1. WHO EVERYBODY IS AND OUR BASIS OF SERVICE
1.1 “STEAK”, “We” and “Our” means Minute Steak, a trading name of STEAK Ltd, a company registered in England whose registered office and business address is at 62 – 70 Shorts Gardens, London, WC2H 9AH.
1.2 The “Services” we supply are: a) management of pay-per-click listings across search engines; or b) any other services we specify to You in writing. “Management of pay-per-click listings across search engines“ means, in general terms, management of Your pay-per-click listings across recognised major search engines specified by Us so as to attempt to maximise Your return-on-investment for Your allocated campaign budget; and this includes campaign set-up, management and optimisation; Our editorial team’s examination of relevant websites to check relevant keywords, titles and descriptions; management of Your budget split across pay-for-placement search engines; estimation of traffic; all as may be more particularly specified on Our website; particularly as to the different levels of service which We operate and the corresponding different pricing.
1.3 “You” means anyone to whom We provide Services.
1.4 You warrant that you enter the Agreement as a business and not as a consumer.
1.5 These are the terms and conditions under which We are willing to provide Services to You. The “Agreement” means the agreement between You and Us for and about Services. The Agreement is entered into on the basis of these Terms and Conditions, although We reserve the right to vary these from time to time; if You disagree with any such variation, You may notify Us and You may terminate the Agreement on 30 days’ written notice to Us (and until you terminate in this way, the Agreement will continue on the terms in existence before such a variation).
1.6 You remain at all times primarily liable to Us under the Agreement even though You may be acting as agent for Your own customer(s). You warrant that You are contracting with Us as principal and have the authority to do so, even though You may be acting as an advertising agency, media distributor or in some other representative capacity.
2. SERVICES & FEES
2.1 Our fee for the Services is: i) Your choice of £500 per month or £1,000 per month, depending which level of Services that You select (or such other amount per month which We may specify to You and to which You agree); plus ii) 4% of the media-spend money which You authorise Us to spend on Your campaign (this is a ‘technology fee’); plus iii) Value Added Tax and any other applicable duties, taxes or imposts; all these together being “Fees”.
2.2 The date we take the first payment from you of any Fees is the “Start Date”. (As per Clause 4.1, the Agreement between You and Us starts on the Start Date.)
2.3 We will, in consultation with You, select a start date for the Services to the be provided to You (“Services Start Date”), and We will also select, in consultation with You, the date Your campaign is to go live (“Live Date”). From the Services Start Date (or if none specified, from the date we actually start providing Services to You), in consideration of the Fees and Your other obligations, We shall, during the term of the Agreement use Our reasonable endeavours to provide the Services (limited to any country we may have specified to You (“Services Country”)).
2.4 We may perform the Services at Our own premises or not.
2.5 We shall comply with lawful and reasonable directions regarding the Services communicated to Us from time to time by You provided these are within the scope of the Services and will not cause Us to incur extra costs. We shall keep You reasonably informed as to the status of any Services on which We are presently engaged but in a more limited capacity than if you were paying for a full, non-commoditised service.
2.6 We shall be solely responsible for the selection and allocation of personnel, and We reserve the right to use persons other than Our employees to perform the Services.
2.7 You shall, promptly on Our request and otherwise as required, provide Us with all assistance, facilities, information, resources (including personnel resources) and materials to enable Us to perform the Services in accordance with the terms of the Agreement. You shall be responsible for the completeness and (where applicable) accuracy of all such assistance, facilities, information, resources and materials provided, and shall ensure that You are and You remain entitled to provide the same to Us for use in connection with the performance of the Services.
2.8 If, and to the extent, that the performance of the Services involves or requires the attendance of Our personnel at any premises, or the use of Your equipment, You shall ensure that such personnel are allowed such access to such premises and/or equipment as is reasonably necessary to facilitate the performance of the Services. You shall take full responsibility for the safety and security of Our personnel whilst at such premises or using such equipment.
2.9 We reserve the right from time to time to improve or alter the Services as We deem reasonably appropriate provided We do not substantially change the nature of the Services.
2.10 You shall at all times cooperate with Us in good faith and to the fullest extent possible and, on an ongoing basis, shall follow Our reasonable directions with respect to the Services.
2.11 Services shall be provided during Our usual hours of Our usual working day.
3. PAYMENT
3.1 Fees are payable by You monthly in advance by any reasonable method We specify (including by credit card or direct debit), although we usually take payment on 25th of each month (and so we reserve the right to apportion payments up to or from such date). All Fees are payable in the currency of England, from time to time. Fees must be paid in full by You without set-off, reduction or withholding on any account whatsoever.
3.2 You must pay to Us any media spend You authorise, before We can properly provide the Services to You. Again, all media spend is payable in the currency of England, from time to time and must be paid in full by You without set-off, reduction or withholding on any account whatsoever.
3.3 Fees are exclusive of expenses (including travel, accommodation and subsistence expenses) of Our staff or sub-contractors involved in the provision of Services, incidental costs (including the cost of spare or replacement parts) all of which shall be for Your account.
3.4 If You are overdue with any payment then, without affecting any other right or remedy available to Us:
3.4.1 You shall be liable to pay interest on the overdue amount at the annual rate of 4% above the prevailing base lending rate of Our principal bankers, which interest shall accrue on a daily basis from the date payment becomes due until We have received full payment of the amount due together with all interest that has accrued; and
3.4.2 We reserve the right to suspend the provision of Services until You have rectified matters and We may terminate the Agreement immediately at any time.
3.5 If the cost to Us of providing Services under our Agreement increases as a result of any breach of the Agreement by You, or the supply of incorrect or inadequate information by You, or any change to the law or any other reason beyond Our reasonable control (including any increase in costs or fees payable by Us to any third party in respect of any part of the Services in question), such increase shall be added to the Fees payable. We shall notify You as soon as reasonably practicable in advance of any such increase.
3.6 Any work which We perform at Your request or with Your agreement which is additional to what We have agreed to undertake for You shall be separately charged for at Our then-prevailing rates.
4. TERM
4.1 The Agreement between You and Us starts on the Start Date. It continues on a month by month basis indefinitely, although either You or We can terminate the Agreement by giving the other one month’s notice.
4.2 Either We or You may terminate any Agreement at any time immediately by written notice to the other if:
4.2.1 the other party commits any material breach of the Agreement (including, in the case of You, failure to pay any amount owing on the due date for payment) which breach is irremediable, or which breach (if remediable) is not remedied within 7 days after the service of written notice requiring the same; or
4.2.2 the other party shall be unable to pay its debts within the meaning of the Insolvency Act 1986, if the other party becomes bankrupt, insolvent, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver and/or manager and/or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances 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 the other party takes or suffers any similar or analogous action to the foregoing in consequence of debt.
4.3 Neither You nor We 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.
5. WARRANTIES AND RULES OF CONDUCT
5.1 We warrant that We will perform the Services and discharge Our obligations with reasonable care and skill. Subject to that, We cannot guarantee that the Services will meet Your requirements or that the Services will be uninterrupted, timely, secure, or error free.
5.2 You warrant that:
5.2.1 You have full capacity and authority and all necessary licences, permits and consents (including, where Your circumstances and procedures require it, the consent of any parent company) to enter into and to perform the Agreement and You shall maintain this during the term of the Agreement;
5.2.2 You are not insolvent or unable to pay debts, no order has been made or petition presented or resolution passed for Your winding up or for an administration order and no receiver, administrative receiver or administrator or manager has been appointed by any person of Your business or assets or any part thereof nor has any equivalent event taken place nor has or any administration order been made;
5.2.3 Your use of the Services and Your use of the results of the Services shall be in compliance with all applicable laws, enactments, orders, regulations, and other similar instruments in each jurisdiction in which the Services are supplied and in each country or territory which exercises effective jurisdiction over the use of the Services; and
5.2.4 the use of the Services and the results of the Services and Your actions under the Agreement shall not infringe the intellectual property rights of any third party.
6. INTELLECTUAL PROPERTY
6.1 All intellectual property rights arising in the course of or in connection with the Agreement, including those arising in or from the provision of any Services, shall immediately on and from creation or performance vest in and be owned by Us absolutely and You shall acquire no right, title or interest in or to the same, other than licence to use the same during the term in the course of the provision by Us of the Services.
6.2 For the avoidance of doubt, nothing in the Agreement shall have the effect of granting or transferring to, or vesting in, You any intellectual property rights, or any other right, title or interest, in or to any ideas, strategies, methodologies, processes, concepts or policies belonging to, devised, developed or created by Us or any third party whether before or in the course of performance of the Agreement or otherwise, or, subject to Clause 6.1, any material, item or work devised, developed or created by Us or any third party during the term of the Agreement.
6.3 The obligations imposed by this Clause 6 shall survive the variation, renewal or termination of the Agreement.
7. LIMITATION OF LIABILITY
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of Us, and the sole and exclusive remedies of You in respect of:
7.1.1 the performance, non-performance, purported performance or delay in performance of the Agreement with You or the Services (or any part of it or them); or
7.1.2 otherwise in relation to the Agreement with You or the entering into or performance of the Agreement with You.
7.2 Nothing in any Agreement with You shall exclude or limit Our Liability for (i) the tort of deceit; (ii) death or personal injury caused by its Breach of Duty; (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982; or (iv) any other Liability which cannot be excluded or limited by applicable law.
7.3 Save as provided in Clause 7.2 but subject to Clause 7.4, We do not accept and hereby exclude any Liability for loss of or damage to Your tangible property other than that caused by Our Breach of Duty.
7.4 Save as provided in Clause 7.2 but subject to Clauses 7.3 and 7.6, Our Liability for loss of or damage to Your tangible property caused by Us, Our employees, subcontractors or agents acting within the course of their employment during the performance of the Agreement, shall not exceed £100. Neither corruption of data nor loss of data shall constitute physical damage to property for the purposes of this Clause 7.4.
7.5 Save as provided in Clauses 7.2 and 7.3, We do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the terms of the Agreement.
7.6 Save as provided in Clause 7.2, We shall have no Liability for:
7.6.1 loss of revenue;
7.6.2 loss of actual or anticipated profits;
7.6.3 loss of Agreements;
7.6.4 loss of the use of money;
7.6.5 loss of anticipated savings;
7.6.6 loss of business;
7.6.7 loss of opportunity;
7.6.8 loss of goodwill;
7.6.9 loss of reputation;
7.6.10 loss of, damage to or corruption of data; or
7.6.11 any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, Clauses 7.6.1 to 7.6.10 apply whether such losses are direct, indirect, consequential or otherwise.
7.7 Save as provided in Clause 7.2, the total Liability of Us to You 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 Fees payable by You to Us in the 12 months preceding any cause of action arising; or c) 110% of the Fees paid by You to Us in the 12 months preceding any cause of action arising.
7.8 The limitation of Liability under Clause 7.7 has effect in relation both to any Liability expressly provided for under any Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of any Agreement.
7.9 In the Agreement:
7.9.1 “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of the Agreement to take reasonable care or exercise reasonable skill in the performance of the Agreement or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
7.9.2 “Liability” means liability in or for breach of Agreement, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including liability expressly provided for under any 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 “Agreement” shall be deemed to include any collateral Agreement).
8. CONFIDENTIALITY
8.1 You agree, during the continuance of the Agreement and after its termination, to keep secret and confidential all information of a confidential nature obtained from Us, whether pursuant to the Agreement or prior to it, and all other information that You may acquire from Us in the course of the Agreement (“Confidential Information”), to use the Confidential Information exclusively for the purposes of the Agreement and to disclose it only to those of its employees (or, where allowed, sub-licensees or sub-contractors) to whom, and to the extent that, such disclosure is reasonably necessary for the purposes of the Agreement. Any disclosure shall be under obligations of confidence at least equivalent to the obligations imposed on You under this Clause 8.
8.2 The provisions of sub-clause 8.1 shall not apply to Confidential Information obtained from Us which:
8.2.1 prior to receipt was in Your possession and at Your free disposal; or
8.2.2 is subsequently disclosed to You without any obligations of confidence by a third party who has not derived it directly or indirectly from Us or in breach of any obligation or duty of confidence; or
8.2.3 is or becomes generally available to the public in the United Kingdom through no act or default of Yours.
8.3 Without prejudice to the generality of the foregoing We reserve the right to disclose to any person any information in circumstances in which such disclosure is made for the purpose of assisting any civil or criminal investigations or proceedings or for the purpose of assisting or advising any regulatory body or as otherwise required by law.
8.4 Notwithstanding anything to the contrary in the Agreement Conditions, We shall be entitled to pass any information to any relevant network provider or any regulatory body or any other competent authority or public body who may require the same.
8.5 You and Us shall keep all confidential information of or relating to the other which it receives secure and protected against theft, damage, loss or unauthorised access, and shall not use such information for any purpose except as contemplated by the relevant Agreement. You and We shall ensure that such obligations are observed by its employees, agents and sub-contractors.
8.6 The obligations imposed by this Clause 8 shall survive the variation, renewal or termination of the Agreement.
9. INDEMNITY
9.1 You shall indemnify, defend and hold harmless We, Our parents, subsidiaries, affiliates, officers and employees, against all liabilities, claims and expenses that may arise from breach of the Agreement by You.
9.2 You shall indemnify, defend and hold harmless We, Our parents, subsidiaries, affiliates, officers and employees, against all liabilities, claims and expenses that may arise from the infringement of any intellectual property rights of a third party in, related to, or arising out of, information or materials provided to Us by You or any person directed by You.
10. NON-SOLICITATION
10.1 You may not, during the term of any Agreement (or for 12 months thereafter), solicit or induce or cause others to solicit or induce any employee, agent or sub-contractor of Us directly involved in the provision of Services to terminate their employment or engagement with Us without Our prior written consent.
11. GENERAL PROVISIONS
11.1 You shall not assign, transfer or otherwise dispose of or encumber any of its rights and obligations under any Agreement without Our prior written consent.
11.2 We shall not be liable for any delay or failure to perform Our obligations under the Agreement to the extent that and for so long as such delay or failure results from circumstances beyond Our control (an “event of force majeure”). In the event an event of force majeure occurs, We shall notify You as soon as reasonably practicable of becoming aware of such event. If any event of force majeure continues for a period exceeding two months, You shall have a right to terminate the Agreement immediately on written notice to Us.
11.3 All notices and other communications required or permitted to be served or given shall be in writing and sent by first class post, courier or facsimile to the intended recipient’s address as specified in any relevant Agreement or such other address as either party may notify to the other from time to time. Notices shall be treated as having been served two English working days after posting or despatch if sent by first class post or courier, and on confirmation of transmission if sent by facsimile.
11.4 Our failure to enforce or 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 Our right later to enforce or to exercise it.
11.5 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.
11.6 The Agreement contains all the terms agreed between You and Us 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 Agreement as provided in the Agreement.
11.7 The Services are provided to You under Our operating rules, policies, and procedures, available from Us. Such provisions are deemed to be incorporated by reference.
11.8 The provisions of Clauses 3, 6, 7, 8, 9, 10, 11 and 12, 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.
11.9 You and We are independent contractors and nothing in the Agreement will create any partnership, joint venture, agency, franchise, representative status or employment relationship between the parties. Subject to Our 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 Agreements or other arrangements involving the other party in financial or other commitments without that other party’s express prior approval in writing; nor shall either party hold itself out as having authority to do the same.
11.10 The parties shall do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by any Agreement.
11.11 Subject to any provisions in the Agreement to the contrary, no variation to the scope or terms of the Agreement shall take effect unless agreed in writing between the parties.
11.12 The Agreement shall be governed by and construed in accordance with English law, and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts. Notwithstanding the foregoing, We may commence an action in any court in any jurisdiction.
12. INTERPRETIVE PROVISIONS
12.1 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 (including persons, 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)).
12.2 Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of the Agreement.
12.3 References to “include” and “including” shall be deemed to mean respectively “include(s) without limitation” and “including without limitation”.
12.4 References to each party herein include references to its successors in title, permitted assigns and novatees.
12.5 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.
12.6 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.