1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (the Conditions):
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in the City of London are open for business;
Contract: your return of the Quotation and our acceptance of it, or your acceptance of a quotation from us under condition 2.2;
Deliverables: all Documents, products and materials developed by us in relation to the Services in any form, including the deliverables specified in the Quotation;
Document: includes, without limitation, 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;
In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), any copy, wording, usernames and passwords that we may require, and any other in-put materials specified in the Quotation;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, funfair 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;
Project: a specific project, or specific period of time, for which the Services are to be provided in accordance with the terms of the Contract;
Quotation: the form provided by us and signed by or on behalf of you giving details of the Services to be provided by us to you in accordance with these Conditions;
Services: the services to be provided by us under the Contract as set out in the Quotation, together with any other services which we provide, or agree to provide, to you;
us or we: Find Me on the Internet Ltd.;
Working Hours: (unless otherwise agreed with you in writing or specified in the Quotation) 9:00am to 5:00pm Monday to Thursday, and 9:00am to 12:00noon on Friday; and
you: the person, firm or company who purchases Services from us, and your shall have the appropriate meaning.
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 The Quotation forms part of the Contract.
1.5 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.
1.6 A reference to writing or written includes e-mail but not faxes.
1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to conditions are to the conditions of the Contract.
2 APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by you, or implied by law, trade custom, practice or course of dealing.
2.2 Your acceptance of a quotation from us, or the return of the signed Quotation, constitutes an offer by you to purchase the Services on these Conditions. No offer placed by you shall be accepted by us other than:
(a) by a written acknowledgement issued by us; or
(b) (if earlier) by us starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. Your 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.
2.3 Quotations are given by us 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 we have not previously withdrawn it.
3 COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by us to you from the earlier of:
(a) the date specified in the Quotation; and
(b) the date when we start to provide the Services.
3.2 Unless otherwise agreed and subject to condition 12, the Services supplied under the Contract shall continue to be supplied for the period stated in the Quotation.
4 OUR OBLIGATIONS
We shall use reasonable endeavours to:
4.1 provide the Services during the Working Hours in accordance in all material respects with the Quotation; and
4.2 meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5 YOUR OBLIGATIONS
5.1 You shall:
(a) co-operate with us in all matters relating to the Services;
(b) provide to us, in a timely manner, such In-put Material and other information as we may reasonably require and ensure that it is accurate in all material respects; and
(c) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of the In-put Materials, in all cases before the date on which the Services are to start.
5.2 If our performance of our obligations under the Contract is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
5.3 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (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 your fraud, negligence, failure to perform or delay in the performance of any of your obligations under the Contract, subject to us confirming such costs, charges and losses to you in writing.
6 CHANGES TO THE SCOPE OF THE SERVICES
6.1 Subject to the provisions of condition 6.3, if either party wishes to change the scope of the Services:
(a) they shall submit details of the requested change to the other in writing; and
(b) we shall, within a reasonable period of time, provide a written estimate to you of:
(i) the likely time required to implement the change;
(ii) any variations to our charges arising from the change; and
(iii) any other impact of the change on the terms of the Contract.
6.2 If you wish us to proceed with the change, we have no obligation to do so unless and until the parties have agreed, in writing, the matters referred to in clause 6.1.
6.3 We may, from time to time and without notice, change the Services in order to comply with any applicable statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If we request a change to the scope of the Services for any other reason, you shall not unreasonably withhold or delay consent to it.
7 COMPLETION OF A PROJECT
7.1 You must notify us in writing as soon as reasonably practicable (but, in any event, within 7 days of completion of a Project as confirmed by us to you in writing) if you believe that we have not provided the Services in accordance with the Quotation (or as otherwise agreed in writing) or you are otherwise unhappy with the work that has been carried out.
7.2 If we receive a notification from you in accordance with condition 7.1 and agree that the Services have not been provided in accordance with the Quotation (or as otherwise agreed in writing), we will use reasonable endeavours to correct any defects within a reasonable period of time.
7.3 If we do not receive any notification from you in accordance with condition 7.1, you will be deemed to have accepted the Services that have been provided in relation to the Project.
8 CHARGES AND PAYMENT
8.1 In consideration of the provision of the Services by us, you shall pay the charges as set out in the Quotation (or as otherwise agreed with you in writing) in accordance with the following:
(a) the charges payable for the Services shall be calculated in accordance with our standard fee rates, as set out in the Quotation (or otherwise agreed) and as amended from time to time in accordance with condition 6;
(b) all charges quoted to you shall be exclusive of VAT; and
(c) unless otherwise agreed or specified in the Quotation, we shall invoice you as follows:
(i) (for Services provided in relation to a Project) upon completion of the Project; or
(ii) (for ongoing work) on the last Business Day of each calendar month in which the Services have been provided.
8.2 Unless otherwise agreed or specified in the Quotation, you shall pay each invoice submitted to you by us, in full and in cleared funds, within 30 days of receiving an invoice (made payable to Find Me on the Internet Ltd.), to a bank account nominated in writing by us.
8.3 Without prejudice to any other right or remedy that we may have, if you fail to pay us on the due date, we may:
(a) charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand. We may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
8.4 Time for payment shall be of the essence of the Contract.
8.5 All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision. This condition 8.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.6 We may, without prejudice to any other rights we may have, set off any liability of you to us against any liability of us to you.
9 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights and all other rights in the Deliverables shall be retained by us until full payment is received in accordance with condition 8.
10.1 We shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to us by you, your employees, agents, consultants or subcontractors and any other confidential information concerning your business or your products which we may obtain.
10.2 We may disclose such information:
(a) to our employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out our obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
10.3 We shall not use any such information for any purpose other than to perform our obligations under the Contract.
11 LIMITATION OF LIABILITY
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
11.1 This condition 11 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents, consultants, and subcontractors) to you in respect of:
(a) any breach of the Contract;
(b) any use made by you of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions limits or excludes our liability:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us.
11.4 Subject to conditions 11.2 and 11.3:
(a) we shall not be liable for: loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
(b) we cannot accept any liability for:
(i) any failure by you to follow our advice including, but not limited to, establishing relevant, good quality links to your website;
(ii) any failures that may occur in relation to the hosting of your website (including server, router or other internet failures);
(iii) any changes that are made to the website beyond our control (whether authorised by you or otherwise);
(iv) the use by you of “link farms” or other methods of attempting to improve your website’s search engine ranking that has not been carried out or approved by us; or
(v) the loss of use of your domain name (whether through a failure to renew your subscription or otherwise); and
(c) our 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 price paid for the Services.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other:
(a) (where the Services are being provided on an ongoing basis for an unspecified period of time) on giving to the other not less than one month’s prior written notice; or
(b) if the other party:
(i) fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than seven days after being notified in writing to make such payment; or
(ii) commits a 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
(iii) repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(iv) has an administrator or receiver appointed over any of their property or assets, makes any voluntary arrangement with their creditors, becomes subject to a bankruptcy order or is wound up, has no reasonable prospect of paying or being able to pay their debts (within the meaning of section 267 of the Insolvency Act 1986) or enters into any compromise for the benefit of their creditors generally, or ceases or threatens to cease to carry on business.
12.2 On termination of the Contract for any reason:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt; and
(b) the 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.
12.3 On termination of the Contract (however arising), conditions 9, 10, 11, 12 and 22 shall remain in full force and effect.
13 FORCE MAJEURE
We shall have no liability to you under the Contract if we are prevented from, or delayed in performing, our obligations under the Contract or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport network, act of God, 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.
Subject to condition 6, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is agreed in writing by the parties.
15.1 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.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 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.
16.2 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.
17 ENTIRE AGREEMENT
17.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
17.3 Nothing in this condition shall limit or exclude any liability for fraud.
18.1 You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of your rights or obligations under the Contract.
18.2 We may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent.
18.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
19 NO PARTNERSHIP OR AGENCY
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 agent for, or to bind, the other party in any way.
20 RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
21.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in the Quotation, or as otherwise specified by the relevant party by notice in writing to the other party.
21.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in the Quotation 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.
21.3 This condition 21 shall not apply to the service of any in any proceedings or other documents in any legal action.
22 GOVERNING LAW AND JURISDICTION
22.1 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 law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).