- Application of Conditions
1.1 The Company shall supply and the Customer shall purchase the Services in accordance with these Conditions.
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any offer is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
- Definitions and Interpretations
2.1 “Agreement” a written description of the Services contained in this document, schedules and annexure hereto including Key Contract Terms (Schedule A).
2.1.1 “Business Day” any day other than a Saturday, Sunday or English bank holiday.
2.1.2 “Customer” the individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which accepts an offer from the Company for the supply of the Services.
2.1.3 “Company” Growth Track, a private limited company whose registered address is 33-35 Daws Lane, Mill Hill, London NW7 4SD and whose registered number is 07651138 (“Growth Track”).
2.1.4 “Conditions” the standard terms and conditions of sale set out in this document together with (unless the context otherwise requires) any special terms and conditions agreed in writing between the Customer and the Company.
2.1.5 “Contract” the contract for the purchase and supply of the Services under the Conditions and incorporating the Agreement.
2.1.6 “Fixed Term” such fixed term (if any) as may be agreed for the supply of any Service as set out in the Agreement.
2.1.7 “Minimum Term” the minimum period or fixed term for provision of the Services as set out in the Agreement.
2.1.8 “Price” The sum or sums payable by the Customer to the Company in respect of the Services particularised in the Agreement in the amount(s) and payable as set out therein.
2.1.9 “Services” the services to be provided by the Company to the Customer as set out in the Agreement.
2.2 “Term” the Minimum Term (and thereafter until terminated in accordance with condition 8) or the Fixed Term as set out in the Agreement.
2.2.1 “Facebook Website” the Customer’s Facebook website bearing the URL specified in the Agreement.
2.2.2 “Writing” includes any communications effected by, email or any comparable means.
2.2.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2.2.4 The headings in these Conditions are for convenience only and shall not affect their interpretation.
- Basis of Service
3.1 The Company’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Company in writing.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company and signed by the parties. Only a director of the Company has authority to agree variations to these Terms and Conditions.
3.3 Sales literature, price lists and other documents issued by the Company in relation to the Services are subject to alteration without notice and do not constitute offers to sell the Services which are capable of acceptance.
3.4 No contract for the supply of the Services shall be binding on the Company unless the Customer has signed the Agreement.
3.5 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
- The Agreement
4.1 The Agreement shall include such information as the parties consider necessary for the successful provision of the Services, and shall include (without limitation):
4.2 The full contact details of the Customer and including email address nominated by them to receive communications from the Company; the date on which the Services are to commence; the Minimum Term (where determinable) or the Fixed Term; the Price (or the basis for calculation of the Price) and the terms of payment of the Price.
- The Services
5.1 The Customer shall pay the Price and any other sums due for the Services in accordance with condition 9.
5.2 The Company will use reasonable care and skill in the provision of the Services.
5.3 The Company shall provide the Services for the Term.
- Description of The Suppliers Service and Obligations
6.1 The Company will provide a Facebook Search System which may only be embedded within the client’s single Facebook account. Where possible this will be connected to a data feed provided by the Client’s Estate Agency Software provider, in order that the Facebook Search System is automatically updated.
6.2 The supplier does not warrant that the Client’s Estate Agency Software provider will be able to automatically update the data every day but it will process whatever is supplied into the Facebook Search System.
6.3 From time to time Facebook may, without prior notice change the specification for the provision of embedded search systems. The Supplier will take whatever reasonable reactive and corrective action is necessary to be taken to resolve and test these changes so that the Facebook Search System continues to operate. However, where additional programming resources are required to resolve issues these may be chargeable to the Client at a pro-rated charge of £55 per hour plus VAT.
6.4 The Supplier will uses its best endeavours to ensure that the hosting systems have high and maximum availability but cannot warrant that they will be continuously available 24 x 7 x 365.
- Duration and Termination
7.1 This agreement shall last for twelve calendar months (“Minimum Period”) and shall come into effect when the Customer has signed this Agreement and shall remain in effect until terminated. Termination may not occur before the expiry of the Minimum Period.
7.2 At the end of the initial Minimum Period this Service Agreement shall be renewed automatically for consecutive renewal Terms of twelve months.
7.3 Either party may cancel this agreement at the end of the term by providing the other party written notice at least three (3) months prior to the end of the applicable Term. The three month notice period will deemed to have started from the last regular subscription payment date.
- Termination for Default
8.1 Without prejudice to any other provision contained within these Conditions the Company may terminate the Contract by notice in writing in any of the following events (each an “Event of Default”):
8.1.1 The Customer commits a material breach of the Contract which is incapable of remedy;
8.1.2 The Customer commits a material breach which is capable of remedy but which the Customer fails to remedy within 14 days of written notice by the Company specifying the event of default and requiring its remedy; or
8.1.3 The Customer shall have a receiver or liquidator appointed or shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction), or a Court shall make an order to that effect, or the Customer shall enter into composition or arrangement with its creditor(s) or shall become insolvent, any such an event shall be deemed to be a material breach incapable of remedy.
8.2 Any termination of the Contract howsoever caused shall not affect any accrued rights or liabilities of either the Company or the Customer arising out of the Contract.
8.3 On termination of the Contract for any reason, the Customer shall pay to the Company all sums set out in condition 9.
8.4 If late payment exceeds 28 days, Growth Track reserves the right to cancel the the Services and The Customer will be liable for payment for the remainder of the contracted period.
- Fees and Payment
9.1 The Client shall pay the charges for the services as set out on the Growth Track website or in accordance with the payment terms agreed with Growth Track.
