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1.1. In the Contract, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day (other than Saturday, Sunday or public holiday in England) when the banks in London are open for their full range of normal business;
“Client” means the person, company, firm or body engaging the Service Provider to perform the Required Services in respect of the Client’s Website;
“Confidential Information” means, in relation to either party, information which is disclosed to that party by the other party pursuant to, or in connection with, the Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Contract” means these Terms and Conditions, as may be amended from time to time, concerning the performance of the Required Services, together with any Proposal;
“CRO Services” means the conversion rate optimisation services to be provided by the Service Provider to the Client in accordance with the Contract;
“Designated Search Engines” means the search engines on which the Service Provider shall apply the Required Services with a view to improving the ranking of the Client’s Website;
“Fee(s)” means the fees payable to the Service Provider for the Required Services and as set out in the Proposal together with any fees arising as a result of a change to the Required Services;
“Initial Fee” means the initial upfront fee (if any) payable to the Service Provider by the Client on commencement of the Contract in respect of the provision of the Required Services;
“Intellectual Property Rights” means (a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights;
“Keyword Report” means the keywords that the Service Provider will provide in relation to the Required Services;
“Other Recurring Services” means any other recurring services required in accordance the Contract, which include, but are not limited to, domain name registration and management, social media, SSL certification, STD codes and consultancy services;
“Proposal” means the proposal presented to the Client by the Service Provider and as amended from time to time in accordance with clause 2.7 and which outlines the proposed Required Services and Fees;
“PPC Campaign(s)” means a pay-per-click advertising campaign(s) set up and managed by the Service Provider for and on behalf of the Client in the course of providing the PPC Services;
“PPC Services” means the pay-per-click advertising management services to be provided by the Service Provider in accordance with the Contract;
“Required Information” means the information which the Client must supply to the Service Provider to carry out the Required Services;
“Required Services” means the services required by the Client and which may include the SEO Services, CRO Services, PPC Services, Website Hosting and any Other Recurring Services each of which may be required separately, altogether, or as a combination of and as set out in the Proposal;
“Setup” means the setting up of the Required Services by the Service Provider, as more fully described in the Proposal;
“SEO Services” means the search engine optimisation services to be provided by the Service Provider to the Client in accordance with the Contract;
“Service Provider” means Ampco (UK) Ltd trading as Active Internet Marketing a company registered in England and Wales under company registration number 07330000 whose registered office is at 136-140 Bedford Road, Kempton, Bedfordshire, MK42 8BH and who carries on business providing Required Services of websites on the World Wide Web;
“Terms and Conditions” means these terms and conditions as may be amended from time to time in accordance with clause 2.7;
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended from time to time;
“Website Hosting” means the website hosting facilities using all appropriate hardware connected to the World Wide Web in accordance with the Service Provider’s recommendations;
“Website” means the Client’s website to be developed by the Service Provider in accordance with the Required Services, which includes, but is not limited to the editing of the website; and
“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol.
2.1. The Terms and Conditions are to be read in conjunction with, and form part of, the Proposal. The Client acknowledges and agrees that by accepting the Proposal and/or by making payment of the Initial Fee and/or by accepting delivery of the Required Services, that the Fees and the Terms and Conditions are deemed accepted.
2.2. The Proposal provided to the Client constitutes an offer by the Service Provider to provide the Required Services in accordance with the Terms and Conditions.
2.3. A Proposal that is submitted by the Service Provider shall remain open for acceptance by the Client for a period of 21 days from the date of issue of the Proposal (the “Acceptance Period”), after which it shall be automatically withdrawn unless it is revoked by the Service Provider prior to the expiry of the Acceptance Period.
2.4. By accepting the Proposal, the Client is deemed to accept the Fees and the Required Services that are to be provided by the Service Provider as outlined in the Proposal. The Client is responsible for ensuring that the terms of the Proposal are complete and accurate and that it includes all Required Services that the Client is expecting to receive.
2.5. The Terms and Conditions apply to the Contract to the exclusion of any other terms and conditions that the Client may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealings.
