ADGROW TERMS AND CONDITIONS OF BUSINESS
1. INTERPRETATION
1.1The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Contract: the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2.
Customer: the person, firm or company who purchases Services from the Supplier.
Data Protection Legislation: the UK GDPR as defined in the Data Protection Act 2018, the Data Protection Act 2018, and all other applicable laws and regulations relating to the processing of personal data and privacy, as amended or replaced from time to time.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Services: the services to be provided by the Supplier under the Contract as set out in the Specification.
Specification: the description of the Services and the Charges set out at the beginning of this Agreement.
Supplier: Kempwrights Limited incorporated and registered in England and Wales with company number 00851319 whose registered office is at AMP House, Dingwall Road, Croydon CR0 2LX.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2Headings in these conditions shall not affect their interpretation.
1.3A reference to writing or written includes email.
1.4References to conditions are to the conditions of the Contract.
2. APPLICATION OF CONDITIONS
2.1These Conditions shall:
(a)Apply to and be incorporated into the Contract; and
(b)Prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s acceptance of a quotation, or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2The Customer’s acceptance of a quotation for Services by the Supplier, specified in the Specification, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. The Supplier shall accept no offer placed by the Customer other than:
(a)By a written acknowledgement issued and executed by the Supplier; or
(b)(If earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.3Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1The Services shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer’s offer in accordance with condition 2.2.
3.2Subject to condition 10, the Services supplied under the Contract shall continue until terminated in accordance with condition 10.
4. SUPPLIER’S OBLIGATIONS
4.1The Supplier shall use reasonable care and skill to provide the Services in accordance in all material respects with the Specification.
4.2The Supplier shall use reasonable endeavours to meet any performance dates agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5. CUSTOMER’S OBLIGATIONS
5.1The Customer shall:
(a)Co-operate with the Supplier in all matters relating to the Services;
(b)Provide the Supplier, its subcontractors and employees, in a timely manner and at no charge, with access to the Customer’s premises, data, accounts and other facilities as reasonably required by the Supplier;
(c)Provide to the Supplier, in a timely manner, such information and material as reasonably required by the Supplier in accordance with the Specification; and
(d)Obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.
5.2The Customer acknowledges that the performance of advertising campaigns depends on factors outside the Supplier’s control (including third-party advertising platforms, auction dynamics, market conditions and the Customer’s own website, pricing and offering). The Supplier provides the Services using reasonable care and skill but does not warrant or guarantee any particular result, ranking, cost per acquisition, volume of leads or bookings, or return on advertising spend.
5.3If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.4Subject to condition 9, the Customer shall be liable to pay to the Supplier all reasonable costs, charges or losses sustained or incurred by the Supplier arising directly from the Customer’s fraud or negligence, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6. CHARGES AND PAYMENT
6.1In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Specification (Charges).
6.2All charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate.
6.3The Supplier shall invoice the Customer monthly in advance for the Charges (together with VAT where appropriate).
6.4The parties agree that the Supplier may review and increase its Charges, provided that such Charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 1 month of such notice being received or deemed to have been received in accordance with condition 18, terminate the Contract by giving 1 month’s written notice to the Supplier.
6.5The Customer shall pay each invoice within 14 days of the date of issue, in full and in cleared funds, by direct debit via GoCardless (or such other method as the Supplier may notify in writing) to a bank account nominated by the Supplier.
6.6Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a)Charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
(b)Suspend all Services until payment has been made in full; and/or
(c)Immediately terminate the Contract and issue an invoice for any Services provided but not invoiced at date of termination.
6.7Time for payment shall be of the essence of the Contract.
6.8The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7. CONFIDENTIALITY AND THE CUSTOMER’S PROPERTY
7.1The Supplier shall keep in strict confidence all information disclosed by the Customer, its employees, agents, consultants or subcontractors to the Supplier in connection with providing the Services.
7.2The Supplier may disclose such information:
(a)To its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Supplier’s obligations under the Contract; and
(b)As may be required by law, court order or any governmental or regulatory authority.
7.3The Supplier shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 7.
