Terms and Conditions of Contract

AGREEMENT:


1.       Definitions and interpretation

1.1    In this Agreement:

Confidential Information” means:
(a)     any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential.

Control” means the legal power to control (directly or indirectly) the  management of an entity (and “Controlled” will be construed accordingly);
Effective Date” means 01.05.13

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including but not limited to any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);


1.2    In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a)      that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b)     any subordinate legislation made under that statute or statutory provision.
1.3    The Clause headings do not affect the interpretation of this Agreement.
1.4    The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2.       Term
           This Agreement will come into force on the 01.05.13 and will continue in force  until terminated in accordance with Clause 13.

3.       Services
3.1    From 01.05.13,Vanilla Circus will promote the websites; promotion of the Websites may include the provision of some or all of the following Services:

(a)     addition of backlinks using appropriate keywords to external websites
(b)     paid and unpaid submission of the Website to search engines and web directories;
(c)     the creation and publication of material relating to the ACS on other websites. similar to a press release;
(d)     the implementation and/or utilisation of banners and traffic funnelling websites;
(e)     other website promotion techniques whether known at the date of the Agreement or discovered or disseminated thereafter.

4.       Customer Responsibilities
4.1    The Customer will provide to Vanilla Circus:
(a)     assistance in determining appropriate keywords and keyword phrases which should be targeted using the Services;
(b)     direct access to analytical data concerning the Website, such as data concerning referral sources, visitor activity, Website usage, conversion rates, and similar data; and
(c)      all other co-operation, information and documentation reasonably required by Vanilla Circus for the provision of the Services.]

5.       Legality
5.1    Without prejudice to the generality of Clause 10.1, the Customer warrants that any marketing list (including any email marketing list) provided by the Customer, or on behalf of the Customer, to Vanilla Circus will have been collected and collated in accordance with all applicable laws and regulations, and that the use of any such list by Vanilla Circus for the purposes of the Services in accordance with the instructions of the Customer will not:

(a)      breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003);
(b)     infringe any third party's legal rights; or
(c)      give rise to any cause of action whether against Vanilla Circus, the Customer, or any other person.
5.2    Where Vanilla Circus reasonably suspects that there has been a breach of the provisions of this Clause 5,Vanilla Circus may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter. 
5.3    Any breach by the Customer of this Clause 5 will be deemed to be a material breach of this Agreement.
5.4    The Customer hereby indemnifies and undertakes to keep indemnified Vanilla Circus against any and all liabilities, damages, losses, expenses and costs (including legal expenses and amounts paid in settlement of any claim or legal action) arising, directly or indirectly, out of any breach by the Customer of this Clause 5.

6.       Intellectual Property Rights
6.1    The Customer grants to the Company a non-exclusive licence to use the website(s) to the extent required for Vanilla Circus to perform its obligations and exercise its rights under the Agreement.
6.2    All Intellectual Property Rights of all on-page SEO work and content created on a customer website, remains the property of the customer during AND AFTER the term of the contract.
6.3    The Company will not pass off as their own, any content or images that do not have the appropriate licences in place for allowed copyright for use within any electronic document or website(s). The Company will not infringe the copyright of the customer's competitor sites and / or leave the customer in a libellous situation howsoever arising.

7.       Charges and payment
7.1    The Customer will pay to the Company the Charges in respect of the Services, which will be equal to: the sum listed as a monthly retainer in the schedule
7.2    The Company will ensure that the Charges in respect of the Services provided in any period do not exceed the budget specified in the Schedule in respect of that period.
7.3    The Company will issue invoices to the Customer in respect of Charges for the Services monthly in advance on the 1st day of each calendar month during the Term
7.4    The Customer will pay the Charges to Vanilla Circus within 7 days of the date of [issue/receipt] of an invoice issued in accordance with Clause [7.3].
7.5    All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise.
7.6    Charges must be paid by [debit or credit card, direct debit, bank transfer or by cheque (using such payment details as are notified by Vanilla Circus to the Customer from time to time)].
7.7    If the Customer does not pay any amount properly due to Vanilla Circus under or in connection with this Agreement,Vanilla Circus may: (a)      charge the Customer interest on the overdue amount at the rate of 3 % per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily from the due date until the date of actual payment); or
(b)     claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7.8    The Company will:

(a)      ensure that the personnel providing the Services complete records of all links built
(b)     retain such records and evidence during the Term and for a period of [12 months] following the end of the Term; and
(d)     supply such records and evidence to the Customer within 10 Business Days following receipt of a written request to do so.

8.       Warranties
8.1    The Customer warrants to Vanilla Circus that it has the legal right and authority to enter into and perform its obligations under this Agreement.
8.2    The Company warrants to the Customer   that it will perform its obligations under this Agreement with reasonable care and skill.

8.3    The Customer acknowledges that:
(a)     Google algorithms will change from time-to-time, which may affect the Website’s rankings in the search engine results pages, and Vanilla Circus has no control over such changes;
(b)     it can take many months for the Organic Search to have any significant effects upon the ranking of a Website in the search engine results pages;
(c)     Link Building is an ongoing task and, should the Customer terminate this Agreement and/or stop promoting the Website, that would be likely to have a negative impact upon the effects of the Services;
(d)     Vanilla Circus will not be responsible for any alterations to the Website made by the Customer or any third party that reverse or effect changes made to the Website by Vanilla Circus as part of the Services;
(e)     the promotion of the Website may lead to higher traffic levels and bandwidth requirements for the Website, and the Customer will be responsible for arranging and paying for such requirements; and
(f)      notwithstanding the Services, the Website’s search engine results page rankings and traffic levels may decrease as well as increase.
8.4    The Company does not warrant that any particular results will be achieved through the SEO.  Where Vanilla Circus indicates specific targets that it will attempt to meet through the provision of the Services, such targets are not warranted and a failure to meet such targets will not be a breach of the Agreement.
8.5    All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement.  To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

9.       Limitations and exclusions of liability
9.1    Nothing in the Agreement will:
(a)     limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b)     limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c)      limit any liability of a party in any way that is not permitted under applicable law; or
(d)     exclude any liability of a party that may not be excluded under applicable law.
9.2    The limitations and exclusions of liability set out in this Clause 9 [and elsewhere in the Agreement]:
(a)      are subject to Clause 9.;
(b)     govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement], including liabilities arising in contract, in tort (including negligence) and  breach of statutory duty; and
9.3    Neither party will  be liable in respect of any consequential loss including but not limited to loss of profits, income, revenue, use, production or anticipated savings.
9.4    Neither party will be liable for any loss of business, contracts or commercial opportunities.
9.5    Neither party will be liable for any loss of or damage to goodwill or reputation.
9.6    Neither party will  be liable in respect of any loss or corruption of any data, database or software unless such loss or corruption of data arises as a result of negligence or wilful misconduct of a party.
9.7    Neither party will be liable in respect of any special, indirect or consequential loss or damage.
9.8    Neither party will [ be liable for any losses arising out of a Force Majeure Event.

9. 9  Neither party's aggregate liability under the Agreement] will exceed the total amount paid or (if greater) payable by the Customer to Vanilla Circus under the Agreement.

10.    Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Vanilla Circus under this Agreement, and that the processing of that Personal Data by Vanilla Circus for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.

10.2 The Company warrants that:
(a)      it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Vanilla Circus on behalf of the Customer; and
(b)     it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.

11.    Confidentiality
11.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 11.
11.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
11.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
11.4 These obligations of confidentiality will not apply to Confidential Information that:
(a)      has been published or is known to the public (other than as a result of a breach of this Agreement);
(b)     is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or (c)        is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

12.    Publicity
           Neither party will  make any public disclosure relating to this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party.

13.    Termination
13.1 The contract is for a 90 day term and notice given would mean that the contract terminates at the end of the 90 day period the notice is received in. Either party may terminate this Agreement at any time by giving at least 7 days' written notice with the contract ending on the last day of the end of the current 90 day period the notice is given in.
 
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:

(a)      commits any material breach of any term of this Agreement, and:

(i)      the breach is not remediable; or
(ii)     the breach is remediable, but the other party fails to remedy the breach within  14  days of receipt of a written notice requiring it to do so; or

(b)     persistently breaches the terms of this Agreement.

13.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:

(a)     the other party:

(i)       is dissolved; or
(ii)     ceases to conduct all (or substantially all) of its business; or
(iii)    is or becomes unable to pay its debts as they fall due; or
(iv)    is or becomes insolvent or is declared insolvent; or
(v)      convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;  or

(b)     an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c)     an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or

14.    Effects of termination
14.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 5.5, 7.7, 9, 11, 14 and 15.3 to 15.12.
14.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
14.3 If this Agreement is terminated under Clause 13.1, or by the Customer under Clause 13.2 or 13.3](but not in any other case) the Customer will be entitled to a refund of any Charges paid by the Customer to Vanilla Circus in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Vanilla Circus (such amount to be calculated by Vanilla Circus using any reasonable methodology).
14.4 Save as provided in Clause 14.3, the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Vanilla Circus.

15.    General
15.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by pre-paid first class post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address given in the Schedule (or as notified by one party to the other in accordance with this Clause).
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a)      where the notice is delivered personally, at the time of delivery;
(b)     where the notice is sent by first class post, [48 hours] after posting; and
(c)      where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
15.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
15.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect.  If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
15.5 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
15.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
15.7 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
15.8 The Company may not subcontract any of its obligations under this Agreement to any third party.

15.11          
(a)     this Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b)     neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and

(c)     neither party will have any liability other than pursuant to the express terms of this Agreement.

15.12           This Agreement will be governed by and construed in accordance with the laws of England ; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

16.0 Reporting

Payment of invoices by the "Customer" can only be expected by "the Company" after reports have been compiled and sent to the customer outlining SEO / Traffic / SERPs achieved in both the invoicing month and in comparison to previous months. Without reports that are similar to reports emailed by "the Company" in the later stages of 2012, payment will not be made by "the Customer". See appendix doc VC0009252.

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