2.6. The Client acknowledges that where a clause contained within the Terms and Conditions refers specifically to a service that the Service Provider has not been instructed to perform by the Client that those provisions will not apply and will only apply to the extent that they form part of the Required Services.
2.7. Except as set out in the Terms and Conditions, no variation to the Terms and Conditions shall be effective unless it is in writing and signed by both parties (or by each of their authorised representatives).
2.8. Changes to the Required Services, or any subsequent additional Required Services, shall become effective upon the Client accepting a revised Proposal. The Service Provider shall accept any reasonable change requests made by the Client that reduce the cost of performance; provided, however, that an equitable adjustment in compensation is made for the out of pocket costs of any performance or preparation already undertaken, and that the total reduction shall not be more than 10% of the amount originally agreed between the parties. The Service Provider shall make reasonable efforts to accommodate (but shall not be required to accept) any change requests made by the Client that increase the cost or magnitude of performance of the Required Services, provided that the proposed changes are reasonable in scope and the Client establishes a commensurate increase in compensation and revised performance date (if any).
3. ENGAGEMENT OF THE SERVICE PROVIDER
3.1. The Client hereby engages the Service Provider to provide the Required Services and confirms that the Terms and Conditions are to read in conjunction with any Proposal which the Client acknowledges safe receipt of, has read and understands the extent to which the Required Services will be performed in accordance with the Terms and Conditions.
3.2. The Service Provider shall use its reasonable endeavours to finalise and provide any Keyword Report(s) to the Client in accordance with any dates specified in the Proposal and as agreed between the parties (the “Completion Date”). The Client acknowledges and accepts that the completion of the Keyword Report is subject to the Client complying with clause 3.3.
3.3. The Client shall provide the Required Information to the Service Provider within 7 days of the commencement of the Contract (the “Delivery Date”). In the event that the Client fails to deliver the Required Information on the Delivery Date, the Completion Date shall increment by one day for each day that the delivery of the Required Information is delayed.
3.4. Any performance dates specified between the parties from time to time and as set out in the Contract shall be estimates only and time shall not be of the essence for such performance of the same.
3.5. The Service Provider shall be responsible for the quality of the Required Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by it to perform all, or any part of, the Required Services, shall do so competently and with reasonable care.
4. NATURE OF ENGAGEMENT
4.1. The Service Provider shall at all times be responsible for organising how, and in what order, the Required Services are performed.
4.2. The Service Provider’s engagement under the Contract is mutually non-exclusive and the Service Provider shall be entitled, at its own expense, to subcontract the performance of the Required Services.
4.3. The Client acknowledges that the Service Provider may utilise the services of third parties to assist with, and attend to, certain aspects of the Required Services from time to time. Without limiting the foregoing, the Service Provider may utilise such third party services when instructed to undertake Website Hosting.
4.4. The Client acknowledges that the Service Provider’s utilisation of any third party services is subject to the terms and conditions of that relevant third party provider and the Service Provider will inform the Client prior to the completion of, or use of, such services. It is the Client’s responsibility to ensure it has had sight of any third parties’ terms and conditions and the Client hereby agrees to be bound by such terms.
4.5. The engagement and appointment of the Service Provider under the Contract does not create any mutual obligations on the part of the Client or the Service Provider to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
5. THE REQUIRED SERVICES
5.1. The Service Provider shall provide the Required Services in accordance with the Contract.
5.2. The Service Provider shall not incur any additional charges to the Client, without the prior written agreement and authorisation of the Client.
5.3. The Service Provider shall base the Setup process on the type of the Required Services it has been instructed to provide, taking account of both the Proposal and Required Information provided by the Client.
5.4. Upon receipt of the Required Information from the Client, the Service Provider shall conduct keyword research which shall include, but is not limited to, an examination of the Website, online research and the use of other suitable methods and tools.
5.5. In respect of the PPC Services, no later than 1 month following the successful commencement of the PPC Campaign(s), the Service Provider shall prepare and submit to the Client a visibility report demonstrating the results and effectiveness of the PPC Campaign(s).
