AGREED TERMS (July 2021)
Your attention is particularly drawn to the provisions of clause 10 (Limitation of Liability).
- About us
1.1 Company details: Smarter Media Limited (company number 09143032) (we and us) is a company registered in England and Wales and our registered office is at Crowood House West, Gipsy Lane, Swindon Wiltshire SN2 8YY, which is also our main trading address. Our VAT number is 222 1323 68. We operate the website www.smarter-media.co.uk
1.2 Contacting us: To contact us telephone our customer service team at 01793 292 171 or e-mail email@example.com. How to give us formal notice of any matter under the Contract is set out in clause 15.2 .
- Our contract with you
2.1 Our contract: These terms and conditions (Terms) apply to the order by you and supply of Services by us to you (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Entire agreement: The Contract and the Statement of Work is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Language: These Terms and the Contract are made only in the English language.
2.4 Services: The services to be provided by us to you as set out in a Statement of Work.
2.5 Statement of Work: The document setting out the Services and any deliverables to be provided by us to you.
- Using our services
3.1 These Terms are structured so that an individual Statement of Work in respect of the provision of Services will be entered into between you and us and such Statements of Work are governed by and subject to these Terms. In the event of inconsistency or conflict between these Terms and any Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.
3.2 These Terms do not commit you to purchase any Services and, likewise, do not commit us to provide any Services. You only become committed to purchasing and we only become committed to providing any Services upon signature by both parties of a Statement of Work in respect of such Services (whether electronically or otherwise) at which point the Contract between you and us will come into existence.
3.3 Either party may sign this Statement of Work by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of that party’s intention to be bound by these Terms as if signed by each party’s manuscript signature.
3.4 Each Statement of Work shall specify (as applicable) the scope and specification of the Services and any deliverables and any obligations between us additional to those set out in these Terms and the charges relevant to each Statement of Work.
3.5 Each Statement of Work unless otherwise agreed by us shall constitute a separate contract under these Terms and any defined terms used in each Statement of Work shall have the same meaning as set out in these Terms.
- Our services
4.1 Any descriptions or illustrations on our website are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.
4.2 We reserve the right to amend the Services if required by any applicable statutory or regulatory requirement as well as changes in search engine optimisation / campaign best practices or if the amendment will not materially affect the nature or quality of the Services, and we will notify you in advance of any such amendment.
4.3 We warrant to you that the Services will be provided using reasonable care and skill.
4.4 We will use all reasonable endeavours to meet any performance dates specified in the Statement of Work, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.
- Your obligations
5.1 It is your responsibility to ensure that:
(a) you cooperate with us fully in all matters relating to the Services, including clear and accurate instructions as to your requirements;
(b) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects, including but not limited to providing:
(i) administrative or back-end access to your website(s) for analysis of its content and structure;
(ii) permission for us to make changes to your website(s) for the purpose of Optimisation;
(iii) permission for us to communicate directly with any applicable third parties connected with your website(s) (for example, your web designer) in order to provide the Services;
(iv) access to existing traffic statistics for your website(s) in order for analysis and tracking purposes;
(v) where your website(s) is / are lacking in textual content, you will provide additional text content in electronic format for the purpose of creating additional or richer web pages; and
(vi) where we have agreed to provide social media content, you have provided with us with your corporate social media policy and the form of acceptable content and agree to us creating and posting content on behalf of your business without prior signoff for each piece of content.
(d) you 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;
(e) you comply with all applicable laws, including health and safety laws;
(f) you keep all of our materials, equipment, documents and other property (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation.
5.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 5.1 (Your Default):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default,and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the Contract under clause 12 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
6.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 6 .
6.2 The Charges are those quoted in our Statement of Works. If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
6.3 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
6.4 When you pay depends on the Services you have purchased:
(a) For website design and build: 50% of the Charges are payable on acceptance of your order with the balance payable on the website being operational
(b) For all services: We will take your first payment upon acceptance of your order and will take subsequent payments, in advance, in line with the Statement of Work.
6.5 Payment for the Charges is by bank transfer for website design and builds and direct debit for SEO and social media services. Your designated bank account will be charged automatically each month.
6.6 We will send you an electronic invoice within seven days of the beginning of the campaign/project starting. For any failed or cancelled payments, a £20 administration fee will be levied.
6.7 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 12 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.8 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.9 We reserve the right to pass overdue invoices onto a debt collection agency and any additional costs so incurred will be recoverable from you.
7.1 If a problem arises or you are dissatisfied with the Services, we have a comprehensive complaints policy www.smarter-media.co.uk/complaints.
- Intellectual property rights
8.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by us.
8.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the deliverables specified in your order (excluding materials provided by you) for the purpose of receiving and using the Services and such deliverables in your business. You may not sub-license, assign or otherwise transfer the rights granted in this clause 8.2 .
8.3 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
- Personal information
9.1 We will use any personal information you provide to us to:
(a) provide the Services;
(b) process your payment for the Services; and
(c) inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us.
- Limitation of liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 Subject to clause 10.1 , we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1 , our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited,to the amount paid by you to us under the Contract.
10.4 We have given commitments as to compliance of the Services with the relevant specification in clause 3.4 . In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire one month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.6 This clause 10 will survive termination of the Contract.
11.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another’s business, strategies, affairs, customers, clients or suppliers, except as permitted by clause 11.2 .
11.2 We each may disclose the other’s confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 11 ;and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.
12.1 The initial term of the Contract will be for 6, 12 or 24 months or as detailed in your proposal, from the Statement of Work, after which the contract shall continue on a rolling 60 day term and you may only terminate the Contract by giving 60 days prior notice.
12.2 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 10 working days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business.
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
12.3 On termination of the Contract you must return all of Our Materials and any deliverables specified in your order which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safekeeping and must not use them for any purpose unconnected with the Contract.
12.4 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
12.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
- Events outside our control
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.
- Communications between us
15.1 When we refer to “in writing” in these Terms, this includes email.
15.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email to firstname.lastname@example.org.
15.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
15.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
16.1 Assignment and transfer
(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
16.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
16.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
16.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
16.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
16.6 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.