Version 1.1 01/04/2020
1.1. The terms and interpretation set out in this condition 1 apply to the Contract:
1.1.1. Contract: The agreement made between XFLOW MARKETS, and the Client as set out in these Conditions.
1.1.2. Client: the person, company, or firm referred to in the Quotation who purchases our Services.
1.1.3. Client Material: all information, documents, and materials provided by the Client relating to the Services including (without limitation), data, computer programs, information, materials, copy, reports, and specifications.
1.1.4. XFLOW MARKETS: XFLOW MARKETS LTD is a company incorporated in England and Wales with company number 12544114 whose office is at 71-75 Shelton Street, Covent Garden, London, WC2H9JQ. The company has other office in The Netherlands, UAE, and Estonia.
1.1.5. Deliverables: all information, documents, products, digital content, and/or materials in any form, including computer programs, data, reports, and specifications (developed by XFLOW MARKETS or its agents or contractors) and delivered in relation to the Services.
1.1.6. Digital Marketing Services: The Services are described at condition 9 below.
1.1.7. Document: includes, without limitation, in addition to any document in writing, any drawing, plan, design, picture or other image, proof, diagram, disk, or other device or record showing information in any form.
1.1.8. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, database right, topography rights, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, moral rights, rights in confidential information (including know how and trade information) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the globe;
1.1.9. Pre-existing Materials: all Documents, information, and materials provided by XFLOW MARKETS relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports, and specifications.
1.1.10. Quotation: The cost for services provided by XFLOW MARKETS to the Client.
1.1.11. Services: the services provided by XFLOW MARKETS under the Contract as set out in the Quotation, together with any other services which XFLOW MARKETS provides, or agrees to provide, to the Client.
1.2. These Conditions shall prevail over any Client terms of business offered by or on behalf of the Client, or implied by law, trade custom, practice, or course of dealing. The Client’s standard terms and conditions (if any) shall be deemed to be expressly rejected by XFLOW MARKETS.
2.1. The acceptance of a Quotation for Services by XFLOW MARKETS constitutes an offer by the Client to purchase the Services specified in it on these Conditions.
The Client will be considered to have accepted a Quotation when it either signs the Quotation or otherwise communicates to XFLOW MARKETS that it has accepted the Quotation. The Contract is deemed to commence on the earlier of:
2.1.1. a written acknowledgment issued and executed by XFLOW MARKETS; or
2.1.2. by XFLOW MARKETS starting to provide the Services.
2.2. All Quotations are valid for a period of fourteen (14) days from its date, provided that XFLOW MARKETS has not previously withdrawn it in writing.
The Client acknowledges that it enters into the Contract in the course of its business and not as a consumer.
3.1. The Services shall be provided by XFLOW MARKETS to the Client from the date agreed by the parties or if earlier the date referred to a condition 2.1.2.
4.1. XFLOW MARKETS shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the Quotation.
4.2. XFLOW MARKETS shall use reasonable efforts to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.1. The Client shall:
5.1.1. Co-operate with XFLOW MARKETS in all matters relating to the Services.
5.1.2. provide to XFLOW MARKETS, in a timely manner, such Client Material and other information as XFLOW MARKETS may reasonably require and ensure that such information is accurate in all material aspects.
5.1.3. ensure that all Client Material is owned by the Client, or, if not, ensure that the Client has permission from the legal owner to enable XFLOW MARKETS to legitimately use the Client material in the provision of the Services.
5.2. The Client acknowledges that the late supply of Client Material may have an impact on XFLOW MARKETS’ ability to deliver the Services. If XFLOW MARKETS’ performance of its obligations under the Contract is prevented or delayed by any act or oversight of the Client, its agents, subcontractors, consultants, or employees, XFLOW MARKETS shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5.3. The Client shall recompense XFLOW MARKETS, from and against, all costs, charges or losses sustained or incurred by XFLOW MARKETS arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to XFLOW MARKETS confirming such costs, charges and losses to the Client in writing.
5.4. The Client shall indemnify XFLOW MARKETS against all losses, costs or charges it may incur arising as a result of any action, claim or threatened claim (as applicable) that XFLOW MARKETS’ use of the Client Material in accordance with the Contract constitutes an infringement of the intellectual property rights of a third party .
5.5. The Client shall not, without the prior written consent of XFLOW MARKETS, at any time from the date of the Contract to the expiry of 6 (six) months after the last date of supply of the Services, solicit or entice away from XFLOW MARKETS or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant, or subcontractor of XFLOW MARKETS in the provision of the Services.
5.6. [Any consent given by XFLOW MARKETS in accordance with condition 5.5 shall be subject to the Client paying to XFLOW MARKETS a sum equivalent to 30% (thirty percent) of the then current annual remuneration of XFLOW MARKETS ’ employee, consultant, or subcontractor or, if higher, thirty per cent (30%) of the annual remuneration to be paid by the Client to that employee, consultant, or subcontractor.]
6.1. In consideration of the provision of the Services by XFLOW MARKETS, the Client shall pay the charges as set out in the Quotation.
6.2. Unless otherwise agreed in writing by XFLOW MARKETS and subject to condition 7.2 (where applicable), fifty per cent (50%) of the total price for the Services must be paid to XFLOW MARKETS prior to XFLOW MARKETS commencing the Services and fifty per cent (50%) of the total charges shall be paid by the Client to XFLOW MARKETS (without deduction or set-off) upon delivery following completion of the Services.
6.3. All invoices are payable on receipt of the invoice by the Client as payments dictate progression of the project at specific milestones. If invoices are not paid with immediate effect, XFLOW MARKETS has the right to stop working on the project until payment is made. Any other payment terms agreed between the Client and XFLOW MARKETS must be confirmed in writing by XFLOW MARKETS.
6.4. All charges quoted to the Client shall be exclusive of VAT, which XFLOW MARKETS shall add to its invoices at the appropriate rate.
6.5. Unless otherwise stated in writing any price and daily rate contained in the Quotation excludes:
6.5.1. the cost of hotel, subsistence, travelling and any other subsidiary expenses reasonably incurred in connection with the Services, and the cost of any materials or disbursements. Such expenses, materials or disbursements shall be invoiced to the Client at cost; and
6.5.2. VAT, which XFLOW MARKETS shall add to its invoices at the appropriate rate.
6.6. All additional work requested by the Client, which is requested following commencement of the Services, and which is outside the scope of the Quotation (including any services necessarily procured in order to carry out the Services) shall be regarded as additional to the cost given in the Quotation and will be invoiced separately at the rates contained in the then current XFLOW MARKETS rate card.
6.7. All charges listed in Quotations are estimates and are subject to final confirmation of technical specification.
6.8. The Client shall be entitled to request up to two (2) amendments to the design work/artwork supplied for approval. Any amendments requested by the Client in addition to the two (2) permitted amendments will be counted as additional work and will be charged at XFLOW MARKETS’ standard hourly fee rates.
6.9. If the Client believes that the design work does not conform to the description, then it shall notify XFLOW MARKETS within three (3) days of receiving the same. If no notification is received, then the design work shall be deemed accepted and to conform to the description of the Services in every respect. For the purposes of this condition 6.9 XFLOW MARKETS’ liability for defects in the Deliverables shall be limited to the replacement of the Deliverables at no additional cost to the Client. Provided that such defect is notified to XFLOW MARKETS in accordance with this condition 6.90 and the Deliverables have been returned to XFLOW MARKETS for inspection.
6.10. Once the Client has approved the Deliverables all further design work requested by the Client will be charged in accordance with the current rate card of XFLOW MARKETS.
6.11. The parties agree that XFLOW MARKETS may review and increase its standard hourly fee rates at any time, provided that such charges cannot be increased more than once in any 12 (twelve) month period. XFLOW MARKETS will provide the Client with written notice of any such increase one (1) month before the proposed date of the increase. If such increase is not acceptable to the Client, it may, within two (2) weeks of such notice being received or deemed to have been received in accordance with this condition 6.11, terminate the Contract by giving three (3) months written notice to XFLOW MARKETS.
6.12. Without prejudice to any other right or remedy that it may have, if the Client fails to pay XFLOW MARKETS on the Due Date, XFLOW MARKETS may:
6.12.1. charge interest on such sum under the Late Payment of Commercial Debts (Interest) Act 1998; from the Due Date, accruing daily and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand; and
6.12.2. Halt all Services until payment has been made in full.
6.13. Time for payment shall be of the essence of the Contract.
6.14. All sums payable to XFLOW MARKETS under the Contract shall become due immediately on its termination. This condition 6.14 is without prejudice to any right to claim for interest.
6.15. XFLOW MARKETS may, without prejudice to any other rights it may have, set off any liability of the Client to XFLOW MARKETS against any liability of XFLOW MARKETS to the Client.
7.1. Where requested by the Client, XFLOW MARKETS will design and build a website or develop the Client’s website based on the brief agreed between the Client and XFLOW MARKETS.
7.2. Payment for the Services shall be made in accordance with condition 6 above. The balance of XFLOW MARKETS’ charges must be paid prior to the website going live. If any charges are not paid on or before the date for payment, XFLOW MARKETS may suspend the provision of the Services and XFLOW MARKETS will not upload the website to the Client’s server or supply the website files to the Client for use on any third-party hosting server.
7.3. Once XFLOW MARKETS has been paid in full for its website design and development services, XFLOW MARKETS will provide a version of the Client’s website to the Client for the Client’s review and approval. If the Client believes that the website design and/or development does not conform to the brief, then it shall notify XFLOW MARKETS within 3 (three) days of receiving the version of the website. If no notification is received within 3 (three) days of receiving the final version of the website, then the website shall be deemed accepted and to conform to the description of the Services in every respect. Once approval has been given by any means, which can include by email or verbally, XFLOW MARKETS will release the website to the Client. On approval, XFLOW MARKETS will have no liability for any errors or downtime due to changes being made to the website by the Client or any third parties.
7.4. XFLOW MARKETS reserves the right to refuse to handle any material that it considers to be offensive, illegal, or controversial.
7.5. Unless agreed otherwise, the Client agrees that XFLOW MARKETS shall be free to use any ideas, concepts, know how or techniques used in the construction of the Client’s website for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products and any other items incorporating such information.
8.1. Where requested by the Client, XFLOW MARKETS will procure website hosting and maintenance services. XFLOW MARKETS will use reasonable endeavours to provide a reliable and professional service.
8.2. Payment for hosting and maintenance must be paid in advance unless agreed otherwise, in which case, the Client must set up a standing order or direct debit to pay XFLOW MARKETS’ charges on a monthly basis. XFLOW MARKETS reserves the right to deactivate the Client’s website where the hosting and/or maintenance fees are not paid on time. XFLOW MARKETS may charge an administration fee.
8.3. XFLOW MARKETS cannot guarantee that website hosting will be always available to the Client, especially in the event of a failure beyond XFLOW MARKETS’ control.
8.4. For the purpose of maintenance services, website hosting may have to be suspended for short periods of time. XFLOW MARKETS will endeavour to notify the Client of any such periods in advance.
8.5. As XFLOW MARKETS engage a third party for website hosting and maintenance, XFLOW MARKETS will have no liability in respect of these services. Any issue or claim in relation to hosting should be made by the Client to the hosting company, details of which shall be provided to the Client by XFLOW MARKETS.
9.1. XFLOW MARKETS will provide the Digital Marketing Services detailed in the Quotation. Such services shall include only initial SEO and PPC set-up and no ongoing SEO or PPC services shall be provided.
9.2. XFLOW MARKETS will use reasonable endeavours to improve the position of the Client’s search engine results, but do not guarantee any specific placement or higher placement on search engine results.
9.3. XFLOW MARKETS will have no liability for any changes in position of the Client’s website on search engine results and the Client acknowledges that XFLOW MARKETS has no control over the policies of search engines with respect to the type of website and/or content that they accept or the way in which websites are ranked either now or in the future.
9.4. Where XFLOW MARKETS recommends that the Client takes certain technical actions in order to allow XFLOW MARKETS to provide the services detailed in this condition 9 then the Client agrees to implement such recommendations. Where the Client fails to do so it acknowledges that XFLOW MARKETS will not be liable for failing to perform such services.
10.1. Save where agreed otherwise in writing (for example, where XFLOW MARKETS agree to licence the design and code of a website to the Client for an annual fee), all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials (excluding any Client Material) shall be owned by XFLOW MARKETS.
10.2. Subject to condition 10.4, XFLOW MARKETS licenses all such rights referred to in condition 10.1 to the Client free of charge and on a nonexclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the website, the Deliverables, and the Services. This licence is terminated with immediate effect as soon as any invoice becomes overdue. In the event that the Client wishes to use the Deliverables and/or any of the Intellectual Property Rights for purposes outside of the scope of the Contract, [as set out in the Quotation] prior to any such use the Client shall obtain the prior written agreement of XFLOW MARKETS on commercial terms to be agreed.
10.3. The Client grants XFLOW MARKETS a licence to the Client Material in order to provide the Services.
10.4. The Client acknowledges that where XFLOW MARKETS does not own the Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on XFLOW MARKETS obtaining a written licence from the relevant licensor.
10.5. The Client acknowledges that it is not the obligation of XFLOW MARKETS to search for registered trademarks or to contact the Intellectual Property Office on behalf of the Client unless specifically requested by the Client, agreed by XFLOW MARKETS within the contract and on confirmation of the quotation.
11.1. This condition 11 sets out the entire financial liability of XFLOW MARKETS (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of: any breach of the Contract.
11.1.1. any use made by the Client of the Services, the Deliverables, or any part of them; and
11.1.2. any representation, statement or wrongful act or omission (including negligence) arising under or in connection with the Contract.
11.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3. Nothing in these Conditions limits or excludes the liability of XFLOW MARKETS:
11.3.1. for death or personal injury resulting from negligence; or
11.3.2. for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by XFLOW MARKETS.
11.4.1 Subject to condition 11.2 and condition 11.3 XFLOW MARKETS shall not be liable for loss of business; or loss of goods; or loss of contract; or loss of use, for example, including but not limited to the Client’s website being unavailable; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.4.2 XFLOW MARKETS’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to an amount equal to the charges paid for the Services in the twelve months immediately preceding the event which gave rise to the claim.
12.1. The Client agrees to comply with its obligations as a data controller under the provisions of the Data Protection Act 1998. The Client acknowledges and agrees XFLOW MARKETS will be a data processor for the purposes of the Data Protection Act 1998.
13.1. Either party may terminate the Contract without liability to the other on giving the other no less than 4 weeks written notice to the other party (with the exception of hosting contracts which require no less than 13 weeks’ notice):
13.2. Without prejudice to any other rights or remedies which the parties may have either party may terminate the Contract immediately upon written notice in the event that:
13.2.1. the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 (fourteen) days of that party being notified in writing of the breach; or
13.2.2. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
13.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing; or
13.2.4. the other party begins negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters any arrangement with its creditors other than for the sole purpose of a scheme for a solvent of that other party with one or more other companies or the solvent reconstruction of that other party; or
13.2.5. a petition is filed, a resolution is passed, a notice is given, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party.
13.2.6. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
13.2.7. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
13.2.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
13.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days: or
13.2.10. any proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.3.3 to condition 15.3.9 (inclusive); or
13.2.11.the other party ceases or suspends, or intimates to suspend or cease, to carry on all or a substantial part of its business.
13.3. XFLOW MARKETS may terminate the Contract on one month’s written notice if there is a change of “control” of the Client (as defined in section 574 of the Capital Allowances Act 2001)
13.4. On termination of the Contract for any reason:
13.4.1. the Client shall immediately pay to XFLOW MARKETS all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, XFLOW MARKETS may submit an invoice, which shall be payable immediately on receipt.
13.4.2. the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13.5. On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: condition 10; condition 11; condition 12; condition 13; and condition 15.12.
14.1. The Client shall keep in strict confidence all technical or commercial know how, specifications, inventions, processes, or information which are of a confidential nature and have been disclosed to the Client by XFLOW MARKETS, its employees, agents, consultants or subcontractors and any other confidential information concerning XFLOW MARKETS ’ business or its products which the Client may obtain.
14.2. The Client may disclose such information:
14.2.1. to its employees, officers, representatives, advisers, agents, or subcontractors who need to know this information for the purpose of carrying out the Client’s obligations under the Contract; and
14.2.2. as may be required by law, court order or any governmental or regulatory authority.
14.3. The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition.
14.4. The Client shall not use any such information for any purpose other than to perform its obligations under the Contract.
14.5. All materials, equipment and tools, drawings, specifications and data supplied by XFLOW MARKETS to the Client (including Pre-existing Materials and XFLOW MARKETS ’ Equipment) shall, at all times remain the exclusive property of XFLOW MARKETS , but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to XFLOW MARKETS , and shall not be disposed of or used other than in accordance with XFLOW MARKETS ’ written instructions or authorisation.
15.1. XFLOW MARKETS shall have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lockouts or other industrial disputes (whether involving the workforce of XFLOW MARKETS or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2. No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.3. No failure or delay by a party in utilising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or limit its further exercise.
15.4. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal, or unenforceable, that provision or part provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected. If a provision of the Contract (or part of any provision) is found illegal, invalid, or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5. The Contract constitutes the whole agreement between the parties and replaces all previous agreements between the parties relating to its subject matter.
15.6. Each party acknowledges that, in entering the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
15.7. The Client shall not, without the prior written consent of XFLOW MARKETS, assign, any of its rights or obligations under the Contract. XFLOW MARKETS may at any time assign, or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
15.8. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.9. A person who is not a party to the Contract shall not have any rights under or in connection with it either under the Contracts (Rights of Third parties) Act 1999 or otherwise.
15.10. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by prepaid first-class post, recorded delivery or by commercial courier to the other party or as otherwise specified by the relevant party by notice in writing to the other party.
15.11. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract.