Definitions and interpretation

1.1 In these conditions of sale the following terms have the following meanings:

“Action” shall mean a single occurrence within the Paid Search Process as specified in the Order where applicable;

“Budget” shall mean the Customer’s agreed budget in respect of third party costs and disbursements which the Supplier procures to deliver the Services as set out in the Order where applicable;

“Campaign” shall mean an agreed advertising campaign;

“Clicks” shall mean a visitor delivered to the Customer’s website from a link in a PPC Campaign;

“Conditions” shall mean these terms and conditions;

“Contract” shall mean an agreement between the Supplier and the Customer which is made up of an Order and these Conditions;

“Customer” shall mean the customer whose details appear on the Order; “Customer Materials” shall mean any documents, manuals, data, materials or other information provided by the Customer in relation to the Services, including, without limitation creative and other material subject to the Customer’s Intellectual Property rights;

“Digital Media” shall mean a Campaign using digital processes potentially including, without limitation banner advertisements, social media, web development and affiliate building where the Customer agrees to pay the Supplier for the provision of each such process and related consultancy services;

“Initial Term” shall mean any initial period for the provision of the Services set out on the Order;

“Intellectual Property” shall mean patents, copyright and related rights, moral rights, trade mark trade names, domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights;

“Order” shall mean the Customer’s order form requesting the Services opposite/overleaf (as applicable);

“Paid Search Process” shall mean the process commencing with a visitor from a link in a PPC Campaign and ending with an Action;

“Price” shall mean the price detailed on the Order or, if no price is detailed on the Order, the price of the Services calculated in accordance with the Supplier’s price list in force on the date of the Supplier’s acceptance of an Order;

“PPA Campaign” shall mean a “pay per Action” Campaign where you agree to pay us an agreed fee for the occurrence of every Action;

“PPC Campaign” shall mean a “pay per Click” Campaign using paid searches whereby the Customer pays to us the full cost of Clicks purchased from key-word providers plus an agreed management fee;

“Services” shall mean the services set out on the Order and potentially including website design, Digital Media, a PPC Campaign, PPA Campaign, SEO or any combination thereof;

“SEO” shall mean search engine optimisation being the on and off site improvements made to the Customer’s website or a website built for the Customer by the Supplier intended to make the website more visible on agreed search engines;

“Start Date” shall mean the 1st day of the proceeding month from payment being made;

“Supplier” shall mean Trafiki Digital Limited, a company registered in England and Wales (company number 10590444) whose registered office is at Suite 8, Ideas House, Eastwood Close, London, England, E18 1BY; and

“VAT” shall mean value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Unless the context otherwise requires words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include bodies corporate, unincorporated associations and partnerships.

1.3 The word “including” is not to be treated as a word of limitation.

2 Basis of Contract

2.1 These Conditions apply to all contracts for the provision of Services entered into by the Supplier to the exclusion of all others including, without limitation, any terms or conditions provided by the Customer at any time.

2.2 Without prejudice to clause 2.1 above, the terms of an Order will override the corresponding term in these Conditions where a specific reference to the term being overridden is made and such Order is signed on behalf of each of the Supplier and the Customer.

2.3 All Orders are subject to acceptance at the Supplier’s absolute discretion and are not binding upon the Supplier until accepted by the Supplier in writing. The Customer may not cancel or vary any Order which the Supplier has accepted.

2.4 Each Contract is a separate legal contract and contains all the terms agreed by the parties in relation to its subject matter and supersedes all prior agreements, understandings and arrangements whether oral, in writing or arising from a course of dealing. Each party acknowledges that in entering into a Contract it has not relied upon any matter not set out therein.

2.5 The Supplier may make changes to these Conditions, from time to time. Any such change shall apply to all Orders placed by the Customer after the date of the change. The Customer is reminded of the need to periodically check these Conditions for changes.

3 Supply of Services

3.1 The Supplier shall use reasonable efforts to commence the provision of the Services on or around the Start Date, but time of performance shall not be of the essence.

