Terms & Conditions
The following terms and conditions apply to the Contract (see definition below) and each future request for the supply of Services (see definition below) and/or materials received by the Agency (see definition below) from the Client (see definition below) from time to time unless otherwise agreed in writing. The supply of Services, including where applicable, the Deliverables (see definition below) shall be subject to these terms, which shall take precedence over any terms and conditions of the Client.
In these terms and conditions the following words shall have the meanings given in this clause:
2.1 ‘Agency’ means Interactive SEO Agency Limited;
2.2 ‘Brief’ means the written brief describing the Services to be performed by the Agency for the Client including, without limitation the Deliverables, their intended use and any estimated pre-set timings for supply, as agreed in writing between the Parties signed by the Client and supplied to the Agency in advance of conclusion of the Contract;
2.3 ‘Client’ means the person, firm or company placing the Order; described as such in these terms and conditions;
2.4 ‘Contract’ means the contract between the Agency and the Client in respect of the supply of the Services formed by the Agency’s acceptance (which however made or communicated, shall be deemed made subject to these terms and conditions)consisting of this form and concluded in accordance with condition 3 below; by either the Client signing this document and returning it to the Agency or the Agency starting work on the Deliverables;
2.5 ‘Deliverables’ means all marketing materials, websites, databases and/or any other deliverables supplied by the Agency to the Client as set out in the Brief; the services and/or materials to be supplied by the Agency under this Contract, described in this proposal and in more detail in the Brief;
2.6 “Hosting Commencement Date” means the date the Hosting Services commence, which shall be as agreed in writing between the parties;
2.7 “Hosting Charge” means the charge payable by the Client to the Agency in respect of the Hosting Services (as amended from time to time), which shall be as detailed in and payable in accordance with the Brief;
2.8 “Hosting Services” means where applicable, the website hosting services to be provided by the Agency under the Contract;
2.9 “Hosting Service Levels” means the service levels in respect of the Hosting Services as detailed in the Brief or where no levels are detailed, the Hosting Services shall be supplied using reasonable skill and care;
2.10 “Hosting Term” means the period of time for which the Hosting Services are to be provided by the Agency, as specified in the Brief or as otherwise agreed in writing between the parties;
2.11 ‘Job Cost’ means the fee to be charged by the Agency for the Services and where applicable, Deliverables, and as specified within the Brief; this proposal document;
2.12 “Marketing Material” means all advertisements, banners, key words and text creative and all other marketing materials developed by or on behalf of the Agency for the Client under this Contract;
2.13 “Order” means the order placed by the Client for the Supply of the Services;
2.14 ‘Project’ means the project job described in the proposal document and where applicable in the Brief; and
2.15 ‘Rights’ means all copyright, design rights (whether registered or unregistered), patents, rights in trade marks (whether registered or unregistered), database rights and any/or other intellectual property rights in the Deliverables, for the full term of those rights, in each case whether registered or unregistered and including all applications and rights to apply existing anywhere worldwide now or in the future; and
2.16 “Services” means all services to be performed and where applicable Deliverables to be supplied by the Agency for the Client as detailed in the Brief, which may include where applicable brand and graphic design services, marketing services, web development and/or hosting services.
3. Supply of the Services
3.1 The Contract shall be deemed to have been entered into upon receipt by the Client of the Agency’s written order acknowledgement form or when the Agency commences performance of the Services (“Services Start Date”), whichever is the earlier. All Services carried out are performed subject to these terms and conditions (the “Conditions”) and these Conditions shall be the sole terms and conditions applicable. Terms and conditions on the Client’s order form or other similar document shall not be binding on the Agency and the placing of the Order by the Client shall indicate unqualified acceptance of these Conditions.
3.2 No representative, agent or other person has the Agency’s authority to vary, amend or waive any of these Conditions on the Agency’s behalf and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by a director of the Agency.
4. The Agency’s obligations
4.1 The Agency agrees it will;
(a) Subject to clause 4.1(d) below, use its reasonable care and skill in the production and supply to the Client of the Services;
(b) That the Deliverables will comply with as per the Brief in all material respects; and any other requirements identified overleaf.
