Terms and Conditions
WE ARE ROAST LIMITED STANDARD TERMS AND CONDITIONS
1. SCOPE OF AGREEMENT
1.1 This “Agreement” is comprised of these terms and conditions, together with any relevant signed Order Form (which Order Form may also include any relevant Services Schedule).
1.2 This Agreement is between We are ROAST Limited, an English company (number 9005886) whose registered office is at 1st Floor, 53 Frith Street, London W1D 4SN (“WaR”) and the person or organisation to whom WaR has agreed to provide Services (defined below) and stated to be as such on the Order Form (“Client”).
2. SERVICES AND WAR’S OBLIGATIONS
2.1 During the term of this Agreement (“Term”): (i) subject to these terms and conditions, WaR will from time to time perform the services which WaR has agreed to provide to Client, as described in any Order Form (“Services”); and (ii) the Order Form shall set out the details of any particular project scope agreed between WaR and Client pursuant to which WaR will perform the Services (“Project”).
2.2 WaR shall: (i) apply such resources and skill as may be reasonably necessary for its performance of the Services; and (ii) be solely responsible for the selection and allocation of personnel to perform the Services.
WaR are not liable or responsible for any non-disclosed or non- agreed changes or actions taken by the Client, or a 3rd party automation technology under instruction by the Client in any platform that may result in (but not limited to) negative impact on SEO performance and rankings, tracking, site functionality, crawlability, content of SERP features or general site health. This can include (but not limited to) CMS, schema, Google My Business, Search Console or onsite analytics including tag containers. Should such a situation arise due to the action of the client and WaR are required to rectify changes, additional hours will be charged above contracted SOW at WaR’s discretion.
3. CLIENT’S OBLIGATIONS
3.1 Client shall: (i) be responsible for specifying fully and clearly its requirements in respect of the Services; and (ii) Client shall provide promptly all information and other materials and carry out all such actions that WaR may reasonably require to facilitate WaR’s performance of the Services.
3.2 WaR’s ability to perform its obligations under this Agreement may be dependent on Client fulfilling its obligations. To the extent that Client does not fulfil its obligations under this Agreement then (without prejudice to WaR’s rights and remedies) WaR shall be relieved of its obligations to Client to the extent that WaR is prevented from performing the Services in accordance with this Agreement and WaR shall not be liable for any costs, charges or losses sustained by Client arising directly from any failure of Client to fulfil its obligations under this Agreement.
3.3 WAR will wish to produce Case Studies for marketing purposes based on the work carried out for the Client. Such Case studies will be produced post campaign launch and require the prior consent of the Client, such approval not to be unreasonably withheld
4.1 During the Term, WaR shall be Client’s exclusive provider of the Services (or services similar to the Services) and Client agrees not to engage any other person to provide any services that are the same as or similar to the Services.
5. ACCEPTANCE OF DELIVERABLES
5.1 If an Order Form does not set out an alternative acceptance process, acceptance of any document, data, software or other deliverable item that WaR has agreed to supply to Client as part of the Services (a “Deliverable”) by Client shall be deemed to occur on the earliest of the following:
5.1.1 for a non-software-related Deliverable, 5 of any days Monday to Friday, apart from any public holiday in England (each being a “Business Day”) after delivery of that Deliverable to Client; or
5.1.2 for a software-related Deliverable, 10 Business Days after delivery of that Deliverable to Client; or
5.1.3 Client uses a Deliverable in productive or live use, or otherwise exploits a Deliverable commercially;
unless in the case of Clause 5.1.1 or 5.1.2 only, WaR has received a valid written notice from Client that the Deliverable has failed materially to comply with its functional or technical description as set out in the Order Form or otherwise subsequently agreed between WaR and Client (the “Spec”) and the Deliverable has, in fact, failed materially to comply with its Spec.
6. FEES AND EXPENSES
6.1 Payments: Client shall pay to WaR: (i) the fees for the Services, as set out in the Order Form (“Fees”); and (ii) all expenses (including travel, accommodation and subsistence expenses) of any WaR staff and incidental costs; all the foregoing of which shall be payable without any right of, abatement, withholding or set-off
6.2 Instalments: Where WaR provides the Services in instalments, WaR will render a separate invoice in respect of each such instalment of the Services. Any delay in the delivery of an instalment of the Services, or failure to deliver any further instalment, shall not entitle Client to reject the Agreement or the delivery of any other instalment or to withhold payment in respect of any instalment previously provided to Client.
