1. Application
1.1. These terms and conditions together with the Proposal Document to which they are attached (“Proposal Document”) shall form a binding contract between the Client named on the Proposal Document (the “Client”) and Nigel Adams Digital (“Nigel Adams Digital”) and shall constitute the entire agreement between Client and Nigel Adams Digital.
1.2. These terms and conditions shall apply to any trading agreement or other contract or arrangement between the Client and Nigel Adams Digital.
1.3. These terms and conditions apply to the exclusion of all other terms or conditions of contract the Client may propose and shall not be varied or amended unless agreed in writing and signed by Nigel Adams Digital.
2. Commencement and Scope of Engagement
2.1. In consideration of the payment by the Client to Nigel Adams Digital of the fees as set out in the Proposal Document (the “Fees”), Nigel Adams Digital agrees to provide to the Client the goods and services described in the Proposal Document (the “Works”) in accordance with the Proposal Document, with reasonable and due care in accordance with and subject to these terms and conditions. The Works shall unless terminated in accordance with clause 11, be provided by Nigel Adams Digital for the period set out in the Proposal Document
(the “Engagement”).
2.2. This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent Nigel Adams Digital acting for or providing the same or similar works to the Works to any existing or prospective third party.
2.3. The Works provided by Nigel Adams Digital shall be for the use and benefit of
the Client and may not be supplied or passed on to any person without the approval of Nigel Adams Digital. Nigel Adams Digital’s duty of care is to the Client, not to any third
party, unless agreed Nigel Adams Digital has agreed in writing to accept a duty to the
third party. The Client may only rely upon the Works provided by Nigel Adams Digital for
the purposes which such goods and services are provided.
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 Works, including without limitation any
modification of the Works, modification or changes to the Client’s web site, or the use of or
inclusion of any third party product or service which might relate to the Works shall interfere with
the provision of the Works by Nigel Adams Digital and shall affect the results, outcomes
and positions in search engines. All such activities should be discussed with Nigel Adams Digital
prior to implementation and the Client shall not implement the same without the prior
written consent of Nigel Adams Digital.
3. Duties and Responsibilities of the Client
3.1. The Client shall at all times during the Engagement co-operate with and act in good faith towards Nigel Adams Digital and shall, on request, undertake such acts and provide such source materials (including those listed in the Proposal Document) (collectively referred to as the “Materials”) as Nigel Adams Digital require to incorporate into the Works, or as Nigel Adams Digital
require to carry out its obligations under the Proposal Document and
hereunder.
3.2. In the event that the Client does not undertake those acts or provide those Materials required
under clause 3.1 above within a reasonable time (and at least within 30 days) of being requested to
do so, including without limitation carrying out any changes, modifications or optimisations to
Client’s website or other Materials as requested, recommended or required by Nigel Adams Digital, Nigel Adams Digital shall be entitled to invoice for the remaining works as if Client had done so whether such are provided or not.
3.3. During the provision of the Works by Nigel Adams Digital to the Client, the Client
shall not:
3.3.1. Employ the services of any Search Engine Optimisation or Pay Per Click Company other
than Nigel Adams Digital to work on their website promotion;
3.3.2. Employ the services of any Submission Company other than Nigel Adams Digital
for the provision of their Search Engine Optimisation services;
3.3.3. Create any duplicate sites, duplicate content or pages, redirects or doorway pages to
their website;
3.3.4. Request or exchange links with any link farms or undertake any spamming techniques
which may harm the web site’s search engine ranking with Google.
3.4. The Client shall grant the authority to submit the web site pages being promoted to search engines, directories and other web sites. The Client shall provide Nigel Adams Digital with log-in information to allow us to gain access to the Client website.
3.5. The Client shall be responsible for informing as required by their webmaster or anyone
else who has access to their web site, that Nigel Adams Digital are performing Search Engine Optimisation or Pay Per Click services on their site.
3.6. The Client shall inform Nigel Adams Digital of any change or changes made to their website throughout your Search Engine Optimisation or Pay Per Click campaign within 24 hours of such change or changes being implemented.
3.7 The Client shall inform Nigel Adams Digital within 24 hours of work
commencing if any other person or agency apart from Nigel Adams Digital is working on or making changes or a change to the pay per click, Search Engine Optimisation or any other aspect of digital marketing.
3.8 The Client shall inform Nigel Adams Digital within 24 hours of work
commencing if any other person or agency apart from Nigel Adams Digital makes a change or changes to your website/websites.
3.9 The Client shall grant the authority to connect accounts, including pay per click accounts and Analytics accounts to 3rd party tools/services for the purpose of administering the accounts,
reporting and improving performance through bid management for example.
4. Fees and Invoicing
4.1. Nigel Adams Digital does not offer credit terms. All fees must be paid in full prior to the start of work between Nigel Adams Digital and the Client, and thereafter fees are to be paid in advance of work to be carried out the month ahead. Nigel Adams Digital shall issue invoices on a monthly basis for all Works provided to the Client in a particular calendar month. Invoices will be issued prior to work commencing for the following month. The Client shall raise any query and/or concern it may have in relation to any invoice within 7 days of the date of the invoice. Any queries and/or concerns raised after this 7 day period shall be null and void and the invoice shall be payable in full without deduction or setoff.
4.2. Notwithstanding the period set out in clause 4.1 of 7 days of date of issue of a invoice to raise any queries or concerns in relation to an invoice, all invoices are to be settled in favour of Nigel Adams Digital without deduction or set-off within 14 days of the date of the invoice unless specified otherwise in the Proposal Document.
4.3. In the event of non-payment of any invoice Nigel Adams Digital shall be entitled to withhold or suspend the provision of further Works until such time as it receives payment of the
invoice or other payments due. In addition Nigel Adams Digital shall be entitled to retract the Works provided to the Client and invoiced for under any unpaid invoice until such time as it receives payment of that invoice.
4.4. In addition to the remedies for late payment of invoices set out in clause 4.3 hereof, Nigel Adams Digital shall be entitled to charge statutory interest at the rate of 8% above the
Bank of England reference rate in force on the date the invoice becomes overdue for payment and any subsequent rate where the reference rate changes and the invoice remains unpaid in
accordance with the Late Payment of Commercial Debts (Interest) Act 1988 as amended and
supplemented by the Late Payment of Commercial Debts Regulations 2002 and shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments.
4.5. Nigel Adams Digital may charge additional fees in accordance with its then prevailing rates:
4.5.1. in the event of delays or additional works caused or required by Client including its
failure to provide Nigel Adams Digital with such information, Materials,
instructions, media or approvals, as are reasonably required for the supply of the Works,
properly and/or on time in accordance with clause 3.1 of these terms and conditions or
otherwise;
4.5.2. in the event of changes to the cost of labour, materials, services and other
circumstances outside of Nigel Adams Digital’s reasonable control;
4.5.3. in the event that Client requires the supply of Works, goods and services in addition to those described in the Proposal Document or any variations to the Works. If Client requires any change or alteration to the Works (“Change”), Nigel Adams Digital and Client shall, prior to such change being effective or implemented, agree:
the nature of the Change;
the procedures for implementation of such Change;
and the variation to the Fees.
until any Change is formally agreed between Client and Nigel Adams Digital, Nigel Adams Digital will continue to perform and be paid for the Works as if the Change had not been proposed.
4.5.4. All and any Changes to the Works shall be reflected and accompanied by appropriate amendments to the Proposal Document and Fees.
5. Liability for Third Party Fees
5.1. In the event that the Works include Pay Per Click or other search engine placement
services which require payments to third parties and are agreed with the Client prior to their
implementation, the Client shall provide Nigel Adams Digital with funds on account for
any out of pocket expenses incurred by it in supplying the same.
5.2. In addition and as supplemental to clause 5.1 of these terms and conditions the Client
shall during the Engagement retain ownership of their AdWords and/or other Pay Per Click accounts and shall be liable for any fees due to third parties for those accounts during the Engagement.
6. Confidentiality
6.1. The Client undertakes that it will keep secret and confidential the terms of the Engagement
Letter and any information supplied by Nigel Adams Digital in connection with the
Proposal Document or the business of Nigel Adams Digital and the Works 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 prior written consent of
Nigel Adams Digital PROVIDED THAT this Clause shall not extend to information which
was and can be shown to be rightfully in the possession of the Client prior to the issuance of the
Proposal Document or which is in the public domain (other than as a result of a breach of this Clause).
6.2. The Client undertakes to Nigel Adams Digital to indemnify and hold
harmless Nigel Adams Digital in full and defend at its own expense Nigel Adams Digital
against all costs, damages and losses incurred by Nigel Adams Digital
arising out of its use of the Materials or breach by the Client of clause 6 of these terms and
conditions.
