Terms and Conditions

TERMS AND CONDITIONS OF BUSINESS

 

1.         INTERPRETATION AND FORMATION OF CONTRACT

1.1        In these Conditions the following words and phrases shall have the following meanings unless the context otherwise requires:-

 

“the Company”            Wiser Marketing at 7 Springfield Close Cross Somerset BS26 2FE

“the Client”                  the individual firm or company for whom the Company has agreed to provide services in accordance with these conditions

“Commencement Date”            the launch and availability of website or marketing on the internet

“Contract”                    a Contract for the provision of Services to the Client in accordance with these Conditions

“Equipment”                the equipment used by the Company to create and provide Services

“Holding Company”     as defined in section 736 of the Companies Act 1985

“Minimum Fee”           the minimum sum as set out in Schedule 2 payable at the earlier of the end of the Term or on termination

“Net Invoice Price”      the price net of Value Added Tax of the Services supplied

“Price”                         the price payable by the Client in accordance with Schedule 2

“Intellectual Property Rights”  all copyrights, patents, trade marks and other intellectual property rights relating to the Services

“Services”                   the provision of a marketing and sales literature consisting of (without limit) the creation, development and management of websites, e-commerce solutions, brochures, graphic design and the provision of ancillary services to include management reporting, call record data-basing, fulfilment, despatch and technical consultancy or as agreed in writing from time to time between the Client and the Company

“Setup”                        the creation and implementation by the Company of the appropriate marketing mechanism to allow the Services to promote

“Setup Fee”                 means the few referred to in Schedule 2

“Subsidiary”                as defined in section 736 of the Companies Act 1985

“Marketing & Promotion”         used within marketing and media to create, stimulate and harness response

“Internet”                     the means by which a respondent is able to access a website

“Telecommunications Network”           the telephone network made available by various Network Providers with regards the transmission of communications such as telephone or internet

“Term”                         the initial period of one year commencing on the Commencement Date and thereafter unless and until terminated in accordance with Clauses 3 and 13

 

1.2        Any reference to a statutory provision shall be construed as a reference to:-

1.2.1     Any statutory modification or re-enactment thereof (whether before or after the commencement date) for the time being in force;

1.2.2     All statutory instruments or orders made pursuant thereto; and

1.2.3     Any statutory provisions of which that statutory provision is a re-enactment or modification

1.3        Unless otherwise stated a reference to a Clause a Sub-clause or a Schedule is a reference to respectively a clause or a sub-clause of a schedule to these conditions

1.4        Clause headings are for ease of reference only and shall not affect the construction or interpretations of these conditions

1.5        These conditions together with any terms expressly agreed in writing by the Company contain all the terms of the Contract to the exclusion of all other representations, statements, understandings, proposals, agreements or negotiations. The Client acknowledges that is does not rely on and waives any claim for breach of any previous representation, statement or undertaking (written or oral) not confirmed in writing by the Company.

1.6        These conditions shall prevail over any proposed by the Client or implied by trade, custom or practice. The Company’s failure to object to any other terms proposed by the Client shall not be deemed to be a waiver of this Clause, and the Company’s acknowledgement or acceptance of an order containing terms inconsistent with these Conditions shall constitute a counter-offer on these Conditions.

1.7        Any typographical error, clerical error or other error or omission in any sales literature, quotation, price list, acceptance or offer, invoice or other document or information issued used by the Company shall be subject to correction without any liability on the part of the Company.

1.8        Any quotation given by the Company is an invitation to the Client to appoint within 30 days of the quotation date the Company to provide the Services in accordance with these Conditions and any other special terms referred to in the quotation as accepted and agreed by the Company in accordance with Condition 1.5

 

2          COMPANY’S UNDERTAKING

In consideration of the payment by the Client of the Price, the Company undertakes to provide the Services subject to these Conditions

 

3          DURATION

Subject to earlier termination in accordance to the provisions of Condition 13 or as otherwise agreed this Agreement shall commence of the Commencement Date for an initial term of twelve months and shall continue thereafter unless and until terminated by either the Client or the Company on giving at least 3 months notice in writing to expire not earlier than the end of the initial term

 

4          PRICE AND PAYMENT

4.1        Subject to any special terms agreed the Client shall pay the Price and additional sums agreed between the Client and the Company for the provision of the Services or which in the Company’s sole discretion are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any documents or information provided by the Client or any other cause attributable to the Client

4.2        Subject to Clause 13.1.1 the Company shall be entitled to vary the Price from time to time upon giving not less than thirty days prior written notice to the Client

4.3        The Price shall not include;

4.3.1     charges raised by a Network Provider and billed directly to the Client;

4.3.2     Value Added Tax which shall be payable by the Client in the manner and at the rate from time to time prescribed by law.

For which the Client shall be additionally liable:

4.4        If the Price paid to the Company during the Term is less than the Minimum Fee the Client shall make an additional payment to the Company of a sum equal to the difference between the Price paid and the Minimum Fee.

4.5       The Price for hosting, rental and usage of services shall be invoiced by the Company annually in advance or as otherwise agreed save that the Client shall be invoiced by the Company in relation to the Setup Fee on or immediately after the Commencement Date. In the case of expenses and/or Services that are not detailed within Schedule 2 the Company will invoice the Client on provision of the Service. The Price shall be payable by the Client without set-off or deduction within fourteen days of the date of the invoice.

4.6        If during the Term further Services are supplied to the Client, such further Services will be supplied by the Company on the same basis as those detailed in these Conditions (as from time to time).

4.7        Time for payment shall be of the essence with invoices payable within seven days of invoice date.

4.8        If any payment is not made on the due date, the Company shall be entitled to take appropriate steps to recover the debt, without further notice and without limiting any other rights it may have. The costs associated with any such action will be charged to the Client .

4.8.1     Payment of our invoice is due within seven days.  Payments not received within this period will attract interest at 9.8% APR together with an administration fee of £12.00 per letter or statement, until such time as payment is received.

4.8.2     The Company reserves the right To cease all further supplies of the Service to the Client without liability in respect of any loss or damage sustained by the Client. In such event the Client shall not in any respect be released from its obligations under this or any other Contract.

 

5          RECORDS

5.1        The Company shall keep full and accurate records in such form as the Company decides of all Telecommunications activities undertaken on behalf of the Client and shall allow the Client access to such records at all reasonable times

5.2        The Company shall within 21 days of the end of the month send the Client a statement in such form as the Company decides setting out full details of all telecommunications activities undertaken on behalf of the Client

 

6          OBLIGATIONS OF THE COMPANY

6.1        The Company undertakes to the Client:

6.1.1     To supply the Services with reasonable care and skill;

6.1.2     To supply any other service that the Company agrees in writing to undertake within a reasonable time and on terms agreed from time to time or failing agreement upon these Conditions as amended from time to time

6.2        The Company shall use all reasonable endeavours to keep and maintain the Equipment in good operating order and condition provided that in the event of any breakdown of the Equipment or loss of Telecommunication Service whether temporary or otherwise, the Company will take all reasonable steps to repair the Equipment and restore Services as soon as reasonably possible but shall otherwise have no liability to the Client for any loss (including loss of profit) cost or damage suffered or incurred by the Client

6.3        Subject to the foregoing all conditions warranties terms and undertakings whether express or implied, statutory or otherwise, in respect of the performance by the Company in supplying Services to the same are hereby excluded to the extent allowed by law

6.4        The Company shall be entitled to have any of its duties or obligations under this Agreement executed by sub-contractors

6.5        Any date or time stated in these Conditions or otherwise in relation to the Services shall constitute a statement of expectation only and shall not be binding. Accordingly the time of supply of the Services shall not be of the essence

6.6        The Company may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services

 

6.7        Without prejudice to any other Condition or term of the Contract the Company reserves the right without any liability to the Client to refuse to provide the Services if in its absolute discretion such provision would be unlawful, offensive or otherwise contrary to the public interest

 

7          CLIENT’S WARRANTY

7.1        The Client warrants and undertakes to the Company that is has full power and authority to enter into this agreement and permit the Company to supply Services on its behalf

7.2        The Client undertakes to indemnify and hold harmless the Company against any injury loss (including loss of profit) or damage whatsoever that the Company may suffer or incur by reason of any breach by the Client of the warranty and undertakings in Clause 7.1 hereof or arising out of any negligent act or omission of the Client or any of its servants or agents in the course of or as a result of the provision of the Services

 

8          SETUP

The Company shall complete the Setup and commence the supply of the Services to be accessed by the Client by means of Telecommunications Networks as detailed within Schedule 1 on or before the Commencement Date

 