5.5.1. The Client understands and acknowledges the following:
184.108.40.206. The Service Provider cannot control search engines and cannot provide any guarantee that the Designated Search Engine(s) will not change their policies or functionality in such way that will have a detrimental effect on the effectiveness of the PPC Campaign(s). Where ongoing PPC Services are to be provided, the Service Provider shall use reasonable endeavours to counteract any detrimental effects resulting from any such changes.
220.127.116.11. The Service Provider accepts no responsibility for any detrimental effect on the effectiveness of the PPC Campaign(s) which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
18.104.22.168. The effectiveness of the PPC Campaign(s) will be determined in part by the budget allotted thereto and available. Failure by the Client to make the required budget(s) available may have a negative effect on the related PPC Campaign(s). The Service Provider accepts no responsibility for any such negative effect.
5.5.2. The ongoing PPC Services shall be provided by the Service Provider.
5.6. In respect of any SEO Services, CRO Services and Other Recurring Services that may form part of the Required Services, the Client understands and acknowledges that:
5.6.1. The times for websites to appear on search engine listings vary and the Service Provider cannot guarantee that the Website will appear immediately on the Designated Search Engines, or that its position will change immediately from that which it held prior to the Required Services being performed.
5.6.2. The Service Provider cannot control search engines and cannot provide any guarantee that any of the Designated Search Engines will not change their policies or functionality in such a way that will have a detrimental effect on the ranking of the Website following the completion of the Required Services.
5.6.3. The Service Provider accepts no responsibility for any detrimental effect on the Client’s Website’s search engine rankings which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
5.6.4. The Service Provider makes no guarantee that Required Services will result in the Website appearing in the top 10 search results on the Designated Search Engines.
5.7. In respect of any Website Hosting that may form part of the Required Services:
5.7.1. The Client shall be responsible for the maintenance, renewal, control and editorial content of the Website. The Service Provider will not be responsible for reviewing the text, graphics, animation, audio and/or digital video components prior to uploading such content onto the Website. The Client shall ensure that the content shall be and remain fully compatible with the Website; provided, however, upon request from the Client, and at the Client’s sole expense, the Service Provider shall make commercially reasonable efforts to assist the Client in resolving any content related compatibility problem.
5.7.2. The Service Provider shall be responsible for all aspects of hosting and operation of the Website in accordance with the specifications set forth in the Proposal.
5.7.3. The Service Provider shall: provide all facilities, equipment, online staff and services necessary to host, operate, manage and maintain the Website in accordance with the terms of the Contract and all applicable laws and regulations; configure, install, house, maintain, monitor and operate all computer equipment, server, software, network equipment and other components thereof, in a commercially reasonable manner designed to maximise the reliability and security thereof and use reasonable efforts to protect the Website from unauthorised interruptions, viruses and outside attacks (including, without limitation, by installing appropriate firewalls, backup systems and other protective devices).
5.7.4. The Client shall be solely responsible for collecting any and all required sales, use and value added taxes and other governmental charges and duties from users of the Website.
5.7.5. The Service Provider may publish credits, disclaimers or other materials on the Website as it reasonably considers appropriate. In addition, the Service Provider shall have the right to review the Website from time to time and remove or edit content which, in its sole discretion, it considers to be offensive, libellous, obscene or otherwise unlawful or objectionable (including without limitation, hyperlinks, framed content or meta tags which it considers potentially infringes a third party’s intellectual property rights); provided, however, that it shall attempt to contact the Client prior to removing or editing such content. The parties will attempt to meet in good faith to resolve any such issues. If the parties are unable to resolve such issues or if the Service Provider is unable to contact the Client, after using reasonable efforts, it may remove such content at its reasonable discretion.
6. PRICE AND PAYMENT
6.1. The Fees for the Required Services are as set out in the Proposal and specified in any invoices submitted by the Service Provider to the Client. The Service Provider shall keep the Client fully informed of any, and all, sums due in relation to the Required Services.
6.2. Upon entry into the Contract, the Client may be required to pay an Initial Fee to the Service Provider as detailed in the Proposal. The requirement for the Client to pay an Initial Fee is entirely at the Service Provider’s discretion. The remainder of the Fees will be paid in accordance with clause 6.3 below.
