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Growth Track Terms and Conditions

These Terms and Conditions define the legal relationship between Growth Track Limited (“we” / “Growth Track“) and our customer identified in the relevant Proposal(s) (“you”). You can download the the terms and conditions here.

All contracts that we may enter into from time to time for the provision of our website creation, website hosting, website maintenance, email marketing, email branding, social media marketing and lead generation services shall be governed by these Terms and Conditions.

We will usually ask for your express acceptance of these Terms and Conditions before providing any services to you. By requesting, using or paying for any services, you consent to these Terms and Conditions, and you agree that they will govern the provision of such services.

If the Proposal is addressed to a company or legal person, the individual accepting or agreeing to these Terms and Conditions gives that acceptance or agreement on behalf of that company or legal person and represents to us that he or she has the legal authority to bind that company or legal person to these Terms and Conditions.

In these Terms and Conditions, some of the words and phrases we use have special meanings. These words and phrases all start with capital letters. The special meanings are set out near the end of these Terms and Conditions, in Clause 33.

Growth Track Limited is a company incorporated in England and Wales (company number 07651138) with its registered office at 3 Stirling Court, Stirling Way, Borehamwood, Hertfordshire WD6 2FX. You can contact us by writing to this address or by email to hello@growthtrack.co.uk.

1. Proposals and the Contract

1.1 Growth Track may send to you one or more Proposals. The Contract will come into force when you send to Growth Track your first written acceptance of a Proposal, providing that Growth Track receives that acceptance within the period of 30 days following the date of issue of the Proposal.

1.2 From time to time during the Term Growth Track may send you additional Proposals, which you may agree to by sending to Growth Track written acceptance of the relevant Proposal, providing that Growth Track must receive each such acceptance within the period of 30 days following the date of issue of the Proposal.

1.3 Any additional Proposals that you accept in accordance with Clause 1.2 while the Contract subsists shall constitute additions to and/or variations of the Contract rather than distinct contractual arrangements (unless you and Growth Track expressly agree otherwise).

1.4 Growth Track shall provide to you those Services agreed in each subsisting Proposal, subject to these Terms and Conditions.

2. Tracktion Service

2.1 This Clause 2 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the Tracktion Service to you. The Tracktion Service shall consist of a combined package of the following Services:

(a) the Web Service;

(b) the News Service;

(c) the Mail Service;

(d) the Leads Service; and

(e) the Social Service.

2.2 The Minimum Service Period for the Tracktion Service is 24 months beginning upon the applicable Go Live Date.

2.3 During the Minimum Service Period for the Tracktion Service, you shall have no right to terminate, under Clause 22.1, the Tracktion Service or the individual Services forming part of the Tracktion Service.

2.4 You acknowledge that the particular way in which an element of the Tracktion Service is provided may differ from the way in which Growth Track provides it as an independent service.

3. Web Service

3.1 This Clause 3 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the Web Service to you. The Web Service shall consist of:

(a) the Website Creation Service;

(b) the Website Hosting Service; and

(c) the Website Maintenance Service.

3.2 Growth Track shall use reasonable endeavours to complete the Website Creation Service within any time period agreed by the parties in writing.

3.3 From time to time during the provision of the Website Creation Service, Growth Track may make available to you work in progress toward the Website for your review and approval. You must review and either approve or decline to approve such work in progress promptly following the communication of the work in progress to you. You may only refuse to give such approval if it is reasonable to do so. Once work in progress has been approved, you shall have no right to require any changes to the agreed subject matter; and if Growth Track agrees to make changes to the agreed subject matter, it may charge for doing so at its standard time-based charging rates.

3.4 If:

(a) you unreasonably refuse to approve work in progress toward the Website or the final Website; or

(b) you fail to approve work in progress toward the Website or the final Website within the period of 90 days following the communication of the relevant work to you,

then Growth Track may terminate the Web Service by giving you written notice of termination, effective immediately upon the giving of the notice, in which case: (i) you must pay to Growth Track all outstanding amounts payable with respect to the Web Service provided up to the date of termination within the period 7 days following the date of such termination; and (ii) Growth Track will refund to you any amounts paid to Growth Track with respect to Web Service which were to be provided after the date of such termination.

3.5 You acknowledge that a delay in:

(a) you performing your obligations under these Terms and Conditions; or

(b) the provision of third party co-operation,

may result in a delay in the performance of the Web Service; and subject to Clause 19.1 of these Terms and Conditions, Growth Track will not be liable to you in respect of any failure to meet the Web Service timetable to the extent that that failure arises out of such a delay.

3.6 Growth Track warrants to you that the Website, when used by you in accordance with these Terms and Conditions, will not infringe the copyright of any person under English law; providing however that Growth Track shall have no liabilities under this Clause 3.6 or otherwise in respect of any such infringement caused by Your Materials or Third Party Materials.

3.7 If Growth Track reasonably determines, or any third party alleges, that the use of the Website by you in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, Growth Track may:

(a) modify the Website in such a way that it no longer infringes the relevant Intellectual Property Rights; or

(b) procure for you the right to use the Website in accordance with these Terms and Conditions.

3.8 Growth Track shall host the Website and make the Website Dashboard available to you on and from the applicable Go Live Date.

