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Terms and Conditions

1. Definition and Interpretation

(a) Terms defined in the Agreement shall apply in these Terms and Conditions.

2. Provision of Services

(a) The Company shall provide the Services to the Client in accordance with the specifications of each individual Invoice, Insertion Order and Statement of Work where applicable. The Company will undertake the service to the best of our ability and using all reasonable skill and care.

(b) If the Services are performed at Client’s place of business, such performance shall be conditional upon the Client providing at no cost:

(i) appropriate computer hardware and communications resources
(ii) system and user documentation;
(iii) office space and anything else reasonably necessary to perform the Services.

(c) The company shall comply with Brand Guidelines where applicable when preparing and executing the Deliverables.

(d) The Client acknowledges that the Company has no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future. As a result, search engines may: stop accepting submissions from the Company for an indefinite period of time with or without notice; or cease to list a Website at its discretion, however should a Website not reappear within thirty (30) days of it not being listed then the Company will re-optimise the applicable Website based on the current policies of the relevant search engine at a cost to be agreed between the parties, and the Company shall not be liable to the Client for any such actions of search engines.

e) In the event that the Client requests Additional Services, additional invoices and individual Statements of Work or Insertion Orders will be entered into by the parties and such Statements of Work and Insertions Order will be governed by and subject to this Agreement. In the event of inconsistency or conflict between this Agreement and any Statement of Work or Insertion Order, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.

f) If the client purchases any of the services defined by the Company as renewable, including but not limited to a Bizify listing, Citations, a We Get You Found listing and a Googly My Business profile. These renewable services commit the client to renewing these services on an annual basis at the original price paid.  Outrank will continue to bill the customer for the renewed term, using the payment information on file. These services will be deducted from  on the twelve month anniversary of the original purchase date.

g) Each Invoice, Statement of Work or Insertion Order shall specify (as applicable) the scope and Specification of the Additional Services and accompanying Deliverables, any obligations of each party additional to those set out in this Agreement and the SoW Charges relevant to each Statement of Work.

h) Each Invoice, Statement of Work or Insertion Order unless otherwise agreed by the parties shall constitute a separate contract under this Agreement and any defined terms used in each Statement of Work shall have the same meaning as set out in this Agreement.

i) In the event that the Client requests Additional Services, individual invoices, Insertion Orders or Statements of Work will be entered into by the parties and such Statements of Work will be governed by and subject to this Agreement. In the event of inconsistency or conflict between this Agreement and any Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.

j) In the event the Client has requested the services and does not comply with our SLA and has both an inability to be contacted or non-responsiveness for an extended period of time, (up to six months from invoice date), then the agreement will be terminated and services will not be delivered. No refund will be granted.

3. Support Services and Service Levels

a) Where applicable, the company shall provide the Services in accordance with the Service Level Agreement. We provide Support Services as part of the Hosting Service and these Support Services are described in the Support Services Agreement.

4. Term

a) The Agreement shall continue as per the Commencement Date

b) Either party may terminate by serving thirty (30) days written notice on the other party in accordance with these Terms and Conditions, or until terminated in accordance with clause 12.

c) Where this Agreement terminates part way through any calendar month the Client acknowledges that it must pay the whole monthly fee for that calendar month. The Client shall remain liable to pay all fees and costs associated with the Services and the Client will be entitled to receive the Service up to the time of termination.

5. Representations

(a) The Client shall provide the Company with such information and assistance as the Company may reasonably request in order to enable it to provide the Services in accordance with these Terms and Conditions. This will include any marketing collateral, data text, audio files, video files, graphics, software and other materials.

(b) The client shall co-operate with the Company in all matters relating to the Services

(c) The client allows the Company to use the Client’s name and logo for marketing and promotional purposes and give reasonable assistance to the Company in preparing materials for such purposes, including but not limited to the preparation of a case study or other promotional document.

(d) Both parties represent and warrants to the following terms:

I. It has the right, power and authority to enter into the Agreement and, in the case of a body corporate, its directors and shareholders have taken all action necessary to execute and perform its obligations under the Agreement; and

ii. The execution and delivery of the Agreement do not, and the performance of the terms of the Agreement will not contravene any law or regulation applicable to the Client and will not conflict with or result in any breach of the terms of or constitute a default under any agreement or arrangement to which it is party or any judgement, order or decision by which it is bound.

(e) Both parties shall not, without the prior written consent of the other, at any time from the date of the Agreement to the expiry of six months after the last date of supply of the Services, solicit or entice away from or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of either party in the provision of the Services.

(f) Client acknowledges and accepts that Company ability to perform its obligations under this Agreement is dependent, inter allia, on the Client fulfilling obligations and Clients timely and effective performance of its responsibilities, decisions and approvals. All delivery dates quoted are set out as best estimates only.

(g) To the extent that Client does not fulfil its obligations under this Agreement the Company will be relieved of its obligations to the Client in so far as the Company is prevented from performing the Services in accordance with this Agreement and shall not be liable for any costs, charges or losses sustained by the Client.

(h) The Company expressly disclaims all implied warranties and conditions to the extent permitted by applicable laws and regulations.

6. Intellectual Property Infringement and Link Advertising

(a) The Client is solely liable for any claims arising out of or relating to its Link Advertisements and/or any of its materials to which users are able to link through such Link Advertisements.

(b) The Client shall not copy, sell, or re-sell the Links or other property of the Company without prior written consent.

(c) The Client shall not approach, either directly or indirectly, any supplier of link services to the Company during the course of the Agreement or for six months after its termination without the consent of the Company

(d) If a third party makes a claim against the Company that any information or materials provided by the Client infringes any of that third party’s Intellectual Property Rights or other property right of such third party the Client shall defend the Company against the claim at the Client’s expense and shall indemnify the Company against all losses, damages and expenses (including reasonable legal fees) incurred by the Company arising as a result of such claims, provided that the Company shall make no admission of liability without the Client’s written consent.

7. Fees and Payment

(a) In consideration of the provision of the Services by the Company, the Client shall pay the fees as set out in each Insertion Order.

(b) All sums due under this Agreement are subject to VAT at the rate applicable when they are due for payment.

(c) Fees will be invoiced and shall be due upon receipt in order to start processing your order.

(d) The Client shall pay each invoice submitted to it by the Company, in full and in cleared funds, on receipt of the invoice to a bank account nominated in writing by the Company.

(e) Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company by the due date, the Company may:

i. charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement and the Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the

Client shall pay the interest immediately on demand;
ii. suspend all further Services until payment has been made in full.

(f) All sums payable to the Company under the Agreement shall become due immediately on its termination, despite any other provision.

(g) The Company shall be permitted to incur travel expenses in the performance of the Services or if requested to travel to meetings the Client, provided written permission is provided by the client

8. Intellectual Property Rights

(a) All Copyright and ownership rights will be retained by the Client on all intellectual property and design work carried out by the Company for the Client as long as payment has been completed for the services.

(b) By supplying text and images to the Company for inclusion in the Client’s website or other medium, the Client confirms that it holds appropriate copyright and/or trademark authorisations to enable it to use such text and images. The ownership of such materials will remain with the Client. Any existing artwork, images or text supplied by Outrank will remain the property of the Company or its suppliers unless specifically agreed otherwise.

(c) For the avoidance of doubt, neither party grants to the other under the Agreement any title, interest or other right it may have in any trademarks, trade names, service marks and logos, whether or not registered, except as provided for in the Agreement.

9. Confidentiality

(a) Each party undertakes:-
i. to keep secret and confidential all Confidential Information of the other party;
ii. to use or apply the Confidential Information of the other party solely in connection with the provision of the Services and so as to determine whether or not and on what terms the parties might wish to proceed;
iii. not to use, copy, adapt, alter, disclose or part with possession or apply the Confidential Information of any other party for any other purpose or its own purposes other than as described above; Either party may disclose Confidential Information: to the extent required by law, the order of any court or a regulatory authority to whose rules that party is subject and in those circumstances the disclosing party shall give the other party prompt written notice of the disclosure where reasonably practicable:
iv. that it is in the public domain other than as a result of a breach of this clause
v. that was provided to it by a third party without obligations of confidentiality; and/or
vi. to its employees and professional advisors, provided that each such individual is subject to confidentiality obligations no less onerous than those set out in this Agreement. 10 Information Security and Data Protection

(a)Both parties expressly understand and acknowledge that no user personal data, as defined by the General Data Protection Regulation 2016/679, will be shared, collected, transferred or otherwise processed between the parties under the present Agreement.