6.3. Payment in respect of the Fees, or the remainder of the Fees in the event that an Initial Fee is collected on commencement of the Contract, shall be paid by direct debit using the Client’s account details provided on acceptance of the Proposal.
6.4. The Fees shall be collected by direct debit on the 1st day of each month in fixed monthly instalments for the Initial Term and thereafter until terminated in accordance with the provisions outlined in clauses 13 or 14. The Client’s first direct debit payment will be collected on the 1st day of the preceding month following the commencement of the Contract.
6.5. Invoices for the Fees will be submitted by the Service Provider to the Client on a monthly basis on the 1st day of each month immediately prior to the direct debit withdrawal.
6.6. In the event that the Client disputes any invoice raised by the Service Provider, whether in whole or in part, the Service Provider must be notified in writing in accordance with the provisions outlined in clause 18 within 10 days from receipt by the Client of the Service Provider’s invoice after which the Client shall be deemed to have accepted the invoice and shall not be entitled to dispute the invoice and any Fees paid.
6.7. In the event that the Client’s bank fails to make a due direct debit payment from the Client’s account, the Service Provider will notify the Client as soon as reasonable possible. The Service Provider shall be entitled to receive interest at a rate of 4% above the base rate of the Bank of England from time to time on all Fees and any additional costs that may be outstanding and overdue for payment. Such interest, if charged, shall be payable by the Client on demand from the due date for payment up until the date of settlement and will accrue on a daily basis.
6.8. The Client shall pay all amounts due under the Contract in full and without any set off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Service Provider may, if required, without limiting its other rights or remedies, set off any amounts owing to it by the Client against any amount payable by the Service Provider to the Client.
6.9. The Client shall transfer all such sums to the Service Provider that may be required for payment to the Designated Search Engine(s) within 14 days of being informed of the need for the same by the Service Provider.
6.10. Any increase in the Fees that is intended to be made by the Service Provider will be notified to the Client, in writing, no later than 30 days in advance of the proposed increase. If such increase is not acceptable by the Client, the Client shall notify the Service Provider of the same, in writing, within 10 days from receipt of the Service Provider’s notice of increase. In such circumstances, the Contract will terminate with immediate effect but the Client will not be required to pay the remainder of the Fees then outstanding in accordance with clause 14.1.
6.11. All payments made under the Contract shall be expressly exclusive of any value added tax, unless otherwise indicated.
7. INTELLECTUAL PROPERTY
7.1. The Service Provider shall use the Required Information, and any other materials provided by the Client, in addition to its own material in performing the Required Services.
7.2. The Intellectual Property Rights subsisting in the Required Information and any additional materials provided by the Client shall continue to vest in the Client unless the Client expressly indicates otherwise.
7.3. The Intellectual Property Rights subsisting in the materials provided by the Service Provider shall be assigned to the Client upon receipt by the Service Provider of all relevant sums due to it in consideration of the Required Services. Upon such assignment, the Service shall be deemed to have waived all moral rights in respect of such work arising out of Chapter IV of the Copyright Designs and Patents Act 1988. Following such assignment, the Client shall be free to use such materials including, but not limited to, the keywords produced in any Keyword Reports, and any methodology, strategies and techniques utilised and prepared for the Client during the course of the Required Services.
7.4. The Service Provider further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Service Provider by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Service Provider by such third parties.
7.5. Nothing in the Contact shall vest any rights in the Website in the Service Provider and clause 7.1 shall effect the assignment of any Intellectual Property Rights which may arise to the benefit of the Service Provider in the Website to the Client.
8. SERVICE PROVIDER’S WARRANTIES
8.1. The Service Provider represents, warrants, undertakes, and agrees with the Client as follows:
8.1.1. the work produced in the course of the Required Services shall be original to the Service Provider (except where otherwise indicated) and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
8.1.2. the work produced in the course of the Required Services shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of UK Data Protection Legislation, and nothing contained in the work will, if published, constitute a contempt of court; and
8.1.3. the Service Provider shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the work produced in the course of the Required Services except pursuant to the Contract and shall not enter into any agreement or arrangement which might conflict with the Client’s rights under the Contact or might interfere with the Service Provider’s performance of its obligations under the Contract.
9. CLIENT’S WARRANTIES AND INDEMNITIES
9.1. The Client represents, warrants, undertakes, and agrees with the Service Provider as follows:
9.1.1. the existing Website presented to the Service Provider on commencement of the Required Services, shall be original to, or otherwise owned by, the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person and where required, the Client has obtained all necessary consents;
9.1.2. the Website shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the UK Data Protection Legislation and nothing contained in the Website or the Required Information will constitute a contempt of court; and
9.1.3. the Client shall not enter into any contract or arrangement which might conflict with the Service Provider’s rights under the Contract or might interfere with the Service Provider’s performance of its obligations under the Contract.
9.2. The Client hereby undertakes to indemnify the Service Provider, and keep the Service Provider at all times fully indemnified from and against all actions, proceedings, claims, demands, costs
(including, without prejudice to the generality of this provision, all legal costs and expenses of the Service Provider on a fully indemnity basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Client of any of the Client’s undertakings, warranties, or obligations under the Contract.
10. LIMITATION OF LIABILITY – THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO THE PROVISIONS OF THIS CLAUSE 10.
10.1. The Service Provider shall only be liable for any damage and loss incurred, or both, by the Client if it is caused as a result of the Service Provider’s negligence, breach of duty or other wrongful act or omission subject to the limitations set out in this clause 10.
10.2. Notwithstanding anything to the contrary contained in the Terms and Conditions, the Service Provider’s liability for fraud (including fraudulent misrepresentation), death or personal injury resulting from its negligence is no way limited or excluded.
10.3. The Service Provider has no liability to the Client for any loss of profit, loss of business, business interruption, loss of business opportunity, loss of data due to damage to software, or for any indirect or consequential loss or damage. The Service Provider shall also not be liable to the Client due to any failure of the Required Services if this is due to the Required Information and/or materials provided by the Client.
10.4. The Service Provider shall not be liable to the Client under any circumstances for any direct or indirect loss (including, but not limited to, loss of profits or loss of goodwill), or any other special or indirect losses, costs, damages, or claims which do not arise naturally as a result of the Service Provider’s negligence, breach of duty, or other wrongful act or omission, which includes any damage or loss incurred by any third party services utilised or employed by the Service Provider in procuring the performance of the Required Services.
10.5. In the instance that the Service Provider utilises the services of any third party in accordance with clause 4.3 in the provision of any aspect of the Required Services, the Client acknowledges and accepts that the Service Provider is acting solely as the Client’s agent in attending to the same and accepts no responsibility or liability for any successful registration, continuance, or otherwise, of any registered domain names, website use and mailbox access.
10.6. Neither party shall be liable to the other or be deemed to be in breach of the Contract for any failure or delay in performance of the services under the Terms and Conditions due to any event caused beyond that party’s reasonable control.
10.7. Subject to clause 10.2, the total liability of the Service Provider under the Contract, whether in contract, tort (including negligence), or breach of statutory duty, or howsoever arising, shall be limited to a sum equivalent to the total sum paid to it by the Client for the provision of the Required Services under the Contract.
10.8. The Client is only permitted to bring a claim in respect of a breach of the provisions contained within the Contract within a period of 2 years after the event giving rise to the breach occurred.
10.9. The Client acknowledges and it has read and fully understands the limitations and exclusions of the obligations and liabilities of the Service Provider as set out in the Contract, has freely agreed to them and accepts the risks associated with them in accordance with the Fees payable for the Required Services.
11.1. Both parties undertake that, unless authorised in writing by the other party, they shall at all times during the continuance of this Contract and for 2 years after its termination:
11.1.1. keep confidential all Confidential Information;
11.1.2. not disclose any Confidential Information to any other third party;
11.1.3. not use any Confidential Information for any purpose other than as contemplated by the Contract;
11.1.4. not make any copies of, record in any way or part with possession of any Confidential Information; and
11.1.5. ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of this clause 11.
11.2. Subject to clause 11.3, either party may disclose any Confidential Information to:
11.2.1. any of their sub-contractors, substitutes, or suppliers or any third party utilised to assist with the provision of the Required Services;
11.2.2. any governmental or other authority or regulatory body; or
11.2.3. any of their employees or officers or those of any party described in clauses 11.2.1 or 11.2.2.
11.3. Disclosure under clause 11.2 may be made only to the extent that is necessary for the purposes contemplated by the Contact, or as required by law. In each case the disclosing party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in clause 11.2.2 or is an authorised employee or officer of such a body, the disclosing party must obtain and submit to the other party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
11.4. Either party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that party.
11.5. When using or disclosing Confidential Information under clause 11.4, the disclosing party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
11.6. The provisions of this clause 11 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
12. DATA PROTECTION
12.1. When undertaking the Required Services, the Service Provider will ensure that it has appropriate security measures in place to protect against the loss, misuse, destruction and alteration of any data both provided by the Client and on the Client’s Website.
12.2. The Client acknowledges and accepts that whenever data is released online that data can be collected and utilised by third parties and that while the Service Provider will take reasonable precautions to ensure that such data is protected, it cannot guarantee the security of any information released during the Required Services and, if such circumstances arise, the Service Provider will not be liable for any loss, misuse or destruction of any data provided by the Client, including the Required Information.
12.3. Where the Service Provider acts as a data controller (as defined in the General Data Protection Regulation (EU) 2016/679) or any successor legislation to it) pursuant to the Contract and when collecting any personal data, it will ensure it has obtained any necessary consents and has complied with the UK Data Protection Legislation.
12.4. Where the Service Provider acts as a data processor (as defined in the General Data Protection Regulation (EU) 2016/679) or any successor legislation to it) pursuant to the Contract, it shall do so on the understanding the Client is the data controller (as defined in the General Data Protection Regulation (EU) 2016/679) or any successor legislation to it), and has obtained any necessary consents in respect of any personal data that may be collected during the Required Services.
12.5. The Client has appropriate data protection policies in place that comply with UK Data Protection Legislation and agrees to indemnify the Service Provider against any losses incurred as a result of a breach of such legislation.
13. TERM AND TERMINATION
13.1. The Contract shall commence on the date of acceptance of the Proposal and shall continue, unless otherwise terminated in accordance with this clause 13, for an initial period of 12 months (the “Initial Term”) and indefinitely thereafter until either party gives the other party not less than 3 months’ written notice to terminate expiring on or after the expiry of the Initial Term.
13.2. In the event that the Client wishes to terminate the Contract in accordance with clause 13.1, the Client must coincide the cancellation of any direct debit payments with the termination date of the Contract and the Service Provider will not be responsible for ensuring that the Client makes such appropriate arrangements.
13.3. Notwithstanding clause 13.2 above, the Client’s cancellation of a direct debit instruction for payment of the Fees does not constitute service of written notice to terminate in accordance with clause 13.1 and in the event that any direct debits are cancelled rendering the Client in breach of the terms of the Contract, the Service Provider may appoint a debt collection agency to collect the same and the Client will indemnify the Service Provider for all costs, legal expenses and other charges incurred in collecting any outstanding Fees.
13.4. The Contract will remain in effect for the period of time that the parties agree that the Service Provider will provide the Required Services.
13.5. Without prejudice to clause 13.1, the Contract may be terminated with immediate effect, notwithstanding any other rights and remedies the parties may have, in the following circumstances:
13.5.1. the other party fails to comply with the terms and obligations contained within the Contract and such failure, if capable of remedy, is not remedied within 21 days of written notice of such failure from the other party;
13.5.2. an encumbrancer takes possession of, or a receiver is appointed, of any of the property or assets of the other party;
13.5.3. the other party makes any voluntary arrangement with its creditors or, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
13.5.4. the other party, being an individual or firm, has a bankruptcy order made against it or, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the other party resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other party under the Contract);
13.5.5. anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;
13.5.6. the other party ceases, or threatens to cease, to carry on business; or
13.5.7. control of the other party is acquired by any person or connected persons not having control of that other party on the date of the Contract. For the purposes of this clause 13, “control” and “connected persons” shall have the meanings ascribed thereto by sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
13.6. The termination of the Contract shall be without prejudice to any rights which have already accrued to either of the parties under the Contract.
