- 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 any annexure hereto.
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 “Content” articles or text (including News Stories), graphics, logos, photographs, Images, moving Images (including video), sound, illustrations and other materials featured, displayed or used or to be featured, displayed or used in or in relation to the Website.
2.1.6 “Content Service” the creation and supply by the Company of Content, on the Topic as specified in the Agreement or otherwise agreed in writing for publication by the Customer on the Website as described in condition 6.
2.1.7 “Contract” the contract for the purchase and supply of the Services under the Conditions and incorporating the Agreement.
2.1.8 “Fixed Term” such fixed term (if any) as may be agreed for the supply of any Service as set out in the Agreement.
2.1.9 “Images” any and all visual representations or images including (without limitation) photographic, digitally created and computer generated images, illustrations, drawings and video and including Third Party Images.
2.2 “Intellectual Property Rights” (“IPR”) copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, database rights and any other intellectual property rights (whether registered or unregistered) and all applications for any of the foregoing, anywhere in the world.
2.2.1 “Minimum Term” the minimum period or fixed term for provision of the Services as set out in the Agreement.
2.2.2 “Month” a calendar month.
2.2.3 “News Stories” news stories written by or on behalf of the Company for the Customer (each of which is a “News Story”).
2.2.4 “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.
2.2.5 “Services” the services to be provided by the Company to the Customer as set out in the Agreement.
2.2.6 “Term” the Minimum Term (and thereafter until terminated in accordance with condition 11) or the Fixed Term as set out in the Agreement.
2.2.7 “Third Party Images” Images owned by third parties and licensed to the Company or the Customer for use on the Website.
2.2.8 “Topic” the subject matter for any Content.
2.2.9 “Website” the Customer’s website bearing the URL specified in the Agreement.
2.3 “Writing” includes any communications effected by, email or any comparable means.
2.4 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.
2.5 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); the terms of payment of the Price; and The URL of the Website.
- The Services
5.1 The Customer shall pay the Price and any other sums due for the Services in accordance with condition 12.
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.
5.4 The Company shall provide social media management of The Customers social media business pages to help engage and connect with The Customers audience.
- Description of The Content Service
6.1 The Company shall provide the Customer with the Social Media Management Content Service substantially as specified in the Agreement.
6.2 The Company shall either create, write, produce, procure aggregate the Content to the Customer.
6.3 The Company hereby warrants to the Customer that:
6.3.1 Content shall be relevant to the Topic and Keywords as per the Customers’ business or as otherwise agreed in writing.
6.3.2 Content will be derived and may be adapted from other daily news services or feeds (whether written, audio or audio visual) supplied to or accessed by the Company and from such sources as the Company shall in its absolute discretion decide from time to time and the Company shall be under no obligation to provide the Customer with any explanation identification or detail as to such source.
6.3.3 The Content shall not infringe the IPR of any third party.
- Delivery of The Content Service
7.1 Content shall be delivered in the form and volume specified in the contract.
7.2 The Company will require usernames and passwords from the client and/or to be made an administrator of the relevant social media accounts.
7.3 In the event that any Images or other IPR for use with content shall require to be licensed by the Customer from the owner of the IPR the Company shall provide the Customer (where necessary) with such information or link as may be reasonably required by the Customer to enable the Customer to license and download the Images which shall be the absolute responsibility of the Customer.
7.4 The Company shall have no obligation or liability arising out of the Customer’s failure or inability to download or accept delivery of the Content or any of it (including Images) whether in whole or in part at any time.
7.5 The Company does not warrant nor is it responsible for the accuracy of Content (including for the avoidance of doubt any news reported in the News Stories) nor as to any fact or matter referred to therein.
7.6 The Company shall have no obligation or responsibility for design or appearance of the Content.
8.1 No variation or change in relation to the Topic, frequency or length of Content shall be made unless the Customer shall give the Company notice in writing and such change or variation is agreed in writing signed by the parties.
- Copyright and Rights of Third Parties
9.1 In the event that the Company shall provide Images for use by the Customer the Customer undertakes to the Company that it shall not reproduce, copy or alter any such Image nor use any Image other than for the purpose supplied and acknowledges that such Images may have been licensed by the Company for the purpose supplied only and that the use of such Images in any other way may constitute a breach of the IPR of the owner of the Image and a breach of the Company’s licence which may give rise to a claim for damages against the Company.
9.2 In the event that any third party shall allege breach of its copyright or infringement of some other intellectual property or other right arising out of the publication or use of any Content the Company may in its absolute discretion require the Customer to remove or take down the Content from its Website with immediate effect and without any requirement for the Company to provide details of any such complaint or allegation nor for the Company to pay compensation or damages to the Customer for any loss or claimed loss arising as a result thereof.
