SEO Leaders Ltd trading as SEOleaders.co.uk – Digital Marketing Terms and Conditions

Please read these Digital Marketing Terms carefully, as they set out our and your legal rights and obligations in relation to our digital services.

All contracts that the Provider may enter into from time to time for the provision of the Provider’s services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.

 

  1. Definitions

1.1    Except to the extent expressly provided otherwise, in these Terms and Conditions:

“Acceptance Criteria” means:

(a)    the Website conforming in all material respects with the Website Specification; and

(b)    the Website being free from Website Defects;

“Acceptance Period” means a period of 10 Business Days following the supply of the Website to the Customer or the resupply of the Website to the Customer in accordance with Paragraph 3 of Schedule 1 (Web design and development services), or such other period as the parties may agree in writing;

“Acceptance Tests” means a set of tests designed to establish whether the Website meets the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Provider acting reasonably, and communicated to the Customer in advance of the commencement of the first Acceptance Period and agreed and documented by the parties acting reasonably;

“Advertising Management Services” means the arrangement and management of internet advertising by the Provider for the Customer, which may include pay-per-click advertising, pay-per-view advertising, banner advertising and other forms of paid internet advertising, as specified in Section 3 of the Statement of Work;

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Annex” means any annex to a Schedule;

“Business Day” means any weekday other than a bank or public holiday in England or Wales;

“Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;

“Charges” means the following amounts:

  • the amounts specified on the website or in a proposal document
  • for all products and services;

(b)    such amounts as may be agreed in writing by the parties from time to time; and

(c)    amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of the Contract) by the time spent by the Provider’s personnel performing the Services (rounded down by the Provider to the nearest quarter hour]);

“Company” means SEO Leaders Ltd trading as SEOleaders.co.uk having its office at Lydgate House, Lydgate Lane, Sheffield S10 5FH

“Confidential Information” means the Provider Confidential Information and the Customer Confidential Information;

“Contract” means a contract made under these Terms and Conditions between the Provider and the Customer;

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

“Customer” means the person or entity identified as such in Section 1 of the Statement of Work;

“Customer Confidential Information” means:

(a)    any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Provider (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

“Customer Indemnity Event” has the meaning given to it in Clause 19.3;

“Customer Materials” means all works and materials supplied by or on behalf of the Customer to the Provider for use in connection with the Services;

“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Contract, but excluding data with respect to which the Provider is a data controller;

“Customer Representatives” means the person or persons identified as such in Section 9 of the Statement of Work, and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

“Customer Trade Marks” means the registered and unregistered trade marks of the Customer;

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

“Development Services” means the design and development of the Website by the Provider;

“Documentation” means the documentation for the Website produced by the Provider and delivered or made available by the Provider to the Customer;

“Domain Name Services” means the registration of domain names and the maintenance of domain name registrations by the Provider on behalf of the Customer;

“Effective Date” means the date of execution of the Contract;

“Email Marketing Services” means some or all of the following services as specified in Section 3 of the Statement of Work: assisting with and advising upon the Customer’s email marketing strategy; designing, in consultation with the Customer, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; managing the Customer’s email marketing lists; running the Customer’s email marketing campaigns, including sending emails to addresses in the Customer’s email marketing lists; and providing the Customer with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing;

“Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under the Contract;

“Export Laws” means all applicable laws restricting and/or regulating:

(a)    the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or

(b)    the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hosted Data” means all data, works and materials: uploaded to or stored on the Hosting Platform by the Customer, or by any third party using any software made available by means of the Hosting Platform; transmitted by the Hosting Platform at the instigation of the Customer, or at the instigation of any third party using any software made available by means of the Hosting Platform; or supplied by the Customer to the Provider for uploading to, transmission by or storage on the Hosting Platform;

“Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;

“Hosting Platform” means the platform managed by the Provider and used by the Provider to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

“Hosting Services” means those web hosting services specified in Section 3 of the Statement of Work which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Maintained Software” means the Supported Website software and the following software to the extent that it is installed upon the same server as the Supported Website software and is used by the Supported Website;

“Maintenance Services” means the supply to the Customer and application to the Maintained Software of Updates and Upgrades;

“Marketed Websites” means any website or websites of the Customer in respect of which the Provider provides or has an obligation to provide marketing or advertising services under these Terms and Conditions;

“Minimum Term” means, in respect of the Contract, the period of 12 months beginning on the Effective Date;

“Online Account” means any user or customer account on any third party website, or on any third party software application accessible via the internet, that is used by the Provider in the course of providing the Search Marketing Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services;

“Personal Data” has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679)];

“Provider” means DinkyDodo.com having its principal place of business at Falcon Drive, Cardiff Bay, Cardiff. CF10 4RU;

“Provider Confidential Information” means:

(a)    any information disclosed by or on behalf of the Provider to the Customer during the Term OR at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

“Provider Credit” means a textual credit for the Provider incorporating a link to the website of the Provider, in a form agreed by the parties acting reasonably;

“Provider Indemnity Event” has the meaning given to it in Clause 19.1;

“Provider Representatives” means the person or persons identified as such in Section 9 of the Statement of Work, and any additional or replacement persons that may be appointed by the Provider giving to the Customer written notice of the appointment;

“Release” means, in respect of an Update or Upgrade produced by the Provider, the release of that Update or Upgrade to the customers of the Provider generally and, in respect of an Update or Upgrade produced by a person other than the Provider, the public release of that Update or Upgrade (and “Released” shall be construed accordingly);

“Remedy Period” means a period of 20 Business Days following the Customer giving to the Provider a notice that the Website has failed the Acceptance Tests, or such other period as the parties may agree in writing;

“Schedule” means any schedule attached to the main body of these Terms and Conditions;

“Search Marketing Services” means any or all of the following services, as agreed by the parties:

(a)    researching the history of websites, their structure and their performance in the search engine results pages;

(b)    keyword research in relation to websites;

(c)    formulating a search engine optimisation strategy for websites;

(d)    modification of websites (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, applications, internal and external links and website structure);

(e)    paid and unpaid submissions to search engines, directories and other listings websites;

(f)    the crepation and publication of websites, and of material and applications relating to the Customer on websites;

(g)    link building and link baiting;

(h)    the use of social media and social networks to generate signals that may have a direct or indirect effect on search engine rankings; and

(i)    other search engine optimisation techniques, whether known on the Effective Date or devised or disseminated thereafter;

“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

“Social Media Marketing Services” means the creation of accounts connected to the Customer on Social Media Platforms, the establishment and growth of user networks associated with such accounts, the creation of content for publication on and distribution through Social Media Platforms, the publication of such content on and distribution of such content through Social Media Platforms, and the monitoring and analysis of the impact of these services;

“Social Media Platforms” means Facebook, Twitter, YouTube and LinkedIn, and any other social media platforms agreed by the parties in writing from time to time;

“Source Code” means software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code;

“SSL Certificate Services” means the purchase of SSL certificates, the installation of SSL certificates and the maintenance of SSL certificates by the Provider on behalf of the Customer;

“Support Services” means support in relation to use of the Supported Website and the identification and resolution of errors in the Supported Website, the addition of content to the Supported Website, and minor changes in the layout and design of the Supported Website (providing that the Provider shall determine acting reasonably whether a proposed change is minor); for the avoidance of doubt, such services shall not include the provision of training services, significant changes in the layout or design of the Supported Website or any software development services;

“Supported Website” means the website or websites identified;

“Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

“Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, the Schedules, the Annexes and the Statement of Work, including any amendments to that documentation from time to time;

“Third Party Materials” means those elements of the works and materials that are delivered to the Customer, or that the Provider has an obligation to deliver to the Customer, under the Contract (excluding the Customer Materials), the Intellectual Property Rights in which are owned by a third party;

“Update” means a hotfix, patch or minor version update to the Maintained Software;

“Upgrade” means a major version upgrade of the Maintained Software;

“Web Marketing Deliverables” means those works and materials created by or on behalf of the Provider in the course of the Provider providing the Search Marketing Services, Advertising Management Services, Email Marketing Services and/or Social Media Marketing Services that are delivered to the Customer, or that the Provider has an obligation to deliver to the Customer, under these Terms and Conditions;

“Website” means the website developed or to be developed by the Provider for the Customer under the Contract, including all the Source Code for that website created by the Provider in the course of providing the Services;

“Website Defect” means a defect, error or bug in the Website having an adverse effect OR a material adverse effect on the appearance, operation, functionality, security or performance of the Website, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Website;

(b)    any use of the Website contrary to the Documentation by the Customer or any person authorised by the Customer to use the Website;

(c)    a failure of the Customer to perform or observe any of its obligations in these Terms and Conditions; and/or

(d)    an incompatibility between the Website and any other system, network, application, program, hardware or software not specified as compatible in the Website Specification; and

“Website Specification” means the specification for the Website, as it may be varied by the written agreement of the parties from time to time.

  1. Term

2.1    The Contract shall come into force upon the Effective Date.

2.2    The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 22 or any other provision of these Terms and Conditions.

2.3    Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.

  1. Services

3.1    The Provider shall provide to the Customer those Services that the parties have agreed in the Statement of Work shall be so provided.

3.2    The Provider shall devote such of its personnel’s time and expertise to the performance of the Services as may be necessary for their satisfactory and timely completion.

3.3    The Provider shall keep the Customer informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Customer to do so.

3.4    The Provider shall comply with all reasonable internal policies and procedures operated by the Customer, communicated by the Customer to the Provider and affecting the provision of the Services.

3.5    The Provider may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to the Provider under the Contract is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to do so.

  1. Customer obligations

4.1    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

as are reasonably necessary to enable the Provider to perform its obligations under the Contract.

4.2    The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Contract.

4.3    Save as expressly provided in these Terms and Conditions, the Customer shall be responsible for obtaining and where relevant paying for any licences of third party software that may be required for the use of the Services.

4.4    The Customer shall be responsible for ensuring that its passwords relating to the Services are securely constructed, are kept securely and not disclosed to any unauthorised person; and the Customer must notify the Provider as soon as practicable if the Customer becomes aware that any password relating to the Services has been or may have been compromised or misused.

  1. Customer Materials

5.1    The Customer must supply to the Provider the Customer Materials specified in Section 4 of the Statement of Work, in accordance with the timetable specified in Section 7 of the Statement of Work.

5.2    The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Materials to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.

5.3    The Customer warrants to the Provider that the Customer Materials when used by the Provider in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

  1. Customer Trade Marks

6.1    Within 10 Business Days following the Effective Date, the Customer shall provide or make available to the Provider representations of the Customer Trade Marks in a digital format reasonably satisfactory to the Provider.

6.2    The Customer grants to the Provider a non-exclusive licence to use the Customer Trade Marks during the Term for the purposes (and only for the purposes) of enabling the provision of the Services to the Customer, and providing that the Customer has given its prior written consent in relation to the type of use in question, or the Customer has not objected to the type of use within the period of 10 Business Days following receipt of a written notice from the Provider detailing the type of use in question.

6.3    The Provider must ensure that all uses of the Customer Trade Marks will be in accordance with any style guide supplied or made available by the Customer to the Provider.

6.4    The Provider shall ensure that all instances of the use of the Customer Trade Marks will be of a reasonable professional standard.

6.5    Notwithstanding any other provision of these Terms and Conditions, the Provider must not use the Customer Trade Marks in any way that:

(a)    may invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting the Customer Trade Marks;

(b)    may assist with any application to cancel or invalidate any registered Customer Trade Mark or any opposition to any application by the Customer to register any Customer Trade Mark;

(c)    is likely to cause harm to the goodwill attaching to any of the Customer Trade Marks;

(d)    may prejudice the right or title of the Customer to the Customer Trade Marks; or

(e)    is liable to bring the Customer or any Customer Trade Mark into disrepute.

6.6    All goodwill arising as a result of, or in relation to, the use of the Customer Trade Marks will accrue exclusively to the Customer.

6.7    If the Customer considers that a use of the Customer Trade Marks by the Provider breaches the provisions of this Clause 6 or is otherwise undesirable, the Customer may issue a notice to the Provider requesting that such usage cease, and the Provider must ensure that such usage will cease within 5 Business Days following receipt of such a notice.

6.8    The Customer warrants to the Provider that the use by the Provider of the Customer Trade Marks in accordance with these Terms and Conditions will not infringe any person’s Intellectual Property Rights in any jurisdiction and under any applicable law.

6.9    The Provider will not by virtue of the Contract obtain or claim any right, title or interest in or to the Customer Trade Marks except as expressly set out in these Terms and Conditions.

6.10  Within 10 Business Days following the termination of the Contract, the Provider must cease to use the Customer Trade Marks and must:

(a)    remove or permanently obscure Customer Trade Marks that appear on any works and materials in the possession or control of the Provider; and

(b)    to the extent that neither removal nor permanent obscuring is practicable, deliver to the Customer or destroy (as the Customer OR Provider shall determine) all those works and materials in the possession or control of the Provider on which the Customer Trade Marks appear.

  1. Third Party Materials

7.1    The Provider must not incorporate any Third Party Materials into any works or materials that the Provider delivers or has an obligation to deliver to the Customer under the Contract unless those Third Party Materials are supplied by or on behalf of the Customer to the Provider or the parties have agreed in the Statement of Work or otherwise in writing to the incorporation of the relevant Third Party Materials into the relevant works or materials.

7.2    Subject to any express written agreement between the parties, the Provider shall ensure that the Third Party Materials are:

(a)    licensed to the Customer in accordance with the relevant licensor’s standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms);

(b)    licensed to the Customer on reasonable terms notified by the Provider to the Customer; or

(c)    sub-licensed by the Provider to the Customer on reasonable terms notified in writing by the Provider to the Customer.

  1. Representatives

8.1    The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Contract will be given by a Provider Representative to a Customer Representative, and the Customer:

(a)    may treat all such instructions as the fully authorised instructions of the Provider; and

(b)    must not comply with any other instructions in relation to that subject matter.

8.2    The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Contract will be given by a Customer Representative to a Provider Representative, and the Provider:

(a)    may treat all such instructions as the fully authorised instructions of the Customer; and

(b)    must not comply with any other instructions in relation to that subject matter.

  1. Management

9.1    The parties shall hold management meetings at each party’s offices, by telephone conference or using internet-based conferencing facilities:

(a)    once per calendar month during the Term; and

(b)    at the reasonable request of either party.

9.2    A party requesting a management meeting shall give to the other party at least 10 Business Days’ written notice of the meeting.

9.3    Wherever necessary to enable the efficient conduct of business, the Provider shall be represented at management meetings by at least 1 Provider Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

  1. Charges

10.1  The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

10.2  If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written or verbal consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded. This is not applicable to open ended projects where it is not possible to provide an estaimte (for example where the customer has a growing and unknown project scope and requirement). Time logging software is used for projects and in the event a project is open ended the aforementioned time logs will be used to calculate the customers bill.

10.3  All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes OR exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

10.4  The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of the Contract, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

  1. Expenses

11.1  The Customer shall reimburse the Provider in respect of any Expenses, providing that the Provider must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

11.2  The Provider must collect and collate a list of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

11.3  Within 10 Business Days following receipt of a written request from the Customer to do so, the Provider must supply the list to the Customer for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

  1. Timesheets

12.1  The Provider must:

(a)    ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete reasonably detailed records of their time spent providing those Services; and

(b)    retain such records during the Term, and for a period of at least 12 months following the end of the Term.

12.2  Within 10 Business Days following receipt of a written request, the Provider shall supply to the Customer copies of such of the timesheets referred to in Clause 12.1 and in the Provider’s possession or control as the Customer may specify in that written request.

  1. Payments

13.1  The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.

13.2  The Customer must pay the Charges to the Provider within the period of 15 days following the issue of an invoice in accordance with this Clause 13 OR the receipt of an invoice issued in accordance with this Clause 13.

13.3  The Customer must pay the Charges by debit card, credit card or direct debit or BACS transfer (using such payment details as are notified by the Provider to the Customer from time to time).

13.4  If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

OR

13.4  If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 13.4 constitute a substantial remedy within the meaning of that Act.

  1. Reversion of assignments and licences

14.1  Notwithstanding any other provision of these Terms and Conditions, the licences and assignments granted by the Provider to the Customer under these Terms and Conditions are subject to the payment by the Customer of all amounts owing to the Provider under the Contract in full and on time.

14.2  If the Customer owes any amount to the Provider under the Contract and fails to pay that amount to the Provider within 15 days following the receipt of a notice requiring it to do so and specifying that the assignments will revert and the licences will terminate if the amount remains unpaid, then the Provider may immediately revert the assignments and terminate the licences granted by the Provider under these Terms and Conditions by giving written notice of reversion and termination to the Customer.

14.3 Webhosting and Server Provision – Subject to the aforementioned terms if the customer owes an amount that includes server provision and/or server rental and/or server management, they will be sent a 7 day warning notice of termination of these services unless all outstanding costs are paid. Following this the server/vps/service will be suspended for a period of 14 days. After the 14 day suspension period has expired the server/vps/and all files will be deleted from our systems. No recompense or files will be provided from servers/vps/services that are unpaid, the suspension period requires full payment of all outstanding costs and the service will then be reactivated. Once the 14 day suspension period expires, the client files and data will be deleted with the hosting provision from our servers and we retain no data after this action.

  1. Confidentiality obligations

15.1  The Provider must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer OR no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Customer Confidential Information; and

(e)    not use any of the Customer Confidential Information for any purpose other than general business use.

15.2  The Customer must:

(a)    keep the Provider Confidential Information strictly confidential;

(b)    not disclose the Provider Confidential Information to any person without the Provider’s prior written consent, and then only under conditions of confidentiality approved in writing by the Provider OR no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Provider Confidential Information; and

(e)    not use any of the Provider Confidential Information for any purpose other than general business use.

15.3  Notwithstanding Clauses 15.1 and 15.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

15.4  No obligations are imposed by this Clause 15 with respect to a party’s Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)    is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

15.5  The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

15.6  Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

15.7  Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party OR Within 5 Business Days following the date of termination of the Contract, the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

15.8  The provisions of this Clause 15 shall continue in force indefinitely following the termination of the Contract.

  1. Publicity

16.1  Neither party may make any public disclosures except for that listed in clause 16.3 by the provider relating to the Contract or the subject matter of the Contract (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

16.2  Nothing in this Clause 16 shall be construed as limiting the obligations of the parties under Clause 15.

16.3 We reserve the right to use the company name and website address in promotional material unless a written request for confidentiality is provided by the customer

  1. Data protection

17.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

17.2  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Contract.

17.3  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Contract, the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 7 (Data processing information) and of the types specified in Paragraph 2 of Schedule 7 (Data processing information); and the Provider shall only process the Customer Personal Data for the purposes specified in Paragraph 3 of Schedule 7 (Data processing information).

17.4  The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 17.

17.5  The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area]), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

17.6  Notwithstanding any other provision of these Terms and Conditions, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

17.7  The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

17.8  The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Paragraph 4 of Schedule 7 (Data processing information).

17.9  The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. The Provider is hereby authorised by the Customer, as at the Effective Date, to engage those third parties identified in, or falling within the processor categories specified in, Paragraph 5 of Schedule 7 (Data processing information) to process the Customer Personal Data. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to the same legal obligations as those imposed on the Provider by this Clause 17.

17.10 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

17.11 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

17.12 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 17 and the Data Protection Laws.

17.13 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

17.14 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 17. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 17.14.

17.15 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms and Conditions, then the parties shall use their best endeavours promptly to agree such variations to these Terms and Conditions as may be necessary to remedy such non-compliance.

  1. Warranties

18.1  The Provider shall provide the Services with reasonable skill and care.

18.2  The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under these Terms and Conditions; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

18.3  The Customer warrants to the Provider that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.

18.4  All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

  1. Indemnities

19.1  The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a “Provider Indemnity Event“).

19.2  The Customer must:

(a)    upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b)    provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;

(c)    allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and

(d)    not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,

and the Provider’s obligation to indemnify the Customer under Clause 19.1 shall not apply unless the Customer complies with the requirements of this Clause 19.2.

19.3  The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event“).

19.4  The Provider must:

(a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

and the Customer’s obligation to indemnify the Provider under Clause 19.3 shall not apply unless the Provider complies with the requirements of this Clause 19.4.

19.5  The indemnity protection set out in this Clause 19 shall not be subject to the limitations and exclusions of liability set out in the Contract.

  1. Limitations and exclusions of liability

20.1  Nothing in these Terms and Conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

20.2  The limitations and exclusions of liability set out in this Clause 20 and elsewhere in these Terms and Conditions:

(a)    are subject to Clause 20.1; and

(b)    govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

20.3  The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

20.4  The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

20.5  The Provider shall not be liable to the Customer in respect of any loss of revenue or income.

20.6  The Provider shall not be liable to the Customer in respect of any loss of use or production.

20.7  The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

20.8  The Provider shall not be liable to the Customer in respect of any loss or corruption of any data or database.

20.9  The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

20.10 The liability of the Provider to the Customer under the Contract in respect of any event or series of related events shall not exceed the greater of:

(a)    the purchased amount; and

(b)    the total amount paid and payable by the Customer to the Provider under the Contract in the 12 month period preceding the commencement of the event or events.

20.11 The aggregate liability of the Provider to the Customer under the Contract shall not exceed the greater of:

(a)    the purchased amount; and

(b)    the total amount paid and payable by the Customer to the Provider under the Contract.

  1. Force Majeure Event

21.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

21.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

21.3  A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  1. Termination

22.1  The Provider may terminate the Contract by giving to the Customer not less than 30 days’ written notice of termination, expiring after the end of the Minimum Term. The Customer may terminate the Contract by giving to the Provider not less than 30 days’ written notice of termination, expiring after the end of the Minimum Term.

22.2  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach OR material breach of the Contract, and the breach is not remediable;

(b)    the other party commits a breach OR material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).

22.3  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)    is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

(d)    if that other party is an individual:

(i)    that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)   that other party is the subject of a bankruptcy petition or order.

22.4  The Provider may terminate the Contract immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to the Provider under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 22.4.

  1. Effects of termination

23.1  Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.4, 6.10, 7.1, 11.2, 11.3, 12, 13.2, 13.4, 14, 15, 16, 17.1, 17.3, 17.4, 17.5, 17.6, 17.7, 17.8, 17.9, 17.10, 17.11, 17.12, 17.13, 17.14, 17.15, 19, 20, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35 and 36, Paragraphs 2.7, 3.9, 4.1, 5 and 8 of Schedule 1 (Web design and development services), Paragraphs 2.7, 3.1, 3.2, 3.3, 3.5, 3.8, 3.9, 4.4 and 6.4 of Schedule 2 (Hosting services), Paragraphs 4.5, 5.2 and 6.4 of Schedule 3 (Domain Name Services), Paragraphs 2.5 and 3.4 of Schedule 4 (SSL Certificate Services), Paragraph 4 of Schedule 5 (Web support and maintenance services) and Paragraphs 1, 8 and 9.1 of Schedule 6 (Web marketing services).

23.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

23.3  Within 30 days following the termination of the Contract for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Contract; and

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Contract,

without prejudice to the parties’ other legal rights.

  1. Non-solicitation of personnel

24.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of the Contract.

24.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of the Contract.

  1. Further assurance

25.1  The Provider must use reasonable endeavours to:

(a)    do or procure the doing of all acts; and

(b)    execute or procure the execution of all documents,

that the Customer may reasonably request from time to time in order to perfect or confirm the Customer’s ownership of the rights assigned by these Terms and Conditions.

25.2  The Provider must provide to the Customer at the cost and expense of the Customer such reasonable assistance as the Customer may request in order to register rights assigned to the Customer by the Contract, or licensed to the Customer under the Contract, with any intellectual property office or registry.

25.3  The Provider must provide to the Customer at the cost and expense of the Customer all reasonable assistance in connection with any legal proceedings relating to the rights assigned under these Terms and Conditions that are brought by, or against, the Customer.

  1. Notices

26.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.

26.2  Any notice given by the Customer to the Provider under these Terms and Conditions must be:

(a)    delivered personally;

(b)    sent by courier;

(c)    sent by recorded signed-for post;

(d)    sent by fax;

(e)    sent by email; or

(f)    submitted using the Provider’s online contractual notification facility,

using the relevant contact details set out in the Terms and Conditions.

26.3  Any notice given by the Provider to the Customer under these Terms and Conditions must be:

(a)    delivered personally;

(b)    sent by courier;

(c)    sent by recorded signed-for post;

(d)    sent by fax;

(e)    sent by email; or

(f)    submitted using the Customer’s online contractual notification facility,

using the relevant contact details set out in the Terms and Conditions.

26.4  The addressee and contact details set out in the Terms and Conditions may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 26.

26.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

26.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)    in the case of notices delivered personally, upon delivery;

(b)    in the case of notices sent by courier, upon delivery;

(c)    in the case of notices sent by post, 48 hours after posting;

(d)    in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);

(e)    in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party OR at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent); and

(f)    in the case of notices submitted using an online contractual notification facility, upon the submission of the notice form.

  1. Subcontracting

27.1  Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Contract, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

27.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

  1. Assignment

28.1  The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider’s contractual rights and obligations under these Terms and Conditions.

28.2  The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer’s contractual rights[ and obligations] under these Terms and Conditions.

  1. No waivers

29.1  No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.

29.2  No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.

  1. Severability

30.1  If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

30.2  If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

  1. Third party rights

31.1  The Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

31.2  The exercise of the parties’ rights under the Contract is not subject to the consent of any third party.

  1. Variation

32.1  The Contract may not be varied except by means of a written document signed by or on behalf of each party.

  1. Entire agreement

33.1  The main body of these Terms and Conditions, the Schedules, the Annexes and the Statement of Work shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

33.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

33.3  The provisions of this Clause 33 are subject to Clause 20.1.

  1. Export control

34.1  The Customer acknowledges that materials and/or information supplied to the Customer under these Terms and Conditions may be subject to the Export Laws.

34.2  The Customer must comply with the Export Laws insofar as they affect materials and information supplied to the Customer under these Terms and Conditions.

34.3  Without prejudice to the generality of Clause 34.2, the Customer:

(a)    must not import, export, supply, disclose, transfer or transmit any materials or information supplied to the Customer under these Terms and Conditions if such import, export, supply, disclosure, transfer or transmission would contravene any embargo or exclusion list applying under the Export Laws; and

(b)    must, where applicable, obtain all licences and consents required under the Export Laws for any import, export, supply, disclosure, transfer or transmission by or on behalf of the Customer of materials or information supplied to the Customer under these Terms and Conditions.

  1. Law and jurisdiction

35.1  These Terms and Conditions shall be governed by and construed in accordance with English law.

35.2  Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England and Wales.

  1. Interpretation

36.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

36.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

36.3  References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

36.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

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