14. WRONGFUL OR EARLY CANCELLATION CLAUSE
14.1. In the event that the Client unlawfully terminates the Contract or the Service Provider terminates the Contract pursuant to clause 13.5, the Client will (without prejudice to the Service Provider’s other rights under the Contract) immediately pay to the Service Provider, by way of compensation for the termination of the Contract and as a pre-estimate of the Service Provider’s loss, all Fees which would, but for the termination, have become due and payable from the date of termination up to the anticipated end of the term of the Contract less a discount for accelerated payment at a rate of 10%.
15. EFFECTS OF TERMINATION
15.1. Upon the termination of the Contract by whatever means, all clauses which, either expressly by their nature, relate to the period after the expiry or termination of the Contract shall remain in full force and effect and notwithstanding termination, shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of the Contract and which existed at or before the date of termination.
15.2. Any property, including the Required Information and any additional materials, in the possession of the Service Provider that have been provided by the Client during the course of the provision of the Required Services shall be returned to the Client in the event of termination of the Contract.
16. NATURE OF AGREEMENT
16.1. The Contract is personal to the parties and neither party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other party, such consent not to be unreasonably withheld, or as otherwise provided for in the Terms and Conditions.
16.2. The Contract contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the parties, or either of their duly authorised representatives.
16.3. Each party acknowledges that, in entering into the Contract, it does not rely on any representation, warranty or other provision except as expressly provided in the Contract, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
16.4. Unless otherwise provided for in the Terms and Conditions, no failure or delay by either party in exercising any rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
16.5. Neither party to the Contract shall be liable for any failure, or delay, in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, cyber-attack or any other event that is beyond the control of the party in question.
16.6. Further to clause 16.5, in the event that either party cannot perform their obligations under the Contract for a continuous period of 30 days, the other party may, at its discretion, terminate the Contract by written notice at the end of that period. In the event of such termination, the parties shall agree upon a fair and reasonable payment for the Required Services as provided up to the data of termination. Such payment will take account of any prior contractual commitments entered into in reliance on the performance of the Contract.
17.1. The parties agree that, in the event that one or more of the provisions of the Contract is found to be unlawful, invalid or otherwise unenforceable, those provisions shall be deemed severed from the remainder of the Contract. The remainder of the Contract shall be valid and enforceable.
18.1. Any notices or other information required or authorised by the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised representative of the party giving the notice.
18.2. Notices shall be deemed to have been duly given by either party to the other:
18.2.1. when delivered, including when delivered by hand, by courier or other messenger (including registered mail) during normal business hours of the recipient;
18.2.2. when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;
18.2.3. on the second Business Day following mailing (unless returned to the sender as undelivered), if mailed by national ordinary mail, postage prepaid; or
18.2.4. on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.
18.3. The address for service of any notice to be submitted to the Service Provider, if sending by pre-paid post, is Active Internet Marketing, 3a Basset Court, Loake Road, Northampton, Northamptonshire, NN4 5EZ, or if sending by email in accordance with clause 18.2.2, to email@example.com.
18.4. Any notice or information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second Business Day after the envelope containing it was so posted and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted and has not been returned to the sender, and which shall be sufficient evidence that the notice or information has been duly given in accordance with clause 18.2.3 and 18.2.4.
18.5. Any notice or information sent by electronic transmission, facsimile transmission or comparable means of communication in accordance with clause 18.2.2 shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party at the address given in clause 18.3 in respect of the Service Provider and in respect of the Client to the address specified in any correspondence, within 24 hours after transmission.
19. ALTERNATIVE DISPUTE RESOLUTION
19.1. The parties shall attempt to resolve any dispute or difference arising between the parties relating to the Contract or its subject matter. In the event that an agreement cannot be reached within 10 days, the matter may be referred to a mediator to be agreed upon by the parties.
20. LAW AND JURISDICTION
20.1. The Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
20.2. Subject to the provisions of clause 19, any dispute, controversy, proceedings or claim between the parties relating to the Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall exclusively within the jurisdiction of the courts of England and Wales.
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