In these Conditions the following expressions have the following meanings:
'Client' the person(s), firm or company named on the Proposal
'Conditions' the standard terms and conditions of sale as set out in this document, together with the attached Schedules
'Contract' the Proposal, the Service Description and these Conditions
'Ascendancy' Ascendancy Internet Marketing Limited (company number 05664084) whose registered office is at Office 1, The Forum, Victoria Road, Shifnal, Shropshire. TF11 8FE.
'Materials' means any documentation, instructions, training manuals or other information stored in written or electronic form provided by Ascendancy to the Client to facilitate the provision of the Services
'Service' the service to be provided by Ascendancy as set out in the Service Description and the Proposal
'Service Description' a document describing the Service generally
'Price' the price to be paid by the Client for the Service as specified in the relevant Proposal
'Proposal' the document produced by Ascendancy and identified as a proposal for the provision of a Service to the Client
'Term' the term set out in the Proposal
1.1 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced
1.2 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.3 In these Conditions headings will not affect the construction of these Conditions.
2.1 These Conditions together with the Service Description and the Proposal shall form the Contract to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 The Contract may only be varied by further agreement in writing (which will include by email if so accepted by Ascendancy) between the parties.
2.3 The Client acknowledges that in entering into the Contract it is not relying on any representation or warranty, express implied or otherwise which is not reduced to writing and incorporated into the Contract.
3.1 Ascendancy will take all reasonable steps to provide the Service with reasonable skill and care and to ensure that the security, integrity and confidentiality of the Client's information and data and the use of the system is maintained to Ascendancy's good industry standard.
4.1 The Price for the Proposal shall be that set out in the Proposal and unless otherwise agreed in writing shall be in pounds sterling and exclusive of value added tax.
4.2 If any sum payable under the Contract is not paid within 7 days after the due date then (without prejudice to Ascendancy's other rights and remedies) Ascendancy reserves the right to:
4.2.1 suspend performance of the Service until all amounts owed have been paid; and/or
4.2.2 charge interest on such sum on a day to day basis (as well after as before any judgement) from the date or last date for payment to the date of actual payment (both dates inclusive) at the rate then permitted by the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be paid on demand.
4.3 The Client shall not be entitled to withhold payment of any amount due to Ascendancy under the Contract by reason of any disputed claim by the Client in connection with the Contract (unless the dispute relates to an error or mistake contained in the invoice) and the Client shall make all such payments without any deduction whether by way of set off, counterclaim, discount or otherwise.
5.1 The Client warrants that it has provided all necessary information to Ascendancy and will continue to do so during the term of the contract to help Ascendancy to achieve the Service. All information that is provided to Ascendancy by the client is warranted to be true complete and accurate.
5.2 If the warranty in 5.1 is breached by the Client, Ascendancy shall be entitled to vary the Price by a reasonable amount and will as soon as practically possible notify the Client as to what such variation shall be.
5.3 The Client will co-operate with Ascendancy to try to achieve the targets set out in the Proposal and the Service Description. The client will also co-operate with Ascendancy in giving access to all necessary servers, service providers, hardware, software or other parties or facilities in order to aid Ascendancy in achieving the Service. If any delay is caused by the Client and Ascendancy incurs unavoidable costs which would otherwise have been recovered through the Price, the Client shall pay Ascendancy a sum or sums equivalent to those costs.
6.1 The copyright or any other intellectual property rights in:
6.1.1 the web site shall belong to the Client;
6.1.2 any documents, materials, data, systems or other information provided by Ascendancy in relation to the Service shall, unless otherwise agreed in writing between the Client and Ascendancy, belong to Ascendancy.
7.1 Ascendancy shall provide such initial training for the Client and its staff in respect of the use of the Service as Ascendancy deems necessary.
8.1 Ascendancy's entire financial liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Client under the Contract shall be limited to the
lesser of £500,000 or the actual loss suffered by the Client save that nothing in these Conditions excludes or limits the liability of Ascendancy for death or personal injury caused by Ascendancy's negligence or for fraudulent misrepresentation.
8.2 Subject to Condition 8.1 neither party shall be liable to the other in respect of any loss of profit goodwill or any type of special, direct, indirect or consequential loss (including loss or damage suffered by the other party as a result of an action brought by a third party) even if such loss was reasonably foreseeable and the party incurring the loss had notified the other party of the possibility that such loss would be incurred.
8.3 Although Ascendancy will take all reasonable precautions in accordance with good industry practice against computer viruses, it does not warrant that any system or service applied to the Client's website will be virus free or will not cause interruption to the Client's own systems.
9.1 Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating the Contract with immediate effect if:
9.1.1 the other party commits any breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within a reasonable period (as set out in writing by the non-breaching party of receiving that party's request in writing so to do.
9.1.2 the other party (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the other party or any steps are taken (including, without limitation, the making of an application or the giving of any notice) by the other party or any other person for the appointment of an administrator in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party or if the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
9.1.3 the other party suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract and these Conditions or any other contract between the parties to the Contract and these Conditions, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the other party ceases to trade;
9.2 Ascendancy may terminate the Contract with immediate effect by notice in writing if it has reason to believe the Client is suffering serious adverse financial circumstances.
10.1 Any termination of the Contract howsoever caused:
10.1.1 shall not affect any rights or liabilities which have accrued prior to the date of termination;
10.1.2 shall not affect the coming into force or the continuance in force of any provision of the Contract and these Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
10.2 All payments due under the Contract shall become due immediately upon termination and Ascendancy will issue the Client with a final invoice (which shall also be immediately due and payable) covering all outstanding charges under the Contract.
10.3 If the Client does not pay any sum due under Condition 10.2 within 30 days of Ascendancy's invoice all sums which have then been invoiced by Ascendancy to the Client will become immediately due and payable and Ascendancy may suspend the provision of the Service forth with until full payment of all invoices then due has been received.
11.1 Neither party shall, and shall procure that its associates (as that term is defined in Section 435 of the Insolvency Act 1986) shall not, for the duration of the Contract and for a period of one year after its termination (unless agreed in writing by the other party):
11.1.1 solicit or endeavour to entice away from the other party any of the other party's staff involved in providing the Service, or
11.1.2 employ or engage or attempt to employ or engage or negotiate or arrange the employment or engagement by any other person firm or company of any of the other party's staff involved in connection with the Contract.
12.1 Neither party shall assign the Contract or any part of it without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed except that Ascendancy may assign its rights to receive any payments under the Contract to any party.
13.1 Ascendancy and the Client shall use all reasonable endeavours to resolve any dispute arising in connection with the Contract. In the event that such a dispute cannot be resolved, the matter shall be determined by the English Courts.
13.2 Ascendancy shall continue to supply the Service during any period in which there is a dispute provided that the Client continues to make all payments due under the Contract.
14.1 Ascendancy reserves the right to vary the terms of the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Ascendancy including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of
adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, then Client shall be entitled to give not less than 30 days notice in writing to Ascendancy to terminate the Contract.
15.1 All notices between Ascendancy and the Client about a Contract must be in writing and delivered by hand or sent by pre-paid first class post, facsimile transmission to the registered office address of the recipient or such other address as shall be notified to the other party.
15.2 Notices shall be deemed to have been received:
15.2.1 if delivered by hand, on the day of delivery;
15.2.2 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays within the UK) after posting (exclusive of the day of posting); or
15.2.3 if sent by facsimile transmission on a working day prior to 16:00, at the time of transmission and other wise on the next working day.
15.2.4 if sent by email by Ascendancy, when it has been sent by Ascendancy as recorded and timed by its email system
16.1 Each right or remedy of each party under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by either party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.