3.9 Growth Track hereby grants to you a non-exclusive licence from the applicable Go Live Date to access and update the content of the Website by means of the Website Dashboard, and to publish the Website and make the Website available to others to use via the internet, providing that:

(a) the Website shall at all times be hosted by Growth Track in accordance with this Clause 4;

(b) the functionality of the Website Dashboard shall be limited; if you request that Growth Track make changes to the Website design or software, any agreement to make such changes will be subject to the payment of additional Fees;

(c) you will have no administrative access to the Hosting Platform;

(d) you will have no right to access or copy the Website software; and

(e) the licence in this Clause 4.3 shall automatically terminate upon the cancellation of the Web Service,
subject in each case to Clauses 3.17 and 3.18.

3.10 The Website Dashboard may only be used by your officers, employees, agents and subcontractors and, except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by Growth Track to you under Clause 3.9 is subject to the following prohibitions:

(a) you must not sub-license your right to access and use the Website Dashboard;

(b) you must not permit any unauthorised person to access or use the Website Dashboard; and

(c) you must not make any alteration to the Hosting Platform, except as permitted by the Website Dashboard.

3.11 You must use reasonable endeavours, including reasonable security measures relating to Website Dashboard access details, to ensure that no unauthorised person may gain access to the Website Dashboard or any element of the Website Hosting Service that is accessible using the Website Dashboard.

3.12 Growth Track shall create a back-up copy of the Hosted Data periodically, shall ensure that each such copy is sufficient to enable Growth Track to restore the Website Hosting Service to the state it was in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

3.13 Following receipt of a written request from you, Growth Track shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by Growth Track in accordance with Clause 3.12. You acknowledge that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.

3.14 See Clause 13 for additional rules governing the use of the Website Dashboard and the Hosted Data.

3.15 From time to time during the Term, Growth Track may agree to provide the Website Maintenance Service to you. Fees with respect to the updating of Website software are included in the periodic Fees for the Web Service. Additional Fees will be payable by you with respect to other elements of the Website Maintenance Service, at such rates as Growth Track and you will agree in writing.

3.16 The Minimum Service Period for the Web Service shall begin on the agreement of the relevant Agreed Proposal and shall continue until the expiry of the period of 24 months following the applicable Go Live Date. (For the avoidance of doubt, the Minimum Service Period with respect to the Tracktion Service shall be governed by Clauses 2.2 and 2.3, and this Clause 3.16 shall not apply to the Tracktion Service.)

3.17 If the Website Hosting Service terminates in accordance with Clause 22.1 or the Contract terminates, then Growth Track shall supply or make available to you within the period of 5 Business Days following such termination a copy of the Site File, excluding for the avoidance of doubt all software code, custom modules and other works and materials the Intellectual Property Rights in which are owned by Growth Track.

3.18 From the date of supply of the Site File in accordance with Clause 3.17, those works and materials in the Site File the Intellectual Property Rights in which are owned by Growth Track shall constitute Content Deliverables for the purposes of the Contract. See Clause 11.3 for licensing terms relating to the Content Deliverables.

3.19 You acknowledge that some of the functionality available on the Website whilst it is hosted through the Web Service will be unavailable after termination of the Web Service.

4. News Service

4.1 This Clause 4 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the News Service to you.

4.2 You shall ensure that any email addresses and associated personal information provided by you or on your behalf to Growth Track for use in connection with the News Service has been collected in accordance with applicable law, and that the use of such information by you, or by Growth Track in accordance with these Terms and Conditions or your instructions, will not breach:

(a) the Data Protection Laws;

(b) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (or any successor statutes or regulations); or

(c) any other applicable laws.

4.3 See Clause 13 for additional rules governing the use of the News Service and the content of emails sent by means of the News Service.

4.4 If the News Service terminates or the Contract terminates, then you should download a copy of your marketing database(s) stored by means of the News Service before the date of effective termination.

4.5 The Minimum Service Period for the News Service shall be 12 months following the applicable Go Live Date. (For the avoidance of doubt, the Minimum Service Period with respect to the Tracktion Service shall be governed by Clauses 2.2 and 2.3, and this Clause 4.5 shall not apply to the Tracktion Service.)

5. Mail Service

5.1 This Clause 5 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the Mail Service to you.

5.2 To the extent that Growth Track provides artwork or designs to you in connection with the Mail Service, these shall constitute Content Deliverables for the purposes of the Contract. See Clause 11.3 for licensing terms relating to the Content Deliverables.

5.3 You acknowledge that the technical process by which emails modified by the Mail Service are dispatched will depend upon the type and configuration of your email systems. In some cases, emails may be returned to your email servers for dispatch by those servers; in other cases, emails may be dispatched by Growth Track email servers.

5.4 See Clause 13 for additional rules governing the content of emails modified or sent by means of the Mail Service.

5.5 The Minimum Service Period for the Mail Service shall be 12 months following the applicable Go Live Date. (For the avoidance of doubt, the Minimum Service Period with respect to the Tracktion Service shall be governed by Clauses 2.2 and 2.3, and this Clause 5.5 shall not apply to the Tracktion Service.)

6. Social Service

6.1 This Clause 6 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the Social Service to you.

6.2 Each party must comply with the terms and conditions of the Social Media Platforms in respect of its activities relating to the Social Service.

