TERMS OF BUSINESS
1.1 Introduction and definitions
1.1.1 The Company agrees to provide the Client with the Services, including Search Engine Optimisation (SEO) and reporting services, as further described in this agreement, with the aim of increasing internet traffic to the Websites and obtaining Preferential Positioning.
1.1.2 The effective date of this agreement shall be the Start Date contained in the earliest Statement of Work executed between the parties.
1.1.3 This agreement shall continue indefinitely subject to either party giving express notice of termination as described further below.
1.2 Defined terms
Brand Guidelines: Client’s brand guidelines as provided to the Company in writing by the Client from time to time.
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 agreement 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.
Deliverables: the web pages developed by the Company under this agreement containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of the Website (and/or its web pages) in the result pages of search engines (“SEO Pages”); reports; analyses; statistics; content and other materials required to be delivered by the Company in accordance with this agreement.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks 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.
Materials: the content provided to the Company by the Client from time to time in order for the Company to perform the Services.
Pre-Existing Work: the works, concepts, items and materials either developed or procured to be developed by the Company or its personnel at any time for use in relation to the Company’s business or any or all of the Company’s customers generally and not specifically for the provision of the Services or Deliverables to Client.
Preferential Positioning: higher position of the website in SE ranking.
SEO Pages: the web pages developed by Company under this agreement and Statement of Work containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of a Website (and/or its web pages) in the result pages of search engines.
Services: such services which the Company may provide pursuant to a Statement of Work, and all other services reasonably necessary to be performed by the Company in order to carry out its obligations under this agreement and any applicable Statement of Work.
Unsuitable Content: any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.
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.
- Structure of Agreement
2.1 This agreement is structured so that individual Statements of Work will be entered into by the parties and such Statements of Work are governed by and subject to this agreement. In the event of inconsistency or conflict between this agreement and any Statement of Work, the terms of the Statement of Work shall take precedence to the extent of the conflict or inconsistency, except that definitions shall be contained in the Terms, while descriptions of specific instances – in the Statement of Work.
2.2 The Client shall only be committed to purchasing and the Company shall only be committed to providing any Services or delivering any Deliverables upon written approval by both parties of a Statement of Work and in those cases, in respect of such Services and Deliverables as contained in the Statement of Work.
2.3 Each Statement of Work shall specify the Charges relevant to it.
2.4 Each Statement of Work unless otherwise agreed by the parties shall constitute a separate contract under this agreement and any defined terms used in each Statement of Work shall have the same meaning as set out in this agreement.
- Scope of Services
3.1 The Company may:
- provide any of the Services, as required in the professional judgement and experience of its staff for the achievement of Preferential Positioning;
- develop any SEO Pages required in order to provide the Services;
- deliver the Deliverables to Client.
3.2 For the avoidance of doubt, where the Client requests services or reports not expressly included in the Statement of Work, these will be charged additionally.
- Requirements for Services provision
4.1 To enable it to provide Services, the Company may request the Client, and the Client agrees to provide without undue delay, the following:
- access (via FTP or otherwise, as appropriate) to servers hosting the Websites for the making of changes and the uploading of SEO Pages;
- access to analytics services, including historical information in relation to search engine keyword advertising used by the Client; website visitor data and others;
- where in the opinion of the Company, the Websites require additional textual, image or other content, provide additional relevant textual content in electronic format for the purpose of creating additional SEO Pages. For instance, the Client may be requested to provide text copy, relevant to each of the Keywords or Key Phrases;
- Where required by the Company, review and approve content;
- All reasonably required details of domains currently owned, whether or not hosted by the Client;
- Authorisation(s) and instructions to any current third party providers to the Client, where these are required for obtaining access, materials, and any other of the above;
- Any other information, documentation and assistance such as may be reasonably required.
4.2 Where any part of or aspect of a Website is modified or intended to be modified in any way (whether in respect of any of its code, text or otherwise), the Client shall as soon as practicable notify and keep the Company notified in writing of the changes made or intended to be made to a level of sufficient detail to enable the Company to understand the nature and implications of the (intended) modifications for the Services and the modified Website. This is likely to be especially important where a major set of changes is planned (eg, before going “live” with a new Website or new version of the Website, in comparison to a previously communicated version) but is intended to apply generally.
4.3 For the avoidance of doubt, the obligation to notify contained in clause 4.2 extends to modifications undertaken by Client’s representatives, shareholders, owners, officers, employees or contractors (eg, web developers)).
4.4 The Company shall promptly report to the Client in writing any material issues with the performance of the Services and/or Website.
- Payments and Charges
5.1 The Client shall pay the Company the Charges required by a Statement of Work. Where this is further required by a Statement of Work, the Company shall issue invoices to the Client upon payment.
5.2 Where no contrary provision is made in a Statement of Work, the Client shall make all payments within 30 days of the last day of the month to which a Service relates (eg, Services performed between 10-12 January will be payable by 2 March in a non-leap year).
5.3 Payments shall not be conditional on the issue of any invoices or any other payment-related document.
5.4 All Charges are exclusive of VAT or similar taxation required to be levied by the Company under the relevant VAT or similar legislation (including, but not limited to the UK Value Added Tax Act 1994). VAT or similar taxation required to be levied by the Company shall be payable by the Client at the applicable rate, if any.
5.5 If the Client fails to make any payment due to Company under this agreement by the due date for payment, then it shall pay interest on the overdue amount at the rate of 12% per annum. 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.
5.6 The Client shall, on request:
- provide the Company with valid credit card details (or with information required for the use of any other suitable direct credit option) (“the Payment Method”);
- maintain such details correct and complete; and
- shall notify the Company if the payment method is no longer available or has been cancelled.
Where the Company has made recourse to a Payment Method, it shall notify the Client as soon as reasonably practicable.
5.7 All payment processing and related charges and conversion rates costs (where compared to the interbank rate quoted for the date of conversion at oanda.com or by similar sources) (whether such charges are due to banks, electronic money providers, payment gateways, or others)) shall be borne by the Client.
5.8 The Company reserves the right to suspend the provision of Services to a Client where a due payment is late without notice. It will use its best endeavours to notify the Client in writing where this occurs. The Client should be aware that this may have an adverse impact on the positioning of the Websites.
6.1. As part of the provision of its Services under a Statement of Work, the Company may acquire or procure the use of internet domains and internet domain names (collectively, “the Domains”). Title to these Domains shall belong to the Client or to a third party whose permission to deploy the Domains for the Services the Company shall have.
6.2. Where Services under a Statement of Work have been provided by the Company to a Client for a period of 2 months or more, and the Client has made all payments to the Company properly due under this agreement, the Company shall within a reasonable time provide the access to all Domains in use at the 2nd month, provided the Client has continued to make all due payments.
6.3. The Company reserves and the Client agrees to grant to the Company the right to choose which domain names to use and the mechanism(s) of transferring these domains. Should assistance from the Client be reasonably required by the Company to give effect to the transfer of the domains under clause 6.2, the Client shall provide any such assistance that is reasonably required by the Company. If the Client fails to provide assistance that has been reasonably required, the Company is relieved of any liability arising out of the same.
6.4 In respect of Services to be provided under each Statement of Work, if payments continue to be made by a Client pursuant to it for a period of at least 3 months, the Company shall keep links built to the Client’s Website’s domains which are the subject of the Statement of Work live for three months, and will not use such links to promote any Websites which compete with any Websites subject to the Statement of Work.
6.5 Domains bought by the Company will expire twelve months after purchase from the registrar. The Company is not obliged to renew ownership of these domains after expiration.
6.6 The company is not liable to replace domains should they be de-indexed by Google or drop in Majestic, Moz or Ahrefs metric scores.
- Intellectual Property and Licences
7.1 Licence to Client over deliverables.
To the extent that any Pre-Existing Work is incorporated into the Deliverables it shall remain the property of the Company. The Company hereby grants (and if the Pre-Existing Work shall include any third-party materials, it shall procure such grants from any such third parties) to the Client a non-exclusive, transferable, irrevocable, worldwide and perpetual licence to use such Pre-Existing Work as part of the Deliverables.
7.2 Licence to the Company
The Client grants the Company a limited, non-exclusive, non-transferable, revocable and worldwide licence to access and use the:
- SEO Pages; and
- name and logo of the Client,
solely to provide the Services to the Client in accordance with this agreement and the Brand Guidelines during the term of the agreement.
7.3 Non-competition for Client IP
7.3.1 The Company shall not, without the written consent of Client (which the Client may withhold in its sole discretion) bid on or otherwise purchase any keyword that contains:
- trade mark, trade name, service mark or logo of Client; or
- any term that is materially similar to, any such trade mark, trade name, service marks or logo of Client, in order to improve the Website’s preferential placement in any search engine results.
7.3.2 Unless permitted under clause [number 12.7], the Company has the right to transfer ownership of Intellectual property if the Client makes any press release or makes any public statement about such links.
7.3.3 The Intellectual Property in any content created by the Company for the Clients’ own Websites will belong to the Client from the date of its creation unless expressly agreed otherwise.
The Client shall indemnify the Company against all costs (including legal fees), damages and liabilities arising from negligent or intended acts on the Client’s part constituting an infringement of any copyright, trade secret, trade mark, service mark, patent, invention, proprietary information or nondisclosure rights of any third party and content picked up from third party websites. To the full extent of the law, the Client will indemnify the Company for any expenses or damages resulting from claims made by third parties with regard to usage of Material. The liability of the Client to indemnify the Company under this clause is not limited by termination of this agreement.
- Company’s warranties as to unsuitable content
The Company warrants, represents and undertakes that all content (excluding the Materials) that it develops for the Deliverables pursuant to this agreement will not contain any material or content that is obscene, pornographic, seditious, defamatory, threatening, liable to incite racial hatred, menacing, or in breach of any third party’s Intellectual Property Right (“Unsuitable Content”). The Company shall notify the Client immediately if it becomes aware that any content in the Deliverables may be Unsuitable Content.
- Limitation and Exclusion of Liability
10.1 The Company shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from:
- any errors in or omissions from its Services;
- the unavailability or interruption of its Services;
- use of its Deliverables;
- the content of its Deliverables;
- any delay or failure in performance of our Services beyond our control;
- breach of Intellectual Property rights due to the creation or the transfer of ownership of inbound links.
10.2 In no event will the Company or its Directors, Employees or Agents be liable to the Client or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including for any lost profits or lost data, arising from use of our Services, Deliverables (including the SEO Pages), any other content, analytics, webmaster tools, any related software, which the Company has provided access to or use of or has recommended, even in case the Company is aware or has been advised of the possibility of such damages.
10.3 Notwithstanding anything to the contrary contained herein, the Company’s liability to the Client for any cause whatsoever, and regardless of the action, for an action connected with a Statement of Work will be limited to the amount of Charges you have paid under that Statement of Work, if any, and where an action or claim is in respect of more than one Statement of Work, to the Charges paid under those Statement of Works, if any.
10.4 Without prejudice to the generality of the foregoing, your attention is drawn to the fact that the Company’s liability is expressly excluded in the following cases:
- the Company is not promising any specific improvement in your Websites’ ranking in search engine results. The Company undertakes to implement certain Services, but does not warrant or undertake any specific result or effect following their implementation, including any relative improvement in respect of the ranking in SE results of any other Websites (including those of competitors of the Client);
- the Company is not responsible for any loss of revenue or business through losses in SE originating or related traffic, or any other losses resulting from the diminution of such traffic;
- as part of the SEO Services governed by this agreement, the Company makes no undertaking to assist more generally with managing a Client’s brand, internet presence and/or reputation. The Company will not undertake to monitor for any references about the Client on third party websites whether or not these are are indexed by search engines and or for the appearance of such references or links to such third-party websites in SE results and/or in advertising placed or carried by other web properties and/or in any posts, forum posts, comments or social media;
- the Company is not liable for not adhering to search engine guidelines and cannot warrant that its Services, alone or in combination with other actions or circumstances, at any time after this agreement will not result in any automatic or manual demotion in SE result ranking or other penalty which itself or in combination with other factors, directly or indirectly results in a loss of traffic (including removal from indexing);
- the Company does not claim in any way that the linked external website or its contents are free of mistakes, viruses or other problems, or that the defects will be rectified or that the site will always be accessible. The Company does not claim in any way that the content will be accurate, correct, relevant or reliable. At any time the Company can revise any and all information on its own site provided by third party sites.
- Warranties, Representations and Undertakings
11.1 Each of the parties warrants to the other that:
- it has full power and authority to enter into and perform this agreement and any annexures to it;
- this agreement is drafted and concluded on the basis that both parties are acting in the course of their business and neither is a consumer;
- its respective performance of the terms of this agreement will not in any way constitute knowing, intentional infringement or violation of any copyright, trade secret, trade mark, patent, invention or any other nondisclosure rights of any third party.
11.2 The Client warrants, represents and undertakes that:
- it has received the necessary consents or permissions to use the Materials in accordance with this agreement from the applicable owner(s);
- any Materials (including text, graphics, photos, designs, logos, or other artwork provided to the Company for inclusion on the Website are either its intellectual property, or it has received permission from the owner(s) for such use, and will hold harmless, protect, and defend the Company and its subcontractors from any liability or suit arising from their use by it;
- it shall not overwrite (or allow, instruct, permit or tolerate others to overwrite) code or text placed on a Website by the Company in the course of the provision of the Service;
- it is not aware of any demotion, delisting, penalty, or other problems with the search engine ranking which the Website has had, other than disclosed in writing to the Client in respect of a Website in advance of commencement of the provision of Services;
- it (or its Board or other governing of management body) understands that:
(i) the Company has no control over the policies of search engines with respect to the type of Websites and/or content that they accept for indexing or ranking purposes, or may accept in the future;
(ii) the Client’s Website may be excluded from any directory, list, index or rank at any time at the sole discretion of the search engine or directory.
(iii) occasionally, search engines will drop listings for no apparent or predictable reason which may or may not devalue certain parts of the Services previously provided by Company. The Company will use its best endeavours to adapt any Services provided in accordance with its understanding of the most recent search engine algorithms and where applicable, resubmit the site based on its understanding of the current policies of the search engine in question;
(iv) the intended preference in the positioning of the Website applies to the average search result instance;
(v) features, including: the search queries sent; the equipment used for the query; the profile of the sending user (eg, geographic location; user agent or query language) and his or her search history, may affect considerably the Services;
(vi) due to the competitiveness of some search keywords/phrases, on-going changes in search engine ranking algorithms and other factors beyond its control, the Company does not guarantee specific position(s) or consistent ranking for any particular keyword, phrase or search term.
11.3 The Company warrants, represents and undertakes that:
- it shall perform the Services with all reasonable skill and care;
- the Deliverables will insofar as practicable and expedient, conform to any description set out in the Statement of Work;
- in providing the Services and Deliverables it will not use commit any act or do anything that breaches any law applicable in its jurisdiction of incorporation;
- it will use personnel to provide the Services who are suitably skilled, trained and experienced;
- it will exercise its best endeavours to procure that the manner in which the Services are performed or provided does not adversely affect the name, reputation or business of Client;
- the Deliverables will be free from all Viruses including but not limited to any codes or instructions that are used to access, modify, delete or damage any data contained in the web pages of or other computer programs used by Client in relation to, the Websites;
- it shall only access those areas of the Websites that are necessary for the purposes of performing its obligations under this agreement and it shall not modify (or do anything that would have the effect of modifying) the content of the Websites except for as permitted in this agreement.
11.4 Good faith assistance with penalty removal:
The Company undertakes the Services assuming that the Client’s website is free from any Unsuitable Content and/or the Client’s website is not subject to any previous penalties by Google. In case during the implementation of the Services a penalty is imposed on the Client’s website, the Company shall in good faith provide its best efforts to assist the Client with the necessary means to remove the penalty. The Company shall provide such efforts as long as the present agreement is in place between the parties.
11.5 The Company shall make all reasonable efforts to implement further additional changes, amendments, updates and modifications to its Services in order to prevent any possible penalties to the Client’s website.
12.1 During the term of this agreement, and at all times thereafter, the parties agree that they will not disclose to others, use for their own benefit or for the benefit of anyone other than the other party, or otherwise appropriate or copy, any Confidential Information, except as required in the performance of its obligations under this agreement (this exception being capable of benefitting only the Company).
12.2 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted under the present agreement.
12.3 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
12.4 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
12.5 These obligations of confidentiality will not apply to Confidential Information that:
- has been published or is known to the public (other than as a result of a breach of the agreement);
- is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority or regulatory body.
12.6 The parties agree not to disclose the existence of the present relationship and the present agreement to any other party, except in the cases listed in Clause 12.5 above.
12.7 The Parties:
- shall consult with each other before making any public statements with respect to this agreement, even where such statements would not constitute a breach of the provisions relating to Confidential Information;
- shall not issue any such press release or make any such public statement without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed;
except as required by law or a court order.
13.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than  days after being notified in writing to make such payment;
- the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
- 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 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 IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- 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 that other party (being a company);
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
- the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- 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;
- the other party (being an individual) is the subject of a bankruptcy petition or order;
- 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;
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
13.2 For the purposes of clause 13.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
- a substantial portion of this agreement; or
- any of the obligations set out in clause 5
over any two-month period during the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
13.3 Without affecting any other right or remedy available to it, either party may terminate this agreement on giving no less than 2 months’ written notice to the other party.
- Consequences of Termination
On expiry or termination of this agreement:
- all applicable licences granted to a party under this agreement shall terminate immediately;
- each party shall at the other party’s request, either promptly return or destroy all Confidential Information and/or materials belonging to the requesting party and connected with this agreement in its possession and issue a certificate of such return and/or destruction;
- the Client shall pay undisputed amounts that are due and payable to the Company.
- the accrued rights and liabilities of the parties as at termination shall survive and continue in full force and effect. Termination of this agreement shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
- On termination of this agreement, the following clauses shall continue in force:
Clause 1 Introduction and definitions
Clause 2 Structure of Agreement
Clause 3 Scope of Services
Clause 5 Payment of Charges
Clause 7 Intellectual Property and Licenses
Clause 8 Indemnity
Clause 9 Company’s warranties as to unsuitable content
Clause 10 Limitation and exclusion of liability
Clause 11 Warranties, representations and undertakings
Clause 12 Confidentiality
Clause 14 Consequences of termination
Clause 15 Notices
Clause 16 Governing law and jurisdiction
15.1 Any notice or other communication given to or by a party under or in connection with this agreement shall be in writing and shall be delivered by hand or sent by recorded delivery pre-paid first-class post or other next working day delivery service with recorded receipt, to the receiving party’s registered address for the time being or sent by e-mail to the e-mail addresses for the parties contained in Part 1 of the Statement of Work applicable between them at the time, or where more than one Statement of Work is in place, the most recently dated one. The date of a Statement of Work for these purposes shall be the Start Date in Part 1 of the Statement of Work.
15.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or if sent by e-mail, at the time of actual receipt.
- Governing law and jurisdiction
16.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. The parties irrevocably agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
16.2 While a Client’s address for service in any dispute or proceedings connected to this agreement is situated in a jurisdiction other than the UK, the Client shall indemnify the Company’s direct and indirect costs, charges and disbursements (including legal fees and costs) arising from its oversea situation.