Terms and Conditions

Terms and Conditions version v.1 January 2018

The definitions and rules of interpretation in this clause apply in these Terms and Conditions and in any other Agreement between the Parties.

Agreement: means these Terms and Conditions, any Schedule to them, and the terms of any Statement of Work signed by the Parties.

Brand Guidelines: Client’s brand guidelines provided to Zelst from time to time.

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

Change Request: A formal written request for a change to any Services or Deliverables agreed under a Statement of Work as set out in clause 2.5.

Charges: the charges in respect of the Services set out in a Statement of Work.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together its Representatives: ) to the other Party and that Party’s Representatives in connection with these Terms and Conditions or any Statement of Work that is either labelled as such or else that should reasonably be considered as confidential because of its nature and the manner of its disclosure.

Data Protection Legislation: means the Data Protection Act 1998, General Data Protection Regulation EU2016/670 and any successor legislation to those, and the terms Data Controller, Data Processor, Data Subject, Processing and process and Personal Data are as defined in that legislation

Deliverables: the reports, analyses, statistics, content and other materials required to be delivered by Zelst in accordance with the Agreement.

Effective Date: the date of the Agreement as stated in any SoW.

PPC Account: a Pay Per Click account or account with a similar function.

Intellectual Property Rights: copyright and related rights, trade marks and service marks, business names and domain names, rights in computer software, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights whether registered or unregistered and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses: all actual losses, damages, costs, expenses (including reasonable professional advisers’ costs and disbursements, reasonable legal costs and disbursements) incurred by the relevant Party. The term Loss shall have a corresponding meaning.

Materials: the content provided to Zelst by Client from time to time in order for Zelst to perform the Services.

Pre-Existing Work: the works, concepts, items and materials either developed or procured to be developed by Zelst or its personnel at any time for use in relation to Zelst’s business or any or all of Zelst’s customers generally and not specifically for the provision of the Services or Deliverables to Client.

SEO Services: as specified in any SOW these are as understood in the industry and as may be developed and changed from time to time including but not limited to: keyword and key-phrase optimization and research, technical website SEO audits, optimization of specific pages, robots.txt and sitemaps and other search engine optimisation techniques in order to increase the ranking and prominence of a Website (and/or its web pages) in the result pages of search engines.

Services: such services required to be provided by Zelst pursuant to a Statement of Work, and all other services reasonably necessary to be performed by Zelst in order to carry out its obligations under the Agreement.

Specification: the specification for the Services as set out in a Statement of Work.

Statement of Work/ SOW: a document which describes the Services and Deliverables to be provided by Zelst to Client, and which is agreed between the Parties and signed by their authorised representatives.

Term: the duration of the SOW as stated in the SOW, which in the absence of any other statement shall run from the Effective Date.

Unsuitable Content: any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.

Virus: any thing or device (including any software, code, file or program) whose purpose or function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any program or data, or impair the operation of any program or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item.

Website: the website or websites at the internet domains listed in a Statement of Work.

Zelst: means Zelst Limited incorporated and registered in England and Wales with company number 09224536 whose registered office is at First Floor, Ad House, 52 East Parade, Harrogate, North Yorkshire, England, HG1 5LT

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, description, definition, phrase or term preceding those terms

Except as expressly provided in the Terms and Conditions, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

The Parties will execute individual Statements of Work subject to these Terms and Conditions. If there is inconsistency or conflict between these Terms and Conditions and any SOW the Terms and Conditions shall take precedence unless such terms in an SOW are clearly and expressly stated to be intended to override a particular provision of these Terms and Conditions.

Each SOW shall specify (as applicable) the scope and Specification of the Services and Deliverables, any additional obligations on a Party and the relevant Charges.

Unless otherwise agreed by the Parties each SOW shall constitute a separate Agreement under these Terms and Conditions, defined terms used in an SOW shall have the same meaning as these Terms and Conditions.

Where any SOW includes SEO Services then the terms and conditions within Schedule 1 shall apply to that part of the SOW which relates to SEO Services.

Where any request is made by the Client to change the services or deliverables under this Agreement or any SOW or Zelst proposes to make a change the Client will submit a written notice to Zelst (or vice versa) (a Change Request) containing the following for any request: the requestor’s identity, the reason, specifications, proposed timetable for implementation and further documentation/specifications required to be produced by either party. Zelst shall respond within a reasonable amount of time setting out the following: any additional costs, an estimate of the timetable to carry out the request, any reasons why the request cannot be achieved and any other contractual issues. If Zelst propose a change, it shall specify reason for and the cost of implementing that change. The parties shall both agree any Change Request in writing, such as within a single document or contained within an email. Zelst will not unreasonably refuse any Change Request unless it considers the additional work involved should be carried out under a new SOW.

Zelst shall assist in the preparation of the SOW and during the Term of the SOW shall:

in accordance with these Terms and Conditions, the SOW and any other reasonable instructions clearly communicated by the Client.

Zelst is not responsible for changes made to the Website or (if applicable) any search engine (including its policies, procedures and algorithms) by:

that adversely affect the search engine rankings of the Website.

Zelst shall promptly report to Client any material issues with the performance of the Services and/or Websites. Upon the reasonable request of Client, and subject to an agreement on costs between the Parties, Zelst shall use reasonable endeavours to correct any such material issues with the performance of the Services and/or Websites.

To assist Zelst in providing the Services, Client agrees to provide:

of a good workmanlike standard and within reasonable timeframes to Zelst.

Zelst shall invoice Client monthly in advance. Provided that Zelst has performed the Services in accordance with the Agreement Client shall pay all properly due Charges within 14 days of receipt of invoice.

Zelst may, notwithstanding and alternatively or in addition to clause 1, quote an up-front Charge for any part of the Services. The duration and Charge relating to any part of the Services performed under an SOW will be expressly set out in the SOW.

Where Zelst reasonably considers that there is work which was out of scope for the SOW, which is required for performance of the SOW, the Parties shall agree a new Charge and may elect to extend the time for delivery. Any modification pursuant to this clause 1 must be in accordance with clause 17.

Where additional work cannot be agreed according to clause 2 Zelst may terminate the SOW and will be entitled to paid by the Client for the value of work done prior to termination, or the proportion of Charges. Any surplus monies held by Zelst shall be returned to the Client within a reasonable amount of time.

All Charges are exclusive of VAT which shall be payable by Client at the applicable rate.

If Client fails to make any payment due to Zelst under an Agreement by the due date for payment, then, without limiting Zelst’s remedies under clause 3, Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client shall pay the interest together with the overdue amount.

In relation to payments disputed in good faith, interest under clause 6 is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.

Subject to clause 2, and subject to all payments having been made all Intellectual Property Rights in the Deliverables shall vest in and belong to Client absolutely, and Zelst hereby assigns with full title guarantee and free from all encumbrances and rights of third parties all such Intellectual Property Rights in the Deliverables to Client. Zelst shall execute all documents and take all actions necessary or reasonably requested by Client to document, obtain, maintain, perfect or assign its rights to the Deliverables.

To the extent that any Pre-Existing Work is incorporated into the Deliverables it shall remain the property of Zelst. Zelst hereby grants (and if the Pre-Existing Work shall include any third-Party materials, procure the grant from these third parties) to Client a non-exclusive, transferable, irrevocable, worldwide and perpetual licence to use such Pre-Existing Work as part of the Deliverables.

Client grants Zelst a limited, non-exclusive, non-transferable, revocable and worldwide licence to access and use the: Websites; Materials; Deliverables; and name, logo, company name and trademark of Client, in accordance with the Agreement and the Branding Guidelines during the Term.

Zelst Data Processing obligations

Client’s Data Controller obligations

The Parties shall indemnify each other as follows:

The Indemnified Party (under clause 1(a) or clause (b) as the case may be) shall:

The Indemnifying Party (under clause 1(a) or clause (b) as the case may be) shall control the litigation and settlement of any Claim and keep the Indemnified Party informed at reasonable intervals of the Claim.

Each of the Parties warrants to the other that it has full power and authority to enter into and perform the Agreement.

Each Party warrants to the other that it will process the Personal Data in compliance with all applicable Data protection Legislation.

Client warrants, represents and undertakes that

Zelst warrants, represents and undertakes that

Nothing in the Agreement shall operate to exclude or limit either Party’s liability for

Subject to clause 1, neither Party shall be liable to the other Party for any loss of profit, use, data or indirect, special or consequential losses or damages.

Subject to clause 1 and clause 10.2, each Party’s aggregate liability to the other Party in respect of claims arising out of or in connection with the Agreement, or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by Client in the 12 months preceding the claim.

The Client acknowledges that Zelst is reliant on the Client for direction as to the extent to which Zelst is entitled to use and process the Personal Data. Consequently, Zelst will not be liable for any claim brought by a Data Subject arising from any action or omission by the Client, to the extent that such action or omission resulted directly from the Client’s instructions.

The Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with clause, for the Term.

Without affecting any other right or remedy available to it, either Party may terminate any Agreement with immediate effect by giving written notice to the other Party if:

Either Party may terminate this Agreement for convenience on sixty (60) days written notice to the other party. In the event of such termination Zelst will provide a list of Charges that are due including Charges for work done or irrecoverable costs and the Client shall pay those Charges to Zelst.

On expiry or termination of the Agreement:

On termination of these Terms and Conditions or an SOW (however arising) the accrued rights and liabilities of the Parties as at termination, and the following clauses, shall survive and continue in full force and effect: clause 1, clause 2, clause 1, clause Error! Reference source not found., clause 6.2, clause 7, clause 10, clause 11.4, clause 11.5, clause 11.6, clause 12, clause 14, clause 18 and clause 18.

Termination of any Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

Each Party undertakes that it shall not at any time disclose to any third party any Confidential Information concerning the business, affairs, customers, clients or supplier of the other Party, except as permitted by clause 2.

Each Party may disclose the other Party’s Confidential Information:

No Party shall use any other Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with an Agreement.

Neither Party shall be in breach of an Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 14 days, the Party not affected may terminate the Agreement by giving 14 days’ written notice to the affected Party.

Aside from the service of documents pursuant to legal action or similar proceedings, any notice given to a Party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office.

Any notice shall be deemed to have been received, if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

A notice given under these Terms and Conditions is not valid if sent by email.

The Agreement is personal to the Parties and neither Party shall assign, transfer, declare a trust over or deal in any other manner with any of its rights and obligations under an Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld.

No failure or delay by a Party to exercise any right or remedy provided under these Terms and Conditions, any SOW or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

No variation of these Terms and Conditions or any SOW shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

The Agreement and any dispute or claim arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction.