Terms and Conditions

Contents

  1. THE COMPANY
  2. THE CUSTOMER
  3. PAYMENT
  4. CHANGE PROCESS
  5. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
  6. INSPECTION AND ACCEPTANCE
  7. LIABILITY AND WARRANTY
  8. LEGISLATION
  9. THIRD PARTY MATERIALS
  10. RISK AND TITLE
  11. TERMINATION
  12. GENERAL

Definitions

‘Terms and Conditions’ – The collative terms and conditions as set up in the Order and/or Contract and/or Order amendments and /or proposal

‘Logo’s’ – The ‘Adrac’ logo or any other logo as the Company may from time to time provide electronically to ‘The Customer’.

‘The Company’ – Is ‘RG Adrac Ltd’, a company incorporated in England and Wales, Company Registration Number: 07638692. Registered Address is City View House, 5 Union Street, Greater Manchester, M12 4JD.

‘Adrac’ – Is by definition ‘RG Adrac Ltd’ and/or The Company.

‘The Customer’ – The organisation named in the ‘Terms and Conditions’

‘Website(s)’ – The Website located at www.adrac.co.uk and any other Website whose domain is owned or controlled or powered by the Company as determined by the Company.

‘Start Date’ – A start date for the Contract as may be specified in the ‘Terms and Conditions’

‘Initial Term’ – An initial term of the Contract, if any, as set out in the ‘Terms and Conditions’  – If not set out then the initial term is one full calendar year from the start of the contract

‘Working Day’ – Any day other than Saturday and Sunday and Bank Holidays, on which the banks in England are open for normal business.

‘Works’ – As described in the Order and/or Contract and/or Order amendments

‘Order’ – The Order (as amended from time to time or as otherwise agreed from time to time by the parties in writing) indicating the Services and/or Description of the goods to be provided.

‘Contract’ or ‘Agreement’ – A Contract between the Company and ‘The Customer’ governed by the ‘Terms and Conditions’ .

‘Change’ – Any request for change or alteration from the most recent agreed ‘Terms and Conditions’ (as agreed from time to time by the parties in writing).

‘Budgets’ – The amounts due to the Company by ‘The Customer’ under the Contract and set out or calculated in accordance with the ‘Terms and Conditions’ (or as varied from time to time).

‘Content’ – All content (including any intellectual property rights of whatsoever nature) supplied or made available by, on behalf or upon instruction of ‘The Customer’ to the company or on the Website(s).

‘Force Majeure Event’ – An event beyond the reasonable control of the party affected by it.

‘Guarantee’ – A ‘Guarantee’ means that ‘Adrac’ will contractually deliver services at a fixed CPA (Cost Per Acquisition), ROAS (Return on Advertising Spend) or other such measure as agreed in writing through an ‘Order’ or ‘Order Amendment’.

‘Break Clause’ – The ‘Break Clause’, where applicable and specified in the Order and/or Contract and/or Order amendment, provides an opportunity for ‘The Customer’ or ‘Adrac’ to terminate a contract without penalty

‘Services’ – The services to be provided by the Company as set out in the ‘Terms and Conditions’ which may include (but not limited to) any of the following (where applicable):

  • The provision of advertising services to ‘The Customer’.

These ‘Terms and Conditions’ (the Order and/or Contract and/or Order amendments and /or proposal) to which they are attached will form a binding contract between the customer named on the ‘Terms and Conditions’ (‘The Customer’) and The Company (‘Adrac’) which shall constitute the entire agreement between ‘The Customer’ and ‘Adrac’;

These terms apply to the exclusion of all other terms or conditions of contract ‘The Customer’ may propose and shall not be varied unless agreed in writing, signed by both parties.

  1. THE COMPANY

    1. In consideration of the payment by Customer to ‘Adrac’ of the Budget as set out in the Order Form, ‘Adrac’ agrees to provide to ‘The Customer’ the goods and services described in the Order Form (“Works”) in accordance with the Proposal (where one exists), with reasonable and due care in accordance with and subject to these terms.
    2. Adrac undertakes that the Works shall be faithful to the basic conceptualisation of the underlying works or Proposal (where one exists) and reflect the same standards of quality and integrity.
    3. This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent ‘Adrac’ acting for or providing works of the same or similar nature to any third party.
    4. It is agreed and understood that any activities undertaken by ‘The Customer’ (or by any third party on its behalf) which is in relation to or similar to the Works, including without limitation any modification of the Works or the Customer’s web site or the use of or inclusion of any third party product or service which might relate to the Works shall not interfere with the provision of the Works by ‘Adrac’ and affect the results, outcomes and positions in search engines. All such things should be discussed with ‘Adrac’ prior to implementation and ‘The Customer’ shall not implement the same without the prior written consent of ‘Adrac’. Remedy of such matters shall be dealt with by way of Change.
    5. Where such changes or modifications, referenced in 1.4 above, are instigated by “The Customer” (or by any third party) independent of “Adrac” which affect performance “Adrac” will perform a calculation, based on historic averages, to cover the period in which the changes or modification affected performance. Examples will include, but are not limited to the following:
      • Changes or modifications to tracking codes
      • Changes or modifications to landing pages
      • Changes or modifications to product feeds
      • Changes or modifications to the website
  2. THE CUSTOMER

