November 14, 2017

Terms and conditions | Be Seen Be Found Ltd

Be Seen Be Found Ltd – Terms and Conditions for the supply of services

All business without exception, is handled subject to our standard terms and conditions as outlined here. Please note that Be Seen Be Found requires payment in full in advance of services being undertaken each calendar month [see section 6 for further details]. 

1.       Interpretation

1.1     Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Charge: the charge payable by You monthly for the supply of the Services in accordance with clause 6.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 13.7.

Confirmation Letter/Email: the letter/email accompanying these Conditions, by which Be Seen Be Found confirms its acceptance of your Order, and which sets out the nature and extent of the Services to be supplied.

Contract: the contract between Be Seen Be Found and You for the supply of the Services in accordance with these Conditions.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered which subsist or will subsist now or in the future in any part of the world.

Be Seen Be Found: Be Seen Be Found Limited [company no. 10875014] whose registered office and address for service is Rosebank, Hill Top Road, Newmillerdam, Wakefield WF2 6PY.

Order: Your request for the supply of the Services given in writing by You or given verbally by You during the course of Your telephone conversation with a Be Seen Be Found representative prior to the date of delivery of the Confirmation Letter.

Services: the services of digital advertising supplied by Be Seen Be Found to You as set out in the Confirmation Letter

You or Your: the person, firm, company or other business entity who agrees to purchase the Services from Be Seen Be Found in accordance with these terms and conditions.

2.       Basis of contract

2.1     The Order constitutes an offer by You to receive the Services in accordance with clause 1.1 for the Term (as defined in clause 3.1), in accordance with these Conditions.

2.2     The Order shall only be deemed accepted when Be Seen Be Found issues a Confirmation Letter to you accepting the Order, on the date of which the Contract shall come into existence.

2.3     The Contract constitutes the entire agreement between the parties. You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Be Seen Be Found which is not set out in the Contract.

2.4     These Conditions apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3.       Duration of Contract

3.1     The first 30 days following the date on which the Contract is formed (Commencement Date) shall operate as the initial Term (Term). It shall be followed thereafter by successive subscription periods of one month, unless and until termination by either party in accordance with these Conditions (but nevertheless subject to earlier termination in accordance with Be Seen Be Found’s standard terms and conditions in effect at the time of renewal). Each subsequent successive monthly subscription period shall be deemed to be included in the Term.

3.2     Either party shall have the right to terminate the Contract for convenience at any time on 30 days prior written notice to the other. To be effective, written notice which is provided by you requires formal acknowledgment of receipt by Be Seen Be Found.

4.       Supply of Services

4.1     Be Seen Be Found will supply the Services to You in accordance with the description in the Confirmation Letter in all material respects.

4.2     Be Seen Be Found will use all reasonable endeavours to meet any performance dates that it may from time to time specify in relation to the Services, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3     Be Seen Be Found warrants to You that the Services will be provided using reasonable care and skill.

4.4     Be Seen Be Found retains the right to withdraw any aspect of the Services at any time. Be Seen Be Found shall under no circumstances whatever be liable to You, or to any third party, for any Services provided which are frozen or taken down by the relevant host service or site provider.

4.5     You hereby licence Be Seen Be Found to use any trade mark or other intellectual property rights proprietary to You in relation to the provision of the Services and any information or material relating to such intellectual property rights for the purposes of performing the Services.

4.6     You are solely responsible for validating the integrity of the information and data which you receive or transmit over the Internet.

5.       Your obligations

5.1     You:

(a)      will ensure that the terms of the Order and any information or materials You provide in respect of Your business to Be Seen Be Found are complete and accurate;

(b)      appoint Be Seen Be Found to act as your ‘authorised representative’ to act on your behalf in dealings with any relevant advertising entity during the Term and any subsequent monthly period of renewal.

(c)       agree to co-operate with Be Seen Be Found in all matters relating to the Services.

(d)      agree to provide Be Seen Be Found with such information and materials as Be Seen Be Found may reasonably require in order to supply the Services;

(e)      agree to obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

5.2     If Be Seen Be Found’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Customer Default):

(a)      Be Seen Be Found shall have the right to suspend performance of the Services until You remedy the Customer Default;

(b)      Be Seen Be Found shall not be liable for any costs or losses incurred by You arising directly or indirectly from Be Seen Be Found’s failure or delay to perform any of its obligations; and

(c)       You shall reimburse Be Seen Be Found on written demand for any costs or losses sustained or incurred by Be Seen Be Found arising directly or indirectly from the Customer Default.

6.       Charge and payment

6.1     The monthly Charge for the Services during the Term and for each successive monthly subscription period shall be the amount specified in the Confirmation Letter (subject to any price increase of which you may be notified of by Be Seen Be Found from time to time). Be Seen Be Found’s performance of the Services is subject to prior receipt in full and cleared-funds payment of the Charge payable on a monthly basis for the Term. This applies to each successive monthly subscription period.

