1.1 The following definitions and rules of interpretation apply in these Conditions.
The agreement between the Supplier and the Client for the supply of the Services in accordance with these Conditions;
A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
The charges in respect of the Services set out in a Program of Work;
The person or firm who purchases the Services from the Supplier;
These terms and conditions as amended from time to time in accordance with clause 21;
All confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together its “Representatives”) to the other party and that party’s Representatives in connection with this agreement or any Program of Work that is either labelled as such or else that should reasonably be considered as confidential because of its nature and the manner of its disclosure;
The Website, reports, analyses, statistics, content and other materials required to be delivered by the Supplier in accordance with the agreement and a Program of Work;
“Description of Services”
The description of the Services as set out in a Program of Work;
The date set out in the Program of Work;
The period of 12 months commencing from either the end of the Initial Term or any subsequent anniversaries of the end of the Initial Term;
The period of 12 months from the Effective Date, subject to earlier termination in accordance with the agreement;
“Intellectual Property Rights”
Patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, rights to goodwill or to sue for passing off (or unfair competition), rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, and renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
All actual losses, damages, costs, expenses (including reasonable professional advisers’ costs and disbursements, reasonable legal costs and disbursements) incurred by the relevant party. The term Loss shall have a corresponding meaning;
The content provided to the Supplier by the Client from time to time in order for the Supplier to generate the Website and otherwise perform the Services;
The works, concepts, items, materials, code, tools, know-how and all Intellectual Property Rights either developed or procured to be developed by the Supplier or its personnel at any time for use in relation to the Supplier’s business or any or all of the Supplier’s customers generally and not specifically for the provision of the Services or Deliverables to the Client;
“Program of Work”
A document describing the Services and Deliverables to be provided by the Supplier to the Client, which is agreed between the parties and signed by their authorised representatives;
The web pages for the Website developed by the Supplier under the agreement and Program of Work containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of a Website (and/or its web pages) in the result pages of search engines;
Such services (including website creation, onsite SEO, authority development, reputation management, pay per click management and tracking and reporting) to be provided by the Supplier pursuant to a Program of Work, and all other services reasonably necessary to be performed by the Supplier in order to carry out its obligations under the agreement and any applicable Program of Work;
The specification for the Website as set out in a Program of Work;
Scale Your Trade Limited registered in England and Wales with company number 12305523;
The Initial Term and any subsequent Following Term;
Any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights;
The website or websites to be hosted by the Supplier.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement or any Program of Work.
1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
1.10 If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedule, the provisions in the main body of this agreement shall prevail.
1.11 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
2. Structure of agreement
2.1 The agreement is structured so that individual Programs of Work will be entered into by the parties and such Programs of Work are governed by and subject to these Conditions. In the event of inconsistency or conflict between these Conditions and any Program of Work, the terms of the Program of Work shall take precedence to the extent of the conflict or inconsistency.
2.2 The agreement does not commit the Client to purchase any Services or Deliverables and, likewise, does not commit the Supplier to provide any Services or deliver any Deliverables. The Client only becomes committed to purchasing and the Supplier only becomes committed to providing any Services or delivering any Deliverables upon signature by both parties of a Program of Work in respect of such Services and Deliverables.
2.3 Each Program of Work shall specify (as applicable) the scope and Specification of the Services and Deliverables, any obligations of each party additional to those set out in this agreement and the Charges relevant to each Program of Work.
2.4 Each Program of Work unless otherwise agreed by the parties shall constitute a separate contract under the agreement and any defined terms used in each Program of Work shall have the same meaning as set out in the agreement.
3.1 The Supplier shall:
3.1.1 assist in the preparation of any Program of Work;
3.1.2 provide the Services;
3.1.3 develop the Website in accordance with the Specification; and
3.1.4 deliver the Deliverables to the Client, all in accordance with the terms of these Conditions with the objective of enhancing and optimising the rankings and prominence of the Website in the results pages of Internet search engines.
3.2 The Client acknowledges and agrees that Supplier does 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.
3.3 The Client acknowledges that the Supplier has 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:
3.3.1 stop accepting submissions from the Supplier for an indefinite period of time with or without notice; or
3.3.2 cease to list a Website at its discretion,
and the Supplier shall not be liable to the Client for any such actions of search engines.
3.4 The Supplier is not responsible for changes made to the Website by:
3.4.1 other parties; or
3.4.2 the Client in choosing to link to or obtain a link from a particular website without prior consultation with the Supplier,
that adversely affect the search engine rankings of the Website.
4. Website content
4.1 The Supplier shall include in the Website only Materials and any other content that it has developed pursuant to the Specification.
