upUgo General Terms & Conditions

1. Definitions and Interpretation

In these Conditions the following definitions apply:

 

1.2 In these Conditions, unless the context requires otherwise:

1.2.1 a reference to the Contract includes these Conditions, the Scope of Works and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; 

1.2.11 a reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets;

1.2.12 a reference to pounds or £ is to an amount in Great British Pounds;

1.2.13 a reference to legislation includes all subordinate legislation made under that legislation; and

1.2.14 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2.0 Application of these Conditions

2.1 These Conditions apply to and form part of the Contract between upUgo and the Client. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that upUgo otherwise agrees in writing.

2.3 upUgo may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:

• the Client signing the Scope of Works; or
• upUgo performing the Services or notifying the Client that they are ready to be performed (as the case may be)

2.4 Rejection by upUgo of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Client.

2.5 upUgo may issue quotations to the Client from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Client.

2.6 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.

3.0 Commencement and Term

3.1 The Services shall be provided under these Conditions from the Commencement Date for the Minimum Term until it is terminated:

• by either party giving the other not less than ninety calendar days written notice expiring at the end of the Minimum Term; or
• in accordance with clause 14 (Termination) of this Contract.

4.0 upUgo’s Obligations 

4.1 upUgo shall:

• provide the Services with reasonable skill and care, commensurate with the prevailing industry standards of the specific Service requested and in accordance with the Scope of Works and the Contract;

• provide campaign reporting and other information to Client via email (or such other method agreed by Client);

• act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the scope of the Services, as defined in these Conditions.

• be entitled to perform any of the obligations undertaken by it through suitably qualified and skilled  sub-contractors. Any act or omission of such sub-contractor shall, for the purposes of the Contract, be deemed to be an act or omission of upUgo;

• use all reasonable endeavours to accommodate any reasonable changes in the scope contained within the Scope of Works which may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees which may be due as a result of such changes.

4.2 Time of performance of the Services is not of the essence. upUgo shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.

4.3 upUgo shall not be liable for any delay or failure of performance caused by the Client’s failure to provide upUgo with adequate instructions for performance or otherwise relating to the Services or Force Majeure.

5.0 Client’s Obligations

5.1 The Client shall:

• pay all Fees and additional charges in accordance with this Contract;

• ensure that upUgo has unrestricted access to such electronic systems and materials, and promptly provide upUgo with all assistance, directions, instructions or information, reasonably required by upUgo to perform the Services; 

• provide timely updates on any information relevant to the Services. Any delay in the Services resulting from the Client’s failure to comply with this provision shall not be the responsibility or fault of upUgo;

• ensure that carries out in relation to its website:

• regular maintenance;

• monthly backups; and 

• payments to its website hosting and maintenance provider where applicable to ensure compliance with clauses 5.1.4.1 and 5.1.4.2 above.  

5.2 The Client hereby warrants and represents that its  Website and use of the Services for the marketing of products and services of the Client shall be for legitimate business purposes, in compliance with all applicable laws and regulations, and that Client has obtained all necessary approvals, consents and permissions from any relevant authority or third party. 

5.3 The Client accepts sole responsibility for all content and information provided to upUgo and warrants and represents the accuracy and completeness of such information. 

5.4 upUgo is an online marketing agency and may rely, subject to the Client’s prior written approval and consent, on third parties to perform the Services. Unless otherwise provided for in these Conditions or in the Scope of Works, upUgo is not responsible for the performance of such services by third parties.

6.0 Fees, Invoicing and Payment

6.1 The fees payable for the Services shall be as set out in the Scope of Works or where no such provision is set out, shall be calculated in accordance with upUgo’s scale of charges in force from time to time (the Fees).

6.2 The fees are exclusive of:

• VAT (or equivalent sales tax). The Client shall pay any applicable VAT to upUgo on receipt of a valid VAT invoice.
• Out of pocket expenses (which are to be agreed in advance by the parties);
•  the provision of the Services in languages other than English;
• surcharges for payment methods, taxes and duties 

which shall be charged in addition to upUgo’s standard Fees.

6.3 The Client shall pay the Fees each month via the agreed payment method. 

6.4 upUgo shall invoice the Client for the Services in full on monthly in arrears. 

6.5 The Client shall:

• pay all invoices in full without deduction or set-off, in cleared funds within 14  days of the date of each invoice; 
• pay all invoices to the bank account nominated by upUgo; and
• The Client warrants and represents that where it pays the Fees by credit card or debit card that there are sufficient funds on any credit or debit card registered with upUgo to pay for all Fees and any charges payable under this Contract.

6.6 Time of payment is of the essence. Where sums are due under these Conditions are not paid in full by the due date:

• upUgo may suspend all or any of its obligations under these Conditions until the payment is received after giving at least 7 days’ notice to the Client of its intention to suspend with reasons.  Any period of suspension will entitle upUgo to any reasonable costs it incurs as well as an extension of time for completion of the Services;
• upUgo may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force, and
• interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.

6.7 upUgo may increase the Fees at any time by giving the Client not less than 15 Business Days’ notice in writing provided that the increase does not exceed 5% of the Fees in effect immediately prior to the increase.

6.8 Notwithstanding clause 6.7, upUgo may increase the Fees with immediate effect by written notice to the Client where there is an increase in the direct cost to upUgo of supplying the relevant Services which exceeds 5% and which is due to any factor beyond the control of upUgo.

7.0 Intellectual Property

7.1 upUgo shall retain ownership of any and all Intellectual Property Rights that may subsist in anything produced by upUgo in the course of providing the Services. 

7.2 In consideration of payment for the Services, upUgo grants to the Client a non- exclusive transferable worldwide licence to use for the purposes of the Services, the Intellectual Property Rights in the Services and all other materials created by upUgo pursuant to these Conditions. For the avoidance of the doubt, the Client may not reproduce, modify or sell to any third party the content of the Services and any other materials created by upUgo.

7.3 upUgo acknowledges that the Client owns all Intellectual Property Rights relating to the Website created or provided by the Client in connection with the Services. The Client grants a non-exclusive non- transferable worldwide licence to upUgo for all purposes relating to the performance of the Services.

• In complying with the provisions of clause 7.2, upUgo shall undertake to execute any such agreements and perform any such actions that may be necessary to put such licences into effect and shall exclusively bear any costs associated therewith.
• Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of these Conditions. 
• Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Contract provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.
• upUgo shall assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988.
• upUgo shall be entitled to refer to performance of the Services for the Client and include the Client’s trademarks in upUgo’s marketing activities if the Client gives its express consent  in writing (such consent not to be unreasonably withheld).

8.0 Data Privacy

8.1 Each party warrants and represents that it has adopted and implements a privacy policy in compliance with the requirements under the Data Protection Act 2018  in respect of all personal data provided to the other party in connection with the Services or otherwise under this Contract. Without limitation, all necessary consent has been obtained by the Client from individuals for the purposes of performing the Services.

8.2 upUgo will engage third parties to perform specific parts of the Services, including paid campaigns on third party platforms (Third Parties). For specific information regarding the use of third parties, please refer to upUgo’s privacy notice. Specific terms and conditions may apply to the products and services supplied by Third Parties.

8.3 upUgo is not responsible for any information transmitted by Third Parties or liable for any reliance the Client makes upon the information or statements conveyed by Third Parties (or in relation to dealings with Third Parties), nor is upUgo responsible for the accuracy of any advertisements or marketing provided by Third Parties.

9.0 Confidentiality 

9.1 Each party undertakes that it shall keep confidential all Confidential Information and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 9.2.

9.2 A party may:

• subject to clause 9.5, disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Contract, provided that such party ensures that each Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 9 as if it were a party;
• disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
• subject to clause 9.5, use Confidential Information only to perform any obligations under this Contract.

9.3 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.

9.4 The Client shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

9.5 To the extent any Confidential Information is protected data (as would be processed in accordance with clause 8.1) such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 8.1.

10. Anti-bribery

10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:

• all of that party’s personnel;
• all others associated with that party; and
• all of that party’s sub-contractors;

involved in performing the Contract so comply.

10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

10.4 The Client shall immediately notify the Supplier as soon as it becomes aware of a breach by the Client of any of the requirements in this clause 10.

11.0 Dispute Resolution

11.1 If any dispute arises between the Client and upUgo in connection with this Contract (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which: (a) includes or is accompanied by full and detailed particulars of the Dispute; and (b) is delivered within 14 days of the circumstances giving rise to the Dispute first occurring.

11.2 Within 14 days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and upUgo must meet to discuss and seek to resolve the Dispute.

11.3 If the Dispute has not been resolved within 14 days of the first meeting of the representatives, then the matter shall be referred to the managing directors (or persons of equivalent seniority). The managing directors (or equivalent) will meet within 7 days to discuss the dispute and attempt to resolve it.

11.4 If the dispute has not been resolved within 14 days of the first meeting of the managing directors  (or equivalent) under clause 11.3, then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.

11.5 A party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause, provided that nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

11.6 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this Contract and any related agreements save for where upUGo have suspended the Services in accordance with clause 6.6. Where the Contract has been suspended in accordance with clause 6.6 upUGo will not be required perform the Services until payment has been made in accordance with clause 6.6 and/or the Dispute is resolved.

12.0 Force Majeure

12.1 Neither party shall be liable for any failure or delay to performance of obligations under this Contract if such failure or delay results from any cause that is beyond the reasonable control of that Party including power failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

12.2 In the event that any party cannot perform their obligations hereunder as a result of force majeure for a continuous period of 1 month, the other party may at its discretion terminate this Contract by written notice at the end of that period.

