1.1 The parties accept that their relationship is to be that of independent contractors and not a partnership, joint venture, or employer / employee or an agent. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
1.2 We reserve the right to limit Merchant’s activities on the Website (including, without limitation, restricting the number of items that a Merchant may list), if we think that such restrictions will be in the interest of the consumer.
1.3 The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their very nature are intended to survive termination of the Agreement.
1.4 This Agreement together with the Order and operating policy constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
1.5 Where the Merchant Orders a Service Package that incorporates our Affiliate Programme the Merchant shall be bound by the terms and conditions of our Affiliation Programme.
1.6 The terms on Merchant’s purchase order or other business forms are not binding on us unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
1.7 Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property.
1.8 OmniKlick reserve the right to amend this Agreement, the operating policy and Merchant shall be bound by any such amendments and the Merchant shall have the obligation to periodically visit its Admin Area to review terms and condition, operating policy and make certain Merchant is in full compliance therewith.
2. Business Customers
These Terms and Conditions apply to business customers only who are part of our paid Merchant programme and not business in relation to OmniKlick search.
If you are consumer using OmniKlick as search engine please refer to our users’ terms and conditions.
Subject to the terms of this Agreement, and subject to you meeting our credit approval requirements, we agree to provide you with Services selected by you from our then published list of Services and as described in the Order, for the fees stated in the Order.
The Services to be provided initially to Merchant shall be as selected in the Order and thereafter as established through correspondence email between Merchant and us.
Where we provides Services from a third party that are integrated and form part of the Services that the Merchant has ordered from us we shall not be liable for any losses or claims to the Merchant if the third party refuses to accept the Merchant’s application.
The initial term of the Agreement shall begin on the date that we generate an order confirmation e-mail message to you announcing the activation of your account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term").
However, no service shall commence unless and until we receive and accept a completed Order form from Merchant, plus payment in full for Services to be rendered during the Initial Term and any set up charges.
We reserve the right to reject any submitted Order for any or no reason prior to our written acceptance.
Upon expiration of the Initial Term, this Agreement shall automatically renew for successive term of one month ("Renewal Term") unless we or you provide the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or then current Renewal Term, as applicable. No renewal fees will be due for lifetime memberships.
The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
All fees for Services rendered or provided to Merchant shall be in accordance with our prices and payable in Great British Pounds.
Following the expiration of the Initial Term the fees payment cycle shall be monthly and the fees for the Renewal Term shall be payable on the commencement of the Renewal Term.
If the Order provides for credit / debit card billing, Merchant authorises us to bill subsequent fees to the credit / debit card a day before, on or after the first day of each successive Renewal Term during the Term of this Agreement.
Merchant is responsible for ensuring that the billing information (such as credit card expiration, change in billing address) is correct.
We may terminate this Agreement and / or suspend Services without notice if payment for Services is not paid on time for whatsoever reason and the Merchant shall be liable for a reasonable reinstatement fee following a suspension of service for non-payment. No renewal fees will be due for lifetime memberships.
5.2 Unpaid Services
Accounts are suspended upon first failure of payment. Once renewed, accounts are re-activated subject to re-instatement fees of £25.00
Any unpaid services will be charged a late payment fee of £25 if payment is not received within the 10 days of payment due. This will allow time to update any payment details for failed payments.
If no payment is received after 14days, then a daily charge of 5% above Barclays Bank base rate will be levied until payment is received.
If no payment is received after 30 days then the debt will be transferred to a debt recovery agency. Any fees lost due to abuse of special promotions not paid for will be recovered and added to the total amount due and daily interest.
5.3 Fees Increases
We may amend the Services and / or the fees we charge for Services by giving at least fourteen (14) days notice to Customer, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee and for any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). No increase will be applied to lifetime memberships.
At our request Merchant shall remit to us all sales, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on us) regardless of whether we fail to collect the tax at the time the related Services are provided.
5.5 Early Termination
Merchant acknowledges that the amount of the fee for Services is based on Merchant’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event we terminates the Agreement for Merchant’s breach of the Agreement in accordance with Section 9 (Termination), or Merchant terminates the service other than in accordance with Section 9 (Termination) for our breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.
Merchant agrees to use the Services in compliance with applicable law and our operating policy which is hereby incorporated by reference in this Agreement.
Merchant agrees that we may, in its reasonable commercial judgment consistent with industry standards, amend the our operating policy from time to time to further detail or describe reasonable restrictions and conditions on Merchant’s use of the Services.
Amendments to the operating policy are effective on the earlier of our notice to Merchant that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment.
Merchant agrees to cooperate with our reasonable investigation of any suspected violation of operating policy. In the event of a dispute between the Merchant and us regarding the interpretation of our operating policy, our commercially reasonable interpretation of the operating policy shall govern.
Merchant shall not employ and hard selling techniques methods or mass emailing or spamming as such activities will result in termination of the account as well as your OmniKlick account and any damages incurred with regards to OmniKlick Ltd branding or reputation both on and off-line will be dealt with vigorously by our legal department.
Merchant shall not use OmniKlick free email address account services other than for day to day communications and any other use such as but not limited to mass marketing email or spamming will result in termination of Services.
7. Merchant Information
Merchant represents and warrants to us that the information he, she or it has provided and will provide to us for purposes of establishing and maintaining the service is accurate.
If Merchant is an individual, Merchant represents and warrants to us that he or she is at least 18 years of age, and we reserves the right to ask for proof of age (in the form of a valid passport or photo driving licence) and to carry out checks to verify the information provided.
We may rely on the instructions of the person listed as the Primary Merchant Contact on the Order with regard to Merchant's account until Merchant has provided a written notice changing the Primary Customer Contract.
8. Requests for Merchant Information
Merchant agrees that we may, without notice to Merchant (i) report to the appropriate authorities any conduct by Merchant or any of Merchant’s customers or end users that we believe violates applicable law, and (ii) provide any information that it has about Merchant or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Merchant agrees to indemnify and hold harmless us, our affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Merchant's services in violation of applicable law or our operating policy by Merchant or any person using Merchant's log on information, regardless of whether such person has been authorized to use the Services by Merchant.
10. Disclaimer of Warranties
Merchant agrees to use all our Services and any information obtained through or from us at their own risk.
We do not warrant or represent that the Services will be un-interpueted error free or completely secure to the extent permitted by applicable law we disclaim any and all warranties including the implied warranties of merchantability fitness for particular purpose and non-infringement to the extent permitted by applicable law all services are provided on an “as is” basis.
11. Limitation of Damages
Neither party shall be liable to the other for any loss profits or any indirect special incidental consequential or punitive loss or damage of any kind or for damages that could have been avoided by the use of reasonable diligence arising in connection with this Agreement even if the party has been advised or should be aware of the possibilities of such damages.
Notwithstanding anything else in this Agreement to the contrary the maximum total liability of OmniKlick and any of its employee agents or affiliates under any theory of law including breach of contract tort strict liability and infringement shall be payment of money not exceeding the amount payable by Merchant for three months of Services.
12. Suspension / Termination
12.1 Suspension of Service
Merchant agrees that we may suspend services to Merchant without notice and without liability if:
(i) we reasonably believes that the Services are being used in violation of any Terms and Conditions or the operating policy;
(ii) Merchant fails to cooperate with any reasonable investigation of any suspected violation of the operating policy;
(iii) we reasonably believes that the suspension of service is necessary to protect other Merchants, consumers, or its network, or
(iv) as requested by a law enforcement or regulatory agency. Merchant shall pay us reasonable reinstatement fee if Service is reinstated following a suspension of Service under this subsection.
The Agreement may be terminated by either party, without cause, by giving the other party fourteen (14) days prior written notice.
The Agreement may be terminated by Merchant prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if OmniKlick fails in a material way to provide the Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Merchant’s written notice describing the failure in reasonable detail.
The Agreement may be terminated by us prior to the expiration of the Initial Term or any Renewal Term without liability as follows:
i. without notice if Merchant is overdue on the payment of any amount due under the Agreement;
ii. if Merchant materially violates any other provision of the Agreement, including operating policy, and fails to cure the violation within ten (10) days of a written notice from us describing the violation in reasonable detail;
iii. without notice if Merchant’s service is used in violation of a material term of the operating policy more than once, or
iv. upon one (1) days notice if Merchant violates Clause 5 (Merchant Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
13. Back Up Copy
Customer agrees to make his own arrangements and maintain a current copy of all content hosted and OmniKlick shall not liable for any loss of data etc.
14. Changes to OmniKlick Network
Upgrades and other changes in our network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. We reserve the right to change its network in its commercially reasonable discretion, and we shall not be liable for any resulting harm to Customer.
Notices to OmniKlick under the Agreement shall be given via electronic mail to the e-mail address posted for Merchant Support on Notices to Merchant shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
In the event you have a complaint about our Services we shall endeavour to deal within 14 days of receipt of the complaint. Normally, replies to any complaint would be made by E-mail or, if required, we shall provide a telephone facility to discuss matters of a more complex nature if so required.
18. Force Majeure
We shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond our control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, theft, destruction, terrorist activity, acts of God or other events of a magnitude or type for which precautions are not generally taken in the industry.
19. Third Party Rights
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this User Agreement but this does not affect any right or remedy of a third party specified in this Agreement or which exists or is available apart from that Act.
20. Governing Law
The Agreement shall be governed by the laws of England and all claims concerning this Agreement shall be brought exclusively in English courts located in England. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defences concerning said forum. The Customer is deemed to have agreed to this Agreement, when commencing use of any of our services.
21. Statutory Rights
These terms and conditions do not affect your statutory rights.