4.2 The Supplier warrants that all content (excluding the Materials) that it develops for the Deliverables pursuant to the agreement or any applicable Program of Work will not contain Unsuitable Content.
5. Client obligations
5.1 The Client agrees to provide the following, where applicable:
5.1.1 administrative or back-end access to the Website for analysis of its content and structure;
5.1.2 permission for the Supplier to make changes to the Website for the purpose of optimisation;
5.1.3 permission for the Supplier to communicate directly with any applicable third parties connected with the Website in order to provide the Services; and
5.1.4 access to existing traffic statistics for the Website in order for analysis and tracking purposes.
5.2 The Client shall co-operate with the Supplier in all matters relating to the Services and not at any time engage in or threaten, any racial, sexist or abusive behaviour of any kind towards the Client’s personnel.
6. Charges and payment
6.1 The Supplier shall invoice the Client for all relevant Charges monthly in advance. The Client shall pay all due invoices by direct debit/bank transfer within 30 days of their receipt by the Client.
6.2 All Charges are exclusive of VAT which shall be payable by the Client at the applicable rate.
6.3 If the Client fails to make any payment due to the Supplier under the agreement by the due date for payment, then:
6.3.1 without limiting the Supplier’s remedies under clause 11, the Client shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
6.3.2 the Supplier may suspend all or part of the Services, and put a holding page on the Website, until payment has been made in full.
6.4 The Supplier may increase the Charges on giving the Client 45 days’ prior written notice.
7. Licences and title
7.1 Title to the Deliverables shall not pass to the Client until the Supplier receives payment in full (in cash or cleared funds) for the Deliverables and all other sums that are or become due to the Supplier from the Client, in which case title to the Deliverables shall pass at the time of payment of all such sums.
7.2 To the extent that any Pre-Existing Work is incorporated into the Deliverables it shall remain the property of the Supplier, or the Supplier’s licensors, as applicable.
7.3 The Client grants the Supplier a limited, non-exclusive, revocable licence to access and use the:
7.3.3 SEO Pages; and
7.3.4 name, logo, company name and trademark of the Client,
solely to provide the Services to the Client in accordance with the agreement during the Term.
The Client shall indemnify the Supplier from and against all Losses arising as a result of any action or claim that (as applicable) the Supplier’s use and possession of the Materials in accordance with the agreement or any applicable Program of Work constitutes an infringement of Intellectual Property Rights of a third party.
9.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the agreement and any Program of Work.
9.2 The Client warrants, represents and undertakes that:
9.2.1 any Materials provided to the Supplier are owned by the Client or it has received the necessary consents or permissions to use the Materials in accordance with these Conditions and any Program of Work from the applicable owner(s); and
9.2.2 any such Materials shall not under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not infringe any applicable laws, regulations or third party rights and shall not contain any Unsuitable Content.
9.3 The Supplier warrants, represents and undertakes that:
9.3.1 it shall perform the Services with all reasonable skill and care;
9.3.2 the Deliverables will conform to their description set out in the agreement or any Program of Work;
9.3.3 in providing the Services and Deliverables it will not use any techniques or commit any act or do anything that breaches any applicable laws, regulation or search engine rules;
9.3.4 it will use personnel to provide the Services who are suitably skilled, trained and experienced;
9.3.5 the Deliverables will, in so far as they do not comprise Materials, be original works of authorship by the Supplier and the use or possession thereof by the Client will not be subject or give rise to any claim for infringement of any Intellectual Property Rights of any third parties.
10. Limitation of liability
10.1 Nothing in the agreement or any Program of Work shall operate to exclude or limit either party’s liability for:
10.1.1 death or personal injury caused by its negligence;
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 a breach of clause 12;
10.1.4 the indemnity in clause 8;
10.1.5 the client’s payment obligations under the agreement; or
10.1.6 any other liability that cannot be excluded or limited under applicable law.
10.2 Subject to clause 10.1, neither party shall be liable to the other party for any loss of profit or indirect, special or consequential losses or damages.
10.3 Subject to clause 10.1 and clause 10.2, each party’s aggregate liability to the other party during the Initial Term and then in respect of any following Term in respect of claims arising out of or in connection with the agreement, any Program of Work or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by the Client in the 12 months preceding the claim.
11. Term and termination
11.1 The agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 11, for the Initial Term. After the expiry of the Initial Term, the agreement shall continue, unless terminated earlier in accordance with clause 11, until either party gives to the other party 45 days’ written notice to terminate.
11.2 In the event that the Client wishes to terminate the agreement for convenience before the end of the Initial Term, it shall be obliged to pay the balance of the Charges due for the remainder of the Initial Term.
11.3 Without affecting any other right or remedy available to it, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
11.3.1 the other party commits a material breach of any term of the agreement or any Program of Work which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
11.3.2 the other party repeatedly breaches any of the terms of the agreement or any Program of Work 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 the agreement or any Program of Work;
11.3.3 if the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in section 123(1)(e) or 123(2) of the IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
11.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other (being a company) than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.3.6 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
11.3.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
11.3.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
11.3.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
11.3.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3.3 to clause 11.3.11 (inclusive); or
11.3.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.4 After the expiry of the Initial Term, the Client may terminate or amend/downgrade the Services set out in any Program of Work in whole (including all Programs of Work) or in part (including any relevant Program of Work) for convenience at any time by giving at least 45 days’ prior written notice to the Supplier. For the avoidance of doubt, the Client will be liable for all Charges due during the 45 day notice period.
11.5 The Supplier may terminate the agreement immediately, at any time and in whole where the Client has breached clause 9 by providing written notice to the Supplier.
11.6 On expiry or termination of the agreement or a Program of Work:
11.6.1 all applicable licences granted to the Supplier under the agreement or a Program of Work (as the case may be) shall terminate immediately;
11.6.2 the Supplier shall at the Client’s request, either return or destroy all Confidential Information and/or Materials belonging to the Client and connected with the agreement or a Program of Work (as the case may be) in its possession and control;
11.6.3 subject to the provisions of clause 7.1, provide such assistance as reasonably required, where applicable, to transfer the hosting of the Website to the Client or another service provider, subject to payment of the Supplier’s expenses reasonably incurred; and
11.6.4 the Client shall immediately pay all Charges that are due and payable to the Supplier.
11.7 On termination of the agreement or a Program of Work (however arising) the accrued rights and liabilities of the parties as at termination shall survive and continue in full force and effect.
11.8 Termination of the agreement or any Program of Work shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12.1 Each party undertakes that it shall not at any time disclose to any third party any Confidential Information concerning the business, affairs, customers, the Clients or the Suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s Confidential Information:
12.2.1 to its employees, officers, representatives or advisers who need to know such Confidential Information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the agreement or a Program of Work. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13; and
12.2.2 as may be required by law, court order or any governmental or regulatory authority.
12.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the agreement or any Program of Work.
13. Force majeure
Neither party shall be in breach of the agreement or any Program of Work nor liable for delay in performing, or failure to perform, any of its obligations under the agreement or any applicable Program of Work if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 14 days, the party not affected may terminate the agreement or any applicable Program of Work by giving 14 days’ written notice to the affected party.
14.1 Any notice or other communication given to a party under or in connection with the agreement shall be in writing and shall be:
14.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
14.1.2 sent by email to firstname.lastname@example.org
14.2 Any notice or communication shall be deemed to have been received:
14.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
14.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
14.2.3 if sent by email, at the time of transmission, or if this time falls outside Business Hours at 9.00 am on the next Business Day after transmission.
14.3 This clause 14 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of the agreement, the wider transactions contemplated by it, or the relationship between the parties, or any Program of Work, without the prior written consent of the other party, except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
16. Assignment and subcontracting
The agreement and any Program of Work is personal to the parties and neither party shall assign, transfer, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the agreement or any Program of Work without the prior written consent of the other party.
17. No partnership or agency
17.1 Nothing in the agreement or any Program of Work is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Entire agreement
18.1 The agreement and any Program of Work constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into the agreement or any Program of Work it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the agreement or any Program of Work.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the agreement or any Program of Work.
19. Independent contractors
No one other than a party to the agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No failure or delay by a party to exercise any right or remedy provided under the agreement, any Program of Work or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
No variation of the agreement or any Program of Work shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.1 If any provision or part-provision of the agreement or any Program of Work is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement or any Program of Work.
22.2 If any provision or part-provision of the agreement or any Program of Work is deemed deleted under clause 23.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Further assurance
At any time after the date of the agreement each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the terms and conditions of the agreement and any Program of Work.
If any provision of the agreement or any Program of Work shall be held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of the agreement or any Program of Work in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of the agreement or any Program of Work in any other jurisdiction shall not be affected
Subject to any express provision in the agreement or any Program of Work to the contrary, each party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the agreement and any Program of Work.
The agreement or any Program of Work may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of the agreement or a Program of Work, but all the counterparts shall together constitute the same agreement or Program of Work. No counterpart shall be effective until each party has executed at least one counterpart.
27. Governing law
The agreement, any Program of Work and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the agreement, any Program of Work or their subject matter or formation.