6.3 Subject to Clause 19.1, but notwithstanding any plans or projections communicated by Growth Track to you, Growth Track does not give any guarantees in relation to the outcomes of the Social Service.

6.4 Changes to the Social Media Platforms may affect the performance and effects of the Social Services. You acknowledge that Growth Track has no control over, and is not responsible for, any changes made to any Social Media Platform.

6.5 You acknowledge that the promotion of a website may lead to increased bandwidth, processing capacity and/or storage requirements for the website, and you shall be responsible for arranging and paying for any services required to meet such requirements.

6.6 The Minimum Service Period for the Social Service shall be 12 months following the applicable Go Live Date. (For the avoidance of doubt, the Minimum Service Period with respect to the Tracktion Service shall be governed by Clauses 2.2 and 2.3, and this Clause 6.6 shall not apply to the Tracktion Service.)

7. Leads Service

7.1 This Clause 7 applies if and only if an Agreed Proposal specifies that Growth Track shall provide the Leads Service to you.

7.2 Growth Track may make a limited Leads Service available free of charge from time to time but reserves the right to charge for any or all of the Leads Service.

7.3 You must publish a privacy notice on your website that includes all information necessary to ensure that the collection and use of Personal Data by means of the Leads Service complies with the Data Protection Laws.

7.4 You acknowledge that valuations of properties obtained via the Leads Service are estimates only, that Growth Track relies upon third party data sources to generate such estimates, and that Growth Track does not guarantee the accuracy of such estimates. You must not rely solely upon the estimates or invite or encourage any other person to rely upon the estimates. Subject to Clause 19.1, Growth Track will not be liable to you (or any other person) with respect to any loss or damage that you (or any other person) may suffer or incur as a result of any reliance placed upon any estimate.

7.5 If Growth Track makes available a limited Leads Service free of charge, the following shall apply:

(a) no Fees shall be payable with respect to the free Leads Service;

(b) there shall be no Minimum Service Period for the free Leads Service;

(c) Growth Track may terminate the free Leads Service at any time by giving written notice of termination to you; and

(d) subject to Clause 19.1, Growth Track shall have no liability to you with respect to the use of the free Leads Service and any loss or damage arising out of such use.

7.6 Save to the extent that Growth Track agrees otherwise in writing, you must only use the Leads Service in relation to the promotion of your services provided from a single branch location.

7.7 The Minimum Service Period for the Leads Service shall be 12 months following the applicable Go Live Date, subject to the exception in Clause 7.5(b) regarding the free Leeds Service. (For the avoidance of doubt, the Minimum Service Period with respect to the Tracktion Service shall be governed by Clauses 2.2 and 2.3, and this Clause 7.6 shall not apply to the Tracktion Service.)

8. Support, maintenance and Bolt-on Services

8.1 Growth Track may provide support to you during the Term in relation to the use of the Services and the identification and resolution of errors in the Services.

8.2 Support shall be provided remotely, save to the extent that the parties agree otherwise in writing.

8.3 For the avoidance of doubt, Growth Track shall have no obligation to provide support in respect of any issue caused by:

(a) the improper use of the Services by you; or

(b) any alteration to the Services made without the prior consent of Growth Track.

8.4 Growth Track may from time to time suspend the Services and/or access to the Services for the purposes of scheduled maintenance. Growth Track shall where practicable give to you prior written notice of scheduled maintenance that is likely to affect the availability of the Services. Growth Track shall where practicable ensure that scheduled maintenance affecting Service availability is carried out outside Business Hours.

8.5 If Growth Track agrees to provide Bolt-on Services to you, those Bolt-on Services will be subject to these Terms and Conditions and, accordingly:

(a) unless the parties agree otherwise, the Bolt-on Services shall form part of the subsisting Contract in accordance with Clause 1.3;

(b) any works and materials created in the course of the Bolt-on Services and delivered to you by Growth Track shall be Content Deliverables, which shall be licensed to you in accordance with Clause 11;

(c) the limitations on warranties and the limitations and exclusions of liability set out in these Terms and Conditions shall apply to the Bold-on Services; and

(d) the Fees payable with respect to the Bold-on Services will be as agreed by the parties; providing that if Fees are not specifically agreed, they shall be calculated using Growth Track’s standard time-based charging rates.

9. Availability

9.1 Growth Track shall use reasonable endeavours to maintain the availability of the Services during the Term but does not guarantee continuous or uninterrupted availability.

9.2 Without prejudice to the generality of Clause 9.1, you acknowledge that downtime may arise in the following circumstances:

(a) Force Majeure Events;

(b) faults or failures of the internet or any public telecommunications network;

(c) faults or failures of Growth Track’s hosting infrastructure services providers or other services providers;

(d) hardware failures;

(e) faults or failures of your computer systems or networks;

(f) breaches by you of the Contract;

(g) scheduled and emergency maintenance; and/or

(h) any defects in Third Party Materials, including in relevant software used to power the Website.

9.3 The use of the Services shall be subject to reasonable resource limitations, including limitations relating to communication volumes, data storage, bandwidth and processor utilisation. You acknowledge and agree that Growth Track may implement technological measures to prevent or inhibit the use of the Services in any way that breaches the applicable resource limitations.

