- TERMS AND CONDITIONS
1.1 These terms and conditions together with the Contract/Order Form to which they are be attached will form a binding contract between the Client named on the Contract/Order Form (“Client”) and Webpresence which shall constitute the entire agreement between the Client and Webpresence and apply to any trading agreement or other contract or arrangement between the Client and Webpresence;
1.2 These terms apply to the exclusion of all other terms or conditions of the contract the Client may propose and shall not be varied unless agreed in writing,
2.1 In consideration of the payment by the Client to Webpresence of the Fees as set out in the Contract/Order Form, Webpresence agrees to provide, to the Client, the services described in the Contract/Order Form in accordance with the Proposal (where one exists), with reasonable and due care in accordance with and subject the following terms;
2.2 Webpresence undertakes that the Service shall be faithful to the basic conceptualisation of the underlying service, pitch or Proposal (where one exists) and reflect the same standards of quality and integrity.
2.3 This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent Webpresence acting for or providing services the same as or similar to the services of any third party.
2.4 It is agreed and understood that any activities undertaken by the Client (or
by any third party on its behalf) which is in relation to or similar to the services, including without limitation any modification of the Service or the Client’s web site or the use of or inclusion of any third party product or service which might relate to the Service shall interfere with the provision of the Service by Webpresence and affect the results, outcomes and positions in search engines. All such things should be discussed with Webpresence prior to implementation and the Client shall not implement the same without the prior written consent of Webpresence. Remedy of such matters shall be dealt with by way of Change.
3.1 The Client will co-operate with and act in good faith towards Webpresence and, on request, undertake such acts and provide such source materials (including those listed in the Contract/Order Form) as Webpresence are to incorporate into the service, or as Webpresence require to carry out its obligations hereunder.
3.2 In the event that Client does not undertake those acts or provide those materials required under clause 3.1 above within a reasonable time (and at least within 3 months) of being requested to do so, including without limitation carrying out any changes, modifications or optimisation to the Client’s web site or other Materials as requested, recommended or required by Webpresence, Webpresence shall be entitled to invoice for the remaining service charges as if the Client had provided the material.
4.1 Invoices shall be issued monthly in advance as appropriate including following receipt of a completed Contract/Order Form and the Client shall pay Webpresence the Fees without deduction or set-off within 14 days of receipt of a valid invoice unless specified otherwise in the Contract/Order Form. Webpresence shall be entitled to withhold or suspend the Service until such time as it receives the Fees or other payments due including, in respect of the first month’s Service, receiving the Fees for that month prior to commencement.
4.2 Webpresence shall be entitled to charge interest on any overdue payment at the rate of 3% over Lloyds Bank’s base rate prevailing at the time and shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments.
4.3 Webpresence may charge additional Fees in accordance with its then prevailing rates:
4.3.1 in the event of delays or additional service caused or required by the Client including its failure to provide Webpresence with such information, Materials, instructions, media or approvals, as are reasonably required for the supply of the Service, properly and / or on time;
4.3.2 in the event of changes to the cost of labour, materials, services and other circumstances outside of Webpresence’s reasonable control.
4.3.3 in the event that the Client requires the supply of Service, goods and services in addition to those described in the Contract/Order Form or any variations to the Service.
4.4 If Client requires any change or alteration to the Service, Webpresence and the Client shall, prior to such change being effective or implemented, agree:
4.4.1 the nature of the Change;
4.4.2 the procedures for implementation of such Change; and
4.4.3 the variation to the Fees.
4.5 Until any Change is formally agreed between Client and Webpresence, Webpresence will continue to perform and be paid for the Service as if the Change had not been proposed, unless otherwise requested by Client.
4.6 All and any Changes to the Service shall be reflected and accompanied by appropriate amendments to the Proposal and Fees.
4.7 In the event that the Service include pay-per-click or other search engine placement services which require the payments to third parties and are agreed with the Client prior to their implementation, Client shall reimburse and indemnify Webpresence for any out of pocket expenses incurred by it in supplying the same.
- INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
5.1 All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature in material devised, created or commissioned by Webpresence, in supplying the Service and under this Agreement will vest in and belong to Webpresence unless otherwise agreed and specified in writing on the Contract/Order Form or otherwise and signed by both Parties.
5.2 In consideration of and upon payment of the Fees in full, Client shall have the Rights of Use set out in the Contract/Order Form which rights shall take effect on receipt by Webpresence of the Fees. Where no such rights are specified the Client is granted a non-exclusive licence to use the Service for the Purpose described in the Order Form, Proposal or other Service documentation. Rights of Use shall be extended only with the consent of Webpresence and payment of additional fees.
5.3 Client grants Webpresence a nonexclusive royalty free licence to use the Materials for all purposes relating to this Agreement and warrants that it has obtained and is fully entitled to grant Webpresence these rights and that the Materials are free of racist, defamatory, obscene and other legally restricted material.
5.4 The Client undertakes that it will keep secret and confidential the terms of this Agreement and any information supplied by Webpresence in connection with this Agreement or the business of Webpresence (including the Proposal) and the Service and shall not disclose or make available such information or part thereof to any third party (except to its own employees and advisers and then only on a need to know basis) without the Webpresence’s prior written consent PROVIDED THAT this Clause shall not extend to information which was and can be shown to be rightfully in the possession of Client prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this Clause);
5.5 The Client undertakes to Webpresence to indemnify and hold harmless Webpresence in full and defend at its own expense Webpresence against all costs, damages and losses incurred by Webpresence arising out of its use of the Materials or breach by Client of this clause 5.
5.6 The Client shall not modify, adapt or translate the Service except with the prior written consent of Webpresence or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in Webpresence unless otherwise agreed and specified in writing on the Order Form.
5.7 Webpresence warrants that it will use reasonable efforts to ensure that the Services do not infringe the copyright of any third party.
- INSPECTION AND ACCEPTANCE
6.1 Client shall inspect the Service regularly and shall inform Webpresence immediately if it wishes to reject any part of the Service because such do not comply with the Proposal or are defective in material and workmanship;
6.2 If the Service does not comply with the Proposal or are defective in material and workmanship Webpresence ‘s liability shall be limited to correcting such
defects within a reasonable time.
6.3 Client shall only be entitled to reject the Service because such do not comply with the Proposal or are defective in material and workmanship and if they are not rejected within 48 hours of delivery then Client shall be deemed to accept the Service. Rejection without good reason shall be deemed a breach of these terms.
- LIABILITY AND WARRANTY
7.1 Subject to Clause 7.2 below, Webpresence’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by Webpresence to Client hereunder.
7.2 Webpresence shall not be liable to Client for any consequential loss or damage.
7.3 When instructions or advice are given or received orally by Webpresence, it shall have no liability to Client for any misunderstanding or misrepresentation, which may arise in relation thereto except in relation to fraudulent misrepresentations.
7.4 Webpresence shall have no liability to the Client in respect of the Materials. On completion of the Service the Client agrees to collect the Materials within 2 months of completion of the service, failing which, Webpresence may dispose of them.
7.5 Webpresence’s liability shall be limited to using reasonable skill and care in the supply of the Service. In particular Webpresence shall not, except in the case of gross negligence and wilful or deliberate act, be liable for:
7.5.1 any loss or damage caused by it being given access to Client’s website or server (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of the Client,
7.5.2 any interference in or modification of the Service or Client’s web site by Client or any third party or the consequences thereof, remedy of which shall be as a Change.
7.6 Webpresence undertakes to provide the Service with reasonable skill and care, however Webpresence cannot give any guarantee, warranty or representation as to positions (rankings) within search engines due to the operation of such being out of its control.
7.7 Webpresence will carry out link building activities with reasonable skill and care whilst adhering to current best practices. Webpresence cannot give any guarantee or warranty against future search engine penalties that may arise due to such activities.
8.1 The Client shall comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Service including without limitation its obligations under the Data Protection Act 1998; Regulation of Investigatory Powers Act 2000; Competition Act 1998 and E-commerce Directive and equivalent legislation;
- THIRD PARTY MATERIALS
9.1 Webpresence gives no warranty, representation or undertaking in relation to any third party materials or service.
9.2 Prior to any selection, use or reproduction by Client of Service, Webpresence shall use reasonable efforts to, on reasonable request, provide Client with copies and evidence of such rights, clearances, permissions and licences as shall be necessary for the use of the Service by Client.
9.3 Subject to the foregoing Webpresence shall have no liability to the Client whatsoever in relation to the Service and gives no warranty and makes no representation as to whether Service contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted material and explicitly excludes all and any liability in relation thereto.
- RISK AND TITLE
10.1 Risk in any reports or information delivered to the Client will pass to the Client on dispatch and until payment in full has been received in cleared funds by Webpresence in respect of the Service, title in any physical products delivered to Client shall remain with Webpresence.
10.2 The Client shall take out such insurance as shall be prudent against all risks usually incurred in respect of the Work whilst in its possession or control.
11.1. Webpresence shall be entitled to immediately restrict, suspend or terminate the Service and the Client’s use of any Service and or terminate this Agreement upon Client’s material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless Client remedies such breach within 14 days of its occurrence.
11.2 Webpresence will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Webpresence including without limitation Internet outages, communications outages, fire, flood, war or act of God.
11.3 Client may not unilaterally cancel its order of the Service or otherwise terminate this Agreement (except for material breach by Webpresence of a fundamental term of this Agreement) at any time without full payment of the Fees.
11.4 During the course of this Agreement and for a period of 12 months afterwards, Client shall not solicit the staff of Webpresence or entice them to transfer their employment or services.
12.1 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
12.2 If any part of this Agreement is or becomes unenforceable, such part will at Webpresence’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
12.3 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
12.4 Client shall not assign the benefit or burden of this Agreement without the prior written consent of Webpresence.
12.5 The UK shall be considered the place of first publication of any material on the Internet.
12.6 No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
12.7 These Terms are made in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
Webpresence Limited (05080061)
Trading Address: 3 Maple Court, Davenport Street, Macclesfield, Cheshire, SK10 1JE
T: 01625 665 044 E: email@example.com