6.3 Payment time: Unless otherwise stated in an Order Form, all invoices shall be payable in full within 30 days of the invoice date.
6.4 VAT: All sums referred to in this Agreement exclude VAT (unless otherwise stated) which shall (if applicable) be payable by Client at the rate prevailing from time to time.
6.5 Levies: WaR shall add any applicable levies payable in respect of the funding of any UK self-regulatory system in respect of advertising to all relevant invoices submitted to Client and the parties agree that Client shall be solely liable for payment of such levy.
6.6 Credit Insurance: WaR reserves the right to obtain credit insurance in respect of Client and in the event WaR is unable to obtain such insurance, WaR may revise its terms of payment and may (for example) ask for payment in advance or for suitable guarantees from Client before being obliged to provide Services. Should Client not agree to such alternative payment terms within 14 days of such request, WaR shall be entitled forthwith to terminate this Agreement and any or all outstanding Projects and/or other Services by written notice to Client.
6.7 Overdue payments: If Client is overdue with any payment hereunder then without prejudice to WaR’s other rights or remedies, WaR reserves the right to:
6.7.1 suspend provision of the Services or part thereof until Client rectifies the matters; or
6.7.2 if payment is not made within 30 days of the due date, terminate the relevant Order Form or this Agreement at WaR’s sole discretion.
6.8 Audit: During the Term (and for one month thereafter) WaR shall make available to Client and its authorised agents at reasonable times during WaR’s usual business hours (but not more often than once in any period of 12 months) documentation relating exclusively to a Project, which is directly relevant and necessary to verify the accuracy of any reports supplied by WaR under the relevant Order Form (“Records”), provided always that: (i) WaR is given at least 30 Business Days’ notice of the audit; and (ii) all costs of such audit shall be at Client’s expense.
6.9 Media Planning & Buying: Where the Services include media planning and buying: (i) Client shall pay media charges based on the current published rates for advertising in all relevant online media unless otherwise stated on the Order Form; (ii) such Services shall be subject to the terms and conditions of the agreement between WaR and the applicable third party media space owner; and (iii) WaR shall submit to Client for its specific approval media schedules for time, space and other facilities and Client’s approval of such schedules and estimates will be WaR’s authority to make reservations and contracts for space time and other facilities.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Open Source Software: It is acknowledged that WaR may use any software which is developed, tested or improved through public collaboration and distributed with the idea that it must be shared with others, ensuring an open future collaboration (“OSS”) as part of the Deliverables provided that: (i) WaR has supplied full details of which Deliverables and/or parts thereof it is proposed shall include such OSS, together with full details of which licence applies to such OSS; and (ii) Client has approved same, such approval not to be unreasonably withheld or delayed. Client also acknowledges that its use of OSS shall be governed by the terms of such applicable licence and Client warrants and undertakes that it shall comply, on an ongoing basis, with the terms of such licence.
7.2 Third Party Materials: Client acknowledges that ownership of any part of any Deliverable which is owned by or is licensed by a third party and/or any OSS (these being “Third Party Materials”) shall remain vested in a third party. Upon payment in full of all invoices in relation to such Deliverable WaR hereby grants to Client a non-exclusive, non-assignable, royalty-free licence to use such Third Party Materials (which are not OSS) in connection with the Deliverables solely for the specific purposes and periods agreed in writing with Client.
7.3 Background Materials: Client acknowledges that all copyrights, database rights, patents, trade marks, service marks, design rights (whether registered or unregistered) trade secrets and all other similar proprietary rights (together “Intellectual Property Rights”) in any materials (including any Deliverable) which are not Third Party Materials but which are in existence at the time it is first intended Client use a Deliverable for a Project and in relation to which the Intellectual Property Rights are owned by WaR (“Background Materials”) shall be owned by and remain the property of and vested in WaR. Following payment in full of all invoices in relation to such Deliverable, WaR grants to Client with effect from delivery a non-exclusive, non-assignable, royalty-free licence to use, and exploit the Background Materials in connection with the Deliverables in perpetuity solely for the specific purposes envisaged herein unless otherwise agreed in an Order Form.
