Blue Whale Media Limited Standard Terms & Conditions
YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10, WHICH SETS OUT OUR LIABLITY TO YOU.
All of the services provided by Blue Whale Media Limited (“the Services”) to you, the Customer, are subject to the following standard terms and conditions (“Conditions”).
These Conditions and the Schedules attached to them supersede all previous representations, understandings or agreements unless otherwise confirmed in writing by us.
- Interpretation – what does all the jargon mean?
1.1 The definitions and rules of interpretation in this clause apply in these Conditions and all definitions contained in the schedules and the Particulars.
Costs on Account: Costs paid on account prior to our commencing work for you.
Deliverables: all Documents, products and materials developed by us or our agents, subcontractors, consultants and employees in relation to a Proposal or the Services in any form, including computer programs, data, reports and specifications (including drafts) the deliverables specified in the Proposal. For the avoidance of doubt this does not include ad-hoc reports which we are only required to provide to you on request but may provide to you in any event during the term of the contract.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights (“IPR”): all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, chip topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Materials: all Documents, information and materials provided by you relating to the Services, including computer programs, data, reports and specifications or the in-put materials specified in the Proposal.
Our Equipment: any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between us under which title passes to you.
Particulars: the Particulars to this Agreement contained in page 1.
Pre-existing Materials: all Documents, information and materials provided by us relating to the Services which existed prior to the commencement of these Conditions, including computer programs, data, reports and specifications or the pre-existing materials specified in the Proposal.
Project: a project as described in the Proposal.
Project Milestones: a date by which a part of the Proposal is estimated to be completed, as set out in the Proposal.
Proposal: the detailed plan, confirmed in an email by from us, setting out the specific services and estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.
Schedules: the schedules to these Conditions which are fully incorporated into these Conditions.
Services: the specific services to be provided by us as set out in a Proposal, together with any other services which we provide or agree to provide to you in accordance with the Schedules.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Your Equipment: any equipment, systems or facilities provided by you and used directly or indirectly in the supply of the Services.
- Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions. The schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules.
- A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
- A reference to writing or written includes e-mail.
- Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
- When does the agreement start and how long will it last?
2.1 We shall provide the Services to you from the date specified in the Proposal until expiry of the Term.
2.2 The Services supplied under these conditions shall continue to be supplied until the Project is completed in accordance with the Proposal and, after that, if a continuing service is being provided it shall continue to be supplied unless the Contract between us is terminated by us giving you not less than 14 days’ notice and you giving us one month’s notice to terminate from an anniversary of the date specified in the Proposal.
2.3 Once you have accepted the Proposal in writing we shall confirm that we are prepared to undertake your instructions, from which point the contract is formed between us.
2.4 In accordance with clause 7.8 if you have provided us with payment details we shall take payment automatically when payment becomes due for either a single payment or on the anniversary of a rolling contract unless notice is given in accordance with clause 2.2.
3.1 The Project shall be agreed in the following manner:
(a) where appropriate, you shall provide us with a request for a Proposal, setting out the requirements and specifications of the services which you are requesting from us, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, Any test criteria as appropriate, Deliverables, Materials and such other information as we may request to allow us to prepare a draft Proposal;
(b) we shall, as soon as reasonably practicable, provide you with a draft Proposal; and
(c) there shall be no changes made to the Proposal without our express consent in writing.
3.2 Once the Proposal has been agreed, no amendment shall be made to it except in accordance with clause 6 and clause 14.
4.1 We shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to you, in accordance with the Proposal in all material respects.
4.2 We shall use reasonable endeavours to meet any performance dates specified in the Proposal, as agreed in writing, but any such dates shall be estimates only and time for performance by us shall not be of the essence of these Conditions.
4.3 Where applicable we shall obtain your approval to the Services as follows:
(a) we will send you an e-mail with the proposed Deliverables for your acceptance or discuss the details with you by telephone;
(b) you will let us know within the timescales specified whether the Deliverables are approved in writing;
(c) if the Deliverables are not accepted by you we will amend them a total of three times and re-submit them to you for Acceptance.
4.4 Acceptance of the Deliverables shall be deemed to have taken place when you use any part of the Deliverables for any purpose.
4.5 Some of the Services we provide to you are hosted on platforms or websites owned by third parties. We do not provide any guarantees that the Services will be available at all times, and may be subject to downtime. We shall not be liable to you for any damages you may suffer (whether direct or indirect) as a result of any such downtime or interruption to the Services.
4.6 If we are providing Services to you which are hosted on third party servers, our Services to you are merely to provide content and we have no responsibility or liability for the hosting of the content.
4.7 In the event that the third party hosting services were interrupted, we would use our reasonable endeavours to do what we can to restore the hosting services and may migrate the content hosted on the third party server to another third party hosting provider. In the event that this was deemed necessary, charges may apply and you will be responsible for paying these charges. We will try and agree any such charges with you in advance, where possible.
4.8 We do not guarantee that any of the Services will be virus or error free or uninterrupted.
5.1 You shall:
- co-operate with us in all matters relating to the Services and appoint an authorised person to act as a point of contact in relation to the Services, who shall have the authority contractually to bind you on matters relating to the Services;
- provide images and any content in a digital form.
- if necessary, provide access to your premises and data, as required by us;
- provide, within 14 days of commencement of the contract, such Materials and other information as we may reasonably require, and ensure that it is accurate and complete in all material respects;
- ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services;
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Our Equipment, the use of Materials and the use of Your Equipment in relation to Our Equipment; and
- keep and maintain Our Equipment in accordance with our instructions as notified in writing from time to time and not to dispose of or use the equipment other than in accordance with our written instructions or authorisation.
5.2 If the performance of our obligations under these Conditions is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.
5.3 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Conditions, subject to us confirming such costs, charges and losses to you in writing.
5.4 You shall not, without our prior written consent, at any time from the date of these Conditions to the expiry of 12 months after the termination of these Conditions, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of ours.
5.5 Additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services and these will be payable by you on demand but will at all times be set out in our Proposal.
6.1 If you wish to change the scope or execution of the Services, you shall submit details of the requested change to us in writing.
6.2 Following your request, we shall, within a reasonable time, provide a written estimate to you of:
- the likely time required to implement the change;
- any necessary variations to our charges arising from the change;
- the likely effect of the change on the Proposal; and
- any other impact of the change on these Conditions.
6.3 If you wish us to proceed with the change, we have no obligation to do so unless and until we have agreed the necessary variations to our charges, the Services, the relevant Proposal and any other relevant terms of these Conditions to take account of the change and these Conditions has been varied in accordance with clause 14.
6.4 Notwithstanding clause 6.3, we may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. We may, from time to time and subject to your prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, we will give you at least three months’ notice of any change.
6.5 We may charge for the time we spend assessing a request for change from you on a time and materials basis in accordance with clause 7.
6.6 We may provide technical support however this is provided at our own discretion and at an additional charge. For the avoidance of doubt this includes reconfiguring computers or resetting email addresses.
7.1 In consideration of the provision of the Services by us, you shall pay our charges which shall be on a fixed fee basis or on a time and materials basis as set out in the Particulars :
- the charges payable for the Services shall be calculated in accordance with our Proposal, as amended from time to time by us giving not less than three months’ written notice to you;
- our standard fee rates are calculated on an hourly basis for each individual person. Daily fee rates are calculated on the basis of an eight-hour day, worked between 9.00 am and 5.30 pm on weekdays (excluding public holidays);
- we shall be entitled to charge an overtime rate of 25% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Project or Services outside the hours referred to in clause 7.1(b);
- all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate;
- we shall invoice you in accordance with the Proposal and our invoice terms are 24 hours.
7.2 Where requested you must pay the Costs on Account in full before we provide you with the Services. All payment must be received before we provide you with the Deliverables.
7.3 You agree that we may review and increase the charges set out in the Particulars, provided that such charges cannot be increased more than once in any 12 month period. We shall give you written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to you, you may, within one week of such notice being received terminate the agreement by giving one month’s written notice to us.
7.4 You shall pay each invoice submitted to you by us, in full and in cleared funds.
7.5 Without prejudice to any other right or remedy that you may have, if you fail to pay us on the due date, we may:
- charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand; and
- suspend all Services until payment has been made in full.
7.6 All sums payable to us under these Conditions shall become due immediately on its termination, despite any other provision. This clause 7.7 is without prejudice to any right to claim for interest under the law, or any such right under these Conditions.
7.7 We have the right to retain or remove the Deliverables (such as taking down your website) if sums payable to us remain due for five days or over.
7.8 If you have provided us with payment details we shall take payment automatically when payment becomes due for either a single payment or on the anniversary of a rolling contract unless notice is given in accordance with clause 2.2. You acknowledge that we shall not be responsible for loss you may suffer as a result of us taking payment using any details you have lodged with us. For the avoidance of doubt this includes any bank charges.
8.1 As between you and us, all Intellectual Property Rights and all other rights and all other Pre-existing Materials shall be owned by us but, upon full payment of any outstanding sums due to us for the Services, shall be licensed to you, free of charge, on a non-exclusive, worldwide basis.
8.2 You acknowledge that, where we do not own any of the Pre-existing Materials, your use of rights in Pre-existing Materials is conditional on us obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.
8.3 We own the Intellectual Property Rights arising from or connected in any way to the Services and they shall at all times be owned by us. You do not have any right to copy, duplicate, distribute, resell or give away any programming, coding CMS, Ecommerce solutions, shopping carts, database programming that we have undertaken during provision of the Services and provided to you without our written consent.
8.4 By supplying materials to us, you declare that you hold the appropriate Intellectual Property Rights in these, or a licence to use them. The ownership of such materials will remain with you, or rightful copyright or trademark owner. You will, however, provide us with a perpetual non-exclusive licence to use and modify the Intellectual Property Rights in the Materials for the purpose of providing the Services.
8.5 You undertake to defend us from and against any claim or action that the possession, use, development, modification or maintenance of the Materials (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold us harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against us as a result of, or in connection with, any such Claim.
9.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or its products which you may obtain.
9.2 You may only disclose such information:
- to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under these Conditions; and
- as may be required by law, court order or any governmental or regulatory authority.
9.3 You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this clause 9.
9.4 You shall not use any such information for any purpose other than to perform your obligations under these Conditions.
9.5 All materials, equipment and tools, drawings, specifications and data supplied by us to you (including Pre-existing Materials and Our Equipment) shall, at all times, be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.
10.1 Nothing in these Conditions limits or excludes our liability for:
- death or personal injury caused by our negligence;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1 we shall not be liable to you, whether in contract or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions for:
- loss of profits or anticipated profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill or business opportunity;
- loss of use or corruption of software, data or information;
- any indirect or consequential loss;
10.3 Subject to clause 10.1 and clause 10.2, our total liability to you, whether in contract or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions shall be limited to the amount of the charges set out in the Proposal which you have paid in the last three months in respect of the Services.
10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
11.1 You undertake to us that all third parties involved in any of the Services we undertake on your behalf (“Third Parties”) have provided their express written consent to you to be involved in the Service whether this be by way of having their photos, images or video footage captured or otherwise. You will provide us with a list of parties that are not to be used in the provision of any of our Services in advance of the Services commencing.
11.2 You will indemnify us fully for all losses and damages we may suffer as a result of your breach of clause 11.2, or losses and damages we may suffer as a result of Third Parties asking to be removed from any of the Deliverables.
12.1 Without prejudice to any other rights or remedies which we both may have, either of us may terminate our contractual relationship without liability to the other immediately on giving notice to the other if the other party:
- fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
- commits a breach of any of the terms of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
- repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions; or
- ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
- becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
- a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
- the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
- any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
12.2 What you need to do when the agreement ends – On termination of our contractual relationship for any reason:
- you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services or Deliverables supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
- you shall, within a reasonable time, return all of Our Equipment, Pre-existing Materials and Deliverables. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping;
- the accrued rights, remedies, obligations and liabilities of us both as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
- clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 A party, provided that it has complied with the provisions of clause 13.3, shall not be in breach of these Conditions, nor liable for any failure or delay in performance of any obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
- acts of God, including but not limited to fire, explosion, accidental damage, flood, earthquake, windstorm or other natural disaster;
- war, threat of or preparation for war, armed conflict, terrorist attack, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
- compliance with any law;
- collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
- any labour dispute, including but not limited to strikes, industrial action or lockouts;
- non-performance by suppliers or subcontractors; and
- interruption or failure of utility service, including but not limited to electric power, gas or water.
13.2 The corresponding obligations of the other party will be suspended to the same extent.
13.3 Any party that is subject to a Force Majeure Event shall not be in breach of these Conditions provided that:
- it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
- it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
- it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
13.4 If the Force Majeure Event prevails for a continuous period of more than six months, either party may terminate these Conditions by giving 7 days’ written notice to all the other party. On the expiry of this notice period, these Conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Conditions occurring prior to such termination.
- We are not in partnership with each other, nor are we agents of each other.
- Any notice given under this agreement shall be in writing and shall be delivered by hand, transmitted by fax, or sent by pre-paid first class post or recorded delivery post to the address of the party as set out in the Particulars. A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in business hours, 9.00 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax to the fax number of the relevant party shall be deemed to have been received at the time of transmission. The addresses for service of notices shall be as set out in the “parties” section of this Agreement.
- If any provision of this agreement (or part of any provision) is found by any court or other body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Any variation of this agreement shall be in writing and signed by or on behalf of all the parties for the time being.
- If a party fails to or delays exercising any right or remedy provided under this agreement or by law, it shall not 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.
- Unless specifically provided otherwise, rights and remedies arising under this agreement are cumulative and do not exclude rights and remedies provided by law.
- No person may assign, or grant any encumbrance over, or deal in any way with, any of his rights under this agreement or any document referred to in it or purport to do any of the same in each case without the prior written consent of all the parties for the time being (such consent not to be unreasonably conditioned, withheld or delayed).
- Each person that has rights under this agreement is acting on his own behalf and shall pay its own costs relating to the negotiation, preparation, execution and implementation of this agreement.
- This agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each party acknowledges that, in entering into this agreement, he does not rely on, and shall have no remedy in respect of, any statement, representation, assurance or warranty of any person other than as expressly set out in this agreement or those documents.
- Nothing in this clause 14 operates to limit or exclude any liability for fraud.
- A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
- This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
- This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
- The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
- A waiver of any right or remedy under these Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
- No single or partial exercise of any right or remedy provided under these Conditions or by law shall preclude or restrict the further exercise of any such right or remedy.
- Unless specifically provided otherwise, rights arising under these Conditions are cumulative and do not exclude rights provided by law.
- All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
- We reserve a right to include a ‘link back,’ in the form of a small text link on the Deliverables.
WEBSITE DESIGN AND DEVELOPMENT
In addition to the standard Terms and Conditions set out above, the following terms shall apply to all Website Design and Development.
The following definitions shall apply to this Schedule, in addition to the definitions contained in clause 1 at the conditions:
Acceptance: the acceptance or deemed acceptance of the Site by you, pursuant to clause 2 of this Schedule.
Site: the website to be hosted by us, pursuant to these Conditions.
Site Software: the software for the Site commissioned by you.
Visitor: a visitor to the Site.
- Scope of the project
- design, develop and deliver the Site in accordance with the Proposal; and
- provide the Services.
- Development and Acceptance of Site
- All sites created and provided by us are designed to work in the current version, and the version released prior to this, of the most widely used browsers. We do not guarantee the site working in all browsers.
2.2 Once we have completed the design and development of the Site we run a number of internal tests
2.3 Acceptance of the Site shall occur when we have run our tests and notify you that the website is ready to use. We shall notify you when the tests have been passed.
2.4. If any failure to pass the any of our tests result from a defect which is caused by an act or omission of yours, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the tests notwithstanding such Non-Supplier Defect. We shall provide assistance reasonably requested by you in remedying any Non-Supplier Defect by supplying additional services or products. You shall pay us in full for all such additional services and products at our then current fees and prices.
2.4 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
- you use any part of the Site for any purpose.
- you unreasonably delay the start of our internal tests or any retests for a period of seven working days from the date on which we are ready to commence.
We shall update the Site with Materials provided from time to time by you at an agreed billable rate. You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
- INAPPROPRIATE CONTENT
4.1 We will only have access to your server where you have granted us access as agreed.
4.2 We shall include only Materials on the Site. You acknowledge that we have no control over any content placed on the Site by Visitors and do not purport to monitor the content of the Site. We reserve the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. We shall notify you promptly if we become aware of any allegation that any content on the Site may be Inappropriate Content.
4.3 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
Schedule 2 Hosting
NB: The Definitions contained in clause 1.1 of this Agreement will apply to this Schedule.
If requested by you, we may provide Hosting Services from time to time, in accordance with the Proposal and subject to the Charges. We charge a one off admin fee of £35.00 plus VAT per domain name. We will transfer the domain name to any other ISP once payment is received in full.
- Your responsibilities
You shall be responsible for the accuracy and completeness of the Materials.
- Site content
3.1 You shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”) and will indemnify us in full in the event of a breach of this clause.
3.2 You acknowledge that we have no control over any content placed on the Software by visitors and do not purport to monitor the content of the Software. We reserve the right to remove content from the Software where we reasonably suspect such content is Inappropriate Content. We shall notify you if we become aware of any allegation that content in the Software may be Inappropriate Content.
3.3 We may include the statement “Powered by Dough Media” in the Software in a form to be agreed.
- Software availability
4.1 We shall use reasonable endeavours to provide 99% service availability but will have no liability for any downtime caused by:
- your act or omission or that of your agents;
- your computer Hardware;
- any failure by you to comply with the terms of the Agreement;
- a force majeure event, as defined in the Agreement; or
- domain name server issues outside our control.
4.2 We will use our best endeavours to limit any network downtime to 24 hours.
4.3 We reserve the right to take the Software off-line to update it or fix problems at any time and will provide you with advance notice of any such update.
SCHEDULE 3 Part 1 SEO and Digital Marketing Services
The following definitions shall apply to this Schedule, in addition to the definitions contained in clause 1 at the conditions:
SEO Strategy: means the agreed key words, phrases and URLs relating to your website.
1.1 We shall:
- provide the Services to include those set out in Part 2;
- develop the SEO Strategy in accordance with the Proposals set out in the Proposal;
- comply with your information and IT security measures as communicated to us when performing the Services;
- perform the Services set out in Part 2,
all in accordance with the terms of this Agreement and any other instructions provided by you with the objective of enhancing and optimising the rankings and prominence of each Website in the results pages of Internet search engines.
1.2 You acknowledge and agree that we do not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a Website.
- You acknowledge that we have no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future. As a result search engines may:
- stop accepting submissions from us for an indefinite period of time with or without notice; or
- cease to list a website at its discretion, however should a website not reappear within thirty (30) days of it not being listed then we will re-optimise the applicable website based on the current policies of the relevant search engine at a cost to be agreed between us,
and we shall not be liable to you for any such actions of search engines.
- We are not responsible for changes made to the Website by:
- other parties; or
- you in choosing to link to or obtain a link from a particular website without prior consultation with us,
that adversely affects the search engine rankings of the website.
- SEO Pages Content
- We shall include in the SEO Strategy details of any Materials and any other content developed pursuant to the Proposal.
- In order to provide you with our SEO service:
- we shall discuss with you your requirements for this service;
- we shall present a Proposal;
- you shall sign off the Proposal;
- we shall agree key words between us.
- We warrant, represent and undertake that all content (excluding the Materials) that we develop for the Deliverables pursuant to this Agreement do not contain Unsuitable Content. We shall notify you immediately if we become aware that any content in the Deliverables may be Unsuitable Content.
- Customer obligations
Solely for the purposes of us providing the Services, you agree to provide the following:
- administrative or back-end access to the Website for analysis of its content and structure;
- permission for us to make changes to the Website for the purpose of optimisation;
- permission for us to communicate directly with any applicable third parties connected with the Website (for example, your web designer) in order to provide the Services;
- access to existing traffic statistics for the Website in order for analysis and tracking purposes; and
- where the Website is lacking in textual content, you will provide additional text content in electronic format for the purpose of creating additional or richer web pages.
- SEO SERVICE PAYMENT TERMS
- Our SEO service is provided for a minimum of 3 months. After the first three months you will be on a monthly rolling contract.
- If you wish to cancel any monthly SEO services rolling contract as set out in clause 5.1 you are required to give us 1 full month notice.
Part 2 Digital Marketing Services
- Website Audit & Benchmark
We will provide the following, non-exhaustive list of services relating to website audit and benchmark:
- Review of the current site (onsite) looking at URL structure, navigation, Meta data, page structure, content, internal linking, calls to action, site search, images/video, filenames/downloads, site speed, tracking and goals;
- Review of current site (offsite) looking at the domain age, inbound links (authority, anchor text and depth of links), indexed pages, Google Universal exposure and selected competitor information;
- Production of a prioritised list of both onsite and offsite recommendations which will need to be carried out either by you, your web design/development agency or by us;
- There will also follow a benchmark initial report document. This will note down the current site tracking statistics and for a basis for future monthly reports to determine campaign progress and seasonal trends.
- Keyword Research Report
This provides list of keywords that can bring highest volume of relevant traffic to the Website along with their search volume as well as benchmarks the position within the search engines of your site at the commencement of the campaign.
- SEM (Search Engine Management), Analysis & Reporting
We will continuously monitor the effectiveness of our SEM campaign and send you traffic and rankings reports monthly if required under the Proposal.
- On-Site Optimisation
We try to recommend any content based changes and measures which will improve the effectiveness of our SEO and digital marketing services. However this may require additional development work which will need to be charged outside of the contract and will be quoted for separately. As part of the SEM work we will modify the title tags, Meta tags, contents and other on-page factors (not code) of your Website to make it relevant to search engines (Google, Yahoo and Bing) for targeted keywords.
- Pay Per Click Campaign Management
We will monitor and amend the Pay per Click (PPC) campaign in order to improve the click through rate of the campaign which in turn improves traffic and ultimately the conversion rate of the campaign, allowing for a better return on investment (ROl).
- Off-Site Optimisation
We acquire/request/buy links from a vast array of Websites to improve the ranking potential of your Website in search engines and to rank for targeted keyword phrases. We develop and promote content (press releases, articles, blogs, link bait etc.) which help in getting additional traffic and links to your site and also helps in improving the conversion rate.