10. Co-operation and Online Accounts

10.1 Save to the extent that the parties have agreed otherwise in writing, you must provide to Growth Track, or procure for Growth Track from any third party identified by Growth Track, such:

(a) co-operation, support and advice; and

(b) information and documentation,

as are reasonably necessary to enable Growth Track to perform its obligations under the Contract.

10.2 You must provide to Growth Track, or procure for Growth Track, such access to your computer hardware, software, networks and systems as may be reasonably required by Growth Track to enable Growth Track to perform its obligations under the Contract.

10.3 Save as expressly provided in these Terms and Conditions, you shall be responsible for obtaining and, where relevant, paying for any licences of third party software that may be required for the use of the Services.

10.4 You shall be responsible for ensuring that your passwords relating to the Services are securely constructed, are kept securely and are not disclosed to any unauthorised person; and you must notify Growth Track as soon as practicable if you become aware that any password relating to the Services has been or may have been compromised or misused.

10.5 You shall have and retain all rights to any Online Accounts that are created by you or by any third party on your behalf. Growth Track must not take any action that will prevent you from continuing to access and use such Online Accounts.

10.6 If Growth Track creates any Online Accounts after the Effective Date (excluding accounts that Growth Track uses to provide services to a third party customer before use in connection with the fulfilment of Growth Track’s obligations under these Terms and Conditions), then you shall have and retain all rights to such Online Accounts. Growth Track must promptly following receipt of a written request from you supply to you login details for such Online Accounts.

10.7 You must promptly notify Growth Track of any complaints you may have regarding the Services. For information about the circumstances in which you may terminate the Contract in the event of a breach by Growth Track, see Clauses 22.3 and 22.5.

11. Your Materials and Content Deliverables

11.1 Promptly following receipt of a written request from Growth Track, you must supply to Growth Track Your Materials that are reasonably requested by Growth Track for the purpose of performing the Services.

11.2 You hereby grant to Growth Track a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Your Materials to the extent reasonably required for the performance of Growth Track’s obligations and the exercise of Growth Track’s rights under these Terms and Conditions, together with the right to sub-license these rights.

11.3 Growth Track hereby grants to you a non-exclusive, worldwide, perpetual and irrevocable licence to copy, store, distribute, publish, adapt, edit and otherwise use the Content Deliverables (excluding the Third Party Materials and Your Materials). This licence shall take effect in respect of a work upon and from the delivery of that work to you or as provided elsewhere in these Terms and Conditions.

11.4 Subject to any express written agreement between the parties, Growth Track shall ensure that the Third Party Materials are:

(a) licensed to you in accordance with the relevant licensor’s standard licensing terms (which you acknowledge may be open source or Creative Commons licensing terms);

(b) licensed to you on reasonable terms notified by Growth Track to you; or

(c) sub-licensed to you by Growth Track on reasonable terms notified in writing to you by Growth Track.

11.5 Without prejudice to Clause 11.4, you acknowledge that stock photography that Growth Track provides to you will usually be licensed for a specific use only. Accordingly, you should check the licensing terms relating to stock photography before making any new use of it.

12. Trade Marks

12.1 Promptly following receipt of a written request from Growth Track, you shall provide or make available to Growth Track representations of the requested Trade Marks in a digital format reasonably satisfactory to Growth Track.

12.2 You acknowledge that the Trade Marks shall constitute Your Materials, and you warrant to Growth Track that the use by Growth Track of the Trade Marks in accordance with these Terms and Conditions will not breach the terms of Clause 13.

13. Acceptable use policy

13.1 You must ensure that Your Materials comply, and your use of the Services complies, with this Clause 13.

13.2 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

13.3 You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or

(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

13.4 Your Materials must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

13.5 Your Materials must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any Intellectual Property Right;

(d) infringe any right of confidence, right of privacy or right under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g) be in contempt of any court, or in breach of any court order;

(h) constitute a breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) constitute a breach of official secrets legislation; or

(k) constitute a breach of any contractual obligation owed to any person.

13.6 You must ensure that Your Materials are not and have never been the subject of any threatened or actual legal proceedings or other similar complaint.

13.7 Your Materials must be appropriate for all persons who have access to them or are likely to access them. Your Materials must not depict violence in an explicit, graphic or gratuitous manner. Your Materials must not be pornographic or sexually explicit. Your Materials must not contain any extremist political material.

13.8 Your Materials must not constitute or contain Spam, and you must not use the Services to store or transmit Spam. You must not send any Spam to any person using any email address or other contact details made available through the Services or that you find using the Services.

13.9 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.

13.10 You must not use the Services in any way which is liable to result in the blacklisting of any Growth Track IP addresses.

13.11 Your Materials must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies. Your Materials must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

13.12 You acknowledge that Growth Track may actively monitor Your Materials and the use of the Services, but Growth Track shall have no obligation to do so.

13.13 If there is a breach of this Clause 13, Growth Track may suspend the affected Services or any element thereof until such time as the breach is remedied.

13.14 Any breach of this Clause 13, shall be deemed to be a material breach of the Contract.

14. Fees and payments

14.1 You must pay the Fees to Growth Track in accordance with this Clause 14 and the other provisions of these Terms and Conditions.

14.2 Recurring Fees are payable by reference to a “Billing Date” which means, with respect to a particular Service:

(a) the first day of each calendar month following the applicable Go Live Date; or

(b) if Growth Track has agreed in writing that Fees for the Service will be paid on an annual basis: (i) the first day of the calendar month following the applicable Go Live Date; and (ii) each anniversary of that day.