6.3. The Client shall not modify, adapt or translate the Works except with the prior written
consent of Nigel Adams Digital or as otherwise permitted by law where all modifications,
adaptations, translations shall belong to and vest in Nigel Adams Digital unless otherwise
agreed and specified in writing in the Proposal Document.
6.4. Nigel Adams Digital warrants that it will use reasonable efforts to ensure that
the Works do not infringe the copyright of any third party.
6.5. Nigel Adams Digital shall not divulge details of the Client to any other existing or
potential client.
7. Liability
7.1. Nigel Adams Digital does not guarantee any specific result on any search
engine, nor any increased level of traffic or sales as a result of the Search Engine Optimisation and/or Link Building and/or Pay Per Click campaign. Site rankings change frequently as a result of regular changes in the algorithms used by search engines to rank sites, and other factors. The Client agrees that the work done by Nigel Adams Digital is in real time and will be affected by these and other factors.
7.2. The Client shall inspect the Works regularly and shall inform Nigel Adams Digital
immediately if it wishes to contend that any part of the Works do not comply with the Proposal Document or are defective in material and workmanship.
7.3. If the Works do not comply with the Proposal Document or are defective in material or
workmanship, Nigel Adams Digital’s liability shall be limited to taking such practical steps
to correct such defects as are possible within a reasonable time. Such reasonable time shall
commence upon receipt of written notice from the Client of the alleged defective Works. Such
remedial action shall be limited to no greater amount of work or key strokes than that carried out to do the work initially. The Client recognises that material put up on the web is not in practise always within the control of the author after initial dissemination and that Nigel Adams Digital
cannot be responsible for material, once released, residing on third party sites. Nigel Adams Digital
shall not be liable for any indirect, consequential losses or special losses and shall
not be liable for any loss of turnover, sales, revenue or profits or for the loss of software or data. In addition Nigel Adams Digital shall not be liable for:
7.3.1. any loss or damage caused by it being given access to the Client’s computer systems
(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;
7.3.2. any interference in or modification of the Works or the Client’s web site by the Client
or any third party or the consequences thereof, remedy of which shall be as a Change;
7.3.3. loss of service, unavailability of files, damage of data, misuse of equipment by third
parties, failure of any externally managed equipment or Communications devices or other
services deemed to be beyond the control of Nigel Adams Digital;
7.3.4. Loss of reputation of the Client online or offline.
7.3.5. penalisation or lower rankings resulting from SEO or link building activity carried out
by other agencies, individuals or yourselves prior to our Engagement.
7.3.6. penalisation or lower rankings resulting from SEO or link building activity carried out
by other agencies, individuals or yourselves during our Engagement.
7.3.7. poor performance or any issues resulting from pay per click or other digital marketing activity carried out by other agencies, individuals or yourselves during our Engagement.
7.4. When instructions or advice are given or received orally by Nigel Adams Digital, it
shall have no liability to Client for any misunderstanding or misrepresentation which may arise in
relation thereto except in relation to fraudulent misrepresentations.
7.5. Nigel Adams Digital shall have no liability to Client in respect of the Materials.
On completion of the Works the Client agrees to collect the Materials within 2 months of completion of the Works, failing which, Nigel Adams Digital may dispose of them on giving the Client 14 days notice.
7.6. Nigel Adams Digital shall not be responsible for any activity that the Client has
put in place or wants to put in place that is against Google AdWords policies or other Pay Per Click platform policies.
7.7. Nigel Adams Digital will not be liable in any amount for failure to perform any
obligation under the Proposal Document and/or these terms and conditions if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Nigel Adams Digital including without limitation Internet outages, communications outages, fire,
flood, war or act of God.
7.8. Save as provided for in clauses 7.1 to 7.6 of these terms and conditions, Nigel Adams Digital
shall have no liability to the Client whatsoever in relation to the Works and gives no warranty and makes no representation as to whether the Works 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.
7.9 By entering into this agreement, the Client agrees to limit the claims which it makes, to
claims against Nigel Adams Digital. The Client agrees that it will not make any claims
against any individuals related to Nigel Adams Digital, however arising, and whether
against an employee, consultant or member personally, in respect of losses which the Client may suffer directly or indirectly or which it may incur arising from the services. This does not prevent Nigel Adams Digital being responsible to the Client for the acts or omissions of such
persons, where it has such responsibility regardless of this clause. The individuals related to Nigel Adams Digital (whether employees consultants or members) will be entitled to the benefit of the provisions of this Clause 7.9.
8. Legislation
8.1. The Client shall comply with all applicable rules, regulations, codes of practice and laws
relating to its use of the Works 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.
8.2. The Client shall guarantee throughout the Engagement that the material included in the
web site:
8.2.1. Is not in breach of the Intellectual Property rights of any third party;
8.2.2. Is not obscene within the definition of the Obscene Publications Act 1959 or any
other relevant provision or statute;
8.2.3. Is not in breach of any code or provision of statute or common law or otherwise in
force from time to time in relation to Advertising of Goods or Services;
8.2.4. Contains no element of corporative advertising which is in breach of the Control of
Misleading Advertisements (Amendment) Regulations 2000;
8.2.5. Is not in breach of the Defamation Act 1996 or any other relevant provision or
statute;
8.2.6. Does not contain any misleading price comparison in breach of Consumer Protection Act.
9. Third Party Materials
9.1. Nigel Adams Digital gives no warranty, representation or undertaking in
relation to any third party materials or works.
9.2. Prior to any selection, use or reproduction by the Client of Works, Nigel Adams Digital
shall use reasonable efforts to, on reasonable request, provide the Client with copies and
evidence of such rights, clearances, permissions and licences as shall be necessary for the use of the Works by the Client.
10. 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 Nigel Adams Digital in
respect of the Works, title in any physical products delivered to the Client shall remain with Nigel Adams Digital.
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. Termination
11.1. Subject to the provisions of clause 4 of these terms and conditions, Nigel Adams Digital shall be entitled to immediately restrict, suspend or terminate the Engagement in the event of the Client’s material breach of any of these terms and conditions and/or breach of the Proposal Document.
11.2. In addition to clause 11.1 of these terms and conditions, Nigel Adams Digital reserve the right to terminate the Engagement with immediate effect if it believes the Client’s Materials or Web Site to be obscene, unfair or untrue. The discretion of Nigel Adams Digital in this respect will be absolute.
11.3. The Client may not unilaterally terminate this Engagement except for material breach by Nigel Adams Digital of the Proposal Document and/or these terms and conditions. In the event of such a material breach the Client shall remain liable for payment of the Fees without deduction or set-off up to the time of such material breach.
11.4. Notwithstanding the provisions set out in clauses 11.1 to 11.3 Nigel Adams Digital and/or the Client may terminate the Engagement by 30 days notice in writing to the other party (the “30 day notice period”). The Client shall be liable for payment of all outstanding fees and interest accrued under clause 4.4 of these terms and conditions together with all fees incurred in the 30 day notice period without deduction or set-off.
11.5. Either party may provide written notice to the other to terminate this agreement with immediate effect if one of the following events occurs:
11.5.1. Either party goes into liquidation or makes any arrangement or composition with its creditors or is otherwise unable to pay its debts within the meaning of Section 123 Insolvency Act 1986;
11.5.2. Either party’s ability to carry out its obligations under this agreement is prevented or substantially interfered with for any reason for a period in excess of three months (whether or not within the control of such party) including without limitation by reason of any regular law decree or any act of state or any other action of a government.
11.6. The client acknowledges that no refunds will be given for any payment received for work which has already been carried out.
12. General
12.1. Nothing in the Proposal Document or these terms and conditions shall be deemed to constitute a partnership or agency relationship between the Client and Nigel Adams Digital and neither the Client nor Nigel Adams Digital 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 the Proposal Document or these terms and conditions become
unenforceable, such part will at Nigel Adams Digital’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 Nigel Adams Digital in enforcing the provisions of these terms and conditions or the Proposal Document shall prejudice or restrict the rights of Nigel Adams Digital nor shall any waiver of rights operate as a waiver of any subsequent breach the Proposal Document and/or these terms and conditions.
12.4. The Client shall not assign the benefit or burden of these terms and conditions or the Proposal Document without the prior written consent of Nigel Adams Digital.
13. Law
13.1. These terms and conditions and the Proposal Document are governed by English Law and any dispute, difference or claim arising under and /or out of these terms and conditions and/or the Proposal Document are to be referred to the exclusive jurisdiction of the English courts.