7.4 Foreground Materials: Upon payment in full of all invoices in relation to a Deliverable created by WaR or commissioned by WaR from a third party, specifically for a Project and at Client’s specific request, WaR hereby assigns to Client, all of the Intellectual Property Rights in any part of that Deliverable to the extent it does not contain and is not Background Materials or Third Party Materials.
8. WARRANTIES AND LIABILITY
8.1 WaR’s Warranties: WaR warrants that:
8.1.1 it shall perform the Services with reasonable skill and care; and
8.1.2 on the date of delivery any Deliverable, it will comply in all material respects with its Spec.
8.2 Client’s Warranties: Client warrants that all materials and information provided to WaR will be accurate and complete in all material respects and their use by WaR in accordance with this Agreement shall not infringe the Intellectual Property Rights of any third party and shall comply with all applicable laws and regulations.
8.3 Exclusions: Except as expressly stated in the Agreement, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
9. DATA PROTECTION
9.1 Notification: Each Party warrants to the other that it is and will continue to be appropriately notified under the terms of all EU and local laws or regulations protecting data and/or any similar or equivalent laws, regulations or rules relation to information or data about individuals outside of the EU (“Data Legislation”).
9.2 Compliance: Client warrants that during the Term it shall comply with all relevant Data Legislation.
9.3 Personal Data: Where WaR processes personal data (as defined in the Data Legislation) on behalf of Client, then WaR warrants that it shall:
9.3.1 process such data solely in accordance with Client’s instructions from time to time (consistent with its duties under such Data Legislation); and
9.3.2 adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
10.1 This Clause 10 prevails over all other parts of the Agreement and sets forth the entire Liability of WaR, and the sole and exclusive remedies of Client in respect of:
10.1.1 the performance, non-performance, purported performance or delay in performance of the Agreement or the Services (or any part of it or them) or the Deliverables; or
10.1.2 otherwise in relation to the Agreement or the entering into or performance of the Agreement.
10.2 Nothing in this Agreement excludes or in any way limits liability for fraud, death or personal injury caused by negligence or any other Liability to the extent the same may not be excluded or limited by law.
10.3 Save as provided in Clause 10.2, WaR does not accept and hereby excludes any Liability for breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty) (collectively “Negligence”) other than any such Liability arising pursuant to the terms of the Agreement.
10.4 Save as provided in Clause 10.2, WaR shall have no Liability for:
10.4.1 loss of revenue;
10.4.2 loss of actual or anticipated profits;
10.4.3 loss of contracts;
10.4.4 loss of the use of money;
10.4.5 loss of anticipated savings;
10.4.6 loss of business;
10.4.7 loss of opportunity;
10.4.8 loss of goodwill;
10.4.9 loss of reputation;
10.4.10 ex gratia payments;
10.4.11 loss of, damage to or corruption of data; or
10.4.12 any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, Clauses 10.4.1 to 10.4.11 apply whether such losses are direct, indirect, consequential or otherwise.
10.5 Save as provided in Clause 10.2, the WaRal Liability of WaR to Client or any third party shall in no circumstances exceed, in aggregate, a sum equal to the greatest of: a) £1,000; or b) 110% of the aggregate payments paid by Client to WaR in the 12 months preceding any cause of action arising.
10.6 The limitation of Liability under Clause 10.5 has effect in relation both to any Liability expressly provided for under the Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of the Agreement.
10.7 WaR shall not be liable for any delay in performing or failure to perform the Services to the extent that such delay or failure results from any cause or circumstance beyond WaR’s reasonable control (“event of force majeure”). If any event of force majeure occurs the date for performance of the Services will be postponed for as long as is made necessary by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days either party may terminate this Agreement or cancel the affected Services immediately on written notice to the other party.
10.8 In this Clause 10, “Liability” means liability in or for breach of contract, Negligence, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including, without limitation, liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and for the purposes of this definition, all references to “the Agreement” shall be deemed to include any collateral contract).
