IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“ASO Service” means modification of the Client’s online management strategy and manipulation of ‘on- page’ and ‘off-page’ elements to enhance the ranking of the Application in an App Store (e.g. iTunes, Google Play, Windows Store, Blackberry World).
“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);
“Intellectual Property Rights” means
(a) any and all rights in any patents, trade marks, 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 trade marks 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;
“on-page” refers to the source code, graphics or text elements of the Website or Application
“off-page” means the activity carried out externally to the source code, graphics or text of the Website or
Application including but not limited to links, article distribution, social media activity, press releases.
“Required Information” means the information which the Client must supply to the Company to enable the Company to carry out the SEO Services as defined in Schedule 1;
“SEO Services” means modification of a client’s online management strategy and manipulation of ‘on-page’ and ‘off-page’ elements to enhance the ranking of the Website and/or the Applications (if any) in a search engine and includes ASO Service where appropriate
“Website SEO” means the application of the SEO services to the Website including, but not limited to, the editing of the Website and/or to an Application
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted
at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement;
1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a "Party" or the "Parties" refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and will have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number will include the plural and vice versa.
1.5 References to any gender will include the other gender.
1.6 The words or phrases in the left hand column of the table at the head of this Agreement will have the
meanings ascribed to them in the right hand column
2. Engagement of the Company
2.1 The Client hereby engages the Company to provide the SEO Services for the Term which Term will be automatically renewed at the expiry thereof for the same period unless notice of termination has been given pursuant to clause 10
2.2 The Client will provide the Required Information to the Company within 7 days of being requested to do so by the Company.
2.3 The Company will be responsible for the quality of the SEO Services and will 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 will also do so competently and with reasonable care.
3. Nature of Engagement
3.1 The Company will at all times be responsible for organising how and in what order the SEO Services are performed and will liaise with the Client (or the Client’s representative) to ensure that due account is taken of the impact of the timing of the SEO Services to be performed upon the activities of the Client and any other contractors, consultants and similar third parties also engaged by the Client.
3.2 The engagement under this Agreement is mutually non-exclusive and the Company will be entitled, at its own expense, to subcontract the performance of the SEO Services.
3.3 The engagement and appointment of the Company under this Agreement does not create any mutual obligations on the part of the Client or the Company to offer or accept any further engagement and no continuing relationship will hereby be created or implied.
4. The SEO Services
4.1 The Company will provide the SEO Services specified in Schedule 1 in accordance with this Agreement and in particular Clause 2.
4.2 The Company will not incur any charges on behalf of the Client including, but not limited to, the setting up of pay-per-click campaigns, without the prior written agreement and authorisation of the Client.
4.3.1 Unless otherwise agreed from time to time between the parties the Company will not have FTP access to the Website and the Website SEO materials will be submitted to the Client for implementation by the Client or a third party appointed by the Client.
4.3.2 The failure by the Client to implement the Website SEO materials in a timely manner may result in slower
or stagnated progress and may result in a decline in the Website and/or Application ranking sales and/or awareness of the Website brand or activities.
4.4 The Client understands acknowledges and where appropriate agrees the following:
4.4.1 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 being performed.
4.4.2 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 application of the SEO Services.
4.4.3 The Company accepts no responsibility for any detrimental effect on the Website’s search engine rankings which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
4.4.4 The Company makes no guarantee that the SEO Services will result in the Website appearing in the top 10 search results (or in other position) on the Designated Search Engines.
4.4.5 The rate of progress of the SEO Services is dependent on several factors including but not limited to the industry sector in which the Client trades the strength of the Client’s competitors’ web strategy and the competitiveness of the keywords used
4.4.6 The Company will make requests for certain ‘on-page’ changes or additions to be made to the Website to optimise content which may include but are not limited to: URL’s, TLD’s, titles, meta descriptions, meta keywords, headings, alt text, Flash, robots.txt, XML sitemaps, language, doctype, Google Analytics, microformats, Dublin Core, geo meta tags, removal of content duplication, feeds and favicons
4.4.7 The Company may also make recommendations to the Client to modify its general online strategy to compliment the SEO Services.
4.4.8 The Company will use reasonable endeavours to adjust the SEO Service to accommodate any changes made from time to time in the parameters and algorithms used by the Designated Search Engines
4.4.9 The Client acknowledges that the Company has not contracted to provide any training services to the Client nor will be given in SEO/online marketing or other areas of service, including link lists, how or why we perform link-building, and explanations of any sort. This is to protect the Company's business strategies that vary so often to how Google's algorithm changes, which is often 3-8 times per year. This means our consistent testing and varying our strategy is what the Company hinges on.
4.4.10 That the Company may utilise third party software to produce the reports it may provide to the Client from time to time and that the Company has no responsibility for the accuracy of the data provided using such reports.
4.5 The Client acknowledges that any changes made to the Website and/or to the Application/s may have an effect on the SEO Services and the Client agrees to forward any proposed changes to the Company at least 14 days before the changes are effected to allow the Company to mitigate the effect of such changes as far as it is possible to do so
4.6 The Client acknowledges that it has the responsibility to verify that all changes made or suggested as a result of the SEO Services are lawful in the Territory to which the Website and/or the Applications are to be used.
