Terms & Conditions
These conditions will apply to any contract with RankFresh for the supply of services. Please read these conditions carefully and make sure that you understand them before proceeding with our proposal as set out in our scope of work. Please note that by confirming your agreement to our scope of work (including the sending of a purchase order), you agree to be bound by these conditions and the other documents expressly referred to in them.
You should print a copy of these conditions or save them to your computer for future reference.
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
Brief: the brief, assignment, job or project as described in the Scope of Work.
Client: the person, firm or company who purchases Services from RankFresh.
Client’s Project Manager: the Client’s manager for the Brief appointed in accordance with condition 6.1(a).
Contract: the Client’s confirmation that it wishes to proceed with the Scope of Work (whether by confirmatory email, purchase order or other assent) and RankFresh’s acceptance of it under condition 3.
Deliverables: all products and materials developed by RankFresh in relation to the Brief in any media, including, without limitation, artwork, branding, page layout, Websites, Mobile Apps, Software (or other computer programs), data, diagrams, reports and specifications (including drafts).
Inappropriate Content: Materials that infringe any applicable laws, regulations or third party rights, including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation 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.
Materials: the content provided to RankFresh by the Client from time to time for Deliverables or incorporation into Deliverables, whether artwork, layouts, designs or electronics files.
Mobile Apps: the mobile application comprising Software developed for operation on the operating system as set out in the Scope of Work (whether Android, Blackberry OS, iOS, Windows Phone or another).
Milestone: a date by which a part of the Brief is estimated to be completed, as set out in the Project Plan.
Pre-existing Materials: materials which existed before the commencement of the Brief.
Project Plan: the estimated timetable (including without limitation Milestones) set out or referred to in the Scope of Work.
Scope of Work: the scope of the work describing the Brief and responsibilities for the provision of the Services by RankFresh in accordance with the Contract.
Server: a computer server administered by RankFresh or a third party contracted to RankFresh (if any), as more particularly described in the Scope of Work.
Services: the services to be provided by RankFresh under the Contract.
Software: the software for the Website, Mobile App or other Deliverable in relation to the Brief.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
RankFresh: RankFresh Limited, incorporated and registered in England with company number 01892 711175, whose registered office is at 29-31 Monson Rd, Tunbridge Wells TN1 1LS, United Kingdom.
RankFresh’s Project Manager: RankFresh’s manager for the Brief, appointed in accordance with condition 5.3.
Visitor: a visitor to the Website or a person interacting with a Mobile App.
Website: the website, whether hosted by RankFresh or not (as detailed in the Scope of Work), comprising Software as set out in the Scope of Work.
1.2 Clause headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular and a reference to one gender shall include a reference to the other genders.
1.5 References to writing and written includes faxes and emails.
- Application of conditions
2.1 These conditions shall:
- apply to and be incorporated in the Contract; and
- prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of the Scope of Work (in emails or otherwise) or implied by law, trade custom, practice, or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on RankFresh unless in writing and signed by a duly authorised representative of RankFresh.
- Effect of Client’s confirmation that it wishes to proceed with the Scope of Work
The Client’s confirmation that it wishes to proceed with the Scope of Work (whether by confirmatory email, purchase order or other assent) following receipt of the Scope of Work constitutes an offer by the Client to purchase the Services specified in the Scope of Work on these conditions. Accordingly, the acknowledgement by RankFresh (which may be by email, the signing and return of the acknowledgement copy of a purchase order form or other acknowledgement) or RankFresh’s commencement or execution of work following the Client’s confirmation shall establish a contract for the supply and purchase of those Services on these conditions. The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, in its confirmation shall not govern the Contract.
- Scope of Works
Scopes of Work provided to the Client prior to the entry into of the Contract shall remain valid for a period of 30 days from the date of the Scope of Work unless otherwise stated in the Scope of Work. Past this period, the contents (particularly the charges) may change.
- RankFresh’s obligations
5.1 RankFresh shall use reasonable endeavours to manage and complete the Brief, and to deliver the Deliverables to the Client, in accordance in all material respects with the Project Plan.
5.2 RankFresh shall use reasonable endeavours to meet the Milestones specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5.3 RankFresh shall appoint RankFresh’s Project Manager who shall have authority to contractually bind RankFresh on all matters relating to the Brief. RankFresh shall use reasonable endeavours to ensure that the same person acts as RankFresh’s Project Manager throughout the Brief, but may replace him from time to time where reasonably necessary in the interests of RankFresh’s business.
5.4 If in the reasonable opinion of RankFresh, RankFresh considers that any Materials provided to RankFresh by or on behalf of the Client is Inappropriate Content then RankFresh shall not be required to supply any Services in relation to such Materials or any Deliverables based on them.
- Client’s obligations
6.1 The Client shall:
- co-operate with RankFresh in all matters relating to the Brief and appoint the Client’s Project Manager, who shall have the authority to contractually bind the Client on matters relating to the Brief;
- provide all Materials prior to RankFresh’s commencement of the Services;
- be responsible for the accuracy and completeness of the Materials;
- ensure that the Materials do not constitute Inappropriate Content and the Client shall indemnify RankFresh against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content; and
- where required, provide in a timely manner such access to the Client’s premises and data, and such office accommodation and other facilities, as is requested by RankFresh and be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
6.2 If the Client provides Materials to RankFresh by electronic means, RankFresh shall not be responsible for checking:
- where the Materials consist of copy, the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or formatted in accordance with any specification, layout or design or in accordance with the Scope of Work;
- where the Materials consist of artwork or layouts, whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or
- where Materials are supplied as a file ready for reproduction (and then for the production of Deliverables), any of the contents, layout or commands, markings, formatting or other matters.
6.3 The Client shall keep one or more copies of physical Materials as backup. RankFresh shall destroy all physical Materials at the termination of the Contract.
6.4 The Client acknowledges that RankFresh’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any information and data the Client provides to RankFresh and, accordingly, the Client shall provide RankFresh with access to, and use of, all information, data and documentation reasonably required by RankFresh for the performance by RankFresh of its obligations under the Contract.
6.5 If RankFresh’s performance of its obligations under the Contract is prevented or delayed at the request of the Client or by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Project Plan shall be amended to take account of such delay. If RankFresh can demonstrate that the delay has resulted in an increase in cost to RankFresh of carrying out its obligations under the Contract, RankFresh may, at its sole discretion, notify the Client that it wishes to increase the charges by an amount not exceeding any such demonstrable cost and RankFresh may invoice the Client for any additional monies that become payable in this way within 30 days of demonstrating the increase in costs.
6.6 The Client shall not, without the prior written consent of RankFresh, at any time from the date of the Contract to the expiry of 9 months after the completion of the Services, solicit or entice away from RankFresh or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of RankFresh.
6.7 Any consent given by RankFresh in accordance with condition 6.6 shall be subject to the Client paying to RankFresh a sum equivalent to 20% of the then current annual remuneration of RankFresh’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to such employee or sub-contractor.
- Change control
7.1 The Client’s Project Manager and RankFresh’s Project Manager shall meet when reasonably requested by a party to discuss matters relating to the Brief. If either party wishes to change the scope of the Services as set out in the Scope of Work, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, RankFresh shall, within a reasonable time, provide a written estimate to the Client of:
- the likely time required to implement the change;
- any variations to RankFresh’s charges arising from the change;
- the likely effect of the change on the Project Plan; and
- any other impact of the change on the terms of the Contract.
7.3 If RankFresh requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
7.4 If the Client wishes RankFresh to proceed with the change, RankFresh has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
- Charges and payment
8.1 Condition 8.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 8.3 and condition 8.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 8 shall apply in either case.
8.2 Where the Services, or part of the Services, are provided on a time-and-materials basis:
- the charges payable for the Services shall be calculated in accordance with RankFresh’s standard daily fee rates as amended from time to time;
- RankFresh’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
- RankFresh shall be entitled to charge at an overtime rate of % of the normal rate for part days and for time worked by members of the RankFresh team outside the hours referred to in condition 8.2(b) on a pro-rata basis;
- RankFresh shall ensure that all members of its team complete time sheets recording time spent on the Services, and RankFresh shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 8.2(e); and
- RankFresh shall invoice the Client monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, or at such other intervals specified in the Scope of Work or these conditions, calculated as provided in this condition 8.
8.3 Where the Services, or part of the Services, are provided for a fixed price, this shall be set out in the Scope of Work (which may be amended by the approval of both parties in writing). Those parts that are for a fixed price shall be paid to RankFresh in instalments as set out in the Project Plan on its achieving the corresponding Milestone or as otherwise specified in the Scope of Work or these conditions. All amounts due under the Contract shall be paid by the Client to RankFresh in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). On achieving a Milestone or when otherwise due as specified in the Scope of Work, RankFresh shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 8.4.
8.4 Any fixed price contained in the Scope of Work excludes:
- the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the RankFresh team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by RankFresh for the supply of the Services. Such expenses, materials and third party services shall, unless otherwise stated in the Scope of Work, be invoiced by RankFresh at cost; and
- VAT, which RankFresh shall add to its invoices at the appropriate rate.
8.5 The Client shall pay each invoice submitted to it by RankFresh in full, and in cleared funds, within 14 days of receipt. Where requested by RankFresh, the Client shall set up a direct debit for recurring monthly charges.
8.6 Without prejudice to any other right or remedy that RankFresh may have (including its ability to charge under the Late Payment of Commercial Debts (Interest) Act 1998), if the Client fails to pay RankFresh on the due date RankFresh may:
- charge interest on such sum from the due date for payment at the annual rate of 4% above the base 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
- suspend all Services (including the hosting and availability of the Website or Mobile App) until payment has been made in full.
8.7 Time for payment shall be of the essence of the Contract.
8.8 All payments payable to RankFresh under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 RankFresh may, without prejudice to any other rights it may have, set off any liability of the Client to RankFresh against any liability of RankFresh to the Client.
- Specific Software design and development conditions
9.1 In respect of the development and acceptance of a Website, Mobile App or Software of any description:
- RankFresh shall design the Website, Mobile App or Software in accordance with the Milestones set out in the Project Plan. RankFresh shall provide proofs to the Client and the Client shall be responsible for checking whether the proofs are in accordance with any business requirements or technical specification set out in the Scope of Work (as may also be developed during the Milestone stages set out in the Project Plan and agreed in writing). The Client shall approve the proofs in writing and after approval, any remaining errors, whether in:
(i)the content or Materials provided by the Client;
(ii)the design or layout created, made or carried out by RankFresh, or
(iii)the application of the agreed specification for the provision of the Services,
shall no longer be the responsibility RankFresh. RankFresh shall be entitled to use the approved proof as the basis for carrying out the remainder of the Services and proceeding to the next Milestone. Where alterations, amendments or corrections are required by the Client after the approval of proofs by the Client then RankFresh shall be entitled to charge for these on a time-and-materials basis and, at its sole discretion, either invoice for these charges or add them to the next instalment due in accordance with the Project Plan;
- once RankFresh has completed the design and development of the Website, Mobile App or Software in accordance with the relevant Milestones, the Client shall be able to access the Website, Mobile App or Software in a test environment set up by RankFresh;
- within five days the Client shall review the Website, Mobile App or Software to confirm that it functions in material conformance with the specification set out in the Scope of Work as developed during the applicable Milestone stages set out in the Project Plan;
- if the Website, Mobile App or Software fails in any material respect to conform with the specifications the Client shall give RankFresh a detailed description of any such non-conformance (Errors), in writing, within the five-day review period;
- with respect to any Errors, RankFresh shall use reasonable endeavours to correct such Errors within a reasonable time and, on completion, submit the corrected Website, Mobile App or Software to the Client for re-testing;
- the foregoing provisions of this clause shall then apply again, up to three additional times. If RankFresh is unable to correct such Errors after three attempts, either party may terminate the Contract without further liability to the other party and RankFresh shall be entitled to keep any deposit or other non-refundable fixed price expressly stated in the Scope of Work (in consideration of its Services to the date of termination);
- if the Client does not provide any written comments in the five-day period described above, or if the Website, Mobile App or Software is found to conform with the specification, the Website, Mobile App or Software (as applicable) shall be deemed accepted.
9.2 RankFresh warrants that the Website, Mobile App or Software (as applicable) will perform substantially in accordance with the specification set out in the Scope of Work for a period of 30 days from its acceptance or deemed acceptance. If the Website, Mobile App or Software does not so perform, RankFresh shall, for no additional charge, carry out any work necessary in order to ensure that the Website, Mobile App or Software substantially complies with the business requirements or specification. This warranty shall not apply to the extent that any failure of the Website, Mobile App or Software to perform substantially in accordance with the business requirements or specification is caused by any Materials.
9.3 If the Client purchases on-going management Services in relation to a Website:
- RankFresh shall host the Website from the Server for the term and the charges stated in the Scope of Work (all hosting charges are non-refundable and are payable annually or as otherwise specified in the Scope of Work);
- RankFresh shall update the Website with Materials provided from time to time by the Client or the Client shall be granted access to RankFresh’s CMS in order to update the Website (if this option has been purchased under the Contract); and
- [in respect of the fixed monthly price specified in the Scope of Work for such on-going management Services, this fixed price shall only include [four] hours’ worth of RankFresh team time in respect of (inclusively):
(i)updating the Website with Materials; and
(ii)providing general customer support in respect of the maintenance of the Website after the warranty period referred to in clause 9.2 has expired,
and any time over and above this limit in any given month shall be provided on a time-and-materials basis. RankFresh may, at its sole discretion, either invoice for these additional charges or add them to the next fixed price due under the Contract.]
9.4 Where RankFresh will not host a Website, RankFresh shall provide such assistance as is reasonably requested by the Client to the person hosting the Website, subject to the payment of RankFresh’s charges on a time-and-materials basis.
9.5 The Client acknowledges that RankFresh has no control over any content placed on a Website or through a Mobile App by Visitors and does not purport to monitor the content of the Website. RankFresh reserves the right to remove content from a Website hosted by RankFresh where it reasonably suspects such content is Inappropriate Content. RankFresh shall notify the Client promptly if it becomes aware of any allegation that any content on the Website hosted by RankFresh may be Inappropriate Content.
- does not warrant that the operation of a Website or Mobile App will be uninterrupted or error-free;
- does not warrant that the operating system for the Mobile App (whether Android, Blackberry OS, iOS, Windows Phone or another) will approve or make the Mobile App available in any particular timescale; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.7 RankFresh warrants that any Website will operate with the then current versions of the following browsers existing at acceptance as well as the two preceding versions thereof:
- Internet Explorer;
but cannot warrant that the Website will work for later versions.
9.8 If the Scope of Work provides that RankFresh will obtain a domain name for the Client:
- RankFresh shall act as an agent for the Client in dealing with the relevant domain name registration authority. The contract for the domain name shall be between the Client and the relevant domain name registration authority and the Client agrees that they shall be solely responsible for renewals, legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority (and relevant costs and expenses thereof);
- RankFresh gives no warranty that the domain name requested will not infringe the rights of any third party and all such enquiries shall be the responsibility of the Client, and the domain name shall form the Client’s Intellectual Property Rights for the purposes of the Contract;
- RankFresh shall not be responsible for email set-up and any assistance provided to the Client to transfer it to the Client will be charged on a time-and-materials basis; and
- if RankFresh licences to the Client an IP address as part of the Services, such IP address shall (to the extent permitted by law) revert to RankFresh after termination of the Contract for any reason whatsoever, whereupon the Client shall cease using the address. At any time after such termination, RankFresh may re-assign the address to another user.
9.9 RankFresh may, at its sole discretion, elect to suspend a Website it hosts (in whole or in part) if:
- RankFresh is entitled to terminate the Contract for any reason;
- any such suspension is for the purposes of carrying out schedule or emergency maintenance or to substitute, change, reconfigure, relocate or rearrange service equipment; or
- such suspension is in accordance with an order, instruction or request of Government, an emergency service organisation or other competent administrative authority.
Exercise by RankFresh of its right of suspension under this clause shall not function as a waiver of any right or termination which RankFresh may have under the Contract.
9.10 RankFresh may include the statement “Designed and developed by RankFresh” on the home page of the Website and in a suitable place in a Mobile App in a form determined by RankFresh.
9.11 The provisions of this clause 9 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 9 and another condition elsewhere, the provision in this clause 9 shall prevail.
- Specific brand building terms
10.1 RankFresh shall prepare the Deliverables and complete and deliver them for review by the Client on or before the dates specified in the Project Plan for doing so, specifically drawing the Client’s attention to any deviations from any requirements set out in the Scope of Work.
10.2 If, having assessed the Deliverables at any Milestone, the Client reasonably considers that aspects of the Deliverables in question need further work or consideration, it shall promptly give written notice to RankFresh specifying what amendments or modifications the Client wishes to have made. On receipt of such a notice RankFresh shall originate or develop the amendments or modifications or carry out any corrective or remedial work necessary to satisfy the Client’s reasonable requirements, and submit a copy of the Deliverables as amended or developed or the corrective or remedial work to the Client. Within 14 days of this submission the Client shall reassess the Deliverables or corrective or remedial work on the same terms as set out above in this clause.
10.3 The process of assessment followed by submission of amendments or modifications to the Deliverables or corrective or remedial work carried out by RankFresh in accordance with clause 11.2 shall be repeated if required by the Client but RankFresh shall be entitled to charge on a time-and-materials basis for such further assessments and submissions.
10.4 If the Client does not wish the process of assessment followed by submission to continue beyond clause 11.2, the Contract shall automatically terminate without further liability to either party and RankFresh shall be entitled to keep any deposit or other non-refundable fixed price expressly stated in the Scope of Work (in consideration of its Services to the date of termination).
10.5 Any material derivation from the requirements set out in the Scope of Work as determined by RankFresh in its reasonable opinion, or variation required by the Client, shall constitute a change in the scope of the Services in accordance with the provisions of condition 7. For the avoidance of doubt, the Client’s requirement that RankFresh carry out amendments or modifications or corrective or remedial work for one cycle pursuant to clause 10.2 shall not constitute a material derivation or variation within the meaning of this clause.
10.6 The Client acknowledges that RankFresh will not carry out any due diligence or investigatory work whatsoever on any branding and product identity Deliverables as part of the Services, whether by way of trade mark, domain name, common law or other searches, and RankFresh shall have no liability whatsoever, whether in tort, contract or otherwise, for any actual or potential conflict between the Deliverables and any third party rights and any resulting infringement thereof. The Client agrees that the commercial risk of such conflict and infringement should be borne by the Client because:
- the costs of RankFresh taking out insurance for such liability would not be proportionate to the charges under the Contract, or indeed be commercially viable for RankFresh; and
- any such conflict would constitute legal advice and the Client should accordingly instruct, and RankFresh strongly recommends that the Client appoints, solicitors or trade mark agents, who will be suitably insured, to carry out such searches to help the Client assess the potential for conflict between the Deliverables and any third party rights.
For the avoidance of doubt, in addition to a total exclusion of liability, the Client shall not be entitled to any refund or other reimbursement in the event that the Deliverables conflict with or infringe any third party rights or if the Deliverables require amendment following any advice from a solicitor or trade mark agent. If any amendments are required, this shall constitute a change in the scope of the Services in accordance with the provisions of condition 7.
10.7 Subject to clause 10.8, RankFresh agrees to assign all Intellectual Property Rights in the branding and product identity Deliverables to the Client to the extent legally possible and at the request and cost of the Client shall execute any documentation or do any act reasonably necessary to transfer to and vest in the Client beneficial and legal title to such rights.
10.8 For the avoidance of doubt, clause 10.7 shall not apply to the Intellectual Property Rights in the underlying methodologies and methods used and applied by RankFresh to the performance of the Services which shall remain owned by RankFresh in all respects.
10.9 The provisions of this clause 10 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 10 and another condition elsewhere, the provision in this clause 11 shall prevail.
- Specific consulting (including social media) conditions
11.1 [Unless otherwise expressly provided for in the Scope of Work, all fixed price consulting Services shall be limited to [four] hours of RankFresh team time. Any time spent over and above this limit shall be charged on a time-and-materials basis.]
11.2 In respect of social media and search engine optimisation consulting Services, no results can be guaranteed in respect of listings, likes, follows or other similar features and the Client shall not claim for innocent or negligent misrepresentation or negligent misstatement based on any statements in this regard.
11.3 The provisions of this clause 11 in no way limit or exclude the applicability of the other conditions in this document, save that where there is a conflict between a provision in this clause 11 and another condition elsewhere, the provision in this clause 11 shall prevail.
- Intellectual Property Rights
12.1 Unless otherwise expressly provided for in these conditions, all Intellectual Property Rights and all other rights in the Deliverables (including in the content of any Website, Mobile App and any Software), but excluding the Materials, arising in connection with the Contract shall be owned by and be the property of RankFresh. RankFresh hereby licenses all such rights to the Client free of charge and on a non-exclusive, worldwide, personal basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables (including the operation of any Website or Mobile App) and the Services as is envisaged by the parties. If RankFresh terminates the Contract under condition 16.2, this licence will automatically terminate.