14.3 With respect to any portion of a month falling before the first Billing Date for a Service, Growth Track shall calculate the applicable Fees pro rata using any reasonable methodology.

14.4 Growth Track may elect to vary any element of the Fees payable with respect to a particular Service by giving to you not less than 100 days’ written notice of the variation after the end of any applicable Minimum Service Period.

14.5 Fees must be paid by direct debit in accordance with the instructions of Growth Track from time to time. Growth Track will send to you an invoice respect to the Fees due on a Billing Date; and Growth Track will collect the Fees, in advance of the provision of the corresponding Services, on each Billing Date.

14.6 To the extent that Growth Track is unable to calculate Fees in advance, it may collect those Fees at any time following the provision of the corresponding Services.

14.7 If Growth Track is unable to collect any Fees using a direct debit mandate, you must:

(a) pay the relevant Fees; and

(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 with this Clause 14.7 shall constitute a material breach of the Contract.

14.8 Growth Track may suspend the provision of any or all of the Services if Growth Track is unable to collect any Fees by means of a direct debit mandate, or if any amount due to be paid by you to Growth Track under the Contract is overdue. You acknowledge that, during any period while the Services are suspended, the public interfaces of the Services may be unavailable and/or non-functional, emails may not be sent or received, data may not be collected on your behalf, and you may not have access to your data. Subject to Clause 19.1, Growth Track shall not be liable to you with respect to any loss or damage arising out of any such suspension.

14.9 You shall have no right to pause or suspend the Services and the obligation to pay the Fees.

14.10 If you do not pay any amount properly due to Growth Track under these Terms and Conditions, Growth Track may:

(a) charge you interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b) claim interest and statutory compensation from you pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

14.11 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 you to Growth Track.

14.12 Except as described in Clause 3.4, the Fees are not refundable.

15. Confidentiality obligations and publicity

15.1 Growth Track must:

(a) keep Your Confidential Information strictly confidential;

(b) not disclose Your Confidential Information to any person without your prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c) use the same degree of care to protect the confidentiality of Your Confidential Information as Growth Track uses to protect Growth Track’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d) act in good faith at all times in relation to Your Confidential Information.

15.2 You must:

(a) keep Growth Track Confidential Information strictly confidential;

(b) not disclose Growth Track Confidential Information to any person without Growth Track’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c) use the same degree of care to protect the confidentiality of Growth Track Confidential Information as you use to protect your own confidential information of a similar nature, being at least a reasonable degree of care; and

(d) act in good faith at all times in relation to Growth Track Confidential Information.

15.3 Notwithstanding Clauses 15.1 and 15.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

15.4 No obligations are imposed by this Clause 15 with respect to a party’s Confidential Information if that Confidential Information:

(a) is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the other party; or

(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

15.5 The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

15.6 Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

15.7 Growth Track reserves the right to include Growth Track branding and attribution credits in any website, email message or software application provided, modified or made available by Growth Track to you as an element of the Services.

15.8 Subject to the other provisions of this Clause 15, Growth Track may publish case studies and similar reports relating to you and the subject matter of the Contract on its websites and in its other marketing materials.

15.9 The provisions of this Clause 15 shall continue in force indefinitely following the termination of the Contract.

16. Data protection

16.1 Each party shall comply with the Data Protection Laws with respect to the processing of Your Personal Data.

16.2 You warrant to Growth Track that you have the legal right to disclose or make available all Personal Data that:

(a) is contained in Your Materials;

(b) you otherwise disclose or make available to Growth Track under or in connection with the Contract, including Personal Data relating to your business that is accessed by the Services or collected by Growth Track through any application programming interface.

16.3 You shall only supply to Growth Track, and Growth Track shall only process, in each case under or in relation to the Contract:

(a) the Personal Data of data subjects contained in Your Materials (and such other categories as may be agreed by the parties in writing); and

(b) Personal Data of any type contained in Your Materials (and such other types as may be agreed by the parties in writing).

16.4 Growth Track shall only process Your Personal Data for the purposes of providing, administering and monitoring the Services.

16.5 Growth Track shall only process Your Personal Data during the Term and for not more than 45 days following the end of the Term, subject to the other provisions of this Clause 16.

16.6 Growth Track shall only process Your Personal Data on your documented instructions (including with regard to transfers of Your Personal Data to any place outside the United Kingdom and European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

16.7 You hereby authorise Growth Track to make the following transfers of Your Personal Data:

(a) Growth Track may transfer Your Personal Data to its sub-processors in the jurisdictions identified in Clause 16.13, providing that such transfers must be protected by appropriate safeguards (namely, the use of standard contractual clauses and/or the Privacy Shield scheme); and

(b) Growth Track may transfer Your Personal Data to a country, territory or sector to the extent that the relevant data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

16.8 Growth Track shall promptly inform you if, in the opinion of Growth Track, your instructions relating to the processing of Your Personal Data infringe the Data Protection Laws.

