Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time shall be governed by these Terms and Conditions, and the Provider will ask the Client for the Client's express written acceptance of these Terms and Conditions before providing any such services to the Client.
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
"Advertising Management Services" means the arrangement and management of internet advertising by the Provider for the Client, which may include pay-per-click advertising, pay-per-view advertising, banner advertising and other forms of paid internet advertising, as specified in the Statement of Work;
Assigned Deliverables" means those Deliverables (excluding the Third Party Materials and the Client Materials) the rights in which are to be assigned (rather than licensed) by the Provider to the Client under Clause 16, as specified in the Statement of Work;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in the Statement of Work;
(b) such amounts as may be agreed in writing by the parties from time to time;
"Client" means the person or entity identified as such in the Statement of Work;
"Client Confidential Information" means:
(a) any information disclosed by or on behalf of the Client to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential" or should have been understood by the Provider (acting reasonably) to be confidential; and
(b) the terms of the Contract;
"Client Indemnity Event" has the meaning given to it in Clause 24.3;
"Client Materials" means all works and materials supplied by or on behalf of the Client to the Provider for incorporation into the Deliverables or for some other use in connection with the Services;
"Client Personal Data" means any Personal Data that is processed by the Provider on behalf of the Client in relation to the Contract, but excluding data with respect to which the Provider is a data controller;
"Client Trade Marks" means the following registered and unregistered trade marks of the Client.
"Client Websites" means any website or websites of the Client in respect of which the Services are provided or in respect of which the Provider has an obligation to provide the Services; "Confidential Information" means the Provider Confidential Information and the Client Confidential Information;
"Consultancy Services" means the consultancy services specified in Section 3 of the Statement of Work;
"Contract" means a particular contract made under these Terms and Conditions between the Provider and the Client;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Client Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679)];
"Deliverables" means those deliverables specified in Section 4 of the Statement of Work that the Provider has agreed to deliver to the Client under these Terms and Conditions;
"Effective Date" means the date of execution of the Contract;
"Email Marketing Platform" means the Provider's web-based platform enabling customers to create and manage email marketing lists and email marketing campaigns;
"Email Marketing Services" means some or all of the following services as specified in Section 3 of the Statement of Work: assisting with and advising upon the Client's email marketing strategy; designing, in consultation with the Client, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; managing the Client's email marketing lists; running the Client's email marketing campaigns, including sending emails to addresses in the Client's email marketing lists; and providing the Client with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, logos, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Licensed Deliverables" means the Deliverables excluding the Assigned Deliverables, the Third Party Materials and the Client Materials;
"Minimum Term" means, in respect of the Contract, the period of 12 months beginning on the Effective Date unless specified otherwise in the Statement of Work;
"Online Account" means any user or customer account on any third party website, or on any third party software application accessible via the internet, that is used by the Provider in the course of providing the Services;
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Provider" means Continuity Group ltd, a company incorporated in England and Wales (registration number 11720659) having its registered office at 45 Broadwick Street, W1F 9QW, Soho London;
"Provider Confidential Information" means:
(a) any information disclosed by or on behalf of the Provider to the Client during the Term OR at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked[ or described] as "confidential" or should have been understood by the Client (acting reasonably) to be confidential; and
(b) the terms of the Contract; "Provider Indemnity Event" has the meaning given to it in Clause 24.1;
"Search Marketing Services" means any or all of the following services, as agreed by the parties in Section 3 of the Statement of Work:
(a) researching the history of websites, their structure and their performance in the search engine results pages;
(b) keyword research in relation to websites;
(c) formulating a search engine optimisation strategy for websites;
(d) modification of websites (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, applications, internal and external links and website structure);
(e) paid and unpaid submissions to search engines, directories and other listings websites;
(f) the creation and publication of websites, and of material and applications relating to the Client on websites;
(g) link building and link baiting;
(h) the use of social media and social networks to generate signals that may have a direct or indirect effect on search engine rankings; and
(i) other search engine optimisation techniques, whether known on the Effective Date or devised or disseminated thereafter;
"Services" means any services that the Provider provides to the Client, or has an obligation to provide to the Client, under these Terms and Conditions;
"Social Media Marketing Services" means the creation of accounts connected to the Client on Social Media Platforms, the establishment and growth of user networks associated with such accounts, the creation of content for publication on and distribution through Social Media Platforms, the publication of such content on and distribution of such content through Social Media Platforms, and the monitoring and analysis of the impact of these services, as detailed in Section 3 of the Statement of Work;
"Social Media Platforms" means Facebook, Twitter, YouTube and LinkedIn, and any other social media platforms agreed by the parties in writing from time to time;
"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties; "Term" means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, Schedule 1 (Acceptable Use Policy), the Statement of Work and the Search Marketing Services Guarantee, including any amendments to that documentation from time to time;
"Third Party Materials" means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 4 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables; and
"Web Content Services" means the design, development, creation, adaptation and delivery of content (which may include text, images, designs, audio material, video material and/or software) for use online by the Client, in accordance with Section 3 of the Statement of Work.
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force indefinitely, subject to termination in accordance with Clauses 17, 18 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
3. Consultancy Services
3.1 The Provider shall provide the Consultancy Services to the Client during the Term.
4. Web Content Services
4.1 The Provider shall provide the Web Content Services to the Client during the Term.
5. Search Marketing Services
5.1 The Provider shall provide the Search Marketing Services to the Client during the Term.
5.2 The Provider undertakes to the Client that it will not, in the course of providing the Search Marketing Services, use any technique that is in clear breach of the Google Webmaster Guidelines (in the form published at the time the relevant technique is actively used).
5.3 The Client acknowledges and agrees that:
(a) search engine algorithms will change from time to time, which may affect website rankings in the search engine results pages, and the Provider has no control over such changes;
(b) it can take months for the Search Marketing Services to have any significant effects upon the ranking of a website in the search engine results pages;
(c) website promotion is an ongoing task and, should the Client terminate the Contract and/or stop promoting a website, that may have a negative impact upon the effects of the Search Marketing Services;
(d) the Provider will not be responsible for any alterations to a website made by the Client or any third party that reverse or otherwise affect changes made to that website by the Provider in connection with the Search Marketing Services; and
(e) notwithstanding the Search Marketing Services, a website's search engine results page rankings and traffic levels may decrease as well as increase.
6. Advertising Management Services
6.1 The Provider shall provide the Advertising Management Services to the Client during the Term.
6.2 The Client shall be responsible for paying third party services providers in respect of fees for advertisements published through the Advertising Management Services.
7. Email Marketing Services
7.1 The Provider shall provide the Email Marketing Services to the Client during the Term.
7.2 The Client shall ensure that any email addresses and associated personal information provided by or on behalf of the Client to the Provider for use in connection with the Email Marketing Services has been collected in accordance with applicable law, and that the use of such information by the Provider in accordance with these Terms and Conditions or the instructions of the Client will not breach any applicable law.
8. Social Media Marketing Services
8.1 The Provider shall provide the Social Media Marketing Services to the Client during the Term.
8.2 Each party must comply with the terms and conditions of the Social Media Platforms in respect of its activities relating to the Social Media Marketing Services and the Contract more generally.
9. Client Materials
9.1 The Client hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under these Terms and Conditions.
9.2 The Client warrants to the Provider that the Client Materials will not infringe the Intellectual Property Rights or other legal rights of any person in any jurisdiction and under any applicable law.
10. Client Websites
10.1 The Client shall provide to the Provider, promptly following receipt of a written request from the Provider, the facilities to access and make changes to the Client Websites.
10.2 The Client must not reverse, revert or materially alter any changes to the Client Websites made by or upon the instructions of the Provider in the course of providing the Services without notifying the Provider in writing in advance.
11. Online Accounts
11.1 The Provider shall have and retain all rights to any Online Accounts that were created by or on behalf of the Provider before the Effective Date or were used by the Provider in the connection with the fulfilment of the Provider's obligations under these Terms and Conditions only after they had been used by the Provider to provide services to one or more third parties. The Provider shall have no obligation to provide to the Client any access to such Online Accounts, whether during or after the Term.
11.2 The parties may from time to time agree in writing derogations from the rules set out in this Clause 11 relating to the Online Accounts.
12. Client Trade Marks & Intellectual Property
12.1 The Client grants to the Provider a non-exclusive licence to use the Client Trade Marks during the Term.
12.2 The Client grants to the Provider a non-exclusive licence to use the Client Intellectual Property during the Term.
12.3 The Client grants the Provider a non-exclusive licence to use Client Materials, Intellectual Property and Trade Marks during the Term for Continuity to promote its services online and to other Clients.
13.1 The Client shall pay the Charges to the Provider in accordance with these Terms and Conditions.
13.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Client to the Provider.
14.1 The Provider shall issue invoices for the Charges to the Client on or after the invoicing dates set out in Section 7 of the Statement of Work.
14.2 The Client must pay the Charges to the Provider monthly in advance following the issue of an invoice in accordance with this Clause 20.
14.3 The Client must pay the Charges by Direct Debit (using such payment details as are notified by the Provider to the Client from time to time).
14.4 If the Client does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
(a) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
15. Data protection
15.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data.
15.2 The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Contract.
15.3 The Provider shall only process the Client Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 22.
15.4 The Provider shall only process the Client Personal Data on the documented instructions of the Client (including with regard to transfers of the Client Personal Data to any place outside the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
15.5 The Provider shall promptly inform the Client if, in the opinion of the Provider, an instruction of the Client relating to the processing of the Client Personal Data infringes the Data Protection Laws.
15.6 Notwithstanding any other provision of the Contract, the Provider may process the Client Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
15.7 The Provider shall ensure that persons authorised to process the Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
15.8 The Provider and the Client shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Client Personal Data, including the measures specified in the information security policy of the Provider (as it may be updated by the Provider from time to time).
15.9 The Provider must not engage any third party to process the Client Personal Data without the prior specific or general written authorisation of the Client. In the case of a general written authorisation, the Provider shall inform the Client at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Client objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 22.
15.10 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Client with the fulfilment of the Client's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
15.11 The Provider shall assist the Client in ensuring compliance with [the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
15.12 The Provider shall make available to the Client all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 22 and the Data Protection Laws.
15.13 The Provider shall, at the choice of the Client, delete or return all of the Client Personal Data to the Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
15.14 The Provider shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client in respect of the compliance of the Provider's processing of Client Personal Data with the Data Protection Laws and this Clause 22.
16. Limitations and exclusions of liability
16.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 25 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 25.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
16.3 Neither party shall be liable to the other partyin respect of any losses arising out of a Force Majeure Event.
16.4 The Provider shall not be liable to the Client in respect of any loss of profits or anticipated savings.
16.5 The Provider shall not be liable to the Client in respect of any loss of revenue or income.
16.6 The Provider shall not be liable to the Client in respect of any loss of use or production.
16.7 The Provider shall not be liable to the Client in respect of any loss of business, contracts or opportunities.
16.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
16.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
17.1 Either party may terminate the Contract by giving to the other party not less than 60 days' written notice of termination after the end of the Minimum Term.
17.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Contract;
(b) the other party commits a material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 60 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).
17.4 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
17.5 The Provider may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Provider under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Client at least 60 days' written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 27.4.
18. Effects of termination
18.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 11, 12.1, 14.2, 14.4, 15, 16, 18, 20.
18.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
19.1 The Minimum Term shall automatically renew for subsequent period of the same length as the Minimum Term in the contract unless either party gives the other written notice of termination at least thirty days prior to expiration of the current Minimum Term.
20.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Contract.
20.2 The Provider shall remain responsible to the Client for the performance of any subcontracted obligations.
21. Non-Solicitation21.1 During the Term, and for a period of 12 months after termination neither party shall hire the other party's employees without the consent of the other party. 21.2 In the event that the Client attempts to make an employement offer in any way whatsoever, as employee or as consultant to any employee, freelancer or contractor working with the Provider or wihtin any entity belonging to the Provider's group. The Client will pay a recruitment fee of £7,500.00 to the Providor.
22.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.
22.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
22.6 Subject to Clause 25.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 The Contract shall be governed by and construed in accordance with English law.
22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract