Terms and Conditions

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1. Definitions
(a) For the purpose of this Agreement, the terms set forth hereunder (either in singular or plural form) is defined to mean, unless the context requires otherwise, as follows.
(b) "The Agency" shall mean "Brian Nichols t/a Web-Wright Online Business Consultancy"
(c) "Client" shall mean the customer named on the order form or otherwise requesting the work.
(d) "Project" shall mean each project performed by the Agency for the Client pursuant to the terms and conditions of this Agreement, including all Services and Deliverables to be provided by the Agency under each specific Project Brief.
(e) "Project Brief" shall mean written scope of work agreed to between the Agency and the Client as to each Project to be undertaken by the Agency. It may be a separate document or the Deliverables section of the sales order form. In the event of a conflict with respect to a specific Project, the Scope, Services, Deliverables, The Agency's responsibilities, the Client's responsibilities, between a Project Brief and this Agreement, the Project Brief shall prevail. Any changes to a Project Brief must be in writing and signed by the Client and the Agency.
(f) "Deliverables" are the outputs of Services to be supplied under any Project Brief, and shall include but are not limited to, all software and written material, including programs, tapes, listings, and other programming documentation.
(g) "Confidential Information" hereunder includes all information which is considered proprietary to the Agency, the Client or its customers, as the case may be, including but not limited to information or materials related to the business affairs of the respective party, customer information, designs and documentation of systems and software, and the Services and Deliverables developed as part of this Agreement.
(h) "Effective Date" of this Agreement shall mean the date on which the order form was placed by the