16.9 Notwithstanding any other provision of the Contract, Growth Track may process Your Personal Data if and to the extent that Growth Track is required to do so by applicable law. In such a case, Growth Track shall inform you of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

16.10 Growth Track shall ensure that persons authorised to process Your Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

16.11 Growth Track and you shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for Your Personal Data.

16.12 Growth Track must not engage any third party to process Your Personal Data without your prior specific or general written authorisation. In the case of a general written authorisation, Growth Track shall inform you at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if you object to any such changes before their implementation, then you may terminate the Contract on 7 days’ written notice to Growth Track, providing that such notice must be given within the period of 7 days following the date that Growth Track informed you of the intended changes. Growth Track shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on Growth Track by this Clause 16.

16.13 As at the Effective Date, Growth Track is hereby authorised by you to engage, as sub-processors with respect to Your Personal Data, third parties within the following categories (and in the following jurisdictions): email system services providers; website and application hosting services providers; development and maintenance services providers; marketing and content creation services providers; and social media services providers. These services providers may provide their services in the UK or EU or, subject to Growth Track’s obligations in Clause 16.7, in the USA or elsewhere in the world.

16.14 Growth Track shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist you with the fulfilment of your obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

16.15 Growth Track shall assist you 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. Growth Track may charge you at its standard time-based charging rates for any work performed by Growth Track at your request pursuant to this Clause 16.15.

16.16 Growth Track must notify you of any Personal Data breach affecting Your Personal Data without undue delay and, in any case, not later than 36 hours after Growth Track becomes aware of the breach.

16.17 Growth Track shall make available to you all information necessary to demonstrate the compliance of Growth Track with its obligations under this Clause 16 and the Data Protection Laws. Growth Track may charge you at its standard time-based charging rates for any work performed by Growth Track at your request pursuant to this Clause 16.17.

16.18 Growth Track shall delete Your Personal Data after the provision to you of services relating to the processing and before the end of the period of 45 days following termination, save to the extent that applicable law requires storage of the relevant Personal Data. If you request a copy of Your Personal Data before deletion, Growth Track will provide such copy to you at no charge.

16.19 Growth Track shall allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you in respect of the compliance of Growth Track’s processing of Your Personal Data with the Data Protection Laws and this Clause 16. Growth Track may charge you at its standard time-based charging rates for any work performed by Growth Track at your request pursuant to this Clause 16.19.

16.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to the processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.

17. Warranties and warranty limitations

17.1 Growth Track shall provide the Services with reasonable skill and care.

17.2 You warrant to Growth Track that you have the legal right and authority to enter into the Contract and to perform your obligations under these Terms and Conditions.

17.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

17.4 You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, Growth Track gives no warranty or representation that the Website or Services will be wholly free from defects, errors and bugs.

17.5 You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Growth Track gives no warranty or representation that the Website or Services will be entirely secure.

17.6 You acknowledge that the Website is only designed to be compatible with the current versions of Chrome, Firefox, Edge and Safari from time to time; and Growth Track does not warrant or represent that the Website or Services will be compatible with any other software.

17.7 You acknowledge that changes to the hardware, software and/or configuration of your computer systems after a Go Live Date may affect the compatibility of those computer systems with the Service and may reduce or negate the benefits of the Services to you.

17.8 You acknowledge that while Growth Track may provide law-related information to you, Growth Track will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Website or Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, Growth Track does not warrant or represent that the Website or the use of the Website or Services by you or any other person will not give rise to any legal liability on your part or any other person’s part. You should seek legal advice from a qualified solicitor or other legal professional before placing reliance upon any legal information that Growth Track may make available to you.

17.9 You acknowledge that delivery of emails can never be guaranteed by an email services provider; accordingly, Growth Track does not guarantee the delivery of emails modified by or sent using the Services. You further acknowledge that the sending of bulk email may result in the blacklisting of domain names associated with the bulk mailing, that such blacklisting is outside the control of Growth Track, and that Growth Track will not be responsible for any loss or damage which may arise out such blacklisting.

17.10 You acknowledge that the validity and enforceability of the Contract will not be affected by any discovery, whether made by you or Growth Track or a third party, that Your Materials do not comply with Clause 13, without prejudice to Growth Track’s rights under Clause 13.

17.11 You acknowledge that changes to the content and/or structure of a website may affect the performance of the website in the search engine results pages, that such effects are outside the control of Growth Track, and that Growth Track will not be responsible for any loss or damage which may arise out changes in such performance.

18. Indemnity

18.1 You shall indemnify and shall keep indemnified Growth Track against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Growth Track and arising directly or indirectly as a result of any breach or alleged breach by you of Clause 13.

19. Limitations and exclusions of liability

19.1 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.

19.2 The limitations and exclusions of liability set out in this Clause 19 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 19.1; 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, save that Clauses 19.4 to 19.10 shall not apply in relation to any liability under Clause 13 or 18.1.

19.3 Growth Track shall not be liable to you in respect of any losses arising out of a Force Majeure Event.

19.4 Growth Track shall not be liable to you in respect of any loss of profits or anticipated savings.

19.5 Growth Track shall not be liable to you in respect of any loss of revenue or income.

19.6 Growth Track shall not be liable to you in respect of any loss of use.

19.7 Growth Track shall not be liable to you in respect of any loss of business, contracts or opportunities.

19.8 Growth Track shall not be liable to you in respect of any loss or corruption of any data or database;
however, this Clause 19.8 shall not apply in relation to any loss or damage arising out of a breach of Clause 15 or 16.

