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AGREEMENT
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10.12.23

PARTIES:

(1)           Vanilla Circus Limited is a limited company incorporated in England and Wales (registration number 06914386) whose registered address is at Thornton House, Thornton Road, London, United Kingdom, SW19 4NG (the “Company“);

and

(2)           xxxx is a limited company incorporated in xxxx whose registered address is xxxxxx

The above parties indicated their acceptance of proposal VCxxxxxxx

Cost: £xxxx + vat PCM.
Start Date xxxx

EXECUTION:

SIGNED

Duly authorised for and on behalf of Vanilla Circus Limited

xxxxxxxxxxxxxxxxxx                                      xxxxxxxxx

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Signature                                                                                Name                                                      Date

SIGNED and duly authorised for and on behalf of the Customer

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Signature                                                                Name                                                      Date

Terms – Vanilla Circus

1. Definitions and interpretation

1.1           In this Agreement:

“Affiliate” means a company, firm or individual that Controls, is controlled by, or is under common control with the relevant Company, firm or individual;

“Agreement” means this Agreement (including the schedules and appendices thereto) and any amendments to it from time to time;

“Business Day” means any weekday, other than a bank or public holiday in England;

“Business Hours” means between 09:00 and 17:30 on a Business Day;

“Charges” means the amounts payable by the Customer to the Company under or in relation to this Agreement (including expenses), calculated in accordance with Clause 7;

“Confidential Information” means 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” shall have the meaning given in section 1124 of the Corporation Tax Act 2010;

“Deliverables” has the meaning given in the Schedule to this Agreement;

“Start Date” date listed on page one

“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 (other than in each case by the party seeking to rely on this clause or companies in the same group as that party), disasters, explosions, riots, terrorist attacks and wars);

“GDPR” General Data Protection Regulation ((EU) 2016/679);

“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, rights in computer software, 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, semiconductor topography rights and rights in designs);

“Minimum Term” means 90 days starting on the ‘Start Date’;

“Personal Data” has the meaning given to it in the Data Protection Act 1998, GDRP and any other directly applicable European Union regulation relating to privacy;

“Schedule” means the Schedule attached to this Agreement;

“Services” means marketing and SEO services relating to the website or websites, as detailed in Clause 3 and the Schedule to this Agreement;

“Term” means the term of this Agreement;

“Website” means the website or websites specified in the Schedule; and

1.2           In this Agreement, a reference to a statute or statutory provision includes a reference to:

• That statute or statutory provision as modified, consolidated and/or re-enacted from time to time provided that such modification, consolidation and/ or re-enactment extends the obligations of the Customer to beyond those at the date of this Agreement; and
• Any subordinate legislation made under that statute or statutory provision.

1.3           The Clause headings do not affect the interpretation of this Agreement.

2. Term

2.1           This Agreement will come into force on the Start Date and will continue in force for the Minimum Term unless terminated early in accordance with Clause 15.

2.2           At the end of the Minimum Term the parties may agree that the Services shall continue for an additional term to be agreed between the parties.

3. Supply of Services

3.1           From the start date, the Company will promote customer websites; promotion of the Websites which may include the provision of some or all of the following Services:

• Addition of backlinks using appropriate keywords to external websites
• Paid and unpaid submission of the website to search engines and web directories;
• The creation and publication of material relating to the Customer on other websites similar to a press release;
• The implementation and/or utilisation of on and off-page content and traffic funnelling websites;
• Other website promotion techniques, whether known at the date of the Agreement or discovered or disseminated thereafter.
• The services as detailed in the practice-specific proposal, to which these Terms are attached.

3.2           The Company shall provide to the Customer the Services together with any additional services which the Customer might reasonably request, commensurate with the services specified.

3.3           In providing the Services, the Company shall use its reasonable endeavours to promote and maintain the business of the Customer and will not do, say or permit or omit to do anything which might reasonably cause prejudice, loss of reputation, damage or injury to the Customer or any of its associated companies, sponsors, advertisers, employees or consultants.

3.4           The Company shall carry out the Services at its premises, or any other location agreed between the parties.

3.5           Unless the Company has been specifically authorised to do so in writing by the Customer, the Company shall neither:

3.5.1        Have any authority to incur any expenditure in the name of or for the account of the Customer; nor

3.5.2        Hold itself out as having authority to bind the Customer.

3.6             The Company shall:

• provide the Services within clause 3.1;
• ensure that the Services will conform in all respects and that the Services shall be fit for any purpose expressly or implicitly made known to the Company by the Customer;
• ensure that the Services and all goods, materials, standards and techniques used in providing the Services are of the best quality and are free from defects in workmanship, installation and design;
• co-operate with the Customer in all matters relating to the Services, and comply with the Customer’s instructions;
• before the date on which the Services are to start, obtain and at all times, maintain during the term of this Agreement, all necessary licences and consents and comply with all applicable laws in relation to:
  • the Services; and the installation and use of the Supplier’s software;
• not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business;
• notify the Customer in writing immediately upon the occurrence of a change of control of the Company.

4. Customer Responsibilities

4.1           The Customer will provide to the Company:

• Assistance in determining appropriate keywords and keyword phrases that should be targeted using the Services;
• Direct access to analytical data concerning the website, such as data concerning referral sources, visitor activity, Website usage, conversion rates, and similar data; and
• All other co-operation, information and documentation reasonably required by the Company for the provision of the Services; and as provided in the Schedule to this Agreement.

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 the Company will have been collected and collated in accordance with all applicable laws and regulations, and that the use of any such list by the Company for the purposes of the Services in accordance with the instructions of the Customer will not:

• Breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003);  Infringe any third party’s legal rights; or Give rise to any cause of action whether against the Company, the Customer, or any other person.

5.2           Where the Company reasonably suspects that there has been a breach of the provisions of this Clause 5, the Company 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           Subject to clause 5.5 below the Customer hereby indemnifies and undertakes to keep indemnified the Company against any direct liabilities, damages, losses, expenses and costs (including legal fees and amounts paid in settlement of any claim or legal action) arising, directly, out of any breach by the Customer of this Clause 5 subject to clause 10.9.

save where such liabilities damages, losses, expenses and costs due to the Company’s performance breach as per clause 3 above.

5.5 The Customer’s total liability to the Company shall not exceed £1,000. The Customers total liability includes liability in contract, tort (including negligence) breach of statutory duty or otherwise, arising under or in commencing with clause 4.1 above, save in respect of GDPR, where the Company will satisfy itself in respect of each software provider used in connection with the use or supply of Services

5.6     In the event of any loss or damage to Customer information caused by the Company and without prejudice to any other rights or remedies that the Customer may have, the Company acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Company. Accordingly, the Customer shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement. The Company will use all reasonable commercial efforts to restore the lost or damaged Customer information from the latest back-up of Customer information in accordance with its archiving procedure and to assist with the re-posting of any transactions which could not be recovered.

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 the Company 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 Agreement, including during any continuation of the term.

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.

6.4           External websites, those not of the Customers used for backlinking processes remain the property of the Company and any backlinks placed on these websites remain at the discretion of the Company. The Company is not under any obligation to retain these websites or backlinks when the Agreement has ceased, Save that the Company shall use all  endeavours and provide all assistance to ensure that the Customer can transfer such backlinks and websites to any new supplier that the Customer appointees,  without such transfer of backlinks or website lowering the ranking of the website in a search engine at the date of the transfer or the disappearance of the website from a search engine.

6.5           The Company acknowledges that all Intellectual Property Rights subsisting in or attaching to anything created by the Company in the course of the Services shall belong to and vest in Customer absolutely to the fullest extent permitted by law.

7. Charges and payment

7.1           The Customer will pay to the Company the Charges in respect of the Services (excluding Deliverables), which will be equal to the sum mentioned on page one of this contract for the Minimum Term and as agreed between the parties following the Minimum Term if extended pursuant to clause 2.2.

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 clause 7.1 in respect of that period.

7.3           The Company will issue invoices to the Customer regarding 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 the Company within 30 days of the date of receipt of an invoice issued in accordance with Clause 7.3.

7.5           All Charges stated in or concerning 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 the Company to the Customer from time to time).

7.7           The company reserve the right to increase the monthly fee by inflation after the contract has been running for a full 12 months.

7.8           The Company will:

• Ensure that the person providing the Services complete records of all work undertaken.
• Retain such records and evidence during the term and for a period of 12 months following the end of the term; and
• Supply such records and evidence to the Customer within 10 Business Days following receipt of a written request to do so. (this is listed a (d))

8. Warranties

8.1           The Customer warrants to the Company 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, skill and efficiency in a lawful, proper and timely manner.

8.3           The Company undertakes that the Services will be performed and will always perform the Services to the highest level of care, skill and diligence in accordance with best practice in the Company’s industry, profession or trade.

8.4           The Customer acknowledges that:

• Google algorithms will change from time to time, which may affect the website’s rankings in the search engine results pages, and the Company has no control over such changes;
• 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;
• Backlink 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;
• The Company 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 the Company as part of the Services;
• 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
• Notwithstanding the Services, the website’s search engine results page rankings and traffic levels may decrease as well as increase.

8.5           The Company does not warrant that any particular results will be achieved through SEO. Where the Company 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.

9.0           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.

10. Limitations and exclusions of liability

10.1         Nothing in the Agreement will:

• Limit or exclude the liability of a party for death or personal injury resulting from negligence; /
• Limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
• (Limit any liability of a party in any way that is not permitted under applicable law; or /
• Exclude any liability of a party that may not be excluded under applicable law.

10.2         The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Agreement:

• Are subject to Clause 10;
• 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

10.3         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.

10.4         Neither party will be liable for any loss of business, contracts or commercial opportunities.

10.5         Neither party will be liable for any loss of or damage to goodwill or reputation.

10.6         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 willful misconduct of a party.

10.7         Neither party will be liable in respect of any special, indirect or consequential loss or damage.

10.8         Neither party will be liable for any losses arising out of a Force Majeure Event.

10.9         Neither party’s aggregate liability under the Agreement will exceed the total amount paid or (if greater) payable by the Customer to the Company under the Agreement.

11. Data protection

11.1         The Customer warrants that it has the legal right to disclose all Personal Data that it does disclose to the Company under this Agreement and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.

11.2         The Company warrants that:

• It will act only on instructions from the Customer concerning the processing of any Personal Data performed by the Company on behalf of the Customer; and
• 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. 3 Both parties will comply with all applicable requirements of the Personal Data legislation and GDPR.

11.4          The parties acknowledge that for the purposes of the Personal Data legislation, the Customer is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection legislation. The Schedule sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Personal Data and categories of Data Subject (both as defined in the Data Protection Legislation).

11.5         The Company shall indemnify the Customer against any loss or damage suffered by the Customer in relation to any breach by the Company of its obligations under this clause 11.4

12. Confidentiality

12.1         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 12.

12.2         Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.

12.3         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.

12.4         These obligations of confidentiality will not apply to Confidential Information that:

• Has been published or is known to the public (other than as a result of a breach of this Agreement);
• 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
• 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.

12.5         Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement.

13. Exclusivity:

13.1         The Company shall not provide any of the Services, or services similar to the Services, to any third party that is an immediate competitor of the Customer. An immediate competitor is defined as a similar business in the same or close by geographical location.

14. 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.

15. Termination

15.1         Written notice can be given at any time. The notice period for Vanilla Circus to cease work is 90 days after the date of notice. Notice has to be written in the form of a letter or email.

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

• 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

• Persistently breaches the terms of this Agreement.

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

• The other party: Is dissolved; or Ceases to conduct all (or substantially all) of its business; or Is or becomes unable to pay its debts as they fall due; or Is or becomes insolvent or is declared insolvent; or Convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
• 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).

16. Effects of termination

16.1         Upon termination all the provisions of this Agreement will cease to have an 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,, 7.7, 10, 12, 15 and 16.3 to 17.11.

16.2         Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.

16.3         If this Agreement is terminated under Clause 15.1, or by the Customer, under Clause 15.2 or 15.3 (but not in any other case) the Customer will be entitled to a refund of any Charges paid by the Customer to the Company 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 the Company (such amount to be calculated by the Company using any reasonable methodology).

16.4         Save as provided in Clause 15.3, 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 the Company.

17. General

17.1         Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered by email, for the attention of the relevant person, and to the relevant email address provided (or as notified by one party to the other in accordance with this Clause 17).

17.2         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):

• Where the notice is delivered personally, at the time of delivery; /
• Where the notice is sent by first class post, 48 hours after posting; and
• 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).

17.3         No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

17.4         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).

17.5         Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

17.6         This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.7         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.

17.8         The Company may not subcontract any of its obligations under this Agreement to any third party.

17.9         Save for Affiliates of the Customer, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person which is not a party to this Agreement.

17.10

• 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;
• 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
• Neither party will have any liability other than pursuant to the express terms of this Agreement.

17.11       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.

18. Personal Data

1998. All personal data shall be processed fairly and lawfully in accordance with the DPA 1998.
1999. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes
2000. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed
2001. Personal data shall be accurate and, where necessary, kept up to date
2002. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes
2003. Personal data shall be processed in accordance with the rights of data subjects under this Act
2004. technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data
2005. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.