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1.1 The definitions and rules of interpretation in this clause apply in this Contract and in any other agreement between the parties.
Brand Guidelines: Client’s brand guidelines provided to the Supplier from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges in respect of the Services set out in the Statement of Work.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together its Representatives) to the other party and that party’s Representatives in connection with this Contract that is either labelled as such or else that should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Conditions: these terms and conditions as amended from time to time in accordance with clause 19.
Contract: the Contract between the Supplier and the Client for the supply of Services which is subject to these Conditions.
Deliverables: the reports, analyses, statistics and other materials required to be delivered by the Supplier in accordance with this Contract and the Statement of Work.
Effective Date: the date of this Contract.
Initial Term: the period of three months from the Effective Date, subject to earlier termination in accordance with this Contract.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: all actual losses, damages, costs, expenses (including reasonable professional advisers’ costs and disbursements, reasonable legal costs and disbursements) incurred by the relevant party. The term Loss shall have a corresponding meaning.
Materials: the content provided to the Supplier by the Client from time to time in order for the Supplier to perform the Services.
Pre-Existing Work: the works, concepts, items and materials either developed or procured to be developed by the Supplier or its personnel at any time for use in relation to the Supplier’s business or any or all of the Supplier’s customers generally and not specifically for the provision of the Services or Deliverables to the Client.
Services: such services required to be provided by the Supplier more particularly described in clause 3.1 and all other services reasonably necessary to be performed by the Supplier in order to carry out its obligations under this Contract.
Statement of Work: the document describing the Services and Deliverables to be provided by the Supplier to the Client, which is subject to these Conditions and agreed between the parties and signed by their authorised representatives.
Term: the term of this agreement as more particularly described in clause 10.
Virus: any thing or device (including any software, code, file or program) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any program or data, or impair the operation of any program or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item.
Website: the website or websites at the URLs listed in the Statement of Work.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
1.4 Writing or written includes email but not fax. 2. Structure of agreement
2.1 This Contract is structured so that the Statement of Work will be entered into by the parties and the Statement of Work is governed by and subject to these Conditions. In the event of inconsistency or conflict between these Conditions and the Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency.
2.2 The Statement of Work shall specify (as applicable) the scope of the Services and Deliverables, any obligations of each party additional to those set out in this Contract and the Charges.
3.1 The Services will include (without limitation):
(a) researching keywords and phrases to select appropriate, relevant search terms;
(b) obtaining back links from other related websites and directories in order to generate link popularity and traffic;
(c) editing and/or optimisation of text for various html tags, meta data, page titles, and page text as necessary for search engine optimisation;
(d) analysis and recommendations on the optimal structure of the Website, navigation of the Website, code, etc. for best search engine optimisation purposes;
(e) recommend, as required, additional web pages or content for the purpose of catching keyword/phrase searches; and
(f) create traffic and ranking reports for the Website and any associated web pages showing rankings in the major search engines.
3.2 The Services will not include (without limitation):
(a) Pay per click advertising;
(b) Google® AdWords; and
(c) Social media.
3.3 Supplier shall:
(a) provide the Services;
(b) comply with the Brand Guidelines when:
(i) preparing and providing the Deliverables; and
(ii) performing the Services;
(c) deliver the Deliverables to the Client,
all in accordance with the terms of this Contract, the Statement of Work and any other instructions of the Client with the objective of enhancing and optimising the rankings and prominence of each Website in the results pages of Internet search engines.
3.4 The Client acknowledges and agrees that the Supplier does not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a Website.
3.5 The Client acknowledges and agrees that the Supplier does not guarantee: (a) to increase traffic (visitors or hits) to a Website; (b) to increase leads and sales; and (c) to increase page loading speeds.
3.6 The Client acknowledges that the Supplier 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:
(a) stop accepting submissions from the Supplier for an indefinite period of time with or without notice; or
(b) 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 Supplier 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 Supplier shall not be liable to the Client for any such actions of search engines.
3.7 The Supplier is not responsible for changes made to the Website by:
(a) other parties; or
(b) the Client in choosing to link to or obtain a link from a particular website without prior consultation with the Supplier, that adversely affect the search engine rankings of the Website.
3.8 The Supplier shall not be responsible for the Client overwriting actions it has taken as part of the Services on the Website.
4. Client obligations
Solely for the purposes of the Supplier providing the Services, the Client agrees to provide the following:
(a) administrative or back-end access to the Website for analysis of its content and structure;
(b) permission for the Supplier to make changes to the Website for the purpose of optimisation;
(c) permission for the Supplier to communicate directly with any applicable third parties connected with the Website (for example, Client’s web designer) in order to provide the Services;
(d) access to existing traffic statistics for the Website in order for analysis and tracking purposes; and
(e) where the Website is lacking in textual content, the Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages.
5. Charges and payment
5.1 The Supplier shall invoice the Client for all the relevant Charges monthly in arrears. The Client shall pay all properly due and submitted invoices within 7 days of their receipt by the Client. Time for payment shall be of the essence.
5.2 All Charges are exclusive of VAT which shall be payable by the Client at the applicable rate.
5.3 The basis upon which Charges are calculated (e.g. the amount of a monthly retainer) shall be reviewed by the parties every three months.
5.4 If the Client fails to make any payment due to the Supplier under this Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 10, the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
6. Licences and Intellectual Property Rights
6.1 All Intellectual Property Rights in the Deliverables shall vest in and belong to the Supplier absolutely.
6.2 To the extent that any Pre-Existing Work is incorporated into the Deliverables, it shall remain the property of the Supplier.
The Client shall indemnify the Supplier from and against all Losses arising as a result of any action or claim that (as applicable) the Supplier’s use and possession of the Materials in accordance with this Contract (Claim) constitutes an infringement of Intellectual Property Rights of a third party.
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Contract.
8.2 The Client warrants, represents and undertakes that:
(a) any Materials provided to the Supplier are owned by the Client; or
(b) it has received the necessary consents or permissions to use the Materials in accordance with this Contract from the applicable owner(s).
8.3 Supplier warrants, represents and undertakes that:
(a) it shall perform the Services with reasonable skill and care; and
(b) the Deliverables will conform to their description set out in this Contract.
9. Limitation of liability and insurance
9.1 Nothing in this Contract shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited under applicable law.
9.2 Subject to clause 9.1, the Supplier shall not be liable to the Client for any loss of profit or indirect, special or consequential losses or damages.
9.3 Subject to clause 9.1 and clause 9.2, the Supplier’s aggregate liability to the Client in respect of claims arising out of or in connection with this Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by the Client in the three months preceding the claim.
9.4 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must clearly identify the event and the grounds for the claim in reasonable detail.
10. Term and termination
10.1 This Contract shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 10, for the Initial Term and thereafter until either party gives to the other party not less than one months’ notice in writing to terminate this Contract.
10.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) if 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in section 123(1)(e) or 123(2) of the IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c) 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 any of its creditors other (being a company) 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;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) 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;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company, or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party 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 the other party’s assets and such attachment or process is not discharged within 14 days; or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.3 The Supplier may terminate this Contract in whole or in part for convenience at any time by at least 7 days’ prior written notice to the Supplier.
10.4 On expiry or termination of this Contract the Client shall pay all Charges outstanding.
10.5 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination or expiry of this Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such Confidential Information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and
(b) as may be required by law, court order or any governmental or regulatory authority.
11.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
12. Force majeure
The Supplier shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
13.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by email to the address specified in the Statement of Work.
13.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.2(c), business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
13.3 This clause 13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.4 A notice given under this Contract is not valid if sent by fax.
14. Assignment and subcontracting
14.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
14.2 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
15. No partnership or agency
15.1 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16. Entire agreement
16.1 This Contract and any documents referred to within it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
17. Independent Contractors
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
No failure or delay by a party to exercise any right or remedy provided under this 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.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
20.2 If any provision or part-provision of this Contract is deemed deleted under clause 20.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Further assurance
At any time after the date of this Contract each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the terms and conditions of this Contract.
If any provision of this Contract shall be held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
Subject to any express provision in this Contract to the contrary, each party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Contract.
This Contract may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
25. Governing law
This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
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