3.2 To enable the Supplier to perform its obligations under the Contract, the Customer shall co-operate fully with the Supplier, provide the Supplier with Customer Material and any information that it reasonably requires and obtain all necessary permissions and consents which may be required prior to commencement of the Services.

3.3 The Customer shall retain copies of Customer Material and the Supplier shall not be liable for any loss or damage to any Customer Materials provided to it.

3.4 The Supplier reserves the right to make any changes to the Services which are necessary to comply with applicable laws. The Supplier further reserves the right to make changes to the Services if, in its reasonable opinion, such changes will assist in the delivery of the Customer’s objectives.

3.5 If a Contract is for SEO services in whole or in part, the Customer agrees to comply fully and promptly with any recommendations that the Supplier makes as part of the Services.

4 Delivery and Acceptance

4.1 In respect of SEO services, the Supplier shall use tracking mechanisms to verify delivery of the Services and shall provide the Customer with access to a monthly ranking report to evidence the results.

4.2 Upon delivery of the Services, the Customer shall inspect the Services and notify the Supplier within 10 days of any non-conformance with the Contract. For the avoidance of doubt, if the Customer does not notify the Supplier of any non-conformance in accordance with this clause, the Customer will be deemed to have accepted the Services.

5 Intellectual Property

5.0 The Customer agrees to indemnify the Supplier against all losses, liabilities, damages and expenses arising out of or in connection with any third party claims of Intellectual Property infringement caused as a result of the Customer’s failure to obtain the necessary consents and permissions pursuant to clause 3.2.

6 Price and payment

6.1 The Price and the Budget are exclusive of any applicable VAT, which the Customer shall be additionally liable to pay to the Supplier.

6.2 The Price will be invoiced monthly. Each invoice must be paid in full and cleared funds without set-off or deduction in pounds sterling within 7 days of the date of the invoice. Time of payment shall be of the essence of the Contract.

6.3 In respect of Services relating to PPA Campaigns or PPC Campaigns, the Customer shall be liable for the Price upon an Action or a Click occurring as applicable, regardless of whether the Customer’s website is in operation at this point.

6.4 Where applicable, the Budget will be payable as set out in the Order.

6.5 If there is any shortfall in any part of the Budget paid to the Supplier in advance, and the fees payable to third party service providers in respect of the Services, the Supplier shall invoice the Customer for the balance monthly in arrears.

6.6 If there is any excess in the Budget paid to the Supplier in advance, once third party costs have been accounted for, the Supplier shall issue a credit note of the balance, or use the balance to offset subsequent invoices or any other sums owing to the Supplier by the Customer, at the Supplier’s discretion.

6.7 If the Order provides that the Customer shall pay the Budget (or any part of it) directly to any third party service provider:

6.7.1 the Customer acknowledges that it is a material provision of the Contract that it pays the Budget to the third party provider fully and promptly; and

6.7.2 the Customer shall comply with the Supplier’s reasonable instructions and restrictions in relation to the access, operation and management of the Campaign account to which the Budget relates.

6.8 If the Customer fails to pay any amount under the Contract when it is due then without prejudice to any other rights and remedies, the Supplier may cease the provision of the Services without incurring any liability.

6.9 The Supplier reserves the right to increase the Price of the Services at any time prior to performing the Services due to any factors beyond its reasonable control. In this circumstance, the Supplier will use reasonable endeavours to inform the Customer of the Price change as soon as reasonably practicable.

7 Warranty

7.1 The Supplier warrants that the Services will be performed with reasonable care and skill and in accordance with all statutory requirements and regulations. The Supplier does not warrant that all scripts or programs are free of errors.

7.2 The Customer’s only remedy in respect of a breach of the warranty in clause 7.1 will be (at the Supplier’s sole discretion) re-performance of the Services or a refund of the Price (in respect of the affected Contract only).