12.2 Save as expressly agreed in writing by RankFresh, the Client may not sub-licence, sell, make available, disseminate or distribute in any way any Deliverable to any third party. The Client may not modify, adapt, merge, translate, disassemble, decompile, recompile or reverse engineer any Software or other Deliverable or create derivative works based on the whole of or any part of either of them.
12.3 The Client acknowledges that the Client’s use of rights in Pre-existing Materials is conditional on RankFresh obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle RankFresh to license such rights to the Client.
12.4 The Client shall indemnify RankFresh against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
- Confidentiality and RankFresh’s property
13.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by RankFresh or its agents, and any other confidential information concerning RankFresh’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Client’s obligations to RankFresh, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
13.2 All materials, equipment and tools, drawings, specifications and data supplied by RankFresh to the Client shall at all times be and remain the exclusive property of RankFresh, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to RankFresh, and shall not be disposed of or used other than in accordance with RankFresh’s written instructions or authorisation.
13.3 This condition 13 shall survive termination of the Contract, however arising.
RankFresh may announce that it has worked with the Client but any press release or details regarding the Contract shall be in a form agreed by the parties (such agreement not to be unreasonable withheld, conditioned or delayed by the Client).
- Limitation of liability
15.1 The following provisions set out the entire financial liability of RankFresh (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
- any breach of the Contract howsoever arising;
- any use made by the Client of the Services, the Deliverables or any part of them; and
- any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law (including, without limitation, those 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 the Contract.
15.3 Nothing in these conditions excludes the liability of RankFresh:
- for death or personal injury caused by RankFresh’s negligence;
- for fraud or fraudulent misrepresentation; or
- for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
15.4 Subject to condition 15.2 and condition 15.3:
- (a)RankFresh shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i)loss of profits; or
(ii)loss of business; or
(iii)depletion of goodwill or similar losses; or
(iv)loss of anticipated savings; or
(v)loss of goods; or
(vi)loss of contract; or
(vii)loss of use; or
(viii)damage to software; or
(ix)damage to or loss or corruption of data or information; or
(x)any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
- (b)RankFresh’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with the performance or contemplated performance of the Contract or any collateral contract, whether in contract or tort (including without limitation negligence or breach of statutory duty howsoever arising) misrepresentation (whether innocent or negligent), restitution or otherwise, shall in no circumstances exceed the total charges payable by the Client to RankFresh for the Services under the Contract in that calendar year.
16.1 The Contract shall commence in accordance with condition 3 and shall (subject to earlier termination pursuant to this clause 16) terminate in accordance with the Scope of Work.
16.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
- 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 14 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- 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;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 17.2(d) to condition 17.2(j) (inclusive).
16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.4 On termination of the Contract by RankFresh pursuant to clause 16.2, all licences granted by RankFresh under the Contract shall terminate immediately.
16.5 On expiry or termination of the Contract otherwise than on termination by RankFresh pursuant to clause 16.2, RankFresh shall promptly return all electronic Materials to the Client, and (where relevant) shall provide to the Client an electronic copy of the Website or Mobile App (as applicable, including all content on the Website or Mobile App). Where relevant, RankFresh shall provide such assistance as is reasonably requested by the Client in transferring the hosting of a Website to the Client or another service provider, subject to the payment of RankFresh’s charges on a time-and-materials basis.
- Force majeure
RankFresh shall not in any circumstances have any liability to the Client 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, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of RankFresh or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Rights and remedies
The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
20.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Data protection
21.1 RankFresh warrants that, to the extent it processes any Personal Data on behalf of the Client:
- it shall act only on instructions from the Client; and
- it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
21.2 In this clause 21, Personal Data has the meaning given in the Data Protection Act 1998.
- Entire agreement
22.1 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of RankFresh which is not set out in the Contract.
21.2 Accordingly, the Client shall not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
23.1 The Client shall not, without the prior written consent of RankFresh, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 RankFresh may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
- No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Third party rights
No one other than RankFresh and the Client, their successors and permitted assignees, shall have any right to enforce any of its terms.
26.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
- sent by fax to its main fax number; or
- sent by email.
26.2 Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service; or
- if sent by fax or email, within one hour of being transmitted save that if this is outside of normal working hours (9am to 5pm) it shall be deemed to be at 9am on the next working day after transmission.
26.2 This clause does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
- Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).