Terms & Conditions of Service

The Customer’s attention is particularly drawn to the provisions of clause 10.

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 13.10.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases the Services from the Supplier.

Force Majeure Event: has the meaning given to it in clause 13.1(a).

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, 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 Customer’s order for the supply of Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Specification: the description or specification for Services provided by the Supplier to the Customer as set out in the schedule hereto (Schedule).

Supplier: Custard Media Solutions Limited, a company registered in England and Wales with company number 07053307.

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its successors or permitted assigns;

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Services from the Supplier in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 7 Business Days from its date of issue.

3. Supply of Services

3.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Schedule, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier shall not make any alterations or additions to the Customer’s website without the prior consent of the Customer, and the Customer shall take full responsibility for any changes made in respect thereof.

4. Customer’s obligations

4.1 The Customer warrants to the Supplier that it is entering into the Contract as a business and not as a consumer. If the Customer is a consumer, then it should contact the Supplier directly.

4.2 The Customer shall:

(a) ensure that the terms of the Order and the information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s website (including, where required, FTP access) and other facilities as reasonably required by the Supplier to provide the Services. If FTP access can not be given to the Supplier, then all website changes required by the Supplier must be made by the Customer in order for the Supplier to provide the Services, and the Customer shall provide, on request, such information as the Supplier may reasonably require to evidence the requested changes;

(d) provide the Supplier with such information and materials (including website statistical data) as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(e) ensure that it has a suitable (in the reasonable opinion of the Supplier) provider of web statistical data (such as Google Analytics) in advance of the provision of the Services;

(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g) inform and consult with the Supplier prior to making any amendments to the Customers website (the Supplier cannot be held liable for any adverse affect on the provision of the Services by the Customer’s failure to comply with this sub clause); and

(h) prior to commencement of the Services, provide the Supplier (unless otherwise agreed in writing in advance with the Supplier) with a completed and signed standing order form.

4.3 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.3; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5. No Guarantee

5.1 Whilst the Supplier shall use its reasonable endeavours to achieve the best possible outcome for the Customer in the provision of the Services, the Customer accepts that the Supplier has no control over the policies of search engines with respect to the type of websites and/or content that they accept now or in the future and that, due to the fluctuation of search engine rankings based on the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, the Supplier can make no guarantee in relation to the expected success of the provision of the Services including, but not limited to, consistency of rankings or volumes of traffic or sales to and from the Customer’s domains.

6. Links

6.1 Where set out in the Specification, the Supplier shall provide the link building services requested by the Customer in relation to that number of links as set out in the Specification.

6.2 The Customer acknowledges that links provided by the Supplier are not permanent, and that, subject to clause 6.3 below, the Supplier makes no warranty, and provides no guarantee, in relation to the duration of such links, including authority links.

6.3 Where the Supplier has control of any particular link, then the Supplier guarantees that such link shall be active for a minimum period of twelve months from the date the link is first established.

6.4 Where there are problems resulting from any modifications or customisation of the domain, or links are removed by third parties, then the Supplier shall be under no obligation to provide the Services.

6.5 The Supplier will not supply the Customer with a link report.

7. Charges and payment

7.1 The charges for Services set out in the Schedule are based on keyword research and analysis of competitors in the search engines. The Customer accepts that the information that is available on keywords and competitors is available at the discretion of the search engines, and as such the Supplier does not accept any responsibility for any errors or inaccuracies in the data provided on the day of the research.

7.2 The Supplier reserves the right upon 7 days’ notice to adjust the price of the Services to take account of any variation in the Supplier’s costs in providing the Services, including, without limitation, increases in employment costs, changes, errors or inaccuracies to the Services as set out in the Schedule, and errors or inaccuracies as set out in clause 7.1 above. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 7 days of the date of the Supplier’s notice and either party shall have the right to terminate the Contract by giving 7 days’ written notice to the other.

7.3 The Supplier shall be entitled to charge the Customer in addition to the charges for the Services for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the provision of the Services including, but not limited to, third party software upgrades or web development required, website hosting and other technical support.

7.4 The Customer shall pay the first month’s charges in full upfront on commencement of the Services and thereafter, save as agreed with the Supplier in advance in writing, the Customer shall pay each invoice submitted by the Supplier by standing order on the first day of each calendar month. Time for payment shall be of the essence of the Contract.

7.5 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). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.6 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Royal Bank of Scotland’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

7.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8. Intellectual property rights

8.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

8.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

9. Confidentiality

A party (Receiving Party) 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 the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of the Contract.

10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, or fraud or fraudulent misrepresentation.

10.2 Subject to clause 10.1:

(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract; and

(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the amount paid by the Customer in relation to the provision of the Services.

10.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.4 This clause 10 shall survive termination of the Contract.

11. Termination

11.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;

(b) the Customer 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 within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) the Customer 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 enters into any compromise or arrangement with its;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

(e) the Customer (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the Customer 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;

(g) 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 Customer (being a company);

(h) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(b) to clause 11.1(i) (inclusive);

(k) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

(l) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

11.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract:

(a) by giving the Customer 1 months’ written notice;

(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:

(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or

(b) the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

12. Consequences of termination

On termination of the Contract for any reason:

(a) the 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 yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

13. General

13.1 Force majeure:

(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or 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.

(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 2 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

13.2 Assignment and subcontracting:

(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other 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.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

13.3 Notices:

(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number, or by email to that parties’ email address as notified to the other party from time to time.

(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax or email, on the next Business Day after transmission.

13.4 Marketing: The Customer hereby agrees that the Supplier may refer to the Customer in any marketing or promotional materials, and the Customer hereby grants to the Supplier in this regard a non-exclusive, royalty free licence to use the Customer’s company name, trading names, branding and logos as required.

13.5 Data Collection:

13.6 Waiver and cumulative remedies:

(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

13.7 Severance:

(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

13.8 No partnership: 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.

13.9 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

13.10 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.

13.11 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

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