The Customer’s attention is drawn to the Conditions of Business which appear below.
Nothing in these Conditions affects the statutory rights of any consumer.
1. Definitions and Interpretation
1.1. In these Conditions, the following words and expressions will have the following meanings:
1.2. A person includes a natural person, corporate or unregistered body (whether or not having separate legal personality).
1.3. A reference to a party includes its personal representatives, successors or permitted assignees.
1.4. A reference to a statute or statutory provision is a reference to such statute or provision as updated, amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as updated, amended or re-enacted.
1.5. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6. The headings do not affect the interpretation or construction of these Conditions.
1.7. A reference to writing or written includes faxes and e-mails.
2. Basis of Contract
2.1. The Contract will start on the Commencement Date and the Conditions of Business will apply to all dealings between the Customer and ZCL from that date.
2.2. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (even if included in a purchase order), or which are implied by trade, custom, practice or course of dealing.
2.3. The Customer shall ensure that the terms of the Order and any relevant Specification provided by the Customer to ZCL are complete and accurate.
2.4. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ZCL which is not set out in the Confirmation of Order Form, the campaign or these Terms and Conditions of Business. Any descriptive matter or advertising issued by ZCL and any descriptions or illustrations contained in ZCL, brochures or set out in its internet site are issued or published for the sole purpose of giving an approximate idea of the Goods and Services to be supplied. They shall not form part of the Contract or any other contract between ZCL and the Customer for the sale of the Goods and Services.
2.5. A quotation for the Goods and Services given by ZCL shall not constitute an offer. A quotation shall only be valid for a period of 7 days from its date of issue and may be withdrawn by written or oral notice to the Customer at any time before the Customer places the Order.
3. Delivery
3.1. Customer agrees that ZCL will begin the work once the Agreement or Confirmation of Order Form has been signed and ZCL issues an invoice for payment to the Customer.
3.2. Delivery of ZCL’s Service to the Customer will take place by ZCL uploading their relevant and confidential product onto the internet for the benefit of the Customer in accordance with the Services to be provided on the Confirmation of Order Form, the campaign or in urgent cases implemented after a discussion between the customer and ZCL over the telephone or by e-mail.
3.3. The length of the contract, the payment terms i.e. whether by monthly instalments or one lump sum, the duration of the contract and whether the contract can be terminated on notice or not will be set out in the Confirmation of Order Form for each particular Customer, to avoid misunderstandings between ZCL’s employees and the Customer over the telephone (or otherwise). The Customer will put in writing or by e-mail to ZCL any questions it wishes to have dealt with in relation to the Services that are to be provided and agrees to indemnify and hold harmless ZCL for any claims for breach of Contract or misrepresentation which the Customer may make as a result of the Customer failing to take that step and in these terms and conditions of business. If for any reason there is a conflict between the Confirmation of Order Form and these terms and conditions of business, these terms and conditions of business will apply.
3.4. ZCL will allow ‘pausing’ of a campaign for a maximum of 30 days. All requests for a campaign pause must be made in writing to the Customer’s key account manager and cc’d to clientcare@moveaheadmedia.com with a valid reason for requesting the pause. An acknowledged response must be received for confirmation of the campaign pause. If a campaign is paused for longer than the agreed time, the remaining invoices will continue to be sent on the first week of each month and the Customer shall be expected to make payment as usual. The campaign pause period cannot be included as part of the cancellation notice period as mentioned in Clause 12.3.
3.5. External Plugins with a cost will, with agreement, be charged directly to the Customer. Website recommendations that are necessary for the campaigns that include additional services, e.g. content, will be quoted as a separate service, which are not covered in the Confirmation of Order Form. If a Customer’s account is disabled/disapproved by Google/Facebook – the Customer understands that ZCL will still invoice for its services accordingly whilst trying to rectify the account.
4. Price and Payment
4.1. Where the payment to ZCL by a Customer for Goods and Services to be supplied set out in the Confirmation of Order Form is by a one off lump sum payment, that payment may be taken by debit or credit card, or via bank transfer or deposit. VAT at the applicable rate will be added to the Contract price.
4.2. In the case of a contract where monthly payments are made, if the Customer fails to make any payment due to ZCL within 14 days of the date of the invoice being rendered, then at any time after 28 days from the date the invoice is rendered, ZCL can terminate the contract forthwith and in that eventuality, 50% of the balance of the monthly payments due for the remainder of the 12 month contract will immediately become due and owing to ZCL as the Customer recognises that a substantial amount of ZCL work for the Customer is front end loaded.
4.3. If the Customer fails to make any payment due to ZCL under the provisions of this Contract or the Confirmation of Order Form by the due date for payment then ZCL may at its discretion charge interest on any overdue sum at 15% per annum or the maximum rate permissible by law.
4.4. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against ZCL in order to justify withholding payment of any such amount in whole or in part. ZCL may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by ZCL to the Customer.
4.5. An invoice shall be classified as ‘overdue’ if it is not paid by the invoice due date. Accounts and services will be stopped if a Customer’s invoice is overdue for more than 1 month and the following month’s invoice has been sent and that invoice due date has passed. In the event that a Customer has more than one outstanding invoice, all outstanding invoices must be paid in order for ZCL to resume the services and the Client’s campaigns.
4.6. Once a Contract between ZCL and a Customer has been in existence for more than twelve months, ZCL reserves the right to increase the monthly payment set out in the Confirmation of Order Form at their sole discretion on giving to the Customer not less than 30 days prior written notice.
5. Cancellation of contract due to technical matters beyond the control of ZCL
5.1. ZCL reserves the right to cancel the contract at any stage and to refund the Customer any payments due under this Contract or in the Campaign detail if for any reason technical factors arise in the carrying out of the Contract which are beyond ZCL’s control but are not due to a fault of the Customer.
6. Cancellation of contract by ZCL due to fault of Customer
6.1. ZCL reserves the right to cancel the contract with the Customer if the Customer is in breach of any terms of this Agreement or the Confirmation of Order Form.
6.2. Except of the case of non-payment of ZCL’s invoices, the procedure which is set out in clause 4 above, in the case of any other breach by the Customer which is capable of being remedied, ZCL will serve on the Customer by email, fax or in writing notice requiring the Customer to rectify any problem that has arisen within 14 days so that ZCL may effectively carry out the Campaign.
6.3. In the case of a breach by the Customer which is not capable of remedy, for example, the Customer’s insolvency as set out in Clause 7 below, ZCL may cancel the contract with the Customer with immediate effect.
6.4. In relation to either cause 6.2 or 6.3 above, applying 50% of the balance of any monies due and owing under the remainder of the twelve month contract from the Customer to ZCL will immediately become payable as the Customer recognises that ZCL’s work for the Customer is front end loaded.
7. Customer’s Insolvency or Incapacit
7.1. If the Customer becomes subject to any of the events listed in clause 7.2, or ZCL reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to ZCL , ZCL may cancel or suspend all further work under the Contract or under any other contract between the Customer and ZCL without incurring any liability to the Customer, and all outstanding sums whether payable under the monthly payment schedule for the remainder of the 12 month contract or otherwise from the Customer to ZCL shall become immediately due and payable.
7.2. For the purposes of clause 7.1 the relevant events are:
7.2.1. the Customer 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 as and when the fall due, or (being an individual) is either unable to pay its debts or has no reasonable prospect of so doing or (being a partnership) has any partner to whom any of the foregoing apply; or
7.2.2. the Customer 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; or
7.2.3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or
7.2.4. (being an individual) the Customer is the subject of a bankruptcy petition or order; or
7.2.5. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration 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
7.2.6. (being a company) 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 Customer; or
7.2.7. (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
7.2.8. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
7.2.9. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7 ; or
7.2.10. the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or 7.2.11. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8. Customer Obligations
8.1. The Customer warrants that:
(a) any information supplied by the Customer to ZCL to enable ZCL to carry out its Services will not be inaccurate, misleading or fraudulent
(b) they will comply with all reasonable requests made by ZCL including providing direct and remote access to the Customer’s website, source codes, and other diagnostic and statistical information required to enable ZCL to carry out the terms of its Contract.
(c) they will ensure that a person is available with the required IT ability to comply with requests, directions and advice from ZCL promptly when required.
9. Carrying Out Terms of the Contract by ZCL
9.1. ZCL will carry out the Service agreed to be provided in accordance with the Confirmation of Order Form and the campaign subject to the terms of this agreement.
9.2. ZCL shall be allowed to subcontract or outsource any of the Goods or Services to be supplied under the terms of this agreement.
9.3. Where the Goods or Services to be provided require ZCL to liaise with the customer or third party representing the customers interests (which may include for example a web agency or hosting company or the customer’s own IT department), the Customer will ensure that those third parties act promptly in providing any information required by ZCL so that ZCL can carry out the terms of this agreement. ZCL will not be liable for any failure to carry out the terms of this agreement by reason of a failure promptly to provide relevant information to ZCL by the customer or a third party acting on the customer’s behalf.
10. Provision of Link(s)
10.1. ZCL agrees to provide a Link/Links as part of the Contract with the Customer but for the avoidance of doubt it is agreed that ZCL cannot be responsible for any interference with the Link that takes place by the service provider, Google or any third party, nor can they guarantee any specific length of time that each Link with remain live on a third party site.
10.2. If for any reason the Customer stops paying ZCL for Services that are being provided the Customer understands that ZCL may at its discretion, take steps to remove the Link/Links which are provided on the internet as part of the campaign
11. Exclusion of Liability
11.1. ZCL will not be responsible for the following interruption to Services provided by ZCL caused by: (a) Interference or removal of links by third parties as set out in Clause 10 above. (b) the Customer’s IT department or IT consultants or representatives carrying out any modifications or alterations of the Customer’s domain name, website or the Link/Links otherwise than discussed and agreed in writing with ZCL. (c) any Force Majeure event as set out in clause 15 below. (d) problems with the Customer’s computer hardware or software which are outside ZCL’s control (e) the Customer failing to carry out any verbal or written recommendations which affect the provision of the services within 14 days of being required to do so by ZCL (f) Any other breach of the terms of this Agreement by the Customer
11.2. ZCL will not be responsible for any additional costs incurred by the Customer having to upgrade its computer software or hardware or any additional costs rendered to the Customer by its web page service providers or technical support costs incurred as a result of carrying out the terms of the Campaign, the effect of any Link/Links provided or any other hidden cost to the Customer which is not within ZCL’s control or may be done based on ZCL’s recommendation.
12. Contract period
12.1. ZCL will not be responsible for the following interruption to Services provided by ZCL caused by:
(a) Interference or removal of links by third parties as set out in Clause 10 above.
(b) the Customer’s IT department or IT consultants or representatives carrying out any modifications or alterations of the Customer’s domain name, website or the Link/Links otherwise than discussed and agreed in writing with ZCL.
(c) any Force Majeure event as set out in clause 15 below.
(d) problems with the Customer’s computer hardware or software which are outside ZCL’s control
(e) the Customer failing to carry out any verbal or written recommendations which affect the provision of the services within 14 days of being required to do so by ZCL
(f) Any other breach of the terms of this Agreement by the Customer
12.2. ZCL will not be responsible for any additional costs incurred by the Customer having to upgrade its computer software or hardware or any additional costs rendered to the Customer by its web page service providers or technical support costs incurred as a result of carrying out the terms of the Campaign, the effect of any Link/Links provided or any other hidden cost to the Customer which is not within ZCL’s control or may be done based on ZCL’s recommendation.
13. The ranking guarantee
13.1. In some of its contracts, ZCL may have agreed to work for free if the targets set out in the campaign are not achieved. The assessment of whether the Customer will receive “work for free” will be made at the discretion of ZCL taking into account the results produced by the software Rank Tracker (or any other software utilised for the purpose by ZCL). Furthermore, the customer and ZCL understand and agree ZCL will not be contractually obliged to “work for free” where:
(a) The customer has failed to make a monthly instalment payment to ZCL due under the payment schedule within 14 days of the due date.
(b) The customer is in breach of clause 8.1.
(c) A force majeure event has occurred as set out in clause 15.
(d) The customer has cancelled the contract within the 12 month contract period. ZCL has cancelled the contract with the customer due to a breach of these conditions of business by the customer.
(e) The customer becomes insolvent or is subject to an insolvency event as set out in clause 7 above.
(f) The Customer is otherwise in breach of a term of this Agreement or the Campaign details which has made it impossible for ZCL to achieve the Campaign objective.
(g) The Customer’s website is offline for a period in excess of 14 days in any given two month period or a total of 28 days in any twelve month period.
(h) The Customer has not implemented the recommendations for the website in order to achieve the results
13.2. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14. Limitation of Liability
14.1. Nothing in these Conditions shall limit or exclude ZCL’s liability for:
14.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
14.1.2. fraud or fraudulent misrepresentation; or
14.1.3. any matter in respect of which it would be unlawful for ZCL to exclude or restrict liability.
14.2. Subject to clause 14.1;
14.2.1. ZCL shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
14.2.2. ZCL’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the price of the Goods and Services sold or rendered during the period of one year prior to the date of event causing the losses.
15. Force Majeure
15.1. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. In this contract a Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of computer or internet facilities, unforeseen damage or withdrawal of software packages used by ZCL nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
16. Assignment and Subcontracting
16.1. ZCL may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of ZCL .
17. Notices
17.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.
17.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 0 ; if sent by pre-paid first-class post or recorded delivery, at 10.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, at the time of transmission if the same is before 4pm and otherwise at 10am on the next Business Day.
17.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18. Severance
18.1. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
18.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19. Waiver
19.1. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20. Confidentiality
20.1. Save as provided in this agreement, each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed by one party to the other. Each party shall restrict disclosure of such confidential material to such of its employees as needed for the purposes of discharging its obligations under this agreement and shall ensure that such employees are subject to corresponding obligations of confidentiality.
20.2. All materials, drawings, specifications, and data supplied by ZCL to the Customer shall at all times be, and remain, the exclusive property of ZCL but shall be held by the Customer in safe custody at its own risk until returned to ZCL and shall not be disposed of or used other than in accordance with ZCL’s written instructions or authorisation.
20.3. This condition shall survive termination of the agreement however caused.
20.4. Points agreed via separate ‘Non-Disclosure agreement’ are agreed in addition to this agreement, not as a replacement of this agreement.
21. Privacy
21.1. Zest Creative Co., Ltd. has a Privacy Policy that complies with the Thailand’s Personal Data Protection Act (PDPA) and any relevant regulations, applicable laws and codes affecting the Customer’s personal information. All ZCL directors, employees, representatives and consultants are trained to respect your privacy in accordance with our standards, policies and procedures. For details please contact us at info@zest-creative.com
22. Third Party Rights
22.1. A person who is not a party to the Contract shall not have any rights under or in connection with it.
23. Variation
23.1. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by authorised representatives of ZCL and the Customer.
24. Governing Law and Jurisdiction
24.1. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Thai law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Thailand.
25. Updating of Terms and Conditions of Business
25.1. ZCL reserves the right from time to time to update and alter these terms and conditions of business as is necessary for good working practice and to comply with any changes in legislation. The Customer may or may not be notified of the updates each time, but hereby agrees to comply with these terms as well as all updated terms and conditions of business implemented by ZCL in the future.
