Services Terms and Conditions

 

TERMS AND CONDITIONS – Paicemaker Limited - updated April 2009

1. Interpretation

In these Conditions the following words shall have the following meanings:

“Client” means the person whose order for the Services is accepted by the Company;
“Conditions” means the standard terms and conditions of sale set out in this document;
“Contract” means any contract between the Company and the Client for the purchase and sale of the Services;
“Fees” means the fee to be charged by the Company for the Services as set out in Schedule 2;
“Services” means the Services as more specifically set out in Schedule 1 in accordance with these Conditions;
“Company” means Paicemaker whose registered office is 48 Winchester Way, Stoke Park, Ipswich, Suffolk IP2 9YF Company Number 05372454.
“Writing” includes facsimile transmission, e-mail and comparable means of communication

2. Basis of the Sale

(i) The Company shall sell and the Client shall purchase the Services in accordance with any order of the Client which is accepted by the Company, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made, or purported to be made, by the Client. No variation to these Conditions shall be binding unless agreed in Writing by a director of the Company. The Company’s employees or agents are not authorised to make any representations concerning the Services unless confirmed in Writing by a director of the Company. All descriptions or illustrations contained in the Company’s sales literature or website are given for the sole purpose of giving an approximate idea of the Services described in them and do not form part of the Contract.

3. Orders and Specifications

(i) No order submitted by the Client shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company’s authorised representative or (if earlier) the Company delivers the Services to the Client.

(ii) The description of any specification for the Services shall be those set out in the Company’s quotation. The Client shall be responsible for ensuring the accuracy of the terms of any Order and for giving the Company any necessary information relating to the Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.

(iii) The Client shall be responsible for ensuring that the Services comply with all local laws, regulations and codes in all countries where the Client’s website is displayed. The Client shall ensure that any necessary licences or permissions to use any third party material have been obtained. The Client shall indemnify the Company against any and all liability, loss, damages, claims, costs and expenses awarded against or incurred by the Company in connection of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, which results from the Company’s use of and from material posted or information contained on the Client’s website or arising out of any claim, demand or action alleging that the Services arising out of the Order are contrary to any law, code or regulation in any court.

4. Price of the Services

(i) The price of the Services shall be the price set out in the Company’s quotation. The Company reserves the right, by giving notice to the Client at any time, to increase the price of the Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company or any change in delivery dates, or specifications for the Services which is requested by the Client, or any delay caused by any instructions, information or authorisations of the Client or failure of the Client to give the Company adequate information or instructions.

(ii) The price is exclusive of any applicable value added tax which the Client shall be additionally liable to pay to the Company.

5. Terms of Payment

(i) The Client shall pay the Company the Fees in accordance with Schedule 2.
(ii) The Company shall be entitled to invoice the Client for the price of the Services on or at any time after delivery of the Services and the Client shall pay the price of the Services without any set-off or other deduction immediately upon receipt of the Company’s invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

(iii) If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to; (a) cancel the Contract or suspend any further delivery of the Services to the Client; and (b) charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of 2% per annum above Natwest Bank plc’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

(iv) All costs, charges and expenses incurred by the Company in recovering any debt due by the Client shall be paid by the Client on a full indemnity basis.

6. Delivery

(i) Delivery of the Services shall vary depending on the type of service selected as specified in Schedule 1.
(ii) The Client shall be provided with a royalty free licence upon payment of the Fees, to use the Services. Such Licence shall be terminated immediately in the event the Client fails to pay the Fees in full.

7. Warranties and Liability

(i) Subject to the conditions set out below the Company warrants that the Services will correspond with their specification.

(ii) Without prejudice to the generality of the foregoing the above warranty is given by the Company subject to the following conditions:

(a) the Company shall be under no liability in respect of any defect in the Services arising from any information request or specification supplied by the Client or a delay caused by the Client or a third party that is used in the supply of the Services;
(b) the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Services has not been paid by the due date for payment; and
(c) the Client acknowledges that the Company has no control over third party search engines and as such the Company shall not be liable for any change in search engine rules of inclusion or change to index listings which results in the Client’s website being removed from search engine listings or for total loss of position/ranking on any search engine in accordance with the specification unless such removal, or total lost position/ranking continues for more than 60 consecutive days.