9.2 All invoices are payable monthly in advance by direct debit on or around the 1st of the month or as instructed by the Company. If any amount is overdue by more than fourteen days, the Company may:
9.2.1 Charge interest on overdue amounts at 4% per month. In the event the Company brings a legal action to collect, due to late payment of valid invoices, the Customer must also pay the Company’s costs of collection, including reasonable legal fees, expenses and court costs. If the Customer’s payment is returned for insufficient funds, the Company may charge an administration fee up to the maximum amount permitted by law.
9.2.2 If payment is more than fourteen days overdue the Company may suspend the provision of the services until payment is received.
9.2.3 Charge a £100 fee for the resumption of normal service and shall do so only upon receipt of said fee together with the full overdue payment amount.
- Payment On Default or Cancellation
10.1 Where the Customer cancels the Contract in accordance with condition 8 or on the happening of an Event of Default then (unless the Agreement shall otherwise provide) the following payments will become immediately due:
10.1.1 All sums due up to the date of cancellation or the happening of the Event of Default; and
10.1.2 The balance of the sums due (if any) for the remainder of the Term.
10.2 Where the payment due under condition 10.1.2 is not exactly determinable, the Company shall make a reasonable estimate of what those sums would have been had the Contract run as expected for the Term, and the Customer shall be bound by the Company’s decision.
- The Customers General Acknowledgements and Obligations
11.1 In order to enable the Company to perform its obligations the Customer shall:
11.1.1 Co-operate with the Company and comply with its reasonable requirements;
11.1.2 Promptly upon receipt of a request furnish the Company with such information as the Company may reasonably require for the provision of the Services;
11.1.3 Ensure the accuracy and validity of all information provided to the Company.
11.1.4 At their own cost obtain all permissions, licences and consents which may be required for it to use the Services.
11.2 The Customer acknowledges that in providing the Services the Company will rely on the accuracy, suitability and relevance of all information supplied by the Customer to it whether in accordance with this condition 11 or otherwise.
12.1 During the term of this Contract and thereafter neither the Company nor the Customer shall without the prior written consent of the other disclose to any third party any information of a confidential nature relating to the Facebook Website or the business or undertaking of the Customer or the Company other than such information or knowledge which:
12.1.1 Is disclosed by the disclosing party without restriction;
12.1.2 Comes into the public domain (other than as a consequence of breach by the other party); or
12.1.3 Is rightfully received by either party from a third party.
12.2 Nothing in this Contract shall prevent the Company from referring to the Customer by name in advertising or promotional material, proposal or other documents or describing the services performed for or provided to the Customer and the Customer hereby authorises the Company to do so.
13.1 The Company reserves the right to assign the Contract and to sub-contract to its associated providers or others all or any of its obligations but the Contract shall not be assigned by the Customer without the Company’s prior written consent.
- Exclusions and Limitation Of Liability
14.1 The Customer shall indemnify the Company against all damages, costs, claims and expenses suffered by the Company arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agents or employees.
14.2 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
14.3 Subject to conditions 14.5 14.6 and 14.7 each party shall be liable to pay to the other damages for any breach of the Contract and all expenses and costs incurred by that party in enforcing its rights under the Contract.
14.4 If the Company fails to perform the Services with care and skill it will carry out remedial action at no extra cost to the Customer. The Customer shall give the Company reasonable time to carry out such remedial action. If no remedial action is possible the Company shall pay for the damage caused subject to the provisions of conditions 14.5, 14.6 and 14.7.
14.5 Subject to condition 14.8 the Company’s liability shall be limited (in respect of any one incident or series of connected incidents) to 1.5 times the fee paid by the Customer under the Contract in the preceding 12 months in respect of:
14.5.1 Any breach of the Company’s contractual obligations arising under the Contract;
14.5.2 Any misrepresentation, false statement or tortuous act or omission including negligence made or arising under or in connection with the Contract; and
14.5.3 Any other negligence or breach of statutory duty.
14.6 The Company shall not be liable to the Customer for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
14.7 The Company does not exclude or limit its liability for death or personal injury, nor for fraudulent misrepresentation.
14.8 The Company makes no warrant and accepts no responsibility for changes in layout in Facebook presentation in various internet browsers.
14.9.1 The Company accepts no responsibility for accounts that become hacked or receive abusive content from external parties. Intellectual rights to all social networking accounts remain with the Customer unless otherwise agreed.
14.9.2 The Company is not responsible for any social media accounts that become either postponed, blocked, suspended or cancelled, or for any costs incurred by the Customer for changing the social media URL’s or for any lost followers or likes.
15.1 Any notice given in writing if sent first class prepaid letter post to the receiving party at its business address as last notified in writing to the other party shall be deemed to have been given (provided a copy is sent by first class prepaid letter post on the same day) on 2 working days (excluding weekends and bank and public holidays) following the date of posting.
- Force Majeure
16.1 In the event that either party is prevented from fulfilling its obligations under the Contract by reason of any supervening event beyond its control including but not
limited to war, national emergency, flood, earthquake, strike or lockout (except where such strike or lockout has been induced by the party so incapacitated) the incapacitated party shall not be deemed to be in breach of its obligations under the Contract provided it immediately gives notice of this to the other party and takes all reasonable steps to resume performance of its obligations.
16.2 If and when the period of such incapacity exceeds 6 months then the Contract shall automatically terminate unless the parties first agree otherwise in writing and any remaining Term shall cease and determine.
17.1 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
18.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
- Third Party Rights
19.1 A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Governing Law and Jurasdiction
20.1 These Conditions shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.