Active Internet Marketing – Terms & Conditions – PPC
1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England.
“Client” means the person, company, firm or body engaging the Service Provider (“the Service Provider”) to perform pay-per-click advertising services (“PPC Services”) on the Client’s World Wide Web site (the “Web Site”).
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Designated Search Engine” means a search engine on which the Service Provider shall perform the PPC Services as chosen by the Client;
“Fee” means the consideration payable to the Service Provider for the PPC Services as defined in Clause 6;
“Intellectual Property Rights” means (a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
“Order Forms” means the forms that constitute the order.
“PPC Campaign” means a pay-per-click advertising campaign set up and managed by the Service Provider for and on behalf of the Client in the course of providing the PPC Services;
“PPC Services” means the pay-per-click advertising management services to be provided by the Service Provider under the Order Forms;
“PPC Setup” means the setting up of the PPC Campaign(s) as is more fully described in the Order Forms;
“Quotations” means a formal statement or document submitted to the potential client detailing the price to supply the services or goods specified.
“Required Information” means the information (and materials) which the Client must supply to the Service Provider to enable the Service Provider to carry out the PPC Services.
“The Service Provider” means Amp Co (UK) Ltd Trading As Active Internet Marketing a Service Provider registered in England and Wales under number 0733000 whose registered office is at 136-140 Bedford Road, Kempton, Bedfordshire, MK42 8BH (“the Service Provider”) and who carries on business providing pay-per-click advertising services (“PPC Services”) for the development and hosting of sites on the World Wide Web.
“Web Site” means the Client’s World Wide Web site to be developed by the Service Provider pursuant to this Agreement.
“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol.
2.1 These Terms and Conditions are to be read in conjunction with and form part of the Order Forms. The Client acknowledges and agrees that by signing the Order form it accepts these Terms and Conditions.
2.2 Quotations submitted by the Service Provider shall remain active for acceptance by the Client for a period of 21 days from the date of the quotation, unless it is withdrawn by the Service Provider.
2.3 A contract will only become binding upon acceptance of the order by signing or counter signing and dating of the order and returning it by the Client.
3. ENGAGEMENT OF THE SERVICE PROVIDER
3.1 The Client hereby engages the Service Provider to provide the PPC Services, and confirms that these Terms and Conditions are to be read in conjunction with our separate Order Forms, which the Client acknowledges safe receipt of.
3.2 The Service Provider shall complete the PPC Setup within 21 days (“the Completion Date”).
3.3 The Client shall provide the Required Information to the Service Provider within seven days (“the Delivery Date”). In the event that the Client fails to deliver the Required Information on the Delivery Date, the Completion Date shall increment by one day for each day that the delivery of the Required Information is delayed.
3.4 The ongoing PPC Services shall continue for a continuous twelve month rolling contract on a continuous twelve month rolling period for an indefinite period subject to the provisions set out below. The agreed monthly fee will be based on an estimated percentage of spend and will become a fixed monthly fee for the entire contract length.
3.5 The Service Provider shall be responsible for the quality of the PPC Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by it to perform all or any part of the PPC Services shall also do so competently and with reasonable care.
4. NATURE OF ENGAGEMENT
4.1 The Service Provider shall at all times be responsible for organising how and in what order the PPC Services are performed and shall liaise with the Client (or the Client’s representative) to ensure that due account is taken of the impact of the timing of the PPC Services to be performed upon the activities of the Client and any other contractors, consultants and similar third parties also engaged by the Client.
4.2 The engagement under this Agreement is mutually non-exclusive and the Service Provider shall be entitled, at its own expense, to subcontract the performance of the PPC Services.
4.3 The engagement and appointment of the Service Provider under this Agreement does not create any mutual obligations on the part of the Client or the Service Provider to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
5. THE PPC SERVICES
5.1 The Service Provider shall provide the PPC Services specified in this Clause 5 in accordance with this Agreement.
5.2 The Service Provider shall base the PPC Setup and its provision of the PPC Services upon the Order Form and / or the Required Information provided by the Client.
5.3 Upon receipt of the Required Information from the Client, the Service Provider shall conduct keyword research which shall include, but not necessarily be limited to, an examination of the Website, online research and the use of other suitable methods and tools.
5.4 No later than one month following the successful commencement of the PPC Campaign(s), the Service Provider shall prepare and submit to the Client a visibility report demonstrating the results and effectiveness of the PPC Campaign(s).
5.5 The Client understands and acknowledges the following:
5.5.1 The Service Provider cannot control search engines and cannot provide any guarantee that the Designated Search Engine(s) will not change their policies or functionality in such a way that will have a detrimental effect on the effectiveness of the PPC Campaign(s). Where ongoing PPC Services are to be provided, the Service Provider shall use reasonable endeavours to counteract any detrimental effects resulting from any such changes.
5.5.2 The Service Provider accepts no responsibility for any detrimental effect on the effectiveness of the PPC Campaign(s) which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
5.5.3 The effectiveness of the PPC Campaign(s) will be determined in part by the budget allotted thereto and available. Failure by the Client to make the required budget(s) available may have a negative effect on the related PPC Campaign(s). The Service Provider accepts no responsibility for any such negative effect
5.6 The ongoing PPC Services shall be provided by the Service Provider.
6.1 In consideration of the PPC Services the Client shall pay to the Service Provider an initial Fee detailed in the Order Forms plus VAT and a campaign and/or management fee set by the Sales Agent and recorded on the Order Forms.
6.2 Payment of all Fees due under this Agreement shall be made within 14 days of receipt by the Client of the Service Provider’s invoice for the same.
6.3 The Service Provider shall keep the Client fully informed of any and all sums due in relation to the PPC Campaign(s). The Client shall transfer all such sums to the Service Provider for payment to the Designated Search Engine(s) or within 14 days of being informed of the need for the same by the Service Provider.
6.4 All payments made under this Agreement shall be expressly exclusive of any value added tax chargeable thereon.
7. INTELLECTUAL PROPERTY
7.1 The Service Provider shall use material provided by the Client in addition to its own material in performing the PPC services.
7.2 The Intellectual Property Rights subsisting in material provided by the Client shall continue to vest in the Client unless the Client expressly indicates otherwise.
7.3 The Intellectual Property Rights subsisting in material provided by the Service Provider shall be assigned to the Client upon receipt by the Service Provider of all relevant sums due in consideration of the PPC Services. Upon such assignment, the Service Provider shall be deemed to have waived all moral rights in respect of such work arising out of Chapter IV of the Copyright Designs and Patents Act 1988. Following such assignment, the Client shall be free to use such materials including, but not limited to, the keywords included in the PPC Campaign(s), in the same PPC Campaign(s) or for any other purposes.
7.4 The Service Provider further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Service Provider by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Service Provider by such third parties and will, where relevant, be subject to the requirements of sub-Clause 7.3.
7.5 Nothing in this Agreement shall vest any rights in the Website in the Service Provider and sub-Clause 7.3 shall effect the assignment of any Intellectual Property Rights which may arise to the benefit of the Service Provider in the Website to the Client.
8. SERVICE PROVIDER’S WARRANTIES AND INDEMNITY
8.1 The Service Provider represents, warrants, undertakes, and agrees with the Client as follows:
8.1.1 the work produced in the course of the PPC Services shall be original to the Service Provider and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
8.1.2 the work produced in the course of the PPC Services shall not, under the laws of any jurisdiction be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the work will, if published, constitute a contempt of court;
8.1.3 the Service Provider shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the work produced in the course of the PPC Services except pursuant to this Agreement and shall not enter into any agreement or arrangement which might conflict with the Client’s rights under this Agreement or might interfere with the Service Provider’s performance of its obligations under this Agreement;
8.2 The total liability of the Service Provider under this Agreement shall be limited to a sum equivalent to the total sum paid to it for its services under this contract.
9. CLIENT’S WARRANTIES AND INDEMNITY
9.1 The Client represents, warrants, undertakes, and agrees with the Service Provider as follows:
9.1.1 the Website and the Required Information shall be original to or otherwise owned by the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
9.1.2 the Website and the Required Information shall not, under the laws of any jurisdiction be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the Website or the Required Information will constitute a contempt of court;
9.1.3 the Client shall not enter into any agreement or arrangement which might conflict with the Service Provider’s rights under this Agreement or might interfere with the Service Provider’s performance of its obligations under this Agreement;
9.1.4 the Client hereby undertakes to indemnify the Service Provider and keep the Service Provider at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Service Provider on a solicitor and own-client basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Client of any of the Client’s undertakings, warranties, or obligations under this Agreement.
10.1 Both Parties undertake that, unless authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and for two years after its termination:
10.1.1 keep confidential all Confidential Information;
10.1.2 not disclose any Confidential Information to any other party;
10.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
10.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
10.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 10.
10.2 Subject to sub-Clause 10.3, either Party may disclose any Confidential Information to:
10.2.1 any of their sub-contractors, substitutes, or suppliers;
10.2.2 any governmental or other authority or regulatory body; or
10.2.3 any of their employees or officers or those of any party described in sub-Clauses 10.2.1 or 10.2.2;
10.3 Disclosure under sub-Clause 10.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 10.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
10.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
10.5 When using or disclosing Confidential Information under sub-Clause 10.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
10.6 The provisions of this Clause 10 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
11.1 Either party may terminate this Agreement by giving the other party not less than three months written notice.
11.2 This Agreement will remain in effect for the period of time that the parties agree that the Service Provider will provide the Pay Per Click services.
11.3 Either party shall have the right, exercisable by giving not less than three months written notice to the other prior to the expiry of the period agreed between them, or any other further period for which this Agreement has been extended pursuant to this provision to extend this Agreement for a further period of one year.
11.4 Without prejudice to the generality of sub-Clause 11.1, this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
11.4.1 either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable of remedy, is not remedied within 21 days of written notice of such failure from the other Party;
11.4.2 an encumbrancer takes possession, or where the other Party is a Service Provider, a receiver is appointed, of any of the property or assets of that other Party;
11.4.3 the other Party makes any voluntary arrangement with its creditors or, being a Service Provider, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
11.4.4 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a Service Provider, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the Service Provider resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
11.4.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
11.4.6 the other Party ceases, or threatens to cease, to carry on business; or
11.4.7 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
11.5 The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
12 EARLY CANCELLATION
12.1 In the event that the Client terminates the Agreement within twelve months from the date of the contract, or the Agreement is terminated by the Service Provider prior to the expiry of the twelve month period referred to above due to the default of the Client then the Service Provider will suffer a substantial loss. In an effort to liquidate in advance the sum that should represent such damage , the Client agrees to pay a fee equivalent to that which represents the loss which the Service Provider has sustained had the contract not been terminated within the first year.
13 NATURE OF THE AGREEMENT
13.1 This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
13.2 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
13.3 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.4 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
14.1 The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
15.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by:
15.1 delivering it by hand;
15.1.2 sending it by pre-paid registered First Class post to address Active Internet marketing, 3a Basset Court, Loake Road, Northampton, Northamptonshire, NN4 5EZ; or
15.1.3 sending it by electronic transmission to the other party at the address firstname.lastname@example.org
15.1.4 Any notice or information given by post in the manner provided by Clause 15.1.2 which is not returned to the sender as undelivered shall be deemed to have been given to the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
15.1.5 Any notice or information sent by electronic transmission, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent as provided in Clause 15.1.3 to the other party at the address given in Clause 15.1.3 within 24 hours after transmission.
16. ALTERNATIVE DISPUTE RESOLUTION
16.1 Any dispute or difference arising between the Parties relating to this Agreement or its subject matter shall be referred to a single arbitrator to be agreed upon by the Parties or, failing such agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales.
16.2 The Parties hereby agree that the decision of the Arbitrator shall [not] be final and binding on both Parties.
17. LAW AND JURISDICTION
17.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
17.2 Subject to the provisions of Clause 16, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.