These Standard Terms and Conditions shall apply to any Service Agreement(s) (“the Agreement”) with Euphoric Digital Ltd. (“the Supplier”).
The Service(s) shall mean any service that the Supplier is contracted to perform for the Client. No services will be provided or implied unless specifically set out in the Agreement. If there should be any ambiguity or discrepancy between the terms in the Agreement and the terms set out in this document, the terms in the Agreement will prevail, except where expressly stated to the contrary within these Standard Terms and Conditions of Service.
The Supplier shall perform the Service(s) with reasonable care and skill, in accordance with generally recognised commercial practices and standards in the industry; and all laws and regulations applicable to the Service(s).
Representations and Authorities
The Client authorises the Supplier to access their online accounts and will provide login in details when needed to perform the Service(s). These accounts may include but are not limited to web hosting, website, advertising, analytics, CRM, ERP or social media accounts.
The Client confirms that any account to which the Supplier is given access has not been compromised, hacked, defaced or infected prior to the commencement of the Agreement.
The Client warrants that any of their employees or contractors assisting the Supplier have the necessary skills and authority.
The Client confirms that any text, graphics, photos, designs, codes, data, trademarks and artwork supplied in connection with the Agreement are owned by the Client, or that they have permission from the rightful owner to use these items; the Client grants the Supplier an irrevocable licence to use these items for the purposes of providing the Service(s) for the duration of the Agreement.
The Client warrants that all the facts, claims and offers given by it about its products or services are accurate and in no way misleading and that the terms of any offers contained therein will be honoured.
The Client warrants that it has not relied on any representations made by or on behalf of the Supplier save as contained in this Agreement.
The Client may during the term of the Agreement request a change in the Service(s) by notifying the Supplier in writing of its requirements. The Supplier shall give due consideration to any change request, and answer within no more than 5 working days to either confirm its acceptance of the change request, provide a written proposal with any variation that it reasonably considers necessary or to provide the Client with a written statement of its reasons for not accepting the change request.
Where the Supplier is requested to make any amendment to text or images within the Client’s website these changes will be offered to the Client for approval. If the Client waives the right to approve, it is agreed that any amendments by the Supplier shall be considered as approved by the Client.
The Client shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within seven days of receiving an invoice through our direct debiting facilitator, GoCardless or any similar provider or bank that the Supplier may nominate from time to time.
If payment terms within the Agreement are agreed in writing on a direct invoice basis, the Client shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 14 days of receipt. Interest will be due on any overdue amount at the rate of 2% per annum above the Bank of England base rate at the relevant time.
If a payment is overdue for more than 30 days, the Supplier reserves the right to suspend all Service(s) until payment has been made in full.
Internet Data and E-mail
Data transmitted across the Internet is on an open channel and the Supplier shall not be liable to the Client for any direct, indirect, or consequential loss sustained because of data loss, corruption, misuse of the Client’s information by third parties or as a result of viruses, trojans and other malicious code transmitted to or from systems in which the Client has an interest.
Search Engine Optimisation Service(s)
The Supplier aims to maximise the performance of and traffic to the Client’s websites, however the performance of the Service(s) cannot guarantee specific results. The Supplier has no control over the policies of search engines or directories with respect to the sites and/or content that they accept now or in the future. Any search engine or directory, in their sole discretion, may choose to exclude the Client’s web site(s) or content at any time. The Client accepts that if they independently make changes to their website without the Supplier’s input that they may affect search engine placements; following these independent changes, if additional work is needed to recover ranking position this will be subject to a separate quotation.
Social Media Service(s)
The Client recognises that it is not practical for the Supplier to notify the Client of each posting that it makes on behalf of the Client on any/all social media channels and the Client agrees that this is unnecessary.
The Client may request that the Supplier makes changes to any content or postings at any time in writing, and the Supplier may levy reasonable additional charges for such work.
The Supplier reserves the right to edit or amend any content on any social media channels that it considers to be offensive, unlawful or inappropriate, or which appear to infringe the intellectual property rights of any third party.
The Supplier shall not be responsible for any errors in any postings or any unsatisfactory Service(s), which are not notified in writing to it, nor for any errors which are approved by or are the fault of the Client or any third party.
Where the Service(s) relate to the repair of hacked files or removal of malware the site will be returned in good working order with settings returned to recommended defaults. The Supplier does not guarantee against any future security breach, malware infection or re-infection.
Pay Per Click (PPC) Advertising Management Services(s)
The Supplier shall invoice the Client for the management and/or set up costs. The Client shall be responsible for ensuring that adequate budget is available to carry out the Service(s) and agrees to be billed directly by Google, Bing, Facebook or other advertising providers for their charges.
The Supplier aims to maximise the interaction with the Client’s website based on agreed goals, however the performance of the Service(s) does not guarantee specific results.
The Supplier accepts no responsibility for any detrimental effect on the PPC campaign(s) which results from search engine policies, functionality or service, any activity by the Client or any third party including, but not limited to, fraudulent activity or alterations made to the Client’s website or advertising copy.
Domain Name Registration / SSL Digital Certificates Service(s)
Where the Supplier acts on behalf of the Client to register domain name(s) and / or purchase a SSL digital certificate(s), the Client is responsible for adhering to the terms and conditions of the naming authority for the domain name(s). The Client is responsible for renewing domain name(s) if the Client wishes to retain the use of the domain name. The Client assumes all responsibility for the renewal of any SSL certificate(s) and any costs or damage to their business and / or the costs of any work incurred because of a failure to renew the SSL / digital certificate(s) in a timely manner.
The Supplier will use reasonable efforts to maintain availability of service but does not guarantee that the Hosting Service(s) will be fault free. Any fault found with the Hosting Service(s) must be reported as soon as possible to the Supplier by either by telephone or email. The Client accepts that the Hosting Service(s) may be subject to downtime caused by scheduled or emergency maintenance or repair.
The Client is responsible for keeping secure the login name and password to their area on the Server and the integrity of their data. The Client shall provide their own backup solution in case their data be lost or become corrupt. The Supplier takes regular backups of servers; however, these backups are only for internal use and must not be relied upon as an alternative to the Client’s own solution.
The Client agrees not to use the Hosting Service(s) to;
- Upload any virus, trojan or malware which could infect the server(s) or any other machines or allow anyone to store or download infected files;
- Publish or disseminate defamatory material or any material which could be in breach of the civil or criminal laws of England and Wales;
iii. Gain access to any information or resources of a third party without permission;
- Send unsolicited or spam e-mail;
- Reduce the performance of server(s) to the detriment of other users;
- Upload any material which, in the sole discretion of the Supplier, may be contrary to public decency and morality including (but not limited to) hate content, pornography or overtly tasteless material. The Client accepts that the Supplier may inspect the server(s) at any time and, if any such material has been uploaded, is being linked to or has been transmitted, may immediately terminate the Hosting Service(s).
The Supplier reserves the right to add, improve, modify or deactivate individual features, applications, scripts and programs as necessary in the interests of technical progress, security or availability of technical support to ensure the stable operation and integrity of the Hosting Service(s). The Client agrees to cooperate and be responsible for managing any related adjustments to the Hosting Service(s) if requested to do so.
The Supplier shall take reasonable steps to ensure that any deactivation of individual features, applications, scripts or programs will not result in changes to a core function. If such changes result in changes to a core function and the Supplier is unable to provide a viable alternative, then the Client shall be entitled to a pro-rated refund on cancellation.
The Supplier is not liable for any loss, claim or damage caused by;
- Failure of backup;
- Failure by the Client to make and store regular offsite backups outside of the Hosting Service(s);
iii. Failure of supply of the Hosting Service(s) within a specific timescale;
- Scheduled or emergency downtime;
- Corruption and/or loss of data or code;
- Unauthorised access to the Hosting Service(s).
Third Party Products and Services
The Supplier makes no warranty of any kind, whether express or implied, regarding any third-party products, third party content or any software, plug-ins, equipment, or hardware obtained from third parties that are used with or on the Client’s website.
The Supplier is not responsible for third-party plugins or software that may become unusable or affect performance of the Service(s) because of:
- updates performed during maintenance or development;
- issues caused by the action or inaction of a licensor;
iii. withdrawal of a product or service by a licensor;
- change in third party license terms;
- refusal by a licensor to extend licence terms;
- failure by the Client to adhere to or, maintain awareness of third-party licence terms.
The Supplier shall indemnify the Client against any claim by any other party or entity that the provision of the Service(s) to the Client in accordance with the Agreement infringes any Intellectual Property Rights of that other party or entity.
The Client shall indemnify the Supplier and its subcontractors against any claim by any other party or entity arising from;
- the use of any text, graphics, photos, designs, code, data, logos, trademarks and artwork supplied or used by the Client in connection with the Agreement; or
- the Client’s failure to comply correctly with any laws, regulations, taxes or tariffs relating to the Client’s activities;
iii. The Client’s defamation of another party or entity;
- The Client’s publishing or dissemination of material in breach of civil or criminal law of England and Wales.
Limitation of Liability
Nothing in the Agreement limits or excludes either party’s liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
iii. any other liability which cannot be limited or excluded by applicable law.
Subject to this Limitation of Liability clause and the clause above (Indemnity), neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
- loss of profits or anticipated profits;
- loss of sales or business;
iii. loss of opportunity;
- loss of agreements or contracts;
- loss of savings or anticipated savings;
- loss of or damage to goodwill;
vii. loss of data, images or content;
viii. loss of use or corruption of software, data or information;
- any indirect or consequential loss.
Subject to this Limitation of Liability clause and the clause above, headed Indemnity, the total liability of either party for any other loss of the other party in respect of any one event or series of connected events shall not exceed £1,000 or the value of the Agreement whichever shall be the greater.
The terms implied by Sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
Where the parties disclose confidential information relating to their business, or other activities in the course of the Agreement, they shall maintain the confidentiality of such information, and shall not disclose it to third parties or members of each other’s staff. If any permission is given for the disclosure of any confidential information disclosed hereunder to a third party or parties, the receiving party shall take reasonable measures to ensure that the third party or parties are bound by obligations to maintain the confidentiality of such information which are the same as, or equivalent to, those set out herein.
The obligations of the parties in this Clause shall not apply to data or information that;
- is known prior to disclosure by the other party;
- was or becomes part of the public domain through no fault of the receiving party;
iii. becomes available to the receiving party by an unconnected third party with the lawful right to make such disclosure;
- has been independently developed or conceived by one of the parties; or
- a party is required to disclose by law.
Data Processing and Protection
The Service(s) may include the processing or protection of data under the European Union General Data Protection Regulation (GDPR) and/or national and/or state law. The Supplier shall not be in breach of its obligations under the Agreement where it is acting in accordance with any data related law or co-operating with a data related investigation by a competent authority.
The Supplier reserves all intellectual property rights (if any) which may subsist in the provision of the Service(s). The Supplier licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Service(s).
The Supplier may describe its role in projects in promotional and marketing materials and take credit for authorship and, if not expressly objected to, include a link within and to the Client’s website.
Disputes and Arbitration
If the Client believes that the Service(s) are deficient, the Client shall formally notify the supplier in writing, inviting discussion at the earliest possible opportunity and giving clear indications as to how the Service(s) have not been satisfactory. After such discussions, The Supplier shall remedy any agreed faults within an agreed, reasonable timescale, not generally to exceed a period greater than the original contract. If the Client has formally notified the Supplier of any such deficiencies, he shall not be entitled to withhold payment of any invoices that the Supplier has already submitted for the Service(s), or part pay any such invoices as it sees fit. Neither party shall be entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount due, in whole or in part.
If the supplier is unable or unwilling to remedy the above faults, the Client may terminate the Agreement forthwith; if the Supplier feels that his Service(s) are not at fault or that the Client is unfair in its judgment of the quality of his Service(s), and the parties are unable to agree the matter amicably between them, the matter may be resolved by reference to an independent adjudicator who is acceptable to both parties, and whose decision both parties agree shall be final; such an adjudicator may also determine what amounts the Supplier may be paid for his Service(s) to date if appropriate. If, after discussion concerning any difference, dispute or question arising from this Agreement, the parties are unable to reach agreement, the matter shall be settled by reference to arbitration.
If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
Respect of Reputation
The parties agree to use reasonable efforts not to directly or indirectly criticise each other, any of their employees, associates or partners publicly in any way which negatively affects the reputation of the other including in posts or reviews on public forums, blogs or social networks at any time during or subsequent to the term of the Agreement.
The Client shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of 12 months after the last date of supply of the Service(s) or termination of the Agreement (whichever is the latest), solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Supplier in the provision of the Service(s).
Circumstances Beyond the Control of Either Party
Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question. If the delay continues for a period of 14 days, either party may terminate or cancel the Service(s) to be carried out under the Agreement.
Either party may terminate the Agreement by giving the other party 30 days’ prior written notice. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
- does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
- commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied;
iii. persistently breaches any term of the Agreement;
- is dissolved, ceases to conduct substantially all its business or becomes unable to pay its debts as they fall due;
- is a company over any of whose assets or property a receiver is appointed;
- makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
vii. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
viii. undergoes a change of control (within the meaning of Section 1124 of the Corporation Tax Act 2010); or (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
All sums payable to the Supplier under the Agreement shall become due immediately on its termination, despite any other provision.
The Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
The headings and sub-headings do not form part of the Agreement and are for convenience only.
Pronouns in masculine, feminine and neuter genders shall be construed to include any other gender.
References to the singular includes the plural and vice versa.
Relationship of the Parties
Nothing in the Agreement will establish any employment relationship, agency relationship, partnership or joint venture between the parties, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
Contracts (Rights of Third Parties) Act 1999
The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first-class post to, or left by hand delivery at the other party’s registered address or place of business, or sent by email to the other party’s main business email address as notified to the sending party. Notices sent from within the United Kingdom shall be deemed to have been received sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second working day and, where posted from or to addresses outside the United Kingdom, on the tenth working day following the date of posting; delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and sent by email will be deemed to have been received on the next working day after sending.
Governing Law and Jurisdiction
The Agreement will be governed by and interpreted according to English law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the English courts.