    1. The Customer’ will co-operate with and act in good faith towards ‘Adrac’ and, on request, undertake such acts and provide such source materials (including those listed in the Order Form) (“Materials”) as ‘Adrac’ are to incorporate into the Works, or as ‘Adrac’ require to carry out its obligations hereunder.
    2. In the event that ‘The Customer’ does not undertake those acts or provide those Materials required under clause 2.1 above within a reasonable time (and at least within 30 days) of being requested to do so, including without limitation carrying out any changes, modifications or optimisations to Customer’s web site or other Materials as requested, recommended or required by ‘Adrac’, ‘Adrac’ shall be entitled to invoice for the remaining Works as if ‘The Customer’ had done so whether such are provided or not.
  3. PAYMENT

    1. Adrac may increase the Budget either as a single or monthly amount (whichever is applicable):
      1. in the event of delays or additional works caused or required by ‘The Customer’ including its failure to provide ‘Adrac’ with such information, Materials, instructions, media or approvals, are reasonably required for the supply of the Works, properly and / or on time;
      2. in the event of changes to the cost of labour, materials, services and other circumstances outside of Adrac’s reasonable control.
      3. in the event that ‘The Customer’ requires the supply of Works, goods and services in addition to those described in the Order Form or any variations to the Works.
    2. Campaigns will not be activated until such time as the recurring payment method selected is provided and verified.
    3. If “Customer” fails to make any payment due to “Adrac” in accordance with these terms then “Customer” shall pay interest on the overdue amount(s) at the rate of 4% per annum above the Bank of England’s base rate chargeable both before and after any proceedings on the amount unpaid accruing daily, until payment is made in full. “Customer” shall pay the interest together with the overdue amount.
      1. “Adrac” may also charge “Customer” interest at the rate prescribed by and compensation due in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
      2. “Customer” shall pay all and any costs and expenses incurred by “Adrac” in connection with and/or in relation to the recovery of debt, sums and or damages from “Customer” including but not limited to the costs of issuing a formal letter before action and any legal costs incurred in relation to actual or prospective legal proceedings by “Adrac” against “Customer”.
      3. “Customer” shall pay all amounts due under the Contract/Order/Proposal in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
    4. If “Customer” following three consecutive late payments OR more than three late payments in any given six-month period the “Late Payment Process” relating to “Customer” contract with “Adrac” will be invoked. The process is as described here:
      • Reminder One – One working day after contracted due date.
      • Reminder Two – Two working days after Reminder One.
      • Campaigns offline – One working day after Reminder Two.
      • Debt collection initiation – Two working days beyond Campaigns Offline.
      Taking campaigns offline can result in detriment to the campaigns performance.
      1. The “Late Payment Process” will continue for a period of not less than six calendar months at which time a review will be undertaken. If, after review, payment by “Customer” has been received as cleared funds on time the “Late Payment Process” will be ceased.
      2. Late payments are a serious default or even breach of contract conditions and could lead to “Adrac” considering it as repudiation of contract.
  4. CHANGE PROCESS

    1. If ‘The Customer’ requires any change or alteration to the Works (“Change”), ‘Adrac’ and ‘The Customer’ shall, prior to such change being effective or implemented, agree:
      1. the nature of the Change
      2. the procedures for implementation of such Change; and
      3. the variation to the Budget.
    2. Until any Change is formally agreed between ‘The Customer’ and ‘Adrac’, ‘Adrac’ will continue to perform and be paid for the Works as if the Change had not been proposed, unless otherwise requested by ‘The Customer’.
    3. All and any Changes to the Works shall be reflected and accompanied by appropriate amendments to the Order Form, Proposal and Budget, such changes must be signed off by both ‘The Customer’ and ‘Adrac’.
  5. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY

    1. All copyright, design right, registered designs, trade-marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world-wide whether registered or not of whatever nature in material devised, created or commissioned by ‘Adrac’, in supplying the Works and under this Agreement will vest in and belong to ‘Adrac’ unless otherwise agreed and specified in writing on the Order Form and/or Amended Order or otherwise and signed by both Parties.
    2. In consideration of and upon payment of the Budget in full, ‘The Customer’ shall have the Rights of Use set out in the Order Form and/or Amended Order which rights shall take effect on receipt by ‘Adrac’ of the Budget. Where no such rights are specified ‘The Customer’ is granted a non-exclusive licence to use the Works for the Purpose described in the Order Form and/or Amended Order, Proposal or other Works documentation. Rights of Use shall be extended only with the consent of ‘Adrac’ and payment of additional Budget.
    3. The Customer’ grants ‘Adrac’ a nonexclusive royalty free licence to use the Materials for all purposes relating to this Agreement and warrants that it has obtained and is fully entitled to grant ‘Adrac’ these rights and that the Materials are free of racist, defamatory, obscene and other legally restricted material.
    4. The Customer’ undertakes that it will keep secret and confidential the terms of this Agreement and any information supplied by ‘Adrac’ in connection with this Agreement or the business of ‘Adrac’ (including the Proposal) and the Works and shall not disclose or make available such information or part thereof to any third party (except to its own employees and advisers and then only on a need to know basis) without prior written consent by ‘Adrac’ PROVIDED THAT this Clause shall not extend to information which was and can be shown to be rightfully in the possession of ‘The Customer’ prior to the commencement of the negotiations leading to this Agreement and/or Order which is in the public domain (other than as a result of a breach of this Clause).
    5. The Customer’ undertakes to ‘Adrac’ to indemnify and hold harmless ‘Adrac’ in full and defend at its own expense ‘Adrac’ against all costs, damages and losses incurred by ‘Adrac’ arising out of its use of the Materials or breach by ‘The Customer’ of this clause 5.
    6. The Customer’ shall not modify, adapt or translate the Works except with the prior written consent of ‘Adrac’ or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in ‘Adrac’ unless otherwise agreed and specified in writing on the Order Form and/or Order amendments
    7. Adrac warrants that it will use reasonable efforts to ensure that the Works do not infringe the copyright of any third party.
    8. The Customer’ understands that ‘Adrac’ will never in any way grant access to, Adrac Intellectual Property. This includes any and all data, techniques, platforms, accounts, campaigns, tools and methods used to deliver ‘The Customer’ agreed Internet Marketing measures and outcomes defined on the Order Form or Proposal (where a Proposal exists) and will remain the sole property of ‘Adrac’ and as such access to or explanation in any form of such data, techniques, platforms, tools and methods used, deployed or considered is not part of this nor will it be part of any contract made between ‘Adrac’ and ‘The Customer’.
  6. INSPECTION AND ACCEPTANCE

    1. The Customer’ shall inspect the Works regularly and shall inform ‘Adrac’ immediately if it wishes to reject any part of the Works because such do not comply with the Proposal or are defective in material and workmanship;
    2. If the Works do not comply with the Proposal, Order Form and/or Amendment Order or are defective in material and workmanship ‘Adrac ‘s liability shall be limited to correcting such defects within a reasonable time.
    3. The Customer’ shall only be entitled to reject the Works because such do not comply with the Proposal, Order Form and/or Amendment Order or are defective in material and workmanship and if they are not rejected within 48 hours of delivery (in writing electronically or otherwise) then ‘The Customer’ shall be deemed to accept the Works. Rejection without good reason shall be deemed a breach of these terms.
  7. LIABILITY AND WARRANTY

    1. Subject to Clause 7 below, ‘Adrac’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by ‘Adrac’ to ‘The Customer’ hereunder.
    2. Adrac shall not be liable to ‘The Customer’ for any consequential loss or damage.
    3. When instructions or advice are given or received orally by ‘Adrac’, the Change process shall be invoked. However, if this process is not followed by ‘The Customer’, ‘Adrac’ shall have no liability to ‘The Customer’ for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations.
    4. Adrac’s liability shall be limited to using reasonable skill and care in the supply of the Works. In particular ‘Adrac’ shall not, except in the case of gross negligence and wilful or deliberate act, be liable for:
      1. any loss or damage caused by it being given access to ‘The Customer’’s computer systems (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of ‘The Customer’,
      2. any interference in or modification of the Works or Customer’s web site by ‘The Customer’ or any third party or the consequences thereof, remedy of which shall be as a Change.
    5. ‘Adrac’ undertakes to provide the Works with reasonable skill and care, however ‘Adrac’ cannot give any warranty or representation as to positions within search engines due to the operation of such being out of its control.
    6. ‘Adrac’ shall under no circumstances be held liable for any direct, indirect, consequential, exemplary or punitive damages including but not limited to damage for loss of profit goodwill and cost of procurement of substitute services resulting directly or indirectly from the conduct and forces beyond its’ reasonable control of third parties.
    7. Direct costs incurred to perform any obligation under this contract shall not be the essence of the contract.
  8. LEGISLATION