7.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

8 Liability

8.1 Save as provided below:

8.1.1 the Supplier’s total aggregate liability under each Contract (whether in contract, tort (including, but not limited to, negligence) or strict liability or otherwise howsoever arising) shall not exceed the total amount payable to the Supplier by the Customer under the Contract;

8.1.2 the Supplier will not be liable for any claim to the extent that it relates to loss of profits, goodwill, business opportunity or anticipated savings, injury to reputation, third party losses or indirect, consequential or special loss or

damage regardless of the form of action, whether in contract, tort (including, but not limited to, negligence) or strict liability or otherwise howsoever arising and regardless of whether the Supplier knew or had reason to know of the possibility of the loss or damage in question; and

8.1.3 the Supplier will not be liable for any delay in or failure to comply with its obligations to the extent that such failure results from circumstances beyond Supplier’s reasonable control.

8.2 For the avoidance of doubt, the Supplier does not:

8.2.1 accept any responsibility for delays or failure of performance resulting from an internet service provider delivery problem or failure;

8.2.2 represent that the Customer’s URL or any website designed by the Supplier for the Customer will achieve any position within any particular search engine; or

8.2.3 accept responsibility for the Customer’s URL or any website designed by the Supplier for the Customer being excluded by a search engine for any reason.

8.3 No provision of these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence or for fraudulent misrepresentation.

9 Term and Termination

9.1 The Contract shall commence on the Start Date and shall, subject to clause 9.3, continue for a 12-month Initial Term. If no Initial Term is specified in the Order the Contract shall continue on a 3-month rolling contract after the initial term.

9.2 Upon expiry of the Initial term, the Contract shall continue on a 3 month rolling basis unless one party gives written notice to terminate, such notice not to expire prior to the end of the Initial Term and a 3 month notice will then need to be served.

9.3 Upon receiving written notice of termination there will be a 3 month notice period to be served, if the client wishes immediate termination of services then the client will be charged 3 months’ fees based on the average rate of the previous 3 months of the Contract.

9.4 The Supplier shall be entitled to terminate the Contract immediately by notice in writing to the Customer if:

9.4.1 the Customer commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same;

9.4.2 the Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere;

9.4.3 the Customer ceases or threatens to cease to carry on business; or

9.4.4 if the Supplier reasonably considers that any of the events specified in clauses 9.3.2 to 9.3.3 is about to occur in relation to the Customer and notifies the Customer accordingly.

9.5 In the event of termination by the Supplier pursuant to clause 9.4 above then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further performance of the Services to the Customer without any liability to the Customer and, if the Services have already been performed but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Supplier shall be entitled to charge interest at the statutory rate from the time of such cancellation or suspension until the Supplier receives payment.

10 General

10.1 The remedies available to the Supplier shall not limit or exclude any other rights that the Supplier may have against the Customer and the Supplier’s failure to enforce or rely on or delay in enforcing or relying on any right will not prevent the Supplier from later enforcing or relying upon that or any other right. 10.2 If a court or other regulatory body finds that any part of these Conditions or any Contract is invalid or unenforceable, the remainder of them shall not be affected and shall be construed as if such invalid or unenforceable part did not exist.

10.3 All notices shall be given in writing and sent by email or by special delivery post to the recipient’s address or email address detailed in the Order (or as may be notified to the other party in accordance with this condition from time to time). Notice will be deemed received and properly served immediately 24 hours after an e-mail is sent, or three days after the date of posting of any letter by special delivery post. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

10.4 The Customer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Supplier. The Supplier shall be entitled to assign, transfer, subcontract or otherwise part with the whole or any part of the Contract or any right or obligation under it to any third party.

10.5 Nothing in any Contract shall confer any rights upon any person who is not a party to it, whether under the Contracts (Rights of Third Parties) Act 1999, or otherwise.

10.6 These Conditions and each Contract shall be governed by and construed in accordance with English law and the parties accept the exclusive jurisdiction of the English Courts.