Ongoing Marketing
1. INTERPRETATIONS
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England.
“Buyer” means the person, company, firm or body engaging the Company to perform Search Engine Optimisation services (“SEO Services”), conversion rate optimisation services (“CRO Services”) or other recurring services (“Other Recurring Services”) on the Buyer’s World Wide Web site (the “Web Site”).
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“CRO Services” means the Conversion Rate Optimisation services to be provided by the Company to the Buyer in accordance with the terms of business of this Agreement;
“Designated Search Engines” means the search engines on which the Company shall apply the SEO Services and/or CRO Services and/or Other Recurring Services with a view to improving the ranking of the Website;
“Fee” means the consideration payable to the Company for the SEO Services and or CRO Services and/or Other Recurring Services as defined in Clause 6;
“Initial Fee” means the first sum payable to the Company under Clause 6.
“Intellectual Property Rights” means:
(a) Any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) Rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) Rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) The right to sue for past infringements of any of the foregoing rights;
“Keyword Report” means the keywords that the Company will provide SEO Services and/or CRO Services and/or other relevant Other Recurring Services for;
“Order Forms” means the forms that constitute the order.
“Other Recurring Services” means and other recurring services in accordance with the terms of business of this Agreement. These services include, but not limited to, domain name registration and management, Social Media, SSL Certification, STD Codes and Consultancy;
“Required Information” means the information which the Buyer must supply to the Company to enable the Company to carry out the SEO Services and/or CRO Services and/or Other Recurring Services;
“SEO Services” means the SEO services to be provided by the Company to the Buyer in accordance with the terms of business of this Agreement;
“Website SEO” means the application of the SEO services, CRO Services and relevant Other Recurring Services to the Website including, but not limited to, the editing of the Website.
“The Company” means Pod Digital Marketing Limited registered in England and Wales under number 10132514 whose registered office is at 6 Elizabethan House, Leicester Road, Lutterworth, England, LE17 4NJ and who carries on business providing search engine optimisation services (SEO), conversion rate optimisation services (CRO), Other Recurring Services (“Other Recurring Services”) of sites on the World Wide Web.
“Trial Period” The trail period last for the first three months from the date of the contract.
“Web Site” means the Buyer’s World Wide Web site to be developed by the Company pursuant to this Agreement.
“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol.
2. GENERAL
2.1 These terms of business are to be read in conjunction with and form part of the General Order Form. The Buyer acknowledges and agrees that by signing the General Order form it accepts these terms of business.
2.2 Quotations submitted by the Company shall remain active for acceptance by the Buyer for a period of 21 days from the date of the quotation, unless it is withdrawn by the Company.
2.3 A contract will only become binding upon acceptance of the order by signing or counter signing and dating of the order and returning it by the Buyer.
3. ENGAGEMENT OF THE COMPANY
3.1 The Buyer hereby engages the Company to provide SEO Services and/or CRO Services and/or Other Recurring Services, and confirms that these terms of business are to read in conjunction with our separate Order Form/s which the Buyer acknowledges safe receipt of.
3.2 The Company shall finalise the agreed keyword, if not done so at the time of the order, by (“the Completion Date”).
3.3 The Buyer shall provide the Required Information to the Company within an agreed period (“the Delivery Date”). In the event that the Buyer fails to deliver the Required Information on the Delivery Date, the Completion Date shall increment by one day for each day that the delivery of the Required Information is delayed.
3.4 The ongoing SEO Services and/or CRO Services and/or Other Recurring Services shall continue for a continuous one month rolling contract on a continuous one month rolling period for an indefinite period subject to the provisions set out below.
3.5 The Company shall be responsible for the quality of the SEO Services and/or CRO Services and/or Other Recurring Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by it to perform all or any part of the SEO Services, and/or CRO Services and/or Other Recurring Services shall also do so competently and with reasonable care.
4. NATURE OF ENGAGEMENT
4.1 The Company shall at all times be responsible for organising how and in what order the SEO Services and/or CRO Services and/or Other Recurring Services are performed.
4.2 The engagement under this Agreement is mutually non-exclusive and the Company shall be entitled, at its own expense, to subcontract the performance of the SEO Services and/or CRO Services and/or Other Recurring Services.
4.3 The engagement and appointment of the Company under this Agreement does not create any mutual obligations on the part of the Buyer or the Company to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
4.4 The initial period will be the trial period which will last for three months from the date of the contract. Termination can be given at any time during this period. Once this trial period has ended then the minimum contract will be twelve months, from the end of trial, and the terms in the Early Cancellation will apply. Once the minimum contract period ends then the termination clauses apply.
5. THE SEO/CRO/OTHER RECURRING SERVICES
5.1 The Company shall provide SEO Services and/or CRO Services and/or Other Recurring Services in accordance with this Agreement and in particular Clause 3.
5.2 The Company shall not incur any charges to the Buyer, without the prior written agreement and authorisation of the Buyer.
5.3 The Website SEO shall be performed directly and all changes to the Website shall be uploaded directly to the host server via FTP. The Buyer shall provide the required access credentials including, but not limited to FTP details.
OR
The Company shall not have FTP access to the Website and the Website SEO materials shall be submitted to the Buyer for uploading by the Buyer or a third party appointed by the Buyer.
5.4 The Company shall produce the following monthly deliverables by the end of each month:
5.4.1 Production of Keyword Report;
5.4.2 The Website SEO;
5.5 The Buyer understands and acknowledges the following:
5.5.1 The times for websites to appear on search engine listings vary and the Company can thus not guarantee that the Website will appear immediately on the Designated Search Engines or that its position will change immediately from that which it held prior to the SEO Services and/or CRO Services and/or Other Recurring Services being performed.
5.5.2 The Company cannot control search engines and cannot provide any guarantee that any of the Designated Search Engines will not change their policies or functionality in such a way that will have a detrimental effect on the ranking of the Website following the completion of the SEO Services.
5.5.3 The Company accepts no responsibility for any detrimental effect on the Website’s search engine rankings which results from any activity of the Buyer or any third party including, but not limited to, alterations to the Website.
5.5.4 The Company makes no guarantee that the SEO Services and/or CRO Services and/or Other Recurring Services will result in the Website appearing in the top 10 search results on the Designated Search Engines.
6. CONSIDERATION
6.1 In consideration of the SEO Services and/or CRO Services and/or Other Recurring Services the Buyer shall pay to the Company the Initial Fee as detailed in the Order Forms
AND/OR
A monthly amount to be agreed as detailed in the Order Form.
6.2 All payments made under this Agreement shall be expressly inclusive of any VAT chargeable thereon.
6.3 All monthly fees payable for Recurring Services must be paid by the Buyer to the Company in advance, i.e. for example, paying for August must be paid before 1 August.
7. INTELLECTUAL PROPERTY
7.1 Upon receipt in full by the Company of all sums due under Clause 6, the copyright and any and all other Intellectual Property Rights subsisting in any and all materials created by the Company in the course of providing the SEO Services and/or CRO Services and/or Other Recurring Services shall be deemed to be assigned to the Buyer and the Company shall be deemed to have waived all moral rights in respect of such work arising out of Chapter IV of the Copyright Designs and Patents Act 1988.
7.2 The Company further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Company by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Company by such third parties and will, where relevant, be subject to the requirements of sub-Clause 7.1.
7.3 Nothing in this Agreement shall vest any rights in the Website in the Company and sub-Clause 7.1 shall effect the assignment of any Intellectual Property Rights which may arise to the benefit of the Company in the Website to the Buyer.
8. SERVICE PROVIDERS WARRANTIES AND INDEMNITY
8.1 The Company represents, warrants, undertakes, and agrees with the Buyer as follows:
8.1.1 The work produced in the course of the SEO Services and/or CRO Services and/or Other Recurring Services shall be original to the Company and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
8.1.2 The work produced in the course of the SEO Services and/or CRO Services and/or Other Recurring Services shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the work will, if published, constitute a contempt of court;
8.1.3 The Company shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the work produced in the course of the SEO Services and/or CRO Services and/or Other Recurring Services except pursuant to this Agreement and shall not enter into any agreement or arrangement which might conflict with the Buyer’s rights under this Agreement or might interfere with the Company’s performance of its obligations under this Agreement;
8.2 The total liability of the Company under this Agreement shall be limited an equivalent sum which represents the total amount paid to the Company for the provision of its services pursuant to this agreement.
8.3 For Domain Name Registrations, Web Hosting, Email Mailboxes the Company is a reseller partner for other companies, including but not limited to, Nu Blue and 1and1. The Company provides such services to the Buyer subject to the terms of business of the relevant third party provider. The Buyer agreed to be bound by these third party terms of business.
