The Client agrees to be bound fully by the covenants specified on this Agreement and any attachments herein, including but not limited to the Copyright Warranty Agreement and Hosting Service terms.
Under the terms and conditions of this Agreement Search Internet Marketing Ltd. (hereafter “SIM”) and the Client agree as follows:
1.0 Invoice and Payment of Fees Terms
1.1 This agreement represents the order for all services and development costs herein. This agreement shall have a term of 12 months unless otherwise terminated under clause 5 (Interpretation of Agreement Terms). At the end of such term, a new agreement shall be entered into.
1.2 The Client shall pay for all solutions, services and any other costs specified in this Agreement and in the attached Website and/or Internet Marketing Order Form (“Order Form”). The Client agrees to pay a non-refundable deposit as specified in the Order Form, upon execution of the Agreement.
1.3 SIM will invoice the Client for any hosting fees as agreed in the attached Order Form.
1.4 Any additions, changes, upgrades or enhancements outside the specifications of this Agreement and attached Order Form are exclusive of this Agreement and subject to further charges. The Client agrees to sign a new agreement and SIM reserves the right to apply new fees.
1.5 Third Party Service Providers may update their service, processors and products from time to time affecting the functionality of the Client’s website post-completion. These changes are beyond SIM’s control. Upon fulfilment of the Order outlined herein, SIM under this agreement shall not be responsible to upgrade or modify the website to comply with such updates. Any such upgrades are subject to a new Agreement with applicable fees to be agreed between the parties.
1.6 The Developer shall make all reasonable efforts to ensure sites are designed to be viewed by the majority of visitors. Sites are designed to work with the standard development platform, which includes the latest versions of the main browsers, Internet Explorer and Mozilla Firefox unless specifically stated otherwise. The Client agrees that the Developer cannot guarantee correct functionality with all browser software across different operating systems. The Client agrees that, following handover of files, any updated software versions of the browsers detailed in the standard development platform, including the browsers Internet Explorer and Mozilla Firefox, domain name set-up changes or hosting set-up changes thereafter may affect the functionality and display of their website. As such, the Developer reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software, domain name or hosting changes. The Client agrees that more advanced applications on a website page may require a newer browser version or plug-in.
1.7 Prices quoted are exclusive of value added tax or other applicable sales tax and are in sterling unless otherwise agreed. The Client shall be invoiced on a monthly or annual basis for Consultancy, Maintenance Services, Subscription Fees or Leasing Payments as outlined under these terms and conditions. The Client agrees to make payment to SIM within 30 days of receipt of an invoice and understands that services may be suspended or terminated upon non-payment without prejudice to any other rights that SIM may have. SIM also reserves the right to charge interest on overdue accounts, such interest to be calculated on a day-to-day basis on the amount outstanding at the rate of [four per cent (4%)] above the Bank of England base rate.
1.8 The Client acknowledges and agrees that the SIM reserves the right to change the fees at any time providing 30 days’ notice to the Client and such increases must be acceptable to both parties, failing which, either the Client or the SIM may terminate this Agreement on the expiry of such 30 day notice if agreement has not been met.
2.0 Website Development, Consulting Services and Maintenance Terms
2.1 The Client acknowledges and agrees that SIM may provide websites to other businesses including those in the same or similar line of business as the Client. SIM shall ensure that in providing such services to other businesses, it shall not infringe any of the registered trade marks of the Client.
2.2 Website production timelines may vary due to many dependencies including but not exclusive to, delay of Client input and approvals at each stage of the development process. Client changes to the Order Form during the development process will also delay timelines and will be subject to additional charges not outlined herein this Agreement to be agreed between the parties.
2.3 Except in respect of death or personal injury resulting from its negligence or fraud (in respect of which no limit shall apply) then:
2.3.1 In no event shall SIM, or its agents, be liable to the Client for any indirect, consequential or special damages;
2.3.2 In no event shall SIM, or its agents, be liable for any: (a) loss of goodwill; (b) injury to reputation; (c) loss of actual or anticipated profits; (d) loss of business opportunity; (e) loss or damage incurred as a result of third party claims;
2.3.3 In no event shall SIM, or its agents, be liable to the Client for any error, omission, defect or deficiency in any service or solution, which may result from, but not exclusive to, the Client’s failure to provide complete, accurate and current information to SIM; and
2.3.4 the total aggregate liability of SIM, and its agents during any 12 month period, shall not exceed the value of the fees paid by the Client to SIM under this Agreement in such 12 month period whether arising from negligence, breach of this Agreement or otherwise, and whether or not it has been made aware of the likelihood of any such loss or damage and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
2.4 Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party’s reasonable control (including, without limitation, any strike, lockout or other industrial action, act of God, war or threat of war, accidental or malicious damage, or prohibition or restriction by governments or other legal authority).
2.5 With the exception of trade marked, copyrighted or other proprietary information regarding pictures, images or logos that directly identify the Client, the Client grants to SIM an irrevocable, royalty-free, unrestricted right to use, transfer, modify and maintain content prepared by SIM on the Client’s website while Hosted via SIM.
2.6 The Client agrees to be solely responsible for the content of its website and accuracy of all information provided.
2.7 The Client agrees that SIM has fulfilled the Internet Solution outlined in the Order Form upon written acceptance of the Internet Solution (“Final Client Sign Off”).
2.8 The Client agrees to hold no ownership rights to web development code of Leased or Subscription Solutions or Services.
3.0 Hosting and Website Services Terms
3.1 Under no circumstances shall SIM or its agents be liable to the Client for any network interruptions beyond SIM’s control, including without limitation, any downtime regarding computer servers or interruption of Internet Service Providers.
3.2 SIM reserves the right to control and restrict any content on the Client’s website which is deemed by SIM to be illegal, tortuous, false, misleading, fraudulent, libellous, immoral, offensive or otherwise not in conformity with the policies and style of SIM or are unlawful or violates any applicable local, state, national or international law, ordinance or regulation having the force of law or by-law and further, SIM shall have sole discretion to terminate Hosting and or website services in such circumstances, without advance notice.
3.3 SIM will provide reasonable levels of hosting resources, including disk storage and bandwidth to the Client. In the event that SIM deems that resource utilisation by the Client is in excess of what SIM deems reasonable, SIM reserves the right to terminate the hosting services component of this agreement or levy such additional
hosting fees, as it deems appropriate upon providing the Client with 30 days’ written notice.
3.4 The Client agrees to provide SIM 30 (thirty) days’ written notice to terminate Hosting or ASP Services.
3.5 The Client agrees that SIM reserves the right to terminate Hosting and or ASP Services without advance notice if the Client’s web solution is detrimental to the Hosting environment including acts of Spam or if the web solution negatively affects server performance or other web solutions on the Hosting environment.
3.6 The Client warrants that it has obtained all licences, consents and approvals necessary, including without limitation those necessary for the use of personal data under the Data Protection Act 1998, for the inclusion of all data and other materials to be hosted by SIM under this Agreement.
3.7 The Client warrants that it has complied and shall continue to comply with the Data Protection Act 1998.
4.0 Copyright Warranty Agreement Terms
4.1 The Client represents and warrants that: (a) the use, as contemplated by this Agreement, of the material supplied by the Client as described in the attached Order Form shall not infringe any copyright, trade mark, trade secret or other third party proprietary right; and: (b) there is no impediment to the Client’s performance of its obligations hereunder.
4.2 The Client hereby grants to SIM, unlimited license to use all items described herein, in all Internet formats now known or devised in the future. Licensing rights for all items described herein, except those deemed proprietary to the Client, are assigned SIM. The Client further warrants that the Client named herein, will save and hold harmless SIM, its agents, suppliers or affiliates from any and all copyright infringement judgments resulting from the unlawful use of images and property listed.
4.3 The Client acknowledges that it has no copyright or any other claim nor any rights, title or interest in or to the web development (or other) code of any leased or subscription solutions provided by SIM, or to any other works or materials provided by SIM, or to any web solution developed by SIM for Client. For its part, SIM shall
have no right, interest or claim whatsoever in or to the Client’s trade name, trademark, or logo, or to the external graphic design of any web site specifically designed for the Client by Service Providers, other than SIM
5.0 Interpretation of Agreement Terms
5.1 SIM may terminate this Agreement immediately if:
5.1.1 the Client fails to pay any sum due under this Agreement on the due date;
5.1.2 the Customer is in breach of any material term of this Agreement and has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
5.1.3 the Client is wound up or becomes insolvent or has a receiver or administrative receiver appointed or suffers the appointment or the presentation of a petition for the appointment of an administrator or any equivalent or analogous event occurs in any other jurisdiction. The Client shall have no right to a refund of any kind and will be responsible for all costs and legal fees incurred by SIM in connection with Client’s breach of this Agreement.
5.2 The Client agrees to indemnify and keep indemnified SIM and its agents from and against any and all losses, claims and damages, expenses, injury or liability that arise from or in connection with the Client’s website, content or activities, including but not limited to, any legal fees incurred by SIM. The Client, at its own cost and expense, shall defend any and all actions, which may be brought by SIM. The Client’s failure to perform under the terms of this paragraph shall be deemed a waiver of any and all claims, demands for remedies, or causes
of action, including specific performance, which the Client might otherwise have against SIM or its agents.
5.3 This Agreement shall be interpreted and construed under the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.
5.4 No right or remedy conferred upon or reserved by SIM is intended, and shall not be deemed, to be exclusive of any other right or remedy provided or permitted herein, by law or by equity, but each right or remedy shall be cumulative of every other right or remedy.
5.5 This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement. Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Agreement.
The only remedy available to it for breach of the warranties shall be for breach of contract under the terms of this Agreement. Nothing in this sub-clause shall, however, operate to limit or exclude any liability for fraud.
5.6 The invalidity, illegality or unenforceability of any provision of these conditions should not affect the other conditions.
5.7 A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause does not affect any right or
remedy of any person which exists or is available otherwise than pursuant to that Act.
5.8 None of the rights or obligations of the Client under the contract may be assigned or transferred in whole or in part without the prior written consent of SIM. SIM shall be entitled to subcontract any work relating to the contract without obtaining the consent of, or giving notice to, the Client.
5.9 This Agreement shall, as to any of its provisions remaining to be performed in whole or in part or capable of having effect following termination, remain in full force and effect despite termination.
5.10 The Client shall ensure that it complies with all laws and regulations applicable to the website, including without limitation, the Disability Discrimination Act 1995 and the Data Protection Act 1998.
5.11 Each of the parties to this Agreement undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entering into of this Agreement or which it has obtained during the course of this Agreement except any information which is:
5.11.1 required to be disclosed by a court of law;
5.11.2 already in its possession other than as a result of a breach of this clause; or
5.11.3 in the public domain other than as a result of a breach of this clause.
Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and subcontractors