5. The Fee
5.1 The Client will pay to the Company the Fee on the Due Date
5.2 If the Client does not pay the Fee to the Company by the expiry of 48 hours from the Due Date the
Company may suspend all of its services until the Fee has been paid
5.3 All payments made under this Agreement are exclusive of any value added tax chargeable thereon.
5.4 If the Client is not based in the United Kingdom but within the European Union the Client agrees to provide all relevant details to the Company in relation to value added tax that the Company requests
5.5 If the Client is based outside the European Union the Client must supply to the Company such reasonable
proof of the Client’s registered business address as the Company requires
6. Intellectual Property
6.1 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 will be deemed to be the property of the Company and used by the Client under a non-exclusive World Wide licence which may only be assigned if the Website and/or Application/s are assigned for use with the Website and/or Application and provided further that any such assignment contains a provision on the part of the assignee that it will comply in all respects with all terms and conditions of this Agreement which survive such assignment or the termination of this Agreement
6.2 The Company may use the name logos trademarks and other identifying material for the purpose of promoting its services whether on its own website in blogs in press releases on social media or in any other medium
6.3 The Client will not during and for the period expiring 12 months after the termination of this Agreement give details of any methods used by the Company nor any training material nor any other techniques related to the SEO services shared with the Client pursuant to the terms of this Agreement to any other person firm or company without the express written permission of the Company
7. Company’s Warranties and Indemnity
7.1 The Company represents, warrants, undertakes, and agrees with the Client as follows:
7.1.1. the work produced in the course of the SEO Services will not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
7.1.2 the work produced in the course of the SEO Services will not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and will 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;
7.1.3 subject to sub-Clause 7.2 the Company hereby undertakes to indemnify the Client and keep the Client 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 Client on a solicitor and own- client basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Company of any of the Company’s undertakings, warranties, or obligations under this Agreement.
7.2 The total liability of the Company under this Agreement will be limited to £500.
8. Client’s Warranties and Indemnity
8.1 The Client represents, warrants, undertakes, and agrees with the Company as follows:
8.1.1 the Website will is owned by the Client and does 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 Website is not, under the laws of England and Wales obscene, blasphemous, offensive to religion, or defamatory of any person and will 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;
8.1.3 the Client will 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;
8.1.4 the Client hereby undertakes to indemnify the Company and keep the Company at all time 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-client basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non- performance by the Client of any of the Client’s undertakings, warranties, or obligations under this Agreement.
9.1 Both Parties undertake that, except as provided by sub-Clause 9.2 or as authorised in writing by the other
Party, they will at all times during the continuance of this Agreement and for 12 months after its termination:
9.1.1 keep confidential all Confidential Information;
9.1.2 not disclose any Confidential Information to any other party;
9.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.1.5 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 9.
9.2 Subject to sub-Clause 9.3, either Party may disclose any Confidential Information to:
9.2.1 any of their sub-contractors, substitutes, or suppliers;
9.2.2 any governmental or other authority or regulatory body; or
9.2.3 any of their employees or officers or those of any party described in sub-Clauses 9.2.1 or 9.2.2;
9.3 Disclosure under sub-Clause 9.2 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
9.2.2 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.
9.4 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.
9.5 When using or disclosing Confidential Information under sub-Clause 9.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
9.6 The provisions of this Clause 9 will continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
10.1 Either Party may terminate this Agreement by giving to the other not less than five working days written notice.
10.2 Without prejudice to the generality of sub-Clause 10.1, this Agreement will terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
10.2.1 either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable
of remedy, is not remedied within 5 working days of written notice of such failure from the other Party;
10.2.2 an encumbrance 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;
10.2.3 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);
10.2.4 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);
10.2.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.2.6 the other Party ceases, or threatens to cease, to carry on business; or
10.2.7 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 10, “control” and “connected persons” will have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.3 The termination of this Agreement will be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
10.4.1 If the Agreement is terminated by the Company otherwise than for breach of any term of the Agreement by the Client then the Company will refund to the client a proportion of the Fee based on the following calculation:
Refund = Fee x y/z
where y = the number of days left unexpired in the Term and z = the total number of days in the Term
10.4.2 If the Agreement is terminated by the Client otherwise than for breach of any term of the Agreement by the Company the Client acknowledges that it is not entitled to refund of the Fee and if such a refund is proposed by the Company it will be in an amount and subject to such conditions as the Company will in its sole discretion decide
11. Nature of the Agreement
11.1 This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its
obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
11.2 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
11.3 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.4 No failure or delay by either Party in exercising any of its rights under this Agreement will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
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 will be deemed severed from the remainder of this Agreement. The remainder of this Agreement will be valid and enforceable.
13.1 All notices under this Agreement will be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
13.2 Notices will be deemed to have been duly given:
13.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
13.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
13.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
13.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices will be addressed to the most recent address, e-mail address, or facsimile number
notified to the other Party.
14. Law and Jurisdiction
14.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
14.2 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) will fall within the jurisdiction of the courts of England and Wales.
Details of the SEO Services to be carried out by the Company
The Company will undertake full SEO Services on the Client’s websites
The Company will agree with the Client on an allocation of TBC keywords with which to promote the ‘off-page’ (sub-Clause 1.1) strategy of the client website.
Keywords strategy is to be agreed with the Client on commencement of service.
The Company will undertake an initial audit of all ‘on-page’ (ref. sub-Clause 1.1) assets of the client's website.
and advise on improvements, recommendations and any alterations, where necessary, to current site management by the Client.
The Company will provide an initial benchmarking report for the client website to assist the Client in tracking progress of the service over time.
The Company will provide the Client an SEO report at the end of each month of service tracking, but not exhausted to; traffic, rankings, ranking changes, analytics, reference to initial benchmarking report.
The Company will invoice the Client on a monthly basis in accordance to the schedule outlined in the Client Service Agreement.