6.2     Be Seen Be Found will invoice You for the Charge and any subsequent monthly Charge which is due on the date that the Term continues in accordance with clause 3.1.

6.3     You will pay any invoice delivered to You in accordance with this clause 6 within 7 days of delivery.  Time for payment shall be of the essence of the Contract.

6.4     All amounts payable by You under the Contract are inclusive of amounts chargeable in respect of value added tax at the current rate.

6.5     If You fail to make any payment due to Be Seen Be Found under the Contract by the due date for payment, Be Seen Be Found shall have the right to charge interest on the overdue amount at the rate provided by the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) plus the applicable fixed sum provided by section 5A of that Act.

7.       Intellectual property rights

7.1     All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Be Seen Be Found.

7.2     You acknowledge that, in respect of any third party Intellectual Property Rights, You have obtained and maintained the relevant licence from the relevant licensor on such terms as will entitle Be Seen Be Found to provide the Services to You.

7.3     In the event that Be Seen Be Found has been instructed by You to use copyrighted material or registered trademarks Be Seen Be Found is not liable for any civil or criminal liability arising out of their use whether or not You have a licence to use these materials. In this event You are solely liable.

8.       Confidentiality

You will 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 You by Be Seen Be Found, its employees, agents or subcontractors, and any other confidential information concerning Be Seen Be Found’s business, its products and services which You may obtain.

9.       Limitation of liability:  Your Attention is Particularly Drawn To This Clause

9.1     Nothing in these Conditions shall limit or exclude Be Seen Be Found’s liability for:

(a)      death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)      fraud or fraudulent misrepresentation; or

(c)       breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

9.2     Subject to clause 9.1:

(a)      Be Seen Be Found shall under no circumstances whatever be liable to You, or to any third party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of or damage to goodwill or any indirect or consequential loss or third party claim arising under or in connection with the Contract; and

(b)      Be Seen Be Found is not liable for damages relating to any loss or damage, consequential or otherwise, caused to You, the public, other companies, individuals or any other body or organisation resulting from work carried out by Be Seen Be Found; and

(c)       Be Seen Be Found total liability to You in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount of the Charge and any successive monthly Charge which You have paid in respect of any successive monthly subscription period.

9.3     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 the Contract.

10.     Termination

10.1    Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)      the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)      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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c)       the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

10.2    Without limiting its other rights or remedies, Be Seen Be Found may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under this Contract on the due date for payment.

10.3    Without limiting its other rights, Be Seen Be Found may suspend the Services under the Contract if You become subject to any of the events listed in clause 10.1(b)) to clause 10.1(c), or Be Seen Be Found reasonably believes that You are about to become subject to any of them, or if You fail to pay any amount due under this Contract on the due date for payment.

11.     Consequences of termination

On termination of the Contract for any reason:

(a)      If You elect to terminate your Contract at the end of the current Term, You may request in writing Be Seen Be Found to transfer full access and control of your relevant social media accounts and such other accounts to you. Subject to any such request being approved by Be Seen Be Found then Be Seen Be Found will, as soon as reasonably practicable following receipt of your written request and approval of the same, take all reasonable steps to effect the transfer.  You agree to reasonably co-operate with Be Seen Be Found in connection with any such transfer;

(b)      the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;

(c)       You will not be entitled to a refund of any part of the Charge, even if termination occurs before the end of the Term; and

(d)      clauses which expressly or by implication survive termination shall continue in full force and effect, including in particular clauses 8 and 9.

12.     Force majeure

12.1    For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Be Seen Be Found.

12.2    Be Seen Be Found shall not be liable to You as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

12.3    If the Force Majeure Event prevents Be Seen Be Found from providing any of the Services for more than 10 weeks, Be Seen Be Found shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to You.

13.     General

13.1    Indemnity. You agree to indemnify and hold Be Seen Be Found harmless in any legal action which arises as a result of the provision of the Services and your use of the Services, without limitation or exception including, but not limited to any action brought against Be Seen Be Found by a third party and any action which Be Seen Be Found is required to take against you in connection with these Conditions.

13.2    Assignment and other dealings. You will not, without the prior written consent Be Seen Be Found, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of Your rights or obligations under the Contract.

13.3    Jurisdiction and Governing Law. The Contract shall be governed by the laws of England and Wales and jurisdiction shall lie within the Court of England and Wales. You hereby submit to the jurisdiction of the Court of England and Wales.

13.4    Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising 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 its 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.

13.5    No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other.

13.6    Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

13.7    Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by a duly authorised signatory on behalf of Be Seen Be Found.