    1. ‘The Customer’ shall comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Works including without limitation its obligations under the Data Protection Act 1998; Regulation of Investigatory Powers Act 2000; Competition Act 1998 and E-commerce Directive and equivalent legislation;
  9. THIRD PARTY MATERIALS

    1. ‘Adrac’ gives no warranty, representation or undertaking in relation to any third party materials or works.
    2. Prior to any selection, use or reproduction by ‘The Customer’ of Works, ‘Adrac’ shall use reasonable efforts to, on reasonable request, provide ‘The Customer’ with copies and evidence of such rights, clearances, permissions and licences as shall be necessary for the use of the Works by ‘The Customer’.
    3. Subject to the foregoing ‘Adrac’ shall have no liability to ‘The Customer’ whatsoever in relation to the Works and gives no warranty and makes no representation as to whether Works contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted material and explicitly excludes all and any liability in relation thereto.
  10. RISK AND TITLE

    1. Risk in any reports or information delivered to ‘The Customer’ will pass to ‘The Customer’ on dispatch and until payment in full has been received in cleared funds by ‘Adrac’ in respect of the Works, title in any physical products delivered to ‘The Customer’ shall remain with ‘Adrac’.
  11. TERMINATION

    1. ‘Adrac’ shall be entitled to immediately restrict suspend or terminate the Works and ‘The Customer’’s use of any Works and or terminate this Agreement upon Customer’s material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless ‘The Customer’ remedies such breach within 5 days of its occurrence.
    2. Adrac’ will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of ‘Adrac’ including without limitation Internet outages, communications outages, fire, flood, war or act of God.
    3. The Customer’ may not unilaterally cancel its order of the Works or otherwise terminate this Agreement (except for material breach by ‘Adrac’ of a fundamental term of this Agreement) at any time without full payment of the outstanding Budget.
    4. Minimum term shall be that set out on the Order and/or Contract and/or Order amendments
      1. For a minimum contract term of twelve calendar months or longer, the notice period will be three calendar months. Notice shall be given as per item 11.5 below.
      2. to us, by email at cs@adrac.co.uk or by post to RG Adrac Ltd, Technology Centre, Bridge Street, Church, Lancashire, BB5 4HU.
      3. to ‘The Customer’, by email to the email address that you provided to ‘Adrac’ on the Order Form and/or Contract at the point of your order confirmation, or as may be amended by you from time to time (in writing).
    5. All notices sent by email will be deemed to have been received on receipt (or, when received on a UK national holiday or on a Saturday or a Sunday, the next working day following the day of receipt). All notice sent by post (must be registered post) and will be deemed to have been received 3 working days after the date of posting.
    6. During the course of this Agreement and for a period of 12 months afterwards, ‘The Customer’ shall not solicit the staff of ‘Adrac’ or entice them to transfer their employment or services.
    7. Where “The Customer” termination is accepted by “Adrac” a term, from the date of acceptance by “Adrac” of termination by “The Customer”, of not less than 90 days will be used to analyse conversions that can be attributed to “Adrac”. “The Customer” agrees to pay a sum equal to the number of conversions that can be attributed to “Adrac” in the 90-day period multiplied by the contracted delivery measurement prevailing at the date of termination acceptance by “Adrac” plus VAT (where applicable) at the prevailing rate.
    8. If ‘The Customer’ invokes the ‘Break Clause’ at a point in time that is beyond that specified on the Order and/or Contract and/or Order amendment the invocation will not be accepted and termination will also not be accepted. The opportunity to invoke the ‘Break Clause’ must be executed, by ‘The Customer’ or ‘Adrac’ within the month that the ‘Break Clause’ is specified on the Order and/or Contract and/or Order amendment otherwise the ‘Break Clause’ option is deemed to have expired.
  12. GENERAL

    1. An initial ‘Guarantee’ will be issued within the first six months of a campaign live date and will operate until the end of the ‘Initial Term’. The ‘Guarantee’ will be reviewed at months eleven, twenty-three and thirty-five where the ‘Customer’ will be informed of any change required to the then current ‘Guarantee’.
    2. Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
    3. If any part of this Agreement is or becomes unenforceable, such part will at ‘Adrac’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
    4. No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
    5. The Customer’ shall not assign the benefit or burden of this Agreement without the prior written consent of ‘Adrac’.
    6. The UK shall be considered the place of first publication of any material on the internet.
    7. No person who is not a party to this Contract/Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
    8. These Terms are made in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.