8.4 The Company will not be liable to the Buyer for any loss arising from:
8.4.1 A domain name not being renewed and/or
8.4.2 A mailbox not being available.
9. BUYER’S WARRANTIES AND INDEMNITY
9.1 The Buyer represents, warrants, undertakes, and agrees with the Company as follows:
9.1.1 The Website shall be original to or otherwise owned by the Buyer and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
9.1.2 The Website shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the Website will constitute a contempt of court;
9.1.3 The Buyer shall not enter into any agreement or arrangement which might conflict with the Company’s rights under this Agreement or might interfere with the Company’s performance of its obligations under this Agreement;
9.1.4 Subject to sub-Clause 8.2 the Buyer hereby undertakes to indemnify the Company and keep the Company at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Company on a solicitor and own-Buyer basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Buyer of any of the Buyer’s undertakings, warranties, or obligations under this Agreement.
9.2 The total liability of the Buyer under this Agreement shall be a total indemnity in respect of any loss of profit sustained by the Company or the total sum needed to compensate the Company arising from clause 9.1.4 above.
10. CONFIDENTIALITY
10.1 Both Parties undertake that, except as provided by sub-Clause 10.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and for a period of two years after its termination:
10.1.1 Keep confidential all Confidential Information;
10.1.2 Not disclose any Confidential Information to any other party;
10.1.3 Not use any Confidential Information for any purpose other than as contemplated by this Agreement;
10.1.4 Not make any copies of, record in any way or part with possession of any Confidential Information; and
10.1.5 Ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 10.
10.2 Subject to sub-Clause 10.3, either Party may disclose any Confidential Information to:
10.2.1 Any of their sub-contractors, substitutes, or suppliers;
10.2.2 Any governmental or other authority or regulatory body; or
10.2.3 Any of their employees or officers or those of any party described in sub-Clauses 10.2.1 or 10.2.2;
10.3 Disclosure under sub-Clause 10.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 10.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
10.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
10.5 When using or disclosing Confidential Information under sub-Clause 10.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
10.6 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
11. TERMINATION
11.1 Twelve months after the end of the trial period (which lasts for 3 months) either party may terminate this Agreement by giving the other party not less than three months’ written notice. (For the avoidance of doubt, we operate a 3 month notice period for each service. If a client terminates 1 service and retainers another, 3 months notice period will still be required for the terminated service).
11.2 This Agreement will remain in effect for the period of time that the parties agree that the Company will provide the SEO Services.
11.3 Without prejudice to the generality of sub-Clause 11.1, this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
11.3.1 Either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable of remedy, is not remedied within 21 days of written notice of such failure from the other Party;
11.3.2 An encumbrancer takes possession, or where the other Party is a Company, a receiver is appointed, of any of the property or assets of that other Party;
11.3.3 The other Party makes any voluntary arrangement with its creditors or, being a Company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
11.3.4 The other Party, being an individual or firm, has a bankruptcy order made against it or, being a Company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the Company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
11.3.5 Anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
11.3.6 The other Party ceases, or threatens to cease, to carry on business; or
11.3.7 Control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
11.4 The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
12. EARLY CANCELLATION CLAUSE
12.1 Twelve months after the trial period ends (which lasts for 3 months), either party shall have the right, exercisable by giving not less than three months’ written notice to the other prior to the expiry of the period agreed between them, or any other further period for which this Agreement has been extended pursuant to this provision to extend this Agreement.
13. SEVERENCE
13.1 The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
14. NOTICES
14.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by:
14.1.1 Delivering it by hand;
14.1.2 Sending it by pre-paid registered First Class post to address Pod Digital Marketing, 6 Elizabethan House, Lutterworth, LE17 4NJ; or
14.1.3 Sending it by electronic transmission to the other party at the address seo@poddigital.co.uk
14.1.4 Any notice or information given by post in the manner provided by Clause 15.1.2 which is not returned to the sender as undelivered shall be deemed to have been given to the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
14.1.5 Any notice or information sent by electronic transmission, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent as provided in Clause 14.1.3 to the other party at the address given in Clause 14.1.3 within 24 hours after transmission.
17. ALTERNATIVE DISPUTE RESOLUTION
17.1 Any dispute or difference arising between the Parties relating to this Agreement or its subject matter shall be referred to a single arbitrator to be agreed upon by the Parties or, failing such agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales.
17.2 The Parties hereby agree that the decision of the Arbitrator shall not be final and binding on both Parties.
18. LAW AND JURISDICTION
18.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2 Subject to the provisions of Clause 15, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.