11.1 Confidential Information: Each of the WaR and Client acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
11.2 Obligations: Each of the WaR and Client undertakes to maintain the confidentiality of the other’s Confidential Information at all times and to keep the other’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither WaR nor Client shall at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
11.3 Exclusions (1): Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt hereunder.
11.4 Exclusions (2): Neither WaR nor Client shall be in breach of this Clause 11 if it discloses the other’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
12. TERM AND TERMINATION
12.1 Agreement Term: This Agreement shall be effective from the signature of the first Order Form and subject to Clauses 12.2 to 12.4 shall continue for an Initial Term as stipulated on each Order Form for the Services agreed on that Order Form and thereafter, unless or until terminated by either WaR or Client giving notice in writing to the other for no less than the Renewal/Notice Period as stated on that Order Form, such notice to expire on or after the end of that Initial Term. For the avoidance of doubt, each Order Form’s Initial Terms and Renewal/Notice Period shall apply to the Services on that Order Form only.
12.2 Project Term: Each Project shall commence on any date set out for that purpose in the relevant Order Form specifying that Project and shall, subject to earlier termination in accordance with this Agreement, continue for the duration set out in the Order Form.
12.3 Agreement/Project: Termination of an Order Form in accordance with its terms shall not serve to terminate this Agreement (providing there are other Order Forms extant) which shall continue in full force and effect. Subject to Clause 12.4, this Agreement shall remain in effect for so long as an Order Form shall remain in effect.
12.4 Termination: Either WaR or Client may terminate this Agreement or an Order Form immediately on giving written notice to the other in the event of the other: (i) committing any material breach, which breach is not remedied (if remediable) within 30 days after receipt by the party in default of a written notice specifying the nature of the breach and requiring the same to be remedied; or (ii) permanently ceases doing business; or (iii) being unable to pay its debts as they fall due or becoming bankrupt or insolvent or entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up (or an order is made or a resolution is passed for its winding-up or an administration order is made or an administrator is appointed to manage its affairs, business or property) or a receiver and/or manager and/or administrative receiver is appointed in respect of all or any of its assets or undertaking; or (iv) undergoing circumstances which arise which entitle the court or a creditor to appoint a receiver and/or manager and/or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or administration order; or (v) taking or suffering any similar or analogous action to any of (iii), (iv) or (v) in consequence of debt.
12.5 On Termination: Upon termination of this Agreement for any reason: (i) Client shall immediately pay WaR all Fees for Services effected up to and including the effective date of termination; (ii) all licences granted under this Agreement shall immediately terminate; and (iii) Neither party shall have any remedy against the other based on or arising out of termination of the Agreement, but termination shall be without prejudice to the rights of either party accrued at the date of such termination.
13.1 Client agrees that, without the prior written consent of WaR, neither it Client nor any of Client’s Group (where Group is defined in Clause 14.2) shall directly or indirectly, whether by itself, its employees or agents and whether on its own behalf or on behalf of any other person or otherwise howsoever: (i) at any time during the Term (or for 6 months thereafter) solicit or entice away or seek to solicit or entice away from WaR or any company in WaR’s Group any person who at the time of such solicitation, enticement or seeking was during the Term (or for 6 months thereafter or during any part of the period of 3 months immediately preceding the Term) an employee of WaR or any company in WaR’s Group, and whether or not that person would commit any breach of his contract of employment by reason of leaving the service of WaR or any company in WaR’s Group; or (ii) at any time during the Term (or for 12 months thereafter) employ or otherwise engage any person who during the Term (or for 12 months thereafter or during any part of the period of 3 months immediately preceding the Term) was employed by WaR or any company in WaR’s Group.
14.1 Notices: Except as expressly stated to the contrary in the Agreement, all notices provided under the Agreement shall be: (i) in writing; (ii) given or shall be served by hand delivery, by letter sent by courier service which records receipt; and (iii) sent or delivered to the intended recipient’s address given in the Order Form or otherwise in this Agreement (or such other address as may from time to time be notified for this purpose). Any notice served by hand shall be deemed to have been served on delivery, any notice served by courier shall be deemed to have been served two Business Days after posting. In proving service it shall be sufficient to prove that the notice was properly addressed and delivered or posted (as the case may be).
14.2 Interpretation: In the Agreement: (i) any words following the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (ii) where the context so admits or requires words denoting the singular include the plural and vice versa, words denoting any gender (or the neuter) include both genders and the neuter; and words denoting persons shall include partnerships, bodies corporate and unincorporated associations of persons and vice versa, individuals, companies, firms, governments, states, regional or local authorities, agencies of a state, joint ventures, trusts, charities, societies, funds, associations (whether or not having separate legal personality and whether incorporated or not)); (iii) clause headings or sub-headings are purely for ease of reference and do not form part of or affect the interpretation of the Agreement; (iv) references to Clauses (as capitalised) are to clauses of these terms and conditions; and (v) “Group” means, in relation to either Client or WaR (each a “Company”): (1) any entity which Controls, is directly or indirectly Controlled by, or is in common Control with the Company; or (2) any entity in which the Company has Board representation; and where “Control” means, in relation to a company or other person (“Entity”), the right of a person or persons acting together, whether in law or in fact, to secure (whether by means of the holding of shares bearing 50% or more of the voting rights attaching to all of the shares in that company or by having the power to control the composition of the Board of Directors of that company or otherwise), that all or a proportion of the affairs of that Entity are conducted in accordance with the wishes of that person or persons, and “Controlled” shall be construed accordingly.
14.3 Entire Agreement: The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to the Agreement except as expressly stated in the Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Agreement (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party’s ability to perform the Agreement) and that party’s only remedies shall be for breach of contract as provided in the Agreement.
14.4 Variation: Any variation, modification or amendment of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer but may also take effect by the parties’ exchange of emails indicating their agreement to implement such variations, modifications or amendments and the date(s) on which such revisions shall become effective.
14.5 Survival: Clauses 5, 6, 7, 8.3, 10, 11, 12, 13, 14 and 15, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement.
14.6 Force Majeure: WaR shall not be liable for any delay or failure to perform its obligations under the Agreement to the extent that and for so long as such delay or failure results from circumstances beyond its control (an “event of force majeure”). In the event an event of force majeure occurs, WaR shall notify Client as soon as reasonably practicable of becoming aware of such event.
14.7 Waiver: WaR’s failure to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect WaR’s right later to enforce or to exercise it.
14.8 Third Party Rights: No person (including, for the avoidance of doubt, any third party to whom any or all rights and/or obligations under the Agreement are assigned, transferred or novated in accordance with the terms hereof or otherwise by written agreement of the parties) who is not a party to the Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to the Agreement its assent to any such term.
14.9 Severability: If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
14.10 Equitable Relief: The parties acknowledge and agree that a breach by Client of any of the terms of the Agreement may result in irreparable and continuing damage to WaR for which there may or will be no adequate remedy at law, and that in the event of such breach, WaR shall be entitled to apply for injunctive relief and/or a decree for specific performance and such other and further relief as may be appropriate.
14.11 Assignment and Delegation: Client may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with the Agreement or any right, benefit or interest under it nor transfer, novate (or sub-contract any of Client’s obligations under it) without the prior written consent of WaR. Subject to the foregoing, the rights and obligations of each party in the Agreement shall inure to the benefit of the respective successors of the parties hereto. WaR may appoint sub-contractors to perform any of the Services provided that WaR will remain responsible to Client for the full and complete discharge of all such obligations.
14.12 Independence. The Parties are independent contractors dealing at arm’s length. Nothing in this Agreement shall create any relationship as partners, joint venturers, agent, employee or representative of the other. Subject to WaR’s express obligations in respect of the Services, neither party has authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the other party without that party’s express prior approval in writing, or hold itself out as having authority to do the same.
15. LAW AND JURISDICTION
15.1 The Agreement (and all non-contractual relationship arising out of or related to it) shall be governed by and construed in accordance with the laws of England.
15.2 If Client:
15.2.1 is domiciled in the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts; and
15.2.2 is not domiciled in the European Union, any dispute which may arise out of or in connection with the Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
V001 (October 2014)