Terms & Conditions

1. Definitions and Interpretation

1.1 The following definitions and rules of interpretation apply in these terms and conditions (Terms
and Conditions).

1.2 If there is any conflict or ambiguity between these Terms and Conditions and the Scope of Work,
the Scope of Work shall take precedence.

1.3 In these Terms and Conditions, unless the context otherwise requires, the following expressions
have the following meanings:

Agreement: the Agreement between Clicksmith and the Client for the supply of Services in accordance with these Terms and Conditions and the Scope of Work.
Business Day: a day other than a Saturday, Sunday or public holiday in Guernsey, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 6 .
Clicksmith: GB Consult Limited (T/A Clicksmith) registered in Guernsey with registered number 61599 whose registered office is at 48 The High Street, St Peter Port, Guernsey, GY1 2JU;
Clicksmith Privacy Policy: means the data protection and security policy as may be requested from Clicksmith and which is available online at https://clicksmith.co.uk/privacy-policy/.
Client: the person, firm or corporate body who purchases Services from Clicksmith as set out in the Scope of Work.
Client Default: has the meaning set out in clause 4.2 .
Client Materials: materials, content, information in any form created or generated by Client and supplied to Clicksmith by Client or on Client’s behalf including as described in the Scope of Work.
Commencement Date: has the meaning given in clause 2.2 .
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in Guernsey including the Data Protection (Bailiwick of Guernsey) Law, 2017, as
may be amended from time to time.
Deliverables: the deliverables set out in Scope of Work produced by Clicksmith for the Client.
Downtime: any and all time when the Website is not fully operational.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation:(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights 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.
Scope of Work: the Scope of Work setting out the services to be provided and other details concerning the relationship between Clicksmith and the Client and which forms part of the Agreement.
Services: the services, including the Deliverables, supplied by Clicksmith to the Client as set out in the Scope of Work.
Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 13.5 .
Third Party Supplier: a Third Party Supplier that provides or enables any part of the Services, as set out in the Scope of Work.
Third Party User Agreement: any terms and conditions of any Third Party Supplier applying to the Client as set out on the Third Party Supplier’s Website, as notified by Clicksmith to the Client.
Tracking: the analysis of visitor behaviour and the tracking of visitors to websites or Traffic Providers.
Tracking Downtime: any period when the Tracking Provider services are not operational on the Website.
Tracking Provider: the platform or tool used to track all Services activity. Tracking Providers include, but are not limited to, Google Analytics, Rakuten and Doubleclick.
Traffic Providers: internet search providers and content, traffic and other providers including, but not limited to, Google, BING, LinkedIn and Facebook.
Website: the Client’s website or websites as set out in the Scope of Work, and which shall include all sub-domains, lower level domains of the Website URL and variants.
Works: means all Intellectual Property Rights in material devised, created or commissioned by Clicksmith, in supplying the Services.

1.4 Interpretation:

(a) A reference to a statute or statutory provision is a reference to it as amended or re-
enacted. A reference to a statute or statutory provision includes all subordinate
legislation made under that statute or statutory provision.

(b) Any words following the terms including, include, in particular, for example 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.

2. Basis of Agreement

2.1 The Scope of Work constitutes an offer by the Client to purchase Services in accordance with
these Terms and Conditions.

2.2 The Scope of Work shall only be deemed to be accepted when Clicksmith issues written
acceptance of the Scope of Work at which point and on which date the Agreement shall come
into existence (Commencement Date).

2.3 Any descriptive matter or advertising issued by Clicksmith, and any descriptions or illustrations
contained in Clicksmith’s brochures, are issued or published for the sole purpose of giving an
approximate idea of the Services described in them. They shall not form part of the Agreement
or have any contractual force.

2.4 These Terms and Conditions apply to the Agreement to the exclusion of any other terms that
the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or
course of dealing.

3. Supply of Services

3.1 The Client hereby appoints Clicksmith as its exclusive provider of the Services and with effect
from the Commencement Date, in consideration of the Fees being paid in accordance with the
Agreement, Clicksmith shall supply the Services to the Client in accordance with the Scope of
Work in all material respects.

3.2 Clicksmith shall use all reasonable endeavours to meet any performance dates specified in the
Scope of Work but any such dates shall be estimates only and time shall not be of the essence
for performance of the Services.

3.3 Clicksmith reserves the right to amend the Scope of Work if necessary to comply with any
applicable law or regulatory requirement, or if the amendment will not materially affect the
nature or quality of the Services, and Clicksmith shall notify the Client in any such event.

