Terms and Conditions
TERMS AND CONDITIONS OF BUSINESS
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday in the UK) when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract: the contract between Skyrocket and the Client for the supply of Services in accordance with these Conditions.
Client: the person or firm who purchases Services from Skyrocket.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights.
Order: the Client’s written order for the Services.
Proposal: the description and/or specification of the Services provided in writing by Skyrocket to the Client.
Services: the services supplied by Skyrocket to the Client as set out in the Specification plus any other services agreed in writing to be supplied from time to time.
Skyrocket: Agate SEO Company Ltd a private company limited by shares registered in England and Wales with company number 10842679.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to one gender includes the other and words in the singular include the plural and vice versa; and
(f) a reference to writing or written includes emails but not faxes.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Skyrocket issues written acceptance of the Order or commences the supply of the Services (whichever is the later) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Skyrocket which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Skyrocket, and any descriptions or illustrations contained in Skyrocket’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Skyrocket shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Skyrocket shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 Skyrocket shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Skyrocket shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Skyrocket shall notify the Client in any such event.
3.4 Skyrocket warrants to the Client that the Services will be provided using reasonable care and skill.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) ensure that the terms of the Order and any information it provides for the purposes of the Specification are complete and accurate;
(b) provide Skyrocket with such information and materials as Skyrocket may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(c) prepare the Client’s network and systems for the supply of the Services;
(d) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(e) allow Skyrocket to have access to all information and systems that skyrocket states it requires to carry out the Services.
4.2 If Skyrocket’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) Skyrocket shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Skyrocket’s performance of any of its obligations;
(b) Skyrocket shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Skyrocket’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse Skyrocket on written demand for any costs or losses sustained or incurred by Skyrocket arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be as quoted by Skyrocket to the Client from time to time.
5.2 Skyrocket shall invoice the Client before commencement of the Services and before the commencement of any additional services (if applicable) from time to time.
5.3 The Client shall pay each invoice submitted by Skyrocket:
(a) within 5 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Skyrocket, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Skyrocket to the Client, the Client shall, on receipt of a valid VAT invoice from Skyrocket, pay to Skyrocket such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 Without limiting any other right or remedy of Skyrocket, if the Client fails to make any payment due to Skyrocket under the Contract by the due date for payment (Due Date), Skyrocket shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current National Westminster Bank Plc’s
base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.6 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Skyrocket in order to justify withholding payment of any such amount in whole or in part. Skyrocket may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Skyrocket to the Client.
5.7 If Skyrocket finds it necessary to use solicitors or other professional parties to recover the Commission or any Expenses, or in dealing with any breaches of these Conditions by the Client, the Client will, in addition, be required to pay for the costs incurred and shall indemnify Skyrocket in respect of the same regardless of any court decision as to the liability for costs.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Skyrocket.
6.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Skyrocket obtaining a written licence from the relevant licensor on such terms as will entitle Skyrocket to license such rights to the Client.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude Skyrocket’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) Skyrocket shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Skyrocket’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed value of the Services provided in the previous 3 months (or part thereof).
8.3 Skyrocket does not guarantee and cannot be held responsible by the Client in relation to:
(a) positions for any particular keyword, phrase or search term; and/or
(b) any changes made to the Client’s website by other parties that adversely affect the search engine rankings of the Client’s website.
8.4 The term implied by section 4 of the Supply of Goods and Services Act 1982 is, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
Either party may terminate the Contract with immediate effect by giving written notice to the other party, without any liability in respect of any outstanding and/or additional work that was proposed to be undertaken pursuant to the Proposal (save for the payment of work to date as per clause 10(a)).
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Client shall immediately pay to Skyrocket all of Skyrocket’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Skyrocket shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Skyrocket including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Skyrocket or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Skyrocket shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Skyrocket from providing any of the Services for more than 4 weeks, Skyrocket shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
11.2 Assignment and subcontracting:
(a) Skyrocket may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of Skyrocket, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, airmail, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the email address of the main point of contact of the Client in the case of the Client or [email protected] in the case of Skyrocket.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by airmail, 5 Business Days after posting, or if sent by email, 10 minutes after sending (unless a delivery failure report is received).
(c) This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include faxes and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by fax
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Skyrocket.
11.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.