.5 approve all copy or advertising materials used in connection with the Services in a timely manner.
1.5 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission of yours or by your failure to perform any relevant obligation (“Your Default”):
1.6.1 we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of any of our obligations to the extent Your Default prevents or delays our performance of any of our obligations;
1.6.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations; and
1.6.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
2.1 The Fees payable by you to us shall, subject to the following provisions of this clause 2, be as detailed in the Order. We review our fees periodically and we reserve the right to vary the Fees payable by you for the Services provided always that we shall give you no less than 1 month’s prior written notice of any such variation.
2.2 We shall invoice you 100% of all fees upon receipt of order.
You shall pay each invoice submitted by us:
2.2.1 within 3 working days of the date of the invoice; and
2.2.2 in full and in cleared funds to a bank account nominated in writing by us.
2.3 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
2.4 Without limiting any other right or remedy of ours, if you fail to make any payment due to us under the Contract by the due date for payment (the “Due Date”), we shall have the right to charge interest on the overdue amount at the rate of 15 per cent per annum above the then current base rate of Lloyds TSB accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
2.5 You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
3.1 The Contract shall, subject to earlier termination in accordance with these Terms, continue for the term specified in the Order.
3.2 We will not commence any works relating to our Services until the initial invoice has been paid and cleared funds are received by us.
3.3 We reserve the right to suspend access to the Service if at any time we consider that there is or is likely to be a breach of security or confidentiality.
5.1 Nothing in these Terms shall limit or exclude our liability for:
5.1.1 death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors; or
5.1.2 fraud or fraudulent misrepresentation.
5.2 Subject to clause
5.2.1 we shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
5.2.2 our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate fees paid by you for our Services.
5.3 Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.4 You agree to indemnify and keep us indemnified from any claim brought by a third party resulting from our provision of the Services including, but not limited to, infringement of any intellectual property right of any kind, legislation or regulation or any breach by you of any of your obligations under these Conditions.
5.5 This clause 5 shall survive termination of the Contract.
6.1 We shall not be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of an event beyond our reasonable control (a “Force Majeure Event”).
6.2 If the Force Majeure Event prevents us from providing any of the Services for more than 12 weeks, we shall, without limiting our other rights or remedies, have the right to terminate this contract immediately by giving written notice to you.
6.3 We may from time to time subcontract, delegate or assign certain elements or obligations under the Contract to an approved third party or agent.
6.4 You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
6.5 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number or by email.
6.6 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax or email, on the next business day after transmission.
6.7 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
6.8 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
6.9 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
6.10 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
6.14 We are committed to protecting your privacy and adhere to the requirements of the Data Protection Act 2018.
Governing law and jurisdiction
6.15 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
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