3.4 Clicksmith warrants to the Client that the Services will be provided using reasonable care and
skill.

4. Client’s obligations

4.1 The Client shall:

(a) ensure that the terms of the Scope of Work and any information it provides in the
Scope of Work are complete and accurate;

(b) co-operate with Clicksmith in all matters relating to the Services;

(c) provide Clicksmith, its employees, agents, consultants and subcontractors, with access
to the Client’s premises, office accommodation and other facilities as reasonably
required by Clicksmith;

(d) provide Clicksmith with such information and materials as Clicksmith may reasonably
require in Scope of Work to supply the Services, and ensure that such information is
complete and accurate in all material respects;

(e) obtain and maintain all necessary licences, permissions and consents which may be
required for the Services before the date on which the Services are to start;

(f) comply with any additional obligations as set out in the Scope of Work.

4.2 If Clicksmith’s performance of any of its obligations under the Agreement is prevented or
delayed by any act or omission by the Client or failure by the Client to perform any relevant
obligation (Client Default):

(a) without limiting or affecting any other right or remedy available to it, Clicksmith shall
have the right to suspend performance of the Services until the Client remedies the
Client Default, and to rely on the Client Default to relieve it from the performance of
any of its obligations in each case to the extent the Client Default prevents or delays
Clicksmith’s performance of any of its obligations;

(b) Clicksmith shall not be liable for any costs or losses sustained or incurred by the Client
arising directly or indirectly from Clicksmith’s failure or delay to perform any of its
obligations as set out in this clause 4.2 ; and

(c) the Client shall reimburse Clicksmith on written demand for any costs or losses
sustained or incurred by Clicksmith arising directly or indirectly from the Client Default.

5. Client Warranties

5.1 The Client warrants that:

(a) it will comply with any applicable Third Party User Agreement as if it were
incorporated into the Agreement. If there is any conflict between these Terms and
Conditions and the terms of the Third Party User Agreement, then these Terms and
Conditions shall prevail;

(b) ownership, proprietary rights and all Intellectual Property Rights in all software
supplied to the Client or otherwise available to the Client shall remain the property of
Clicksmith or its licensors. The Client agrees to comply with the terms of any agreement reasonably required by the owner of Intellectual Property Rights in all
software supplied to or used by the Client for the protection of that software;

(c) all information and materials supplied to Clicksmith (including Client Materials) in
relation to the supply of the Services will be accurate and in accordance with all laws,
and not violate any third party rights, including any third party Intellectual Property
Rights and that it shall indemnify Clicksmith against all damages, losses and expenses
arising as a result of any action or claim in this regard;

(d) it shall provide at least twenty four (24) hours’ written notice to Clicksmith of any
changes to the Website that are likely to affect the Services;

(e) it shall provide reasonable notice to Clicksmith of any changes likely to impact on the
delivery of the Services by Clicksmith;

(f) it shall maintain a backup of the Website, any underlying code, and all materials,
information and intellectual property owned by it that are passed to Clicksmith under
this Agreement;

(g) where Clicksmith is providing Services that require Tracking, from the Commencement
Date:

(i) the Tracking Provider pixel will be placed on the Website correctly at all times;
(ii) the Tracking Provider pixel will not be removed from the Website (or any of
them) until, following termination or expiry of the Agreement;
(iii) it will notify Clicksmith if they suffer any Tracking Provider downtime and that
it will use best endeavours to ensure that it is fully operational again within
one (1) hour of when the Tracking Provider pixel first became non-operational;
(iv) it will notify Clicksmith if the Website (or any of them) suffers any Downtime
and that it will use best endeavours to ensure that it is fully operational again
within two (2) hours of such Downtime commencing; and
(v) it will only use the Works in accordance with the terms of this Agreement.

5.2 The Client shall indemnify Clicksmith from and against all losses suffered or incurred by
Clicksmith arising out of or in connection with any breach of clause 5.1.

5.3 Any Downtime or Tracking Downtime shall not be included in any calculations of Clicksmith’s
compliance with any agreed KPIs or service level metrics set out in the Scope of Work, if the
inclusion of the Downtime and Tracking Downtime would adversely affect Clicksmith’s level of
compliance with the agreed KPIs or service level metrics. Clicksmith’s entitlement to fees for
Services shall not be adversely affected by any Downtime or Tracking Downtime.

6. Charges and payment

6.1 The Charges for the Services shall be set out in the Scope of Work.

6.2 Clicksmith shall be entitled to charge the Client for any expenses reasonably incurred by the
individuals whom Clicksmith engages in connection with the Services including travelling
expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Clicksmith for the performance of the Services, and for
the cost of any materials.

6.3 Clicksmith shall invoice the Client as set out in the Scope of Work, or if not specified therein,
then monthly in arrears.

6.4 The Client shall pay each invoice submitted by Clicksmith within thirty (30) days of the date of
the invoice, in full and in cleared funds to a bank account nominated in writing by Clicksmith and
time for payment shall be of the essence of the Agreement.