11. Total Liability

(a) Both parties 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 Agreement shall be limited to the value of the contract and subject to a maximum the total contract value.
vii. not to use, copy, adapt, alter, disclose or part with possession or apply the Confidential Information of any other party for any other purpose or its own purposes other than as described above; Either party may disclose Confidential Information: to the extent required by law, the order of any court or a regulatory authority to whose rules that party is subject and in those circumstances the
disclosing party shall give the other party prompt written notice of the disclosure where reasonably practicable:
viii. that it is in the public domain other than as a result of a breach of this clause
ix. that was provided to it by a third party without obligations of confidentiality; and/or
x. to its employees and professional advisors, provided that each such individual is subject to confidentiality obligations no less onerous than those set out in this Agreement.

10. Limitation of Liability

(a) This clause 10 sets out the entire financial liability of both parties (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the other party in respect of:

i. any breach of the Agreement;
ii. any use made by the Client of the Services, and
iii. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

(b) Nothing in the Agreement limits or excludes the liability of the parties:

i. for death or personal injury resulting from negligence; or

ii. for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation by a party

(c) Subject to clause (c) and clause (d) directly above both parties shall not be liable for loss of profits
i. loss of business;
ii. depletion of goodwill;
iii. loss of anticipated savings;
iv. loss of contract;
v. loss of use;
vi. loss of corruption of data or information; or
vii. any special, indirect, consequential or pure economic loss, costs,
damages, charges or expenses.

11. Total Liability

(a) Both parties 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 Agreement shall be limited to the value of the contract and subject to a maximum the total contract value.

12. Termination

(a) Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving notice to the other if:

i) The other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment via a late payment notice; or

ii) The other party commits a material breach of any of the terms of the Agreement or Service Level Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach may terminate with immediate effect; or

i. the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, 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
ii. the other party commences 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 into any compromise or arrangement with, its creditors 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.

(b) On termination of the Agreement for any reason: the Client shall immediately pay all of the Company outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted the Company may submit an invoice, which shall be payable immediately on receipt; and each party shall immediately return to the other any property or confidential information belonging to that other party which is in its possession, subject to any rights in such property that may exist under the Agreement; and 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. Force Majeure

Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care.

14. Variation

No variation of the Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

15. Waiver/ Severability

Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver may be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision shall not affect the Agreement’s other terms or provisions, or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties.

16. Entire Agreement

(a) The Agreement and all Insertion Orders and Statement of Work signed pursuant to the Agreement from time to time constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of the Agreement.

(b) Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

17. Assignment

(a) Both parties shall not, without the prior written consent of the other, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Agreement.

18. No Partnership or Agency
(a) Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or  otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

(b) The Agreement creates no exclusive relationship between the parties.

19. Rights of Third Parties

(a) A person who is not a party to the Agreement shall not have any rights under or in connection with it and shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

20. Notices

(a) Any notice or other communication given to a party under or in connection with the Agreement:
i. shall be in writing in English (or accompanied by a properly prepared translation into English);
ii. shall be signed by or on behalf of the party giving it;
iii. shall be sent for the attention of the person, at the address, fax number or e-mail address specified in the Agreement (or to such other address, fax number, e-mail address or person as that party may notify to the other from time to time);

21. General

Neither party shall advertise or publicly announce, communicate or circulate the existence or terms of this Agreement or any association with the other party without the prior written consent of the other party.

22. Dispute Resolution

(a) If any dispute arises in connection with the Agreement, a director of the Company and a director of the Client shall, within five days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

(b) If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR
Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, one party must give notice in writing to the other party requesting that mediation takes place.

(c) The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

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