In these Terms & Conditions (which expression includes the Schedules and any attachments to them) the following words and phrases shall, unless the context otherwise requires, have the following meanings:
Seo77 means seo77 Digital Marketing Agency and businesses within the group.
The Client means (You The Customer) The Client.
Authorised Representatives – means the authorised representatives of Seo77 and the Client as set out in this Agreement.
Authorised Users – means the persons who are authorised by the Client to make Support Requests and any additional persons whose names are notified in writing to Seo77 from time to time by the Client as being authorised to make Support Requests.
Business Day – means any day except for a Saturday, Sunday or Public Holiday.
Change Request – means a request to change (including to cease) any service or to add any new service to the Services or a request to amend this agreement or any document attached to or referred to in it.
Commencement Date – means the date at which Seo77 will commence provision of the Services as set out in this agreement.
Contact Point – means the contact details (either telephone or email) of Seo77 notified to the Client from time to time by which the Client may make a Support Request.
Initial Term – means the Initial Term as set out in this Agreement.
Intellectual Property – means property in which intellectual property rights of whatever nature (including but not limited to patents, trade -marks, database rights and present and future copyright) subsist and, where the context so admits, includes such intellectual property rights.
Month – means a calendar month.
Office Hours – means the period between 10.00 and 17.00 on a Business Day.
Out of Office Hours – means the periods between 0.00 and 08.59 and 17.31 and 23.59 on a Business Day and 24 hours a day on any day that is not a Business Day.
Service Charge – means the Service Charge as set out in this Agreement.
Services – means the services set out in this Agreement.
Client Requirements – means the requirements and duties of the client as outlined in this Agreement.
Support Request – means a request for support with the provided services outlined in this Agreement.
VAT – means Value Added Tax.
The headings in these Terms & Conditions do not affect its interpretation.
References to the Client and Seo77 include their permitted successors and assigns; references to statutory provisions include those statutory provisions as amended or re-enacted; and references to any gender include all genders.
In the case of conflict or ambiguity between any provision contained in the body of these Terms & Conditions and any provision contained in any Schedule, the provision in the body of these Terms & Conditions shall take precedence.
Seo77 will provide the Services to the Client from the Commencement Date and for the duration of the Agreement in subject to and in accordance with the provisions of this Agreement.
Seo77 will provide the Services as defined in this Agreement.
Unless otherwise agreed in writing by Seo77 (including within this Agreement) the Services do not include services relating to or required as a result of any of the following and Seo77 shall be entitled to make additional charges for any such services in accordance with its standard charging rates.
The maintenance, repair, substitution or replacement of any part of the Services outside the terms of Support & Maintenance; support in respect of any Third Party Software Application unless provided as part of Support & Maintenance; the maintenance, repair, substitution or replacement of any part of the Services without Seo77’s Agreement in writing for Support & Maintenance; failure of the Client to comply with Seo77’s Client Requirements relating to the development & use of the Services; any support or maintenance undertaken to the Services by persons not authorised or approved by Seo77; notwithstanding the terms of this Agreement, the provision of any Services on Christmas Day, Boxing Day and New Years Day.
Subject to the Client Requirements Seo77 and the client must work together to perform the services in a timely manner. We agree to work expeditiously to perform the services outlined in this Agreement. If the Client does not complete the Client Requirements outlined in this Agreement by the date specified the entire amount outlined in this Agreement becomes due and payable.
Seo77 shall maintain records of the Services provided and will provide copies to the Client on receipt of a written request.
The Client shall ensure that the Services are operated in a proper manner by the Client’s employees. The Client shall nominate an Authorised
Representative to be available to liaise with, and respond to queries from, Seo77’s Authorised Representative (for example, as to the resolution of conflicting priorities between two or more items of support or maintenance).
The Client shall indemnify Seo77 against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Seo77 as a result of the Client’s failure to adhere to this Agreement. The Client shall at its own expense execute all documents and do all acts and things reasonably required by Seo77 to give effect to the Terms of this Agreement and shall provide access to all information and documentation which is within its possession which is reasonably required by Seo77 to enable it to fulfil its obligations.
In consideration of the provision of the Services by Seo77 the Client shall pay to Seo77 the Service Charge. The Service Charge and any other payments to be made by the Client under these Terms & Conditions are stated exclusive of VAT which shall be paid by the Client at the rate and from time to time in the manner prescribed by law.
Seo77 shall be entitled to increase the Service Charge in accordance with the Retail Prices Index at any time by notice in writing following the expiry of the Initial Term but not more than once in any consecutive period of 12 months.
Seo77 reserves the right to increase the Service Charge at any time by notice in writing to the Client to reflect any increase in the cost of providing the Services which is due to an act or omission of the Client including but not limited to any change in the date for the performance of the Services or any delay caused by any instructions of the Client or failure by the Client to give Seo77 adequate information or instructions.
If the Client fails to make any payment due to Seo77 on the due date for payment, Seo77 reserves the right to:
The Service Charge is exclusive of Seo77’s expenses incurred in connection with the provision of the Services and any additional service charges which be charged at the Seo77’s standard rates, and shall be payable by the Client in advance or if credit terms are offered by Seo77 to the Client within thirty days of the date of Seo77’s invoice.
All payments payable to Seo77 pursuant to this Agreement shall be paid without any deduction whether by way of set-of, counter-claims abatement unless otherwise agreed or the Client has a valid court order requiring an amount equal to such deduction to be paid by Seo77 to the Client.”
Time for payment of all sums due to Seo77 pursuant to this Agreement shall be in 30 days.
A Change Request shall become a Change Order when the requirements of the Change Control Procedure have been satisfied and the Change Request is signed by the Authorised Representatives of both parties to signify their approval of the change.
Change Requests may be originated either by the Client or by Seo77.
Where Seo77 originates a Change Request it shall provide, with the Change Request, details of the impact which the proposed change will have upon the Services; any systems or operations of the Client which communicate with, or are otherwise affected by the Services; the Service Charge; and the other terms of this Agreement.
Where the Client originates a Change Request, Seo77 shall provide the Client, details of the impact which the proposed change will have upon the Services; any systems or operations of the Client which communicate with, or are otherwise affected by the Services; the Service Charge; and the other terms of this Agreement.
Save where otherwise stated in this Agreement, neither party shall be obliged to agree a Change Request originated by the other.
The costs of implementing a Change Order shall be borne as set out in the Change Order.
Seo77 shall be entitled to charge the Client for work undertaken by Seo77 in analysing the effect of any proposed Change Request. Where Seo77 wishes to make a charge for carrying out such analysis, it will first notify the Client in writing, in order to allow the Client to choose whether or not to authorise Seo77 to proceed with the analysis of the requested change.
Seo77 reserves the right at any time without notifying the Client to make changes to any Services which are necessary to comply with any applicable safety or other statutory requirement provided that such variation does not materially affect the quality or performance anticipated by the Client.
Either party may call an extraordinary meeting of the parties by service of not less than 5 days’ written notice or each party agrees to procure that it’s Authorised Representative and Managing Director (or person with equivalent authority) shall attend all extraordinary meetings called in accordance with this clause.
The members of the relevant meeting shall use their best endeavours to resolve disputes arising out of this Agreement. If any dispute referred to a meeting is not resolved at that meeting then EITHER [the Dispute Resolution Procedure shall be deemed exhausted.] OR [the parties shall, within that period, on the written request of either party enter into an alternative Dispute Resolution Procedure with the assistance of a mediator agreed by the parties or, in default of such Agreement within [seven days] of receipt of such request, appointed, at the request of either party, by the [Centre for Dispute Resolution or such other similar body as is agreed].
The following points only apply if the second of the above alternatives (2.) is adopted.
The parties shall then submit to the supervision of the mediation by the [Centre for Dispute Resolution or similar body] for the exchange of relevant information and for setting the date for negotiations to begin.
Recourse to this Dispute Resolution Procedure shall be binding on the parties as to submission to the mediation but not as to its outcome.
Accordingly all negotiations connected with the dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings. Except for any party’s right to seek interlocutory relief in the courts, no party may commence other legal proceedings under the jurisdiction of the courts or any other form of arbitration until [21 days] after the parties have failed to reach a binding settlement by mediation (at which point the Dispute Resolution Procedure shall be deemed to be exhausted).
If, with the assistance of the mediator, the parties reach a settlement, such settlement shall be reduced to writing and, once signed by a duly authorised representative of each of the parties, shall remain binding on the parties.
The parties shall bear their own legal costs of this Dispute Resolution Procedure, but the costs and expenses of mediation shall be borne by the parties equally.
Neither party shall be entitled to give, bargain, sell, assign, let or otherwise dispose of its rights and obligations under this Agreement without the prior written consent of the other party.
In the absence of prior written Agreement to the contrary, all Intellectual Property pertaining to original PHP code created by Seo77 or any employee, agent or sub-contractor of Seo77 in the course of performing the Services shall vest in Seo77.
Where, in connection with the provision of the Services, the Client uses any Intellectual Property which is owned by Seo77, Seo77 shall grant to the Client, or shall procure that the Client is granted (without charge to the Client and for the benefit of the Client) an indefinite non-exclusive, royalty-free license to use, adapt, maintain and support such Intellectual Property, which license shall include the right for any person providing services to the Client to use, adapt, maintain and support such Intellectual Property for the benefit of the Client.
In the absence of prior written Agreement to the contrary, all Intellectual Property in the Client IT Equipment and any other information, materials or assets supplied to Seo77 by the Client shall remain vested in the Client or its third party licensors.
If the client requires any intellectual property to be protected, it would notify Seo77 clearly of the nature, label and details of such intellectual property in writing. Upon receiving such notification, Seo77 would hold the labelled intellectual property in the strictest confidence and would not use it for any purposes, commercial or non-commercial. This clause would survive the termination of this Agreement howsoever terminated.
Unless stated expressly in writing in this Agreement, neither party will acquire any ownership interest in or license of the other’s Intellectual Property by virtue of this Agreement.
Seo77 shall defend any claim (at Seo77’s expense) brought against the Client alleging that the provision of the Services or the use of any deliverables provided by Seo77 infringes the Intellectual Property of a third party (an “IPR Claim”). Seo77 shall pay all costs and damages awarded or agreed to in settlement of an IPR Claim provided that the Client:
Seo77 will not provide a similar service to that outlined in this contract to a competing party of that of the client in question. If any potential competitor selling solely similar products approaches us we will first come to you for written confirmation before proceeding with any further discussions.
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party (an event of “Force Majeure”). In the event that a Force Majeure event continues for a continuous period of more than 21 days, either party may terminate this Agreement by written notice to the other party.
Both parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked “confidential” or which may reasonably be supposed to be confidential supplied by Seo77 or the Client (in this Agreement collectively referred to as the “Information”) with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
Neither party shall without the prior written consent of the other party divulges any part of the other party’s Information to any person accept:
Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
Provided that it is not in breach of the confidentiality obligations set out above, Seo77 may refer to and publicise its involvement with the Client, but only with the Client’s prior written approval in relation to each publication, which shall not be unreasonably withheld or delayed.
Seo77 shall not be liable to the Client or be deemed to be in breach of its warranties or obligations under the following provisions:
Save in respect of claims for death or personal injury arising from Seo77’s negligence, in no event will Seo77 be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of Seo77 whether such damages were reasonably foreseeable or actually foreseen.
Except as provided above in the case of personal injury, death, and damage to tangible property, Seo77’s maximum liability to the Client under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to a sum equivalent to the price paid to Seo77 under this Agreement for the Services that are the subject of the Client’s claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Client in obtaining alternative services.
The parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.
The Client’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, “Seo77” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
This Agreement may be terminated for cause in whole by either party in the following circumstances:
If this Agreement is terminated in whole or in part for any reason Seo77 shall subject to payment of its reasonable fees use all reasonable endeavours to co-operate fully with the Client to ensure an orderly migration of the Services to the Client or, at the Client’s request, a new service provider.
Neither party (except with the prior written consent of the other party) during the term of this Agreement and for a period of twelve months thereafter, solicit the services of any senior staff of the other party who have been engaged in the provision of the Services or the management of this Agreement or any significant part thereof either as principal, agent, employee, independent contractor or any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of either party.
While this Agreement is in force, or so long as Seo77 and the client engage in business not necessarily under this Agreement, both parties agree not to poach each other’s employees. They further commit they would not poach each other’s employees for a minimum period of 24 months after the cessation of business between them under this Agreements whichever is later. This applies to every business and / or organisation within the Client and Seo77 business groups.
While this Agreement is in force, or so long Seo77 and the Client engage in business not necessarily under this Agreement the Client agrees not to approach any of the Seo77‘s customers directly for business. The Client further commits that it would not approach any of the Seo77‘s customers for a minimum period of 24 months after the cessation of business between them under this Agreement or other arrangements, whichever is later, except with the express written permission of Seo77. Seo77 further commits that it would not approach any of the Client’s customers for a minimum period of 24 months after the cessation of business between them under this Agreement or other arrangements, whichever is later, except with the express written permission of the Client.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
Subject to the specific limitations set out in this Agreement, no remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy except as expressly provided for in this Agreement and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or existing at law or in equity by statute or otherwise.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
All notices under this Agreement shall be in writing.
Notices shall be deemed to have been duly given:
Subject as specifically set out in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised offer or representative of each of the parties.
This Agreement supersedes all prior Agreements, arrangements and undertakings between the parties and constitutes the entire Agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure Agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same Agreement.
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.