7.4The Supplier shall not use any such information for any purpose other than to perform its obligations under the Contract.
7.5All materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier shall, at all times, be and remain the exclusive property of the Customer, but shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Customer, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
8. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
8.1The Customer shall keep in strict confidence all information disclosed by the Supplier, its employees, agents, consultants or subcontractors to the Customer in connection with providing the Services.
8.2The Customer may disclose such information:
(a)To its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
(b)As may be required by law, court order or any governmental or regulatory authority.
8.3The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8.4The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
9. LIMITATION OF LIABILITY
9.1This condition 9 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the other in respect of:
(a)any breach of the Contract; and
(b)any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3Nothing in these Conditions limits or excludes the liability of either party:
(a)for death or personal injury resulting from negligence;
(b)for fraud or fraudulent misrepresentation; or
(c)for any liability that cannot lawfully be limited or excluded.
9.4Subject to condition 9.3, neither party shall be liable to the other, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, for any loss of profit, loss of business, loss of goodwill or reputation, or any indirect or consequential loss, arising under or in connection with the Contract.
9.5Subject to conditions 9.3 and 9.4, each party’s total liability arising under or in connection with the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall be limited to the total Charges paid by the Customer under the Contract. This limit does not apply to the Customer’s obligation to pay the Charges and any VAT and interest due under condition 6.
10. TERMINATION
10.1Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than 30 days written notice, or immediately on giving notice to the other if:
(a)The other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b)The other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c)The other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
10.2The parties acknowledge and agree that any breach of conditions 4, 5, 6, 7, 8 and 20 shall constitute a material breach for the purposes of this condition 10.
10.3On termination of the Contract for any reason:
(a)The Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
(b)The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10.4On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: condition 7; condition 8; condition 9; condition 10; condition 19; and condition 20.
11. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
12. VARIATION
12.1The Supplier may, from time to time change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer at least 1 months’ notice of any change.
12.2Subject to condition 12.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13. WAIVER
13.1A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. 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.
13.2Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14. SEVERANCE
If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
15. ENTIRE AGREEMENT
15.1The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.2Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16. ASSIGNMENT
16.1The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any manner with all or any of its rights or obligations under the Contract.
16.2The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of 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.
17. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
18. NOTICES
18.1Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery, commercial courier or email to the other party and for the attention of the person specified in the Specification, or as otherwise specified by the relevant party by notice in writing to the other party.
19. GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
20. DATA PROTECTION
20.1Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 20 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
20.2The parties acknowledge that, for the purposes of the Data Protection Legislation, where the Supplier processes personal data on behalf of the Customer in the course of providing the Services, the Customer is the controller and the Supplier is the processor.
20.3Without prejudice to condition 20.1, the Supplier shall, in relation to any personal data processed in connection with the performance of its obligations under the Contract:
(a)process that personal data only on the documented instructions of the Customer, unless required by applicable law to do otherwise;
(b)ensure that any persons authorised to process the personal data are subject to an appropriate duty of confidence;
(c)implement appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, appropriate to the harm that might result and the nature of the data, including any special category data;
(d)not transfer any personal data outside the United Kingdom unless the appropriate safeguards required by the Data Protection Legislation are in place;
(e)assist the Customer, at the Customer’s cost, in responding to requests from data subjects and in complying with its obligations relating to security, breach notification, data protection impact assessments and consultation with regulators;
(f)notify the Customer without undue delay on becoming aware of a personal data breach;
(g)at the written direction of the Customer, delete or return the personal data and any copies to the Customer on termination of the Contract, unless required by applicable law to retain it; and
(h)maintain appropriate records and, on reasonable written request, make available to the Customer information reasonably necessary to demonstrate compliance with this condition 20.
20.4The Customer provides its general authorisation for the Supplier to appoint third-party processors (including advertising, analytics, call-tracking and CRM providers) as reasonably required to provide the Services, provided that the Supplier: (a) enters into terms with each such processor that are substantially similar to those set out in this condition 20; and (b) remains liable to the Customer for the acts and omissions of any such processor. The Supplier shall notify the Customer of any intended change to its sub-processors, and the Customer may reasonably object.