Client – the person, firm or company with whom the Supplier contracts;
Agreement – these terms and conditions and the front sheet agreed between the parties setting out the parties, services, charges and date;
Charges – the fees agreed between the parties;
Services – any services provided under this Agreement;
Supplier – the Supplier identified on the front sheet of this Agreement.
Basis of the Agreement
- 1. The Supplier agrees to provide the Services to the Client and the Client agrees to pay the Charges in accordance with the terms of this Agreement.
- 2. An Agreement shall only be formed on acceptance by the Supplier of the Client’s order.
- 3. These terms and conditions shall apply to the exclusion of all other terms and conditions including any terms and conditions which the Client may purport to apply under any order or other document. In the case of any conflict or ambiguity between terms, this document shall prevail.
- 4. The Supplier may employ sub-contractors to carry out any part of its obligations under the Agreement at its sole discretion and it may assign its rights and obligations under this Agreement to any other party. The Supplier acts as principal in this Agreement. The Client may not assign its rights and obligations under this Agreement without the written consent of the Supplier.
- 5. Any variation of these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a duly authorised officer of the Supplier.
- 6. Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- 7. The Supplier will provide services to the Client involving use of various social media platforms and networks.
- 8. The Supplier will use its best endeavours to commence the services within 2 weeks of receipt of the login details for the Clients social media accounts, unless a different timescale is agreed between the parties.
- 9. The Supplier will use its best endeavours to ensure that the Client is accessible on agreed social media platforms at all times for the duration of this Agreement.
- 10. The Supplier makes no warranty as to the availability of the different social media websites which the parties recognise is beyond the control of the Supplier.
- 11. The Client will provide the Supplier with such text, artwork, information, logos and designs, and will do so in such formats and at such time or times, as the Supplier may reasonably need to promote the Client and to perform the Services in accordance with this Agreement. The Client is responsible for ensuring that such material and answers are accurate and complete.
- 12. The Supplier reserves the right to edit or amend any content on any social media channels that it considers to be offensive, unlawful or inappropriate, or which appear to infringe the intellectual property rights of any third party.
- 13. If the Client fails to produce such artwork and other material in accordance with clause 11, or supplies only material which the Supplier considers to be offensive, unlawful or inappropriate or which appear to infringe the intellectual property rights of any third party, the Supplier reserves the right to produce material to its own design to promote the Client’s business, without seeking the Client’s approval, for the remaining term of this Agreement or until suitable artwork and other material is supplied, whichever is sooner.
- 14. The Client will obtain all necessary licences or consents that may be needed in connection with the content or display of logo’s and the use of the artwork and other material supplied by it and it shall indemnify the Supplier in full against any costs, claims, demands or expenses which the Supplier may incur as a result of breach by the Client of this clause.
- 15. The Client recognises that it is not practical for the Supplier to notify the Client of each and every posting that it makes on behalf of the Client on any/all social media channels and the Client agrees that this is unnecessary.
- 16. The Client may request that the Supplier makes changes to any content or postings at any time in writing, and the Supplier may levy reasonable additional charges for such work.
- 17. The Charges will be paid monthly in advance. The initial set-up fee shall be paid on the date of this Agreement.
- 18. The Client shall pay the Charges by standing order or direct debit, as decided by the Supplier, and the Supplier reserves the right to change to required payment method by notice.
- 19. The Supplier reserves the right by giving notice to the Client at any time to increase the Charges or to raise additional charges, payable within 14 days if;-
- – the Client agrees to any change to the services provided by the Supplier;
- – Services are required by the Client with exceptional urgency;
- – the Client fails to give the Supplier adequate or accurate material in accordance with this Agreement.
- 20. The Supplier reserves the right by giving not less than 28 days notice to the Client to increase the Charges on any anniversary of this Agreement, provided that in the event of an increase under this clause exceeding the aggregate increase to the RPI over the previous 12 months, the Client may terminate this Agreement by notice in writing served on the Supplier before the commencement date of the new pricing level.
- 21. Unless alternative payment provisions are agreed, the Supplier may submit an invoice or invoices annually or in respect of each or any instalment of the Charges. Invoices shall be sent to the Client’s address recorded in this Agreement unless otherwise agreed.
- 22. All sums due under the Agreement will be paid by the Client by their due date without any deduction, set-off, counterclaim or abatement and time for payment shall be of the essence.
- 23. The Charges do not include sales tax, impost or custom duties which will be paid additionally by the Client at the then prevailing rate. VAT is currently applicable to this agreement.
- 24. No act or omission of the Client which prevents the Supplier from continuing to perform the Agreement or to perform it according to any agreed time-scale shall prevent the Client from raising invoices in accordance with this Agreement.
- 25. If the Client fails to make any payment within the time specified in this Agreement the Supplier may take any or all of the following steps;-
- – suspend the services until payment is made in full;
- – cancel the Agreement between the Supplier and the Client;
- – immediately demand the balance of the Charges for the year concerned in advance of the further supply of any Services;
- – charge the Client interest both before and after any judgement on the amount unpaid at the rate of 4% per annum above the Lloyds TSB Bank Plc base lending rate from time to time until payment in full is made,
- – appropriate any payment made by the Client and set-off any monies due to the Client, whether under this Agreement or any other contract or otherwise (including any VAT applicable), to or against the unpaid invoice or invoices. Intellectual Property
- 26. Any intellectual property rights in any postings made by the Supplier on behalf of the Client, save for that attaching to any logos, designs, names and other material originally supplied by the Client, shall remain the property of the Supplier. No right or licence is granted by this Agreement.
- 27. To the extent that the Client supplies the Supplier with any original copyright or other protected material, the Client grants a licence to the Supplier to publish, reproduce, adapt, and otherwise use without limitation any such material for the purposes of its performance of this Agreement but not otherwise.
- 28. At termination any unused material prepared by the Supplier, whether the subject of copyright or not, shall remain the Supplier’s property and shall not be used by the Client subsequently without the written consent of the Supplier.
Warranties and Indemnities
- 29. The Client warrants that it has not relied on any representations made by or on behalf of the Supplier save as contained in this Agreement.
- 30. The Client warrants that any copy, logo, specification, design, instruction or other material supplied by it to the Supplier, will not infringe any intellectual property or other rights of any third party, nor will it be defamatory or otherwise unlawful, nor infringe the Trade Descriptions Acts, and the Client will indemnify the Supplier in respect of any claim relating to such infringement.
- 31. The Client warrants that all the facts, claims and offers given by it about its products or services are accurate and in no way misleading and that the terms of any offers contained therein will be honoured.
- 32. This Agreement is between the Client and the Supplier only.
Limitation of Liability
- 33. The Supplier shall not be responsible for any errors in any postings or any unsatisfactory Services which are not notified in writing to it nor for any errors which are approved by or are the fault of the Client or any third party.
- 34. The terms of this Agreement represent the whole agreement between the parties and all other warranties, conditions, terms, undertakings or representations of any kind, whether express or implied, statutory or otherwise including (without limitation) as to the condition, quality, performance or fitness for purpose of any goods or the standard of care used in the provision of services are hereby expressly excluded from the Agreement save as prohibited by law.
- 35. The Supplier shall not be liable under contract, tort (including negligence) or otherwise for any loss of production, loss or corruption of data, loss of profits or of contracts, loss of operation time, loss of goodwill and loss of anticipated savings, nor for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused.
- 36. Save where its liability cannot be limited by law, the Supplier’s total liability (whether in contract, tort including negligence or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed two times the Charges then payable for a 12 month period in aggregate.
- 37. The parties recognise that the nature of websites is that complete continuity of access to the social media websites cannot be guaranteed.
Duration and Termination
- 38. This Agreement shall commence on the Commencement Date and shall continue in effect for an initial period of 6 months and thereafter until terminated by either party serving not less than one months written notice on the other expiring at any time after the 1st anniversary.
- 39. The Supplier may terminate this Agreement or suspend its performance with immediate effect on written notice if the Client;-
- – ceases or threatens to cease to carry on its business or becomes insolvent, has a receiver or administrator appointed, makes any arrangement for the benefit of its creditors goes into liquidation or enters into any other insolvency process;
- – commits a material breach of this agreement and (in the case of a breach capable of remedy) fails to remedy it within 7 days of receipt of written notice fro the Supplier specifying the breach and containing a warning of an intention to terminate if the breach is not remedied;
- – defaults in paying any sums due to the Supplier under this Agreement.
- 40. In the event of termination by the Supplier, the Supplier shall reimburse to the Client any advance payment of the Charges made in respect of periods following termination, subject to deduction of any sums due to the Supplier.
- 41. Termination of this Agreement shall not affect any rights of the parties accrued to them up to the date of termination.
- 42. Neither party shall be liable for any delay in performing or failing to perform any of its obligations under this Agreement due to any act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest or other force majeure event beyond the reasonable control of either party.
- 43. All notices to be given under this Agreement shall be in writing and shall be sent to the normal business address of the party concerned as set out in this Agreement by first class post or by hand.
- 44. No delay or failure by the Supplier to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them and any waiver, to be effective, must be in writing.
- 45. If any part of this Agreement is found by a court or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
- 46. Both parties shall keep confidential all material concerning the business affairs of the other which shall be disclosed in the course of performance of this Agreement, save for any information in the public domain.
- 47. The Supplier shall be entitled to set-off against any monies payable to it by the Client under this Agreement, any monies which may be payable by it to the Client, whether under this Agreement or otherwise. The Client shall not be entitled to any right of set-off.
- 48. This Agreement is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and other arrangements, written or oral