Terms and Conditions
1. Interpretation
1.1 The definitions and rules of interpretation in this contract are set out below:
1.2 Headings in these Conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Save as expressly provided in these Conditions, a reference to writing or written includes email.
1.6 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to conditions are to the conditions of the Contract.
1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Charges; the service charges (if applicable) as set out in the Order;
Conditions; these terms and conditions, as varied in accordance with condition 13;
Contract; the Order and these Conditions;
Customer; the person, firm or company identified as the customer in the Order;
Deliverables; all Documents, products, materials and other outputs developed by the Supplier or its agents, subcontractors, partner agencies, consultants and/or employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts);
Document; includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
Initial Services; the services detailed in the Order;
Input Material; all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications;
Intellectual Property Rights; all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Order; the written instructions to buy the Services in the Subscription Agreement of the Supplier incorporating the conditions contained herein, and signed on behalf of the Supplier and the Customer;
PPC; pay per click;
SEO; search engine optimisation;
Social Media; includes websites and applications that enable users to create and share content and/or to participate in social networking;
Analytics; Google's tool that helps track and report on all digital data from the Supplier's site;
Tools; any programs, websites, applications or other online resources used to assist the Customer's digital marketing profile;
Service Fees; the services fee set out in the Order;
Management Charges; the monthly management fee set out in the Order;
Ongoing Management Services; the additional ongoing services which the Supplier agrees in writing to provide to the Customer;
Services; the Initial Services and, where applicable, the Ongoing Management Services;
Supplier; ClickTrain Marketing Platform LTD- 265-269 Wimbledon Park Road, Southfields, SW19 6NW, London;
Supplier's Equipment; any equipment provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services.
2. Application and Conditions
2.1 These Conditions shall:
2.2 The Order, or the Customer's acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services therein specified, subject to these Conditions. No offer placed by the Customer shall be deemed accepted by the Supplier other than:
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
2.1.1Apply to and be incorporated into the Contract; and
2.1.2Prevail over any inconsistent terms or conditions contained, or referred to, in the Order; and
2.1.3Apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2.1By the Order being signed on behalf of the Supplier; or
2.2.2(if earlier) by the Supplier starting to provide the Services, and at that time, a contract for the supply and purchase of the Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
3. Commencement and Duration
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the Service Commencement Date specified in the Order.
3.2 Save as otherwise expressly stated in the Order, the Contract shall continue in force from the Service Commencement Date for an initial period of 1 calendar month and thereafter shall automatically renew for successive 1 calendar month periods, unless and until terminated by a party giving to the other at least 1 calendar month's written notice to terminate (such notice to only take effect on expiry of then current 1 calendar month period) or unless terminated in accordance with condition 11.
4. Supplier's Obligations
4.1 The Supplier shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Customer.
4.2 The Supplier shall have no liability for any matters outside of its direct control including ensuring that a particular search engine, online directory or search site lists the Customer's website or business profile, that a particular position will be achieved for a specific keyword or that a specific position will be achieved within a certain time limit and lapses in service or changes to the search engine positions outside of the Supplier's control including a change in search engine algorithms or down time on the server hosting the Supplier's domains on which the Customer's search engine marketing profiles are published. The Customer acknowledges and agrees that the Supplier makes no guarantee with respect to any of the foregoing.
4.3 The Supplier shall be entitled at its absolute discretion to refuse to create a business profile for a product or service which it considers to be unfit for publication on the internet including, but not limited to, sites containing adult oriented material, sites which promote ethnic, social or religious discord and sites which infringe any copyright or other laws or regulations.
5. Customer's Obligations
5.1 The Customer shall:
5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants, partner agencies or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay and shall be allowed an extension of time to perform its obligations at least equal to the delay caused by the Customer.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant, partner agencies or subcontractor of the Supplier in the provision of the Services.
5.1.1Cooperate with the Supplier in all matters relating to the Services;
5.1.2Provide to the Supplier or its agents, subcontractors, consultants, partner agencies and employees, in a timely manner and at no charge, such Input Material and other information as the Supplier may reasonably require and ensure that it is accurate in all material respects;
5.1.3Provide the Supplier, its agents, subcontractors, consultants, partner agencies and employees, in a timely manner and at no charge, with access to the Customer's premises, personnel, data, materials, systems and such other facilities as are reasonably required by the Supplier to perform the Services;
5.1.4Inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises;
5.1.5Obtain and maintain all necessary licences and consents and comply with all relevant legislation required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier's Equipment and the use of Input Material.
6. Charges and Payment
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the relevant Charges in accordance with conditions 6.2 to 6.6.
6.2 The Customer will provide the funds to be used for any media spend (as detailed in the Order or otherwise agreed between the parties in writing from time to time) that is required in advance and on a monthly basis.
6.3 The Charges shall be payable monthly upfront by the Customer to the Supplier on receipt of each invoice.
6.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due on the due date:
6.5 Time for payment shall be of the essence of the Contract.
6.6 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.6 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.7 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT").
6.4.1The Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum at the annual prime lending rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and
6.4.2The Supplier may suspend all Services until payment has been made in full.
7. Intellectual Property Rights
7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence shall automatically terminate with immediate effect.
7.2 The Customer shall not sub-licence, assign or otherwise transfer the rights granted in this condition 7.
7.3 On Termination of this Contract, the Customer will receive their Google Ads, Bing or Social Media account back in the condition that it is in on the Service Commencement Date. This means that all scripts, rules and any other Intellectual Property that has been developed and utilized in the Customer's account by the Supplier will be removed before it is handed back.
7.4 The Customer:
7.4.1Warrants that the receipt and use of the Input Materials in the performance of the Contract by the Supplier, its agents, subcontractors, consultants or partner agencies shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
7.4.2Shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors, consultants or partner agencies for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Input Materials.
8. Confidentiality and the Supplier's Property
8.1 Each party (the "receiving party") shall keep in strict confidence all information, technical and commercial know-how, specifications, inventions, processes, initiatives and all other materials which are of a confidential nature and which have been disclosed to the receiving party by or on behalf of the other party (the "disclosing party"), its employees, agents, consultants, partner agencies or subcontractors and any other confidential information concerning the disclosing party's business or its products which the receiving party may obtain (in any form or medium) ("Confidential Information").
8.2 The receiving party may only disclose such Confidential Information:
8.3 The receiving party shall ensure that those of its employees, officers, representatives, advisers, agents, partner agencies and subcontractors to whom it discloses such Confidential Information comply with this condition 8 at all times, and shall be responsible for all acts and omissions of such employees, officers, representatives, advisers, agents, partner agencies and subcontractors as if they were the acts and omissions of the receiving party.
8.4 The receiving party shall not use the disclosing party's Confidential Information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
8.2.1To its employees, officers, representatives, advisers, agents, partner agencies or subcontractors who need to know such Information for the purposes of carrying out the receiving party's obligations under the Contract; and
8.2.2As may be required by law, court order or any governmental or regulatory authority.
9. Limitation of Liability
9.1 This condition sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, partner agencies and subcontractors) to the Customer in respect of:
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes any liability which cannot be legally limited, including:
9.4 Subject to condition 9.2 and condition 9.3:
9.1.1Any breach of the Contract;
9.1.2Any use made by the Customer of the Services, the Deliverables or any part of them; and
9.1.3Any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.3.1For death or personal injury resulting from negligence; or
9.3.2For any damage or liability incurred as a result of a party's fraud or fraudulent misrepresentation.
The Supplier shall not be liable for:
*The Customer's attention is particularly drawn to this condition*
9.4.1.1 Loss of profits; or
9.4.1.2 Loss of business; or
9.4.1.3 Depletion of goodwill and/or similar losses; or
9.4.1.4 Loss of anticipated savings; or
9.4.1.5 Loss of goods; or
9.4.1.6 Loss of contract; or
9.4.1.7 Loss of use; or
9.4.1.8 Loss or corruption of data or information; or
9.4.1.9 Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
9.4.1.10 The Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the Charges paid by the Customer for the Services in the 12 month period preceding the time of the relevant breach.
10. Data Protection
10.1 The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier for the purposes of performing the Services and in accordance with all applicable data protection laws in force from time to time.
11. Termination
11.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
11.2 On termination of the Contract for any reason:
11.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: conditions 7, 8, 9, 11.3, 14-16 (inclusive), 18, 19 and 21.
11.2.1The Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
11.2.2The Customer shall, within a reasonable time, return all of the Supplier's Equipment and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safekeeping;
11.2.3Each receiving party shall return or destroy (at the disclosing party's option) all copies of the disclosing party's Confidential Information in its possession or otherwise under its control; and
11.2.4The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
11.1.1 The other party fails to pay any amount due under the Contract on the due date for payment and remains in default more than seven days after being notified in writing to make such payment; or
11.1.2 The other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
11.1.3 The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
11.1.4 The other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enter into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
11.1.5 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.6 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
11.1.7 A floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
11.1.8 A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
11.1.9 A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
11.1.10 Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.1.3 to condition 11.1.9 (inclusive); or
11.1.11 The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
12. Force Majeure
12.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, epidemic or pandemic (including any disruption beyond the reasonable control of the Supplier resulting from the impact of COVID-19), war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13. Variation
13.1 The Supplier may, from time to time and without notice, change the Services in order to comply with changes in applicable statutory requirements, provided that such changes do not materially or adversely affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14. Waiver
14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. 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.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15. Severance
15.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to achieve the commercial result of the original provision.
16. Entire Agreement
16.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Nothing in this condition shall limit or exclude any liability for fraud.
17. Assignment
17.1 The Customer shall not, without the prior written consent of the Supplier, assign or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Supplier may at any time assign or deal in any manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party, partner agency or agent.
17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
18. No Partnership or Agency
18.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as an agent for, or to bind, the other party in any way.
19. Rights of Third Parties
19.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
20. Notices
20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally at its registered office, by pre-paid first class post or other next working day delivery service at its registered office, or sent via email to the address specified in the Order.
20.2 Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or (c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
20.3 This condition 20 shall not apply to the service of any proceedings or other documents in any legal action.
21. Governing Law and Jurisdiction
21.1 The 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 the laws of England and Wales.
21.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.