(iii) Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services except as expressly provided in these Conditions. Notwithstanding the generality of the aforesaid, the Company expressly excludes liability for any damage or corruption to the Client’s website, software, data or otherwise which occurs following the provision of the Services.
(iv) The total liability of the Company in contract, tort or howsoever arising shall be limited to the Company’s charges for the Services. No arrangement to refund the Client the price of the goods or a proportionate part of the price shall be binding on the Company unless agreed in Writing by a director of the Company.

(v) The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, such causes shall include, an act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance, or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party).

8. Insolvency of Client

(i) This clause applies if:

(a) the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
(c) the Client ceases, or threatens to cease, to carry on business; or
(d) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly;

(ii) If this clause applies, then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Client, and if the Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9. Non – Solicitation

The Client (including its subsidiaries or associated companies, employees and agents) hereby agrees and undertakes that it shall not induce or attempt to persuade, directly or indirectly, any employee of the Company, its subsidiaries or associated companies, to leave his/her employment and/or accept employment or engagement with it both for the duration of any contract subject to these Conditions and for a period of 12 months following completion of such contract or termination thereof by either party. The Client hereby agrees and undertakes to indemnify the Company against any loss it may incur as a result of a breach of this provision.

10. Cancellation

Except with the prior agreement of the Company, the Client shall not be entitled to terminate the Contract, or seek any cancellation, reduction or repayment of the Fee.

11. Intellectual Property Rights

(i) The Company owns the intellectual property rights in its software and database and the Client shall have no right to access or use the source code of the Company’s software. The Client agrees that it shall not attempt to reverse compile, decompile, disassemble or reverse engineer the Company’s software nor shall it amalgamate, amend, incorporate, modify, reproduce, translate or otherwise alter the same into or with any other software or use the same in conjunction with any other software. The Client shall not attempt to make any part of the Company’s software available or otherwise allow access to the same to any third party except as required by law. In addition, the Client shall not use the Company’s software for the benefit of any third party or in the business of website consultancy.

12. General

(i) Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice.

(ii) No waiver by the Company of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.

(iii) 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.

(iv) A person who is not a party to the Contract shall have no right to enforce any term of the Contract by virtue of the Contract (Rights of Third Parties) Act 1999.

(v) The terms and conditions of the Contract shall be subject to and interpreted and construed in accordance with English Law, including English Conflicts of Law and the English Courts shall have the exclusive jurisdiction in any dispute which may arise save that the Company may institute and maintain proceedings in respect of this contract in any country. The Company reserves the right to have any matter dealt with in a court residing in its geographical location. The Client acknowledges that matters commenced outside this geographical location shall be transferred.

Schedule 1

The Services

(i) We cannot guarantee that your site will be indexed by a particular search engine or directory. We do not guarantee that your site will be ranked in the top ten sites.

(ii) We are unable to correlate the time between promotional work and site visitors and make no guarantees in respect of the same. We are unable to guarantee the number of visitors to any site and make no guarantee in respect of the same.

(iii) We offer no guarantee as to the visitor response to the site and any subsequent turn around into orders or other response. It is your responsibilities to keep yourself informed and monitor the number of visitors to your site and the quality of the visitors.

(iv) Under these terms and conditions time will not be the essence of this contract and we accept no responsibility for time critical projects.

(v) If you promote the web site by using other parties or web sites of the same design without our written authorisation, not to be unreasonably withheld, it will constitute a breach of this agreement.

(vi) Your failure to request written authorisation from us to promote the website using other parties, such as third party promotion company, individual or method will amount to a material breach of the agreement.

(vii) Clause (v) includes registration of the site or duplicate site with search engines, web directory or shopping sites, link exchanges or other web site registration or optimisation or addition of site pages for the purpose of site promotion, unless otherwise agreed in writing.

(viii) Should we elect to terminate the contract, our initial set up and any costs accrued will still be due or the full product payment, whichever is greater.

(ix) Where any site is found to be a duplicate or similar, through no fault of your own, it may be necessary to significantly alter the content of the site in order to gain ranking and/ or avoid being de-listed or blocked from any search engine. The costs of such alteration will be met by you and you will aid us in provision of other original material and text as appropriate.

(x) We accept no liability for any consequence arising from the blocking, de-listing or similar by any search engine or directory due to duplication (or similar) of the site.

 

Schedule 2

The Fees

(1) Paid up front.
Setup fee as per contract agreed at point of sale.
Monthly fee as per contract agreed at point of sale.

(2) BNPL.
Setup fee as per contract agreed at point of sale.
Monthly fee as per contract agreed at point of sale.