(c) Subject to earlier termination in accordance with the terms of the Contract, where applicable, to provide the Hosting Services to the Client from the Hosting Commencement Date for the Hosting Term and, subject to payment by the Client of the Hosting Charge as amended from time to time by the Agency, on a yearly rolling basis thereafter; and
(d) Where applicable, to provide the Hosting Services in accordance in all material respects with the Hosting Service Levels.
4.2 The Agency shall use reasonable endeavours to meet any dates for performance of the Services as set out in the Brief but time shall not be of the essence of the Contract.
4.3 The Client acknowledges and agrees that the Agency’s ability to provide the Services is dependant on the full and timely co-operation of the Client.
4.4 Compensation: In return for the Agency’s production and supply of the Deliverables the Client shall pay the Job Cost in accordance with the payment schedule set out in this proposal document. The Agency reserves the right to charge the Client interest at 4% per year above the base rate of Barclays Bank from time to time accruing daily on every invoice overdue for payment calculated from the date of the invoice until the date of payment.
The Agency reserves the right to require the Client to pay the total Job Cost up front before the Agency commences any work. If a final Job Cost has not been agreed at the time of concluding the Contract, the Agency will require the Client to pay a percentage of the estimated total Job Cost in advance to cover the Agency’s time attending meetings and/or producing Deliverables in advance of a final sign-off by the Client of the budget.
5. Terms of Payment
5.1 The Client shall pay the Job Cost in accordance with the payment schedule set out in the Brief.
5.2 Where the Job Cost (in whole or in part) is a fixed price, the Job Cost shall be as detailed in the Brief. To the extent the Job Cost is not agreed between the parties in respect of the Services, they shall be provided on a time and materials basis.
5.3 Where the Services are provided on a time and materials basis the Job Cost payable for such Services shall be calculated in accordance with the Agency’s standard daily fee rates as detailed in the Brief which may be amended from time to time upon the Agency giving the Client a minimum of 14 days’ prior written notice. The Agency will prepare and maintain timesheets in respect of all work carried out on a time and materials basis and shall use such timesheets to calculate the charges payable by the Client to the Agency in respect of the relevant Services.
5.4 The Agency reserves the right to require the Client to pay the total Job Cost up front before the Agency commences any work. If a final Job Cost has not been agreed at the time of concluding the Contract, the Agency will require the Client to pay a percentage of the estimated total Job Cost in advance to cover the Agency’s time attending meetings and/or producing Deliverables in advance of a final sign-off by the Client of the project budget.
5.5 All sums payable by the Client to the Agency are due within 7 days of receipt of the invoice supplied by the Agency to the Client. The Agency reserves the right to invoice for work on a monthly basis and/or upon completion of any stage of the work if part of an ongoing Project.
5.6 All sums payable under the Contract are exclusive of VAT, third party costs and expenses. For the avoidance of doubt, no payment shall be deemed to have been received until the Agency has received cleared funds.
5.7 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Agency on the due date, the Agency may:
(a) Charge interest on such sum from the due date for payment at a rate of 4% above the rate of Barclays Bank as applying from time to time accruing on a daily basis and being compounded monthly until payment is made whether before or after any judgements; and/or
(b) Suspend all Services (including without limitation delivery of Deliverables, where applicable) until payment has been made in full.
5.8 All sums payable to the Agency under this Contract shall become due immediately on its termination despite any other provision.
5.9 The Client shall make all payments due to the Agency under this Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
5.10 In the event of any dispute between the parties as to the amount payable as Job Costs, either party may refer the matter for expert determination in accordance with condition 24 below.
6. Brief, Services and Deliverables and changes
6.1 The Client warrants that the Brief is accurate in all respects. As the Job Cost and any pre-set dates for supply of the Services and/or Deliverables will be agreed on the basis of the Brief, any changes to it after the conclusion of the Contract, whether resulting from alterations by the Client, delay in providing the Agency with materials, information, instructions or authorisations, supply of faulty materials to the Agency by the Client, or any other circumstances beyond the Agency’s control, will be subject to extra charges for the Agency’s time and work and may involve delays in supply.
6.2 If the Agency’s performance of its obligations under the contract is prevented or delayed by any act or omission of the Client, its agents or employees, then notwithstanding anything to the contrary in this Contract:
(a) The Agency shall not be liable for any costs, charges or losses incurred by the Client in respect of any such failure to perform such obligation or any such prevention or delay; and
(b) Any time for performance of any such obligation shall be reasonably extended by the period of such prevention or delay; and
(c) The Client will pay the Agency all and any these extra charges incurred by the Agency and reimburse the Agency for any third party charges andor expenses incurred by the Agency on the basis of the original Brief.
6.3 The Client warrants that any materials, instructions, authorisations and/or information, supplied to the Agency are:
(a) Accurate in all material respects;
(b) Do not infringe any third party’s Rights; and
(c) Do not include any material which is obscene, indecent, offensive, defamatory, blasphemous or otherwise of an objectionable nature.
6.4 The Agency will use its industry knowledge and experience to ensure all Marketing Materials comply with the British Code of Advertising, Sales Promotion and Direct Marketing (11th Edition 2003) where relevant. However, the Agency cannot be responsible if the Advertising Standards Agency or any other third party raise any objections or removes approval to any Marketing Materials. Should the Agency notify the Client that they believe that any proposed Marketing Materials will be challenged by the Committee of Advertising Practice or similar and the Client instructs them to proceed with such submission the Client agrees that any costs associated with defending and/or amending the Marketing Materials will be paid by the Client.
7. Hosting Services
7.1 The Agency will provide Hosting Services to the Client as of the Hosting Commencement Date in accordance in all material respects with the Hosting Service Levels. Subject to payment by the Client of the Hosting Charge within 7 days of receipt of invoice from the Agency, the Agency will provide the Hosting Services for the duration of the Hosting Term as detailed in the Brief.
8. Change Control
8.1 If either party identifies a requirement for a change to any aspect of an Order or the Contract, including without limitation a change to any Deliverables it will notify the other party in writing (a “Change Request”) detailing the change requirements. If sent by the Agency, the Change Request shall state the effect such a change shall have on the Services, the Deliverables and the Job Cost as applicable. If sent by the Client, the receipt of the Change Request by the Agency will constitute a request to the Agency to state in writing the effect such a change shall have on the Services, Deliverables, Job Cost and/or timescales. The Agency shall use reasonable endeavours to supply the necessary details within 14 working days from receipt of the Change Request or such other period as may be agreed.
8.2 Following a Change Request the Client will then decide whether or not to implement the change. If the change is agreed in writing between the parties and is implemented, the amended Brief and/or Contract (as applicable) shall then become the Brief or Contract, as applicable, in respect of the relevant Services.
8.3 The Agency shall not implement any material changes to the Brief unless instructed to do so by the Client and both parties have signed the Change Request.
Unless otherwise agreed in advance and in writing, the Agency will arrange and oversee all production and post-production related to the Project using reasonable skill and care. Should it be agreed that the Client arranges any production work itself, then in that regard the Agency shall not be responsible for the booking, supervision or quality control of any relevant facilities, nor will it be responsible for payment of any related charges.
Written approval by the Client of final copy, layouts, scripts, storyboards, designs and similar the like will be the Agency’s authority to proceed with production or publication as appropriate. Where artwork or other material is sent to the Client for final approval, the Client shall check it carefully and notify the Agency in writing, by e-mail, fax or post of any errors or alterations. The Agency will use its reasonable endeavours to effect any changes so notified in a timely manner, but the Agency reserves the right to charge extra if any of these alterations either go beyond the original Brief and/or are notified to the Agency more than 3 working days after their supply to the Client. Where notification of errors is either delayed and/in this way or the notification is not received by the Agency within a reasonable perioddoes not occur at all before publication, the Agency will not be liable in respect of any such errors, publicised or otherwise. The Agency will also not be liable in respect of errors occurring where the Client: (i) either does not pay for proofs or mock-ups; or (ii) oversees the print and production process; or (iii) does not allow enough time in the production schedule to check layouts, copy, pagination or other content aspects. The Agency cannot guarantee that any or all colours will be exactly replicated in the final version as published. If we do not hear from the Client as to any errors within 7 days, this shall be deemed as consent to proceed with publication.
11.1 All Rights owned or controlled by a party prior to the commencement of the Services shall, unless expressly stated otherwise in writing, remain in such party’s ownership and control and nothing said or done by either party shall constitute a transfer of such Rights.
11.2 Upon receipt by the Agency of the relevant payment in full, Tthe Client shall have a royalty free licence, coming into effect on payment of the relevant invoice, to use the Deliverables for the purposes identified and in the manner intended in the Brief, in respect of the products or services defined within this document. Such licence shall be automatically terminated if the Client either:
(a) does not pay the full Job Cost in full by the due date; or
(b) passes a resolution for winding up (for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
(c) (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
(d) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(e) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(f) ceases, or threatens to cease, to carry on its business.
11.3 If the Client wishes to use the Deliverables in ways going beyond the parameters identified in the Brief and/or overleaf, it must obtainapproach the Agency’s for prior written consent. In so far as use of the Deliverables as per the Contract involves use of third party material, the Agency will use reasonable endeavours to secure such licence as is necessary to allow the required use of the same by the Client.
11.4 Subject to the above and to the Rights of any third party, ownership of the Rights in the Deliverables shall remain vested in the Agency unless and until any assignment or other disposition of the Rights is agreed between the parties in writing. For the avoidance of doubt, where the Agency makes any presentation to the Client going beyond the scope of the Brief, the Client shall have no right to make use of any material contained in such presentation unless and until a separate contract is concluded between the parties in respect of the materials whereupon such use shall be subject to the terms of such contract.
11.5 Use of the Deliverables as per the Brief may require involve the Client to pay sums, on a one-off or in continuing basis, liability to third parties, for example by way of for royalties, licence fees and/or performance fees. Where applicable, the Agency will use reasonable endeavours to notify the Client of these as soon as reasonably practicable during the production process.
11.6 If, during or after the period of use of the Deliverables envisaged in this Contract, the Client wishes to use or authorise another to use any logo, character, cartoon figure, distinctive device or other part of the Deliverables in ways outside those contemplated in this Contract, the Client must obtain the Agency’s prior written consent. The Agency will not unreasonably withhold its consent for such use, but may make such consent conditional on prior agreement between the parties as to reasonable fees and/or royalties.
12.1 It shall be the sole responsibility of the Client to ensure that the Services and any Deliverables are fit for the Client’s purpose. Further, the Client shall ensure that all Deliverables comply with all applicablelocal laws (whether consumer, public or civil), regulations and codes in all countries in which use is intended as stated in the Contract.
12.2 It shall also be the Client’s responsibility to ensure that the Deliverables carry all prudent disclaimers, warnings and public information necessary or advisable.
12.3 Which any competent lawyer of the Client in any of the relevant jurisdictions would advise accordingley. The Client agrees to indemnify and hold harmless the Agency and the Agency’s agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including without limitation legal fees) arising from any claim, demand or action claiming alleging that:
(a) The Deliverables or use of them are contrary to any law, code or regulation in any country; and/or
(b) Any use by the Agency of materials supplied by or on behalf of the Client infringes third party Rights.
13. Publicity and examples
13.1 Notwithstanding the licence described in clause 8.1 above or any other disposition of the Rights agreed between the parties in writing, the Agency shall have a continuing right to use the Deliverables for the purposes of advertising or otherwise promoting the Agency’s work.
13.2 The Client shall unless otherwise agreed, mark all design work supplied as part of the Deliverables with the phrase ‘Design by Interactive SEO Agency Limited’ (or appropriate variants as agreed) in a suitable place. The Agency reserves the right to request the non-appearance or removal of this credit in any particular case. The Client shall comply with any such request within thirty days, but shall not thereby be obliged to make changes to material already produced or published.
13.3 The Client shall, within 28 days after production or publication commences (as appropriate), provide the Agency with 10 finished printed copies of any production run or other published material derived from the Deliverables (in whole or in part).
The Agency will, where practicable, endeavour to estimate studio costs and extras such as couriers and other external services to be used or incurred in relation to the Services, including where applicable, Deliverables, but this will not always be possible. All third party expenses related to a production, for example printed proofs, postage, couriers, dubs, stock, print-outs, scans and overtime, will be invoiced by the Agency at cost and the Client shall pay these invoices with immediate effect once the invoice has been issued. Where expenses are likely to be significant, the Agency reserves the right to require the Client to pay the full amount of the expected expense in advance. General out of pocket expenses incurred in supplying the Services and Deliverables, such as courier charges, travelling and hotel expenses, will be charged by the Agency at cost and the Client shall pay the relevant invoices with immediate effect once the invoice has been issued. Where extra expenses are incurred, either as a result of alterations to the original Brief or otherwise at the Client’s request, the Client shall pay such expenses by way of settlement of the relevant invoices with immediate effect once the relevant invoice has been issued.
15.1 If the Deliverables include any goods, then delivery of such goods shall be regarded as occurring when either two business days have elapsed following the day the Client has been informed that the goods are awaiting collection or have otherwise been made available to the Client or, in cases where the Deliverables include delivery of the goods to the Client, on the day the Agency delivers the Goods (or attempts to deliver the Goods) of delivery to the Client. If the Client is unable to collect the goods as provided for above, then the Agency shall be entitled to arrange storage and/or transportation for the goods on the Client’s behalf at the Client’s expense. All charges for such storage, transport and any insurance shall be payable by the Client forthwith on request. The Client shall inspect and check the goods immediately on delivery and shall give the Agency notice in writing by fax or post within 3 working days after the day of delivery as to any alleged defect together with details of the alleged defect. The Client will permit the Agency to inspect any allegedly defective goods. Failing such notice, the goods shall be deemed to be in accordance with the Contract and the Client shall be deemed to have accepted the goods and to be liable to pay therefor.
15.2 Provided the Deliverable complies in all material respects with the Brief, the Client shall accept the Deliverable in writing 3 working days after the Deliverable has been delivered or otherwise made available to the Client by the Agency (the “Acceptance Period”). The Client shall only be entitled to reject a Deliverable where it does not meet the Brief in all material respects on delivery.
15.3 The Deliverable will be deemed to be accepted by the Client immediately:
(a) In the event that the Client does not accept or reject the Deliverable within the Acceptance Period; or
(b) The Client uses any part of the website, Marketing Material or other Deliverable for any revenue-earning purposes or to provide any services.
15.4 Subject to clause 15.5 below, the Client must notify the Agency in writing within the Acceptance Period if the Deliverable does not meet the Acceptance Criteria. Upon receiving such notification from the Client and where the Agency agrees in its reasonable opinion that the Deliverable does not meet the Acceptance Criteria and subject to clause 15.5, the Agency shall at its option repair or replace the Deliverable (or the defective part thereof) at the Agency’s expense so that the Deliverable meets the Acceptance Criteria or refund the price of the Deliverable or a proportionate part thereof and that shall be the Agency’s sole liability to the Client in respect of a Deliverable not complying with the Acceptance Criteria. The Client shall permit the Agency to inspect any allegedly defective Deliverable.
15.5 If any failure to meet the Acceptance Criteria is attributable to the material supplied to the Agency by or on behalf of the Client or any third party software or results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom the Agency has no responsibility (a “Non-Agency Defect”), the Deliverable shall be deemed to have met the Acceptance Criteria notwithstanding such Non-Agency Defect. The Agency shall where reasonably practicable provide assistance reasonably requested by the Client in remedying any Non-Agency Defect by supplying additional services or products. The Client shall pay the Agency in full for all such additional services and products at the Agency’s then current fees and prices.
15.6 If any dispute arises as to whether a Deliverable meets the Acceptance Criteria, either party may refer to the matter for expert determination in accordance with condition 24 below.
15.7 The risk in Deliverables shall pass to the Client upon the Deliverables being made available to the Client or where transportation is included in the Job Cost, upon commencement of supply or transportation to the Client or, where the Client will not or does not accept supply on the date required by the Agency, on the date the Agency made the Deliverables available to the Client or attempted delivery as applicable. to temporary storage arranged by the Agency.
15.8 Where either delivery difficulties or other circumstances necessitate the Agency to electronically storeing any part of the Deliverables for the Client’s future use, the Agency reserves the right to levy storage charges and charges for retrieval from storage, which the Client shall pay within 14 days of the date of the relevant invoice.
16. Trade marks and domain names
If any Deliverables use any trade marks, trading styles or trade names (‘Marks’) owned by the Client or under its control, it is agreed that the Agency shall have the right to use or allow use of any such Marks for the purpose of fulfilling the Agency’s obligations under the Contract. The Agency shall not gain any rights over such Marks by virtue of such use, but the Agency shall be entitled to use the Marks both during and after the production and supply of the Services and where applicable Deliverables to promote and advertise its own work. It shall be the Client’s responsibility to ensure that all domain names used in connection with the Deliverables are wherever practicable properly registered and do not infringe any third party rights and that any Marks of the Client or any third party Rights used in the Deliverables, including such Marks as are supplied by the Agency as part of the Brief, are used in a manner which neither undermines the Client’s rights in its Marks nor infringes any third party rights.
17. Rejection or cancellation
Unless a rejection fee and/or a detailed style or composition for the Deliverables has been agreed by the parties in advance to the fullest extent permitted by law, the Client shall have no right to terminate the Contract (whether the project was requested by verbal consent or a signed agreement), alleged breach of Contract or seek any cancellation, reduction or repayment of the Job Cost on the basis of style or composition of the Deliverables. Once the Contract is concluded as provided on these terms and conditions, any subsequent cancellation by the Client will result in the Client being liable for the full Job Cost as if the cancellation had not taken place, excluding such committed third party expenses as the Agency is able to avoid liability for within its existing contractual commitments to suppliers.
Where Deliverables are supplied to the Client on computer disks or other electronic storage method, then the Agency remains the owner of these storage media and reserves the right to require immediate return of them. Should any artwork be supplied to the Client in digital form, the Client may not amend it or otherwise use it for purposes outside those contemplated by this Contract without the Agency’s express prior written permission.
The Agency accepts liability for its own negligence or faults in the Deliverables, but only to the extent stated in this clause. The Agency does not exclude or restrict its liability for death or personal injury resulting from negligence. The Agency’s liability to the Client in contract law or in tort or otherwise howsoever arising in relation to this Contract is limited to the Agency’s charges for the Deliverables. The Agency will not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables except and to the extent that it is caused by the wilful default of one of the Agency’s employees. Although the Agency will endeavour to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware, the Agency shall not, except insofar as it cannot exclude its liability for death or personal injury caused by its negligence, be liable for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables. The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party. Where such event could not reasonably have been prevented or controlled by the Agency, the Agency is not liable to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded. In any event the Agency is not liable to the Client for the following loss or damage, howsoever caused and even if foreseeable by the Agency:
19.1 Economic loss including loss of profits, business, contracts, revenues, goodwill, production and anticipated savings of any description;
19.2 Loss arising from any claim made against the Client by any other person; or
19.3 Loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client.
19.4 This clause 19 sets out the entire financial liability of the Agency (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of any breach of this Contract; any use made by the Client of the Services and/or Deliverables in whole or in part; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract:
19.5 Except as expressly set out in this Contract, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from this Contract.
19.6 Nothing in this Contract limits or excludes the liability of the Agency for death or personal injury resulting from negligence; or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Agency, or for any liability which cannot be excluded or limited as a matter of law.
19.7 Subject to clause 19.3 above:
(a) The Agency shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
(b) The Agency shall not be liable to the Client for any loss or destruction of software or systems, temporary or otherwise, which occurs following use of the Deliverables;
(c) Although the Agency will use reasonable endeavours to ensure that the Deliverables contain no software routine designed to permit unauthorised access, disable or erase existing software or software contained in the Deliverables or any data or hardware, the Agency will not be liable for any damage (physical or otherwise), loss or expense caused either directly or indirectly by use of the Deliverables;
(d) The Agency shall not be liable in any way in respect of any failure, delay or defect in the supply or use of the Deliverables caused by the supply or specification by the Client of unsuitable material or content or by the reproduction of the Deliverables by a third party;
(e) Where such event could not reasonably have been prevented or controlled by the Agency, the Agency is not liable to the Client if any hardware or software used in conjunction with the Deliverables malfunctions, fails or is otherwise unable to communicate with other systems or Internet users (including where computer viruses have caused such failures) such that the use of the Deliverables is hindered or impeded;
(f) The Agency shall not be liable for the loss arising from any claim made against the Client by any other person; or loss or damage arising from the Client’s failure to fulfil its responsibilities or any matter under the control of the Client;
(g) The Agency’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to;
(i) Where the breach relates to the Hosting Services, to the annual Hosting Charge applicable to the Client at the date of the breach or where the Hosting Charge is calculated on a monthly basis, to 12 x the monthly Hosting Charge applicable to the Client as at the date of the breach;
(ii) Where the beach does not relate to the Hosting Services and:
(A) The Services are provided in their entirety for a fixed Job Cost in accordance with condition 5, to the fixed Job Cost paid or payable to the Agency by the Client; or
(B) The Services are provided solely on a time and materials basis in accordance with condition 5 and/or the Job Cost is calculated by a combination of fixed price and on a time and materials basis:
(1) Where the breach occurs before the first anniversary of the Services Start Date (as defined in condition 3.1 above), to the amount paid or payable to the Agency by the Client in respect of the Services to which the default relates (excluding any applicable Hosing Charges) from the Services Start Date up to the date of the breach; or
(2) Where the Services continue for a period greater than 12 months, starting on the Services Start Date, to the amount paid or payable by the Client to the Agency in respect of the Services to which the default relates (excluding any applicable Hosting Charges) in the 12 month period prior to the breach.
20. Agency’s status
The Agency acts in this Contract as a principal and not as agent for the Client and will enter into all related contracts as principal.
21. Sub-contracting and assignment
The Agency may assign, sub-contract or deal in any other manner with all or any of its rights under this Contract. any or all of its rights or obligations hereunder and may with the Client’s consent, such consent not to be unreasonably withheld, assign the benefit and burden of its rights and obligations hereunder to any other entity.
The Client shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract without obtaining the Agency’s prior written consent.
22. Confidential information
Neither party shall divulge any confidential information which is supplied to it about the other party in the course of this Contract or any pre-Contract discussions, other than information forming part of the public domain otherwise than through a breach of this clause or any other obligation of confidence.
22.1 For the purposes of this Contract “Confidential Information” means information (however stored) relating to or connected with a party and/or their respective businesses, customers and/or financial or other affairs which is of a confidential nature including, without limitation, information concerning or relating to the Rights and any other property in the nature of intellectual property of the parties; technical processes, future projects, business development or planning, commercial relationships and negotiations; the marketing of goods or services including, without limitation, customer and client lists, price lists, sales targets, sales statistics, market share statistics, market research reports and surveys and advertising or other promotional materials and details of contractual arrangements and any other matters concerning the clients or customers of or other persons having dealings with the parties; and the contents of this Contract.
22.2 Each party shall keep in strict confidence all Confidential Information that has been disclosed to it (the “Receiving Party”) by the other (the “Disclosing Party”), the Disclosing Party’s employees, agents or sub-contractors and any other Confidential Information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
22.3 The obligations in clause 22.2 will not apply where such Confidential Information:
(a) Is already in the public domain or lawfully known to the receiving party at the time of disclosure;
(b) Subsequently comes lawfully into the possession of the receiving party;
(c) Subsequently enters the public domain otherwise than as a result of unauthorised disclosure by any person; or
(d) Where such information is required to be disclosed by law.
22.4 This clause 22 shall survive termination of the Contract, however arising.
Either party may by notice in writing to the other terminate this Contract forthwith upon the happening of one or more of the following events:
23.1 If the other shall fail to make any payment due hereunder within 7 days after the due date; or to remedy any other breach within 30 days after being required to do so in writing.
23.2 If the other shall be involved in any of the situations described at clause 89.2–89.6 above. Such termination shall be without prejudice to the parties’ accrued rights and liabilities, for example, the Agency’s entitlement to payment for work done;
23.3 If the other party commits a material breach of this Contract which is not capable of being remedied; or
23.4 If the other party commits a material breach of any of the terms of this Contract and fails to remedy that breach within 30 days of that party being notified in writing of the breach.
23.5 On termination of the Contract for any reason, the Client shall immediately pay to the Agency all of the Agency’s outstanding invoices and interest in respect of the supply of the Services including without limitation Deliverables.
23. Where applicable:
(a) the Client may terminate the Contract in respect of Hosting Services on giving the Agency a minimum of 3 month’s advance written notice such notice to expire on the anniversary of the Hosting Commencement Date or any anniversary thereafter; and
(b) the Agency shall be entitled to terminate the Contract in respect of Hosting Services at any time on giving the Client 14 day’s written notice.
24. Expert Determination
24.1 For the purposes of this condition 24, an expert is a person appointed n accordance with this clause 24 to resolve a dispute between the parties relating to:
(a) The amount of Job Cost payable to the Agency by the Client as detailed in the Brief and/or the amount by which the Job Cost is to be reduced under condition 5 above; or
(b) Whether the Service and/or Deliverables meet the criteria as detailed in the Brief under condition 15.
24.2 The parties shall use reasonable endeavours to agree on the appointment of an independent expert but, in the event that they are unable to agree on an expert within seven days of either party serving details of a suggested expert on the other, either party shall then be entitled to request:
(a) The [Institute of Chartered Accountants] to appoint an appropriate Expert of significant repute and experience in payment dispute matters in respect of a dispute as to payments due under the Contract; or
(b) To appoint an appropriate expert of significant repute and experience in compliance with technical specification matters in respect of the Services and/or Deliverables detailed in the Brief.
24.3 The expert shall prepare a written decision and give notice (including a copy) of the decision to the parties within a maximum of three months of the matter being referred to the expert.
24.4 Each party shall bear its own costs in relation to the reference to the expert. The expert’s fees and any costs properly incurred by him in arriving at his determination (including any fees and costs of any advisers appointed by the expert) shall be borne by the parties equally or in such other proportions as the expert shall direct.
25. Force majeure
The Agency shall have no liability to the Client under this Contract if it is prevented from or delayed in performing its obligations under this Contract from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Agency or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Agency’s or sub-contractors.
21. Matters beyond the Agency’s reasonable control
The Agency is not liable for any breach of this Contract caused by matters beyond its reasonable control including acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving the Agency’s employees), weather of exceptional severity or acts of local or central government or other authorities.
26.1 A waiver of any right under this Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No failure or delay by a party to exercise any right or remedy provided under this Contract by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
27.1 If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal so as to achieve the intention of the parties without illegality or by mutual Contract by the parties, may be severed from this Contract.
28. Entire agreement
This Contract is the entire agreement between the parties on the subject matter contained herein and supersedes all representations, communications and prior agreements between the parties in that regard. Each party acknowledges that upon entering into this Contract it does not rely and has not relied on any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Contract or not) except those expressly referred to in this Contract. Nothing excludes either party’s liability for fraud.The only remedy available in respect of any misrepresentation or untrue statement made to either party shall be a claim for damages for breach of contract under this Contract. This clause shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Contract which was induced by fraud for which the remedies available shall be those available under the law governing this Contract.
29. Third party rights
A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce any term of this Contract, but this does not affect any other right or remedy of a third party.This Contract is made for the benefit of the Agency and the Client and is not intended to benefit or be enforceable by anyone else and no third party has any right to enforce the terms of the Contract under the Contracts (Rights of Third Parties) Act 1999.
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