1. Definitions
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
"Assigned Deliverables" means those Deliverables (excluding the Third Party Materials and the Client Materials) the rights in which are to be assigned (rather than licensed) by the Provider to the Client under Clause 9, as specified in Section 4 of the Statement of Work;
"Charges" means:
(a) the amounts specified in Section 7 of the Statement of Work and elsewhere in these Terms and Conditions;
(b) such other amounts as may be agreed in writing by the parties from time to time; and
"Client" means the person or entity identified as such in Section 1 of the Statement of Work;
"Client Confidential Information" means:
(a) any information disclosed by the Client to the Provider OR whether disclosed in writing, orally or otherwise that at the time of disclosure was marked or described as "confidential" or should have been understood by the Provider acting reasonably to be confidential; and
(b) the financial terms of the Contract;
“Client Indemnity Event" has the meaning given to it in Clause 12.3;
"Client Materials" means all works and materials supplied by or on behalf of the Client to the Provider for incorporation into the Deliverables or for some other use in connection with the Services;
"Client Personal Data" means any Personal Data that is processed by the Provider on behalf of the Client in relation to the Contract;
"Confidential Information" means the Provider Confidential Information
"Deliverables" means those specified in Section 4 of the Statement of Work that the Provider has agreed to deliver to the Client under these Terms and Conditions;
"Effective Date" Date when the agreement is accepted;
"Licensed Deliverables" means the Deliverables excluding the Assigned Deliverables, the Third Party Materials and the Client Materials;
"Minimum Term" means, in respect of the Contract, the period of 12 months beginning on the Effective Date OR the period specified in Section 2 of the Statement of Work;
"Provider" means Web Choice UK Ltd of Henleaze House Business Centre, 13 Harbury Road, Henleaze, Bristol, BS9 4PN, a company incorporated in England and Wales, registration number 08904981
"Provider Confidential Information" means:
(a) any information disclosed by or on behalf of the Provider to the Client; and
"Services" means any services that the Provider provides to the Client, or has an obligation to provide to the Client, under these Terms and Conditions;
"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties;
"Term" means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
2. Term
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force for 1 year from the Effective Date, at the end of which the Contract shall terminate automatically.
2.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
3. Search Engine Optimisation Services
3.1 The Provider shall provide the Search Engine Optimisation Services to the Client during the Term.
3.2 The Provider undertakes to the Client that it will not, in the course of providing the Search Engine Optimisation Services, use any technique that is in clear breach of the Google Webmaster Guidelines (in the form published at the time the relevant technique is actively used).
3.3 The Client acknowledges and agrees that:
(a) search engine algorithms will change from time to time, which may affect website rankings in the search engine results pages, and the Provider has no control over such changes;
(b) it can take months for the Search Engine Optimisation Services to have any significant effects upon the ranking of a website in the search engine results pages;
(c) website promotion is an ongoing task and, should the Client terminate the Contract and/or stop promoting a website, that may have a negative impact upon the effects of the Search Engine Optimisation Services;
(d) the Provider will not be responsible for any alterations to a website made by the Client or any third party that reverse or otherwise affect changes made to that website by the Provider in connection with the Search Engine Optimisation Services; and
(e) notwithstanding the Search Engine Optimisation Services, a website's search engine results page rankings and traffic levels may decrease as well as increase.
4. Client obligations
4.1 Save to the extent that the parties have agreed otherwise in writing, the Client must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
4.2 The Client shall provide to the Provider:
(a) assistance in determining appropriate keywords and keyword phrases to be targeted using the Services;
(b) such articles, blog posts and other written materials as the Provider may reasonably request in connection with the performance of the Services or approval of such materials if they are supplied by the Provider;
(c) direct access to analytical data concerning the Client's relevant websites, such as data concerning referral sources, visitor activity, website usage, conversion rates and similar; and
(d) an email account using a relevant Client domain name.
(e) any other access details requested
5. Client Websites
5.1 The Client shall provide to the Provider, promptly following receipt of a written request from the Provider, the facilities to access and make changes to the Client Websites to the extent reasonably necessary to enable the Provider to fulfil its obligations under these Terms and Conditions.
5.2 The Client must not reverse, revert or materially alter any changes to the Client Websites made by or upon the instructions of the Provider in the course of providing the Services without notifying the Provider.
5.3 The Provider must not use the Client Websites:
(a) to host, store, send, relay or process any material; or
(b) for any purpose,
which is unlawful, illegal or fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against any person.
6. Reputation and goodwill
6.1 The Provider undertakes that it will not, during the Term and without the prior written consent of the Client, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Client.
6.2 The Client undertakes that it will not, during the Term and without the prior written consent of the Provider, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Provider.
7. Charges
7.1 The Client shall pay the Charges to the Provider in accordance with these Terms and Conditions.
7.3 All amounts stated in or in relation to these Terms and Conditions are, stated exclusive of value added taxes, which will be added to those amounts and payable by the Client to the Provider.
7.4 The Provider may elect to vary any element of the Charges by giving to the Client not less than 30 days' written notice of the variation
8. Payments
8.1 The Provider shall issue invoices for the Charges to the Client from time to time during the Term as agreed.
8.2 The Client must pay the Charges to the Provider as per the agreed payment terms.
8.3 The Client must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque or using such payment details as are notified by the Provider to the Client from time to time.
8.4 If the Client does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
(a) charge the Client interest on the overdue amount at the rate of 5% per annum above the Bank of England base rate from time to time which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month; or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8.5 If the Client wishes to discontinue with the services offered as per the terms agreed under this contract, before the completion of the minimum term of 1 year as set out in clause 2.2, the Client agrees to forefeit any benefits of the services as well as any payments made in advance.
9. Confidentiality obligations
9.1 The Provider must:
(a) keep the Client Confidential Information strictly confidential;
(b) not disclose the Client Confidential Information to any person without the Client's prior written consent, and then only under conditions of confidentiality;
(c) use the same degree of care to protect the confidentiality of the Client Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Client Confidential Information; and
(e) not use any of the Client Confidential Information for any purpose other than for fulfilling the contractual obligations
9.2 Notwithstanding Clauses 9.1, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
9.3 The restrictions in this Clause 9 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
9.6 Upon the termination of the Contract, each party must immediately cease to use the other party's Confidential Information.
9.7 Following the date of effective termination of the Contract, the relevant party must:
(a) irreversibly delete from its media and computer systems all copies of the other party's Confidential Information ;
(b) ensure that no other copies of the other party's Confidential Information remain in the relevant party's possession or control;
9.8 The provisions of this Clause 9 shall continue in force indefinitely following the termination of the Contract.
10. Data protection
10.1 The Provider shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data.
10.2 The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Contract.
10.3 The Client shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Contract relevant data that is necessary to carry out the contractual obligations.
10.4 The Provider shall only process the Client Personal Data during the Term, subject to the other provisions of this Clause 10.
10.5 The Provider shall only process the Client Personal Data on the documented instructions of the Client including with regard to transfers of the Client Personal Data to a third country under the Data Protection Laws.
10.7 The Provider shall promptly inform the Client if, in the opinion of the Provider, an instruction of the Client relating to the processing of the Client Personal Data infringes the Data Protection Laws.
10.8 Notwithstanding any other provision of the Contract, the Provider may process the Client Personal Data if and to the extent that the Provider is required to do so by applicable law.
10.9 The Provider shall ensure that persons authorised to process the Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.10 The Provider and the Client shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Client Personal Data.
10.11 The Provider must not engage any third party to process the Client Personal Data without the prior specific or general written authorisation of the Client.
10.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Client with the fulfilment of the Client's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
10.13 The Provider must notify the Client of any Personal Data breach affecting the Client Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
10.14 The Provider shall, at the choice of the Client, delete or return all of the Client Personal Data to the Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
10.15 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
11. Warranties
11.1 The Provider shall provide the Services with reasonable skill and care in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.
11.2 The Provider warrants to the Client that:
(a) the Provider has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
11.3 The Client warrants to the Provider that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
11.4 All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
12. Indemnities
12.1 The Provider shall indemnify and shall keep indemnified the Client against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the Client and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a "Provider Indemnity Event").
12.2 The Client must:
(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
(b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
(d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
12.3 The Client shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Client of these Terms and Conditions (a "Client Indemnity Event").
12.4 The Provider must:
(a) upon becoming aware of an actual or potential Client Indemnity Event, notify the Client;
(b) provide to the Client all such assistance as may be reasonably requested by the Client in relation to the Client Indemnity Event;
(c) allow the Client the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Client Indemnity Event; and
(d) not admit liability to any third party in connection with the Client Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Client Indemnity Event without the prior
written consent of the Client, without prejudice to the Client's obligations under Clause 12.3
12.5 The indemnity protection set out in this Clause 12 shall be subject to the limitations and exclusions of liability set out in the Contract.
13. Limitations and exclusions of liability
13.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 12.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
13.3 The Provider shall not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
13.4 The Provider shall not be liable to the Client in respect of any loss of profits or anticipated savings.
13.5 The Provider shall not be liable to the Client in respect of any loss of revenue or income.
13.6 The Provider shall not be liable to the Client in respect of any loss of use or production.
13.7 The Provider shall not be liable to the Client in respect of any loss of business, contracts or opportunities.
13.8 The Provider shall not be liable to the Client in respect of any loss or corruption of any data, database or software.
13.9 The Provider shall not be liable to the Client in respect of any special, indirect or consequential loss or damage.
13.10The Provider shall not be liable to the Client under the Contract in respect of any event or series of related events shall not exceed the greater of:
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
14.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
15. Termination
The Provider may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Provider under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Client at least 30 days' written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this clause.
16. Status of Provider
16.1 The Provider is not an employee of the Client, but an independent contractor.
16.2 The termination of the Contract will not constitute unfair dismissal; nor will the Provider be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
17. Subcontracting
17.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Contract, providing that the Provider must give to the Client, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
17.2 The Provider shall remain responsible to the Client for the performance of any subcontractor obligations.