19.9 Growth Track shall not be liable to you in respect of any special, indirect or consequential loss or damage.

19.10 The liability of Growth Track to you under the Contract in respect of any event or series of related events shall not exceed the greater of:

(a) GBP 1,000; and

(b) the total amount paid and payable by you to Growth Track under the Contract in the 12 month period preceding the commencement of the event or events.

19.11 The aggregate liability of Growth Track to you under the Contract shall not exceed GBP 100,000.

19.12 Growth Track shall not be liable to you in respect of any loss or damage arising out of the any delay in email delivery or non-delivery of emails.

20. Force Majeure Event

20.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

21. Term
21.1 The Contract shall come into force upon the Effective Date.

21.2 The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 22 or any other provision of these Terms and Conditions.

22. Termination

22.1 The effective date of termination of a Service must be after the end of the applicable Minimum Service Period. Subject to this, either party may terminate a Service by giving to the other party advance written notice of termination. If a party gives a notice of termination under this Clause 22.1, the Service will terminate 3 months after the Billing Date that immediately preceded the date of issue of the notice. For the avoidance of doubt, the termination of a Service under this Clause 22.1 shall not affect the continuing subsistence of the Contract.

22.2 Either party may terminate the Contract by giving to the other party written notice of termination, providing that:

(a) all Services have previously been terminated; and

(b) all amounts due under the Contract to Growth Track have been received by Growth Track in cleared funds.

22.3 Growth Track may terminate the Contract immediately by giving written notice of termination to you if you commit a material breach of the Contract. You may terminate the Contract immediately by giving written notice of termination to Growth Track if:

(a) Growth Track commits an irremediable material breach of the Contract; or

(b) Growth Track commits a remediable material breach of the Contract and fails to remedy that material breach with the period of 30 days following the date of receipt of a written notice from you requiring Growth Track to do so.

22.4 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; or

(d) if that other party is an individual: (i) that other party dies; (ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or (iii) that other party is the subject of a bankruptcy petition or order.

22.5 All of the parties’ rights to terminate the Contract are expressly set out in these Terms and Conditions. For the avoidance of doubt, you will have no right to terminate the Contract, or be relieved of any obligation to pay the Fees, as a result of a non-material breach by Growth Track.

23. Effects of termination

23.1 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 3.5, 3.6, 7.4, 7.5(d), 11.3, 14.8, 14.10, 15, 16, 18, 19, 23 and 25 to 34.

23.2 Except to the extent that these Terms and Conditions expressly provide otherwise, the termination of the Contract shall not affect the accrued rights of either party.

23.3 Save to the extent expressly provided otherwise in these Terms and Conditions, upon the termination of the Contract all Services shall automatically and immediately terminate.

23.4 Within 10 days following the termination of the Contract for any reason you must pay to Growth Track any Fees in respect of Services provided to you before the termination of the Contract, without prejudice to Growth Track’s other legal rights.

24. Notices

24.1 Any notice given under these Terms and Conditions must be in writing, whether or not described as a “written notice” in these Terms and Conditions.

24.2 Any notice given by one party to the other under these Terms and Conditions must be:

(a) delivered personally;

(b) sent by courier;

(c) sent by recorded signed-for post; or

(d) sent by email,

using the relevant contact details set out at the start of these Terms and Conditions or in an Agreed Proposal.

24.3 The addressee and contact details may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 24.

24.4 A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a) in the case of notices delivered personally, upon delivery;

(b) in the case of notices sent by courier, upon delivery;

(c) in the case of notices sent by post, 48 hours after posting; and

(d) in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).

25. Subcontracting

25.1 Subject to any express restrictions elsewhere in these Terms and Conditions, Growth Track may subcontract any of its obligations under the Contract.

25.2 Growth Track shall remain responsible to you for the performance of any subcontracted obligations.

26. Assignment

26.1 You hereby agree that Growth Track may assign, transfer or otherwise deal with its contractual rights and obligations under these Terms and Conditions.

26.2 You must not assign, transfer or otherwise deal with your contractual rights and/or obligations under these Terms and Conditions without the prior written consent of Growth Track, providing that you may assign the entirety of your rights and obligations under these Terms and Conditions to any member of your group of companies or to any successor to all or a substantial part of your business from time to time. You must give to us advance written notice of any such assignment.

27. No waivers

27.1 No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.

27.2 No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.

28. Severability

28.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

28.2 If any unlawful and/or unenforceable provision of these Terms and Conditions 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.

29. Third party rights

29.1 The Contract is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

29.2 The exercise of the parties’ rights under the Contract is not subject to the consent of any third party.

30. Variation

30.1 The Contract may not be varied except by means of a written document signed by or on behalf of each party.

31. Entire agreement

31.1 The main body of these Terms and Conditions and each subsisting Agreed Proposal shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

31.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

31.3 The provisions of this Clause 31 are subject to Clause 19.1.

32. Law and jurisdiction

32.1 These Terms and Conditions shall be governed by and construed in accordance with English law.

32.2 Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England.

33. Definitions

33.1 In these Terms and Conditions:

Agreed Proposal” means a Proposal agreed by you within the applicable validity period in accordance with these Terms and Conditions, excluding any Proposals which have been terminated;

Billing Date” has the meaning given to it in Clause 14.2;

Bolt-on Services” means any additional services not otherwise specified in these Terms and Conditions that Growth Track agrees to provide to you from time to time, which may include design services, consulting and/or service management;

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;

Confidential Information” means Growth Track Confidential Information and Your Confidential Information;

Content Deliverables” means those works and materials created by or on behalf of Growth Track in the course of Growth Track providing the Services that are delivered to you, or that Growth Track has an obligation to deliver to you, under these Terms and Conditions;

Contract” means a contract made under these Terms and Conditions between Growth Track and you;

Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable to Your Personal Data, the UK’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);

Effective Date” means the date that you first accept or agree to a Proposal in accordance with Clause 1.1;

Fees” means:

(a) the amounts specified in any Agreed Proposal;

(b) such other amounts as may be agreed in writing by the parties from time to time; and

(c) to the extent that these Terms and Conditions provide for time-based fees, amounts calculated by multiplying Growth Track’s standard time-based charging rates;

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);

Go Live Date” means, with respect to a particular Service, the date when Growth Track notifies you that it has begun providing the relevant Service or the relevant Service is available for live use;

Growth Track” means Growth Track Limited, a company incorporated in England and Wales (registration number 07651138) having its registered office at 3 Stirling Court, Stirling Way, Borehamwood, Hertfordshire WD6 2FX;

Growth Track Confidential Information” means:

(a) any information disclosed by or on behalf of Growth Track to you during the Term (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 you (acting reasonably) to be confidential; and

(b) the financial terms of the Contract;

Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by you or by any third party using the Website; or supplied by you to Growth Track for uploading to, transmission by or storage on the Hosting Platform;

Hosting Platform” means a platform managed by Growth Track and used by Growth Track to provide a Service, including the application, database, system and server software used to provide the Service, and the computer hardware on which that application, database, system and server software is installed;

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, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Leads Service” means the provision of web-based tools enabling you to offer instant valuations of properties and other functionality through your website, the collection of lead information by means of those tools and the provision of lead information collected through installations of those tools on third party websites;

Mail Service” means the application of branding to emails, and may include the onward delivery of those branded emails;

Minimum Service Period” means, with respect to a particular Service, the minimum period during which Growth Track shall provide and you shall receive (and pay for) the relevant Service, as specified in Clauses 2 to 8;

News Service” means the provision of a hosted email marketing platform enabling you to manage, execute and analyse email marketing campaigns;

Online Account” means email accounts and user/customer accounts on any third party website or software application accessible via the internet, that are used by Growth Track 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;

Proposal” means a written proposal issued by Growth Track to you by email;

Services” means any services that Growth Track provides to you, or has an obligation to provide to you, under these Terms and Conditions;

Site File” means:

(a) the database for the Website; and

(b) those files forming part of the Website which are necessary to reproduce the visual appearance of the front-end of the Website,

in such format or format as Growth Track may determine in its sole discretion;

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;

Social Service” means any social media marketing services, which may include the creation of accounts connected to you on Social Media Platforms, 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;

Spam” means:

(a) any electronic messages that breach applicable anti-spam laws, including the Privacy and Electronic Communications (EC Directive) Regulations 2003; and

(b) any bulk and unsolicited electronic messages;

Term” means the term of the Contract, commencing in accordance with Clause 21.1 and ending in accordance with Clause 21.2;

Terms and Conditions” means the main body of these Terms and Conditions and all subsisting Agreed Proposals, including any amendments made to either from time to time;

Third Party Materials” means those elements of the works and materials that are made available or delivered to you, or that Growth Track has an obligation to make available or deliver to you, under the Contract (excluding Your Materials), the Intellectual Property Rights in which are owned by a third party;

Tracktion Service” means the service described in Clause 2.1;

TradeMarks” means your registered and unregistered trademarks;

Web Service” means the service described in Clause 3.1;

Website” means a website created by Growth Track for you under the Contract;

Website Creation Service” means the design and development of the Website by Growth Track;

Website Dashboard” means a control interface for the Website giving you limited rights to add, delete and edit content on the Website;

Website Hosting Service” means those web hosting services specified in an Agreed Proposal which will be made available by Growth Track to you as a service via the internet in accordance with these Terms and Conditions;

Website Maintenance Service” means updating the software for the Website and/or editing and updating the content of the Website;

Your Confidential Information” means:

(a) any information disclosed by you or on your behalf to Growth Track during the Term (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 Growth Track (acting reasonably) to be confidential; and

(b) Your Personal Data;

Your Materials” means all works and materials supplied by or on your behalf to Growth Track for use in connection with the Services, including:

(a) the Hosted Data;

(b) the content of emails sent using the News Service or the Mail Service; and

(c) any lead data collected and made available to you by the Leads Service (including lead data which is collected by installations of the tool on third party websites and provided to you on account of the geographical area of operation of your business); and

Your Personal Data” means any Personal Data that is processed by Growth Track on your behalf in relation to the Contract.

34. Interpretation

34.1 These Terms and Conditions are accompanied by explanatory text. This explanatory text is for guidance only, and does not supplement, replace or otherwise affect the meaning of these Terms and Conditions.

34.2 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

34.3 The Clause headings do not affect the interpretation of these Terms and Conditions.

34.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Version 1.0, 19 March 2019

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