9.3 Upon the Customer receiving notice from any third party alleging infringement of any copyright or third party right of any other nature the Customer shall forthwith notify the Company of such allegation and provide full details thereof both as to the complaint and the complainer and shall forthwith remove such Content from its Website unless and until authorised by the Company to restore the Content.
- Duration and Termination
10.1 This Agreement shall last for six 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.
10.2 At the end of the initial Minimum Period this Service Agreement shall be renewed automatically for consecutive renewal Terms of three months.
10.3 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
11.1 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”):
11.1.1 The Customer commits a material breach of the Contract which is incapable of remedy;
11.1.2 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
11.1.3 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.
11.2 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.
11.3 If non payment from the Customer exceeds 28 days.
11.4 On termination of the Contract for any reason, the Customer shall pay to the Company all sums set out in condition 13.
- Fees and Payment
12.1 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.
12.2 All invoices are payable monthly in advance by direct debit on or around the 1st of the month or as instructed by the Company.
12.2.1 Growth Track requires that a direct debit is in place in order to supply the services. If Growth Track is unable to collect any Fees using a direct debit mandate, you must:
(a) pay the relevant Fees in advance for the full term; and/or
(b) sign up to a new direct debit mandate,
in each case within the period of 28 days following the date of failed collection; and any failure to comply shall constitute a material breach of the Contract.
12.2.2 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.
12.2.3 If payment is more than fourteen days overdue the Company may suspend the provision of the services until payment is received.
12.2.4 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.
12.2.5 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
12.2.6 All prices are subject to VAT at the prevailing rate.
- Payment on Default or Cancellation
13.1 Where the Customer cancels the Contract in accordance with condition 10 or on the happening of an Event of Default then (unless the Agreement shall otherwise provide) the following payments will become immediately due:
13.1.1 All sums due up to the date of cancellation or the happening of the Event of Default; and
13.1.2 The balance of the sums due (if any) for the remainder of the Term.
13.2 Where the payment due under condition 13.1.2 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
14.1 In order to enable the Company to perform its obligations the Customer shall:
14.1.1 Co-operate with the Company and comply with its reasonable requirements;
14.1.2 Promptly upon receipt of a request furnish the Company with such information as the Company may reasonably require for the provision of the Services;
14.1.3 Ensure the accuracy and validity of all information provided to the Company.
14.1.4 At their own cost obtain all permissions, licences and consents which may be required for it to use the Services.
14.2 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 14 or otherwise.
15.1 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 Website or the business or undertaking of the Customer or the Company other than such information or knowledge which:
15.1.1 Is disclosed by the disclosing party without restriction;
15.1.2 Comes into the public domain (other than as a consequence of breach by the other party); or
15.1.3 Is rightfully received by either party from a third party.
15.2 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.
- Intellectual Property Rights
16.1 The Customer warrants and undertakes to the Company that any elements of text, graphics, photos, designs, trademarks, or other IPR in Images or artwork provided to the Company for inclusion on the Website are owned by the Customer, or that the Customer has a suitable and effective licence from the rightful owner(s) to use any such elements, and the Customer will hold harmless, protect, and defend the Company and its subcontractors from any liability or suit arising from the use of such elements.
17.1 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
18.1 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.
18.2 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.
18.3 Subject to conditions 18.5 18.6 and 18.7 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.
18.4 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 18.5, 18.6 and 18.7.
18.5 Subject to condition 18.8 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:
18.5.1 Any breach of the Company’s contractual obligations arising under the Contract;
18.5.2 Any misrepresentation, false statement or tortuous act or omission including negligence made or arising under or in connection with the Contract; and
18.5.3 Any other negligence or breach of statutory duty.
18.6 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.
18.7 The Company shall have no liability to the Customer in respect of the suitability, accuracy or relevance of Content (or any part of it) or Keywords (or any of them) to the Customer’s business
18.8 The Company does not exclude or limit its liability for death or personal injury, nor for fraudulent misrepresentation.
18.9 The Company makes no warrant and accepts no responsibility for any damage or consequential loss arising, howsoever caused, from the success or failed attempt to supply the Customers content to Facebook and Twitter;
18.9.1 The Company makes no warrant and accepts no responsibility for changes in layout in Facebook or Twitter to content presentation in various internet browsers.
18.9.2 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.
18.9.3 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.
19.1 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
20.1 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.
20.2 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.
21.1 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.
22.1 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
23.1 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
24.1 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.