6.5 If the Client fails to make a payment due to Clicksmith under the Agreement by the due date,
then, without limiting Clicksmith’s remedies under clause 10 , the Client shall pay interest on the
overdue sum from the due date until payment of the overdue sum, whether before or after
judgment. Interest under this clause 6.5 will accrue each day at four per cent (4%) a year above
the Bank of England’s base rate from time to time, but at four per cent (4%) a year for any
period when that base rate is below zero per cent (0%).

6.6 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim,
deduction or withholding (other than any deduction or withholding of tax as required by law).

7. Intellectual Property Rights

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than
Intellectual Property Rights in any materials provided by the Client) shall be owned by
Clicksmith.

7.2 Clicksmith grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up,
worldwide, non-exclusive, royalty-free licence, during the term of the Agreement to copy the
Deliverables (excluding materials provided by the Client) for the purpose of receiving and using
the Services and the Deliverables in its business.

7.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2 .

7.4 The Client grants Clicksmith a fully paid-up, non-exclusive, royalty-free, non-transferable licence
to copy and modify any materials provided by the Client to Clicksmith for the term of the
Agreement for the purpose of providing the Services to the Client.

8. Data Protection

8.1 Clicksmith shall comply with any notification requirements under the Data Protection Legislation
and both parties will duly observe all their obligations under the Data Protection Legislation,
which arise in connection with the agreement.

8.2 Clicksmith shall comply with the Clicksmith Privacy Policy.

8.3 Clicksmith agrees that any data account owned by the Client to which Clicksmith has access
during the provision of the Services, shall be returned to the Client at the termination or expiry
of the Agreement.

9. Limitation of liability

9.1 References to liability in this clause 9 include every kind of liability arising under or in connection
with the Agreement including liability in contract, tort (including negligence or breach of
statutory duty) or otherwise.

9.2 Nothing in this clause 9 shall limit the Client’s payment obligations under the Agreement.

9.3 Nothing in the Agreement limits any liability which cannot legally be limited, including liability
for:

(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.

9.4 Subject to clause 9.3 , Clicksmith’s total liability to the Client in contract, tort (including
negligence or breach of statutory duty) or otherwise arising in connection with the performance
or contemplated performance of the Agreement shall in all circumstances be limited to a figure
no greater than the Fees paid for the Services in the previous twelve (12) months, (or if twelve
(12) months have not elapsed, would be payable in twelve (12) months).Client Default

9.5 Subject clauses 9.2 and 9.3 , this clause 9.5 sets out the types of loss that are wholly excluded:

(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use;
(f) loss or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) special, indirect, consequential or pure economic loss, damages or expenses.

9.6 Unless the Client notifies Clicksmith that it intends to make a claim in respect of an event within
the notice period, Clicksmith shall have no liability for that event. The notice period for an event
shall start on the day on which the Client became, or ought reasonably to have become, aware
of the event having occurred and shall expire twelve (12) months from that date. The notice
must be in writing and must identify the event and the grounds for the claim in reasonable
detail.

9.7 This clause 9 shall survive termination of the Agreement.

10. Termination

10.1 Without affecting any other right or remedy available to it, either party may terminate the
Agreement in accordance with the terms of the Scope of Work.

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

(a) the other party commits a material breach of any term of the Agreement and (if such a
breach is remediable) fails to remedy that breach within thirty (30) days of that party
being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration,
provisional liquidation or any composition or arrangement with its creditors (other
than in relation to a solvent restructuring), being wound up (whether voluntarily or by
order of the court, unless for the purpose of a solvent restructuring), having a receiver
appointed to any of its assets or ceasing to carry on business or, if the step or action is
taken in another jurisdiction, in connection with any analogous procedure in the
relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to
carry on all or a substantial part of its business; or

(d) the other party’s financial position deteriorates to such an extent that in the
terminating party’s opinion the other party’s capability to adequately fulfil its
obligations under the Agreement has been placed in jeopardy.

10.3 Without affecting any other right or remedy available to it, Clicksmith may terminate the
Agreement with immediate effect by giving written notice to the Client if the Client fails to pay
any amount due under the Agreement on the due date for payment.

10.4 Without affecting any other right or remedy available to it, Clicksmith may suspend the supply
of Services under the Agreement or any other Agreement between the Client and Clicksmith if:

(a) the Client fails to pay any amount due under the Agreement on the due date for
payment;

(b) the Client becomes subject to any of the events listed in clauses 10.2(b), 10.2(c) or
clause 10.2(d) , or Clicksmith reasonably believes that the Client is about to become
subject to any of them; and

(c) Clicksmith reasonably believes that the Client is about to become subject to any of the
events listed in clause 10.2(b) .

11. Consequences of termination

11.1 On termination or expiry of the Agreement:

(a) the Client shall immediately pay to Clicksmith all of Clicksmith’s outstanding unpaid
invoices and interest and, in respect of Services supplied but for which no invoice has
been submitted, Clicksmith shall submit an invoice, which shall be payable by the
Client immediately on receipt;

(b) the Client shall return any Deliverables which have not been fully paid for. If the Client
fails to do so, then Clicksmith may enter the Client’s premises and take possession of
them. Until they have been returned, the Client shall be solely responsible for their
safe keeping and will not use them for any purpose not connected with the
Agreement;

(d) the Client shall cease any and all use of the Works.

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

11.3 Any provision of the Agreement that expressly or by implication is intended to come into or
continue in force on or after termination or expiry of the Agreement shall remain in full force
and effect.

12. Non-Solicitation

12.1 During this term of the Agreement, and for twelve (12) months after termination or expiry, the
Client will not, without the prior written consent of Clicksmith (whether on its own behalf, in
conjunction with and/or on behalf of any individual and/or organisation in any capacity) directly
and/or indirectly:

(a) entice or attempt to entice away from employment with Clicksmith any person who is
an employee of Clicksmith;

(b) employ, engage and/or otherwise use the services of any individual who was an
employee or representative of Clicksmith during the preceding nine (9) months;

(c) assist, advise or give any information to enable a third party to engage in any of the
activities stated in this clause 12.1.

12.2 If any part of this clause 12 is held to be void and/or unenforceable that part shall be struck out
and the remainder of this Clause shall remain in full force and effect.

13. General

13.1 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in
performing, or failure to perform, any of its obligations under the Agreement if such delay or
failure result from a Force Majeure Event.

13.2 Assignment and other dealings.

(a) Clicksmith may at any time assign, mortgage, charge, subcontract, delegate, declare a
trust over or deal in any other manner with any or all of its rights and obligations under
the Agreement.

(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a
trust over or deal in any other manner with any of its rights and obligations under the
Agreement without the prior written consent of Clicksmith.

13.3 Confidentiality.

(a) Each party undertakes that it shall not at any time during the Agreement, and for a
period of five (5) years after termination or expiry of the Agreement, disclose to any
person any confidential information concerning the business, affairs, customers, clients
or suppliers of the other party, except as permitted by clause 13.3(b) .

(b) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or
advisers who need to know such information for the purposes of carrying out
the party’s obligations under the Agreement. Each party shall ensure that its
employees, officers, representatives, contractors, subcontractors or advisers to
whom it discloses the other party’s confidential information comply with this
clause 13.3 ; and
(ii) as may be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.

(c) Neither party shall use the other party’s confidential information for any purpose other
than to perform its obligations under the Agreement.

13.4 Entire agreement.

(a) The Agreement constitutes the entire agreement between the parties and supersedes
and extinguishes all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether written or oral, relating
to its subject matter.

(b) Each party acknowledges that in entering into the Agreement it does not rely on, and
shall have no remedies in respect of any statement, representation, assurance or
warranty (whether made innocently or negligently) that is not set out in the
Agreement.

13.5 Variation. Except as set out in these Terms and Conditions, no variation of the Agreement shall
be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.6 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given
in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or
delay by a party to exercise any right or remedy provided under the Agreement or by law shall
not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any
further exercise of that or any other right or remedy. No single or partial exercise of any right or
remedy provided under the Agreement or by law shall prevent or restrict the further exercise of
that or any other right or remedy.

13.7 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or
unenforceable, it shall be deemed deleted, but that shall not affect the validity and
enforceability of the rest of this agreement. If any provision or part-provision of this Agreement
is deleted under this clause 13.7 the parties shall negotiate in good faith to agree a replacement

provision that, to the greatest extent possible, achieves the intended commercial result of the
original provision.

13.8 Notices.

(a) Any notice or other communication 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 (if a company) or
its principal place of business (in any other case); or sent by email to George Bett at
[email protected] in the case of Clicksmith or the Client contact specified in the
Scope of Work (in the case of the Client).

(b) Any notice or communication shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) 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

(iii) if sent by email at the time of transmission, or, if this time falls outside
business hours in the place of receipt, when business hours resume. In this
clause 13.8(b)(iii) , business hours means 9.00am to 5.00pm Monday to Friday
on a day that is not a public holiday in the place of receipt.

(c) This clause 13.8 does not apply to the service of any proceedings or other documents
in any legal action or, where applicable, any other method of dispute resolution.

13.9 Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with it or its subject matter or formation shall be
governed by, and construed in accordance with the laws of the Island of Guernsey.

13.10 Jurisdiction. Each party irrevocably agrees that the courts of the Island of Guernsey shall have
exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with the Agreement or its subject matter or formation.