13.0 Liability

13.1 Subject always to the Scope of Works, whilst upUgo does not guarantee traffic to the Website or any specific results from the Services it does undertake to use its best endeavours to maximise the results of the Services for the benefit of the Client. This Contract is not a service level agreement.

13.2 To the extent permitted by law, by accepting the Services, the Client acknowledges and represents that the Client is not a consumer and unless otherwise provided for within these Conditions or in the Scope of Works, no refund is payable in any circumstances whatsoever.

13.3 Nothing in the Services constitutes any recommendations or advice from upUgo regarding the marketing or promotion of the Client’s products or services and any marketing campaign shall remain the Client’s commercial decision in its absolute discretion.

13.4 In no circumstances will either party be liable for any consequential or indirect damages, loss of profits, or any other similar or analogous loss resulting from the provisions of the Services whether based on warranty, contract, tort, negligence, in equity or any other legal theory and each parties total maximum liability to the other, for a breach of these Conditions, including any breach of any indemnity,  shall not exceed £100,000.

13.5 The Client shall indemnify upUgo for, and hold it harmless against any loss, damage, costs, expenses, liability, deduction, contribution, assessment or claim (including reasonable legal costs) arising in connection with any access to the Website.

13.6 Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Contract.

13.7 Nothing in this Contract shall limit or exclude the liability of either party for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation.

14.0 Termination

14.1 Without prejudice to clause 3.1 above, either party may immediately terminate the Contract by giving written notice to the other party if:

• • • any sum owing to that party by the other party under any of the provisions of the Contract is not paid within 14 Business Days of the due date for payment;
    • the other party commits any other breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
    • an encumbrancer takes possession, or where the other party is a company, a receiver is appointed, of any of the property or assets of that other party;
    • the other party makes any voluntary arrangement with its creditors or being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
    • the other party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that upUgo resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under the Contract);
    • anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;
    • that other party ceases, or threatens to cease, to carry on business; or
    • control of that other party is acquired by any person or connected persons not having control of that other Party on the date of the Contract.  For the purposes of this Clause 14, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

14.2 For the purposes of clause 14.1.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

14.3 The rights to terminate the Contract shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.

14.4 On termination of this Contract for any reason:

• upUgo shall immediately stop the performance of all Services unless expressly requested otherwise in relation to all or part of the Services by the Client in writing;
• upUgo shall promptly invoice the Client for all Services performed but not yet invoiced;
• without prejudice to any additional obligations under upUgo’s privacy notice, the parties shall within five Business Days return any materials of the other party then in its possession or control; 
• all rights granted to the Client under this Contract shall immediately cease; and
• the Client shall ensure it removes any website reporting or software access previously provided to upUGo.

15.0 Electronic Communication and Notices

15.1 In this clause, ‘electronic communication’ has the meaning given to that term in Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002. 

15.2 The parties acknowledge and agree that this Contract can be executed (including digitally or by counterpart) and conveyed by electronic communication. A consent, notice or communication under this Contract is effective if conveyed by electronic communication and must be sent to the parties’ contact details as specified in the Scope of Works.

15.3 Each party may be required to provide an original of such agreement or counterpart as soon as reasonably possible following request.

16.0 General 

16.1 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Contract.

16.2 Relationship. The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

16.3 Set off. upUgo shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Client under the Contract. The Client shall pay all sums that it owes to upUgo under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

16.4 Assignment. Subject to clause 4.4, the Contract shall be personal to the parties.  Neither party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other party, such consent not to be unreasonably withheld.

16.5 Variation. upUGo may from time to time change these Conditions without giving the Client notice, but upUGo will use its reasonable endeavours to inform the Client as soon as is reasonably possible of any such changes.

16.6 Entire agreement. The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in these Conditions purports to limit or exclude any liability for fraud.

16.7 Third party rights. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce this Contract, provided that this clause does not affect a right or remedy of a person which otherwise exists or is available.

16.8 Waiver. No clause of this Contract will be deemed waived and no breach excused unless such waiver or consent is provided in writing. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.

16.9 Further Action. Each party must do anything reasonably necessary (including executing agreements and documents) to give full effect to this Contract, including in connection with any claim or proceedings brought against a part as a result of any breach of this Contract. 

16.10 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Contract.

16.11 Inconsistency. If this Contract is inconsistent with any other preceding document or agreement between the parties, the Scope of Works prevails to the extent of the inconsistency.

16.12 Counterparts. This Contract may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

16.13 Severability. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

16.14 Governing Law. This Contract is governed by the laws of England & Wales. Each of the parties hereby submits to the exclusive jurisdiction of courts with jurisdiction in England.