9          ACCEPTANCE

9.1        The Client shall be deemed to have accepted the Services if they have not been rejected in writing within seven days of presentation or Commencement Date. The Client shall not be entitled to reject Services in whole or in part after such date nor shall the Client be entitled to cancel any Contract without the consent of the Company save on terms that the Client shall pay to the Company at the rates specified in Schedule 2 for all Services supplied by the Company up to and including the date of cancellation and the Client shall further indemnify the Company in full against all loss (including loss of profit) costs, damages, charges, and expenses incurred by the Company as a result of cancellation

 

10         LIMITATION OF LIABILITY

10.1      Except in respect of death or personal injury caused by the Company’s negligence, or as expressly provided in these Conditions, 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 including negligence, or under the express terms of the Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Company, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service or its use by the Client, any act, omission, neglect or default of the Company, its servants or agents, in the performance of the Agreement and the entire liability of the Company under or in connection with the Agreement shall not exceed the amount of the Company’s charges for the provision of the Service except as expressly provided in these conditions.

10.2      Without prejudice to the generality of the foregoing nothing herein contained shall operate to exclude or restrict liability for breach any obligation arising from the Supply of Goods and Services Act 1982 or the Sale of Goods Act 1979 (as amended) as against the Client if he is dealing as a consumer (as defined by section 12 of the Unfair Contract Terms Act 1977)

10.3      The Company makes no representation as to the benefit to the Client arising our of the provision of the Service and there is neither expressed nor shall there be implied into the Contract any conditions or warranties as to the same

10.4      Where the Company supplies in connection with the provision of the Services any services or goods supplied by a sub-contractor, the Company does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the services or goods to the Company

10.5      The Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any documents, data or other information provided by the Client in relation to the provision of the Services which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late or non-arrival or any other fault of the Client

10.6      The Company shall not consider any claim made against it in respect of any alleged failure or default in the provision of the Services unless the Client notified the Company within seven working days of the relevant failure. The Company’s liability in such circumstances shall be limited at its option to the cost of rectifying the failure or the reimbursement of the Price paid for the relevant Services

 

11         OBLIGATIONS OF THE CLIENT

During the Term the Client shall:

11.1      Use all reasonable endeavours to effectively market the Services;

11.2      Ensure that the Services are marketed in such a way as to maximise exposure, prominence and response;

11.3      Not market any other Services, which may limit response or be construed as being in competition with the Services detailed within this Agreement;

11.4      At all times provide the Company with proposed marketing copy and schedules;

11.5      Ensure that all information supplied to the Company to be used in conjunction with the Services detailed within this Agreement, leads generated or products sold by means of the same are all times legal, accurate and correct;

11.6      Not have or develop any trade name right in the Services supplied by the Company for the purpose of providing services unless agreed in writing by the Company or unless the Services are owned by the Client;

11.7      Not attempt to sell or transfer the Services to any third party;

11.8      Warrant that any documents, data or any other information provided by the Client in relation to the provision of the Services will not infringe the rights of any third party and the Client shall indemnify the Company against any loss, damages, costs or other claims arising from any such infringement

 

12         CLIENT REPRESENTATIVES

The Client shall communicate to the Company in writing on or before the Commencement Date the identity and contact details of the person from time to time who will act on behalf of the Client as the contact point and channel of communication for the provision by the Company of it’s the Services during the Term. The Client shall forthwith in writing inform the Company of any change in the identity or details of any such person

 

13         TERM AND TERMINATION

13.1      Either party may on notice given to the other forthwith terminate this Agreement on the occurrence of any of the following events:-

13.1.1   by the Client upon giving not less than sixty days notice in writing to the Company upon receipt of a notice of increase in the Price under Clause 4.2 hereof;

13.1.2   forthwith by the Company if the Client fails to make any payment due and owing to the Company any cost of service within seven days of the due date;

13.1.3   upon a party having failed to remedy any remediable breach of its obligations under this Agreement within fourteen days receipt of a written request from the other to do so;

13.1.4   upon the other having committed an irremediable breach of its obligations under these conditions;

13.1.5   if the party has a receiver or administrative receiver or liquidator appointed over any of its assets or makes any composition with its creditors or suffers any distraint over any of its assets or if an order is made or a resolution passed or analogous proceedings are commenced for the winding up of the other party (being a Company) or in the case of any individual or firm becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed

13.2      Immediately upon termination of a Contract for whatever reason, the Client shall return all papers and literature relating to the Services provided by the Company

13.3      Any termination of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or law and shall not affect any accrued rights or liabilities of either party nor the coming in to or continuance in force of any provision hereof which is expressly or by implication intended to come in to or continue in force on or after such termination

13.4      In the event that a Contract is terminated for any reason whatsoever there will be no refund to the Client of any payments, on account or otherwise, already made to the Company hereunder

13.5      If the Company shall be prevented or hindered from supplying the Service or any part thereof by any circumstances beyond its reasonable control performance of the Contract shall be suspended for so long as the Company is so prevented or hindered provided that is the performance of the Contract shall be suspended for more than 6 consecutive calendar months the Company shall be entitled by notice in writing to the Client forthwith to terminate the Contract or cancel any outstanding part thereof and in such circumstances the Client shall pay at the rate specified in these conditions for all the Services supplied to the actual date of such termination. The Company shall not have any liability to the Client for any direct or consequential loss or damage suffered by the Client as a result of the Company’s inability to perform its obligations under the Contract in these circumstances mentioned above

 

14         COPYRIGHT AND CONFIDENTIALITY

14.1      Each of the Client and the Company shall during the Term and thereafter keep confidential all information in any form whatsoever contained concerning the business and affairs of the other which it acquires as a result of the provision of the Services and shall disclose the same only to the extent necessary for the proper performance of its obligations under this Agreement or as required by law

14.2      Each of the Client and the Company undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provision of Clause 14.1 hereof by its employees servants agents and sub-contractors.

14.3      The Intellectual Property Rights associated with the Service and software or documentation relating to the Service shall remain the property of the Company and shall not be copied or reproduced or used without express written consent for any purpose other than that for which they were furnished

14.4      Any proprietary data and or information contained in any documentation, equipment, software or firmware supplied to the Client for the purpose of the Contract shall not be disclosed to third parties nor used for any purpose other than operation of the equipment or works provided by the Company, unless written consent is given by an authorised signatory of the Company

 

 

15         WAIVER

15.1      The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provisions(s)

15.2      Failure of either party to insist upon strict performance of any provision of this Agreement or the failure of either party to exercise any right or remedy to which is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this Agreement

15.3      No waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be such and signed by both parties

 

16         COMMUNICATION

16.1      Any communication, notice, request, instruction or other document to be given hereunder shall be in writing and shall be:-

16.1.1   delivered by hand or sent by post to the address of the Company as set out in this Agreement or to such other address (being in Great Britain) as the Company may from time to time have notified for the purpose of this Condition; or

16.1.2   sent by facsimile transmission to the Company’s facsimile number as notified from time to time for the purpose of this Condition

16.2      Communications by facsimile transmission shall always be confirmed by dispatching a copy of the communication by post the same day and all communications by post shall be sent 1st class, registered or recorded delivery post

16.3      Communications sent in accordance with Condition 16.1 shall be deemed to have been received as follows:-

16.3.1   if sent by post – 48 hours after posting;

16.3.2   if delivered by hand – upon receipt;

16.3.3   if sent by facsimile transmission – at the time of transmission if received at least 2 hours before the close of business hours on a business day and in  any other  case on the next business day

16.4      In proving service by delivery by hand it shall only be necessary to produce a receipt for the communication signed by or on behalf of the Company

16.5      In proving service by post it shall only be necessary to prove that the communication was contained in an envelope, which was duel addressed and posted in accordance with Clause 16.1.1

16.6      In proving service by facsimile transmission it shall only be necessary to produce a copy (uncorrupted in transmission in any material respect) of the communication bearing the senders name and facsimile number

 

17         SEVERABILITY

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated. The Client hereby acknowledges that is considers each and every one of the terms and conditions herein contained to be reasonable within the meaning of the Unfair Contract Terms Act 1977

 

18         ENTIRE AGREEMENT

18.1      The Company shall not be liable to the Client for any injury loss or damage arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements and undertakings expressly incorporated into this Agreement

18.2      The Client by entering into this Agreement accepts and acknowledges that the Agreement between it and the Company is an Agreement upon these terms and conditions and the Customer waives any and all other terms and conditions whether printed upon any document provided by it to the Company or otherwise

 

19         SUCCESSORS

This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto

 

20         CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999

For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any its provisions

 

21         ASSIGNMENT

The Client shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior written consent of the Company

 

22         NO PARTNERSHIP

This Agreement shall not be construed so as to create a partnership or joint venture between any of the parties. Nothing in this Agreement shall be construed so as to constitute any of the parties the agent of another

 

23         LAW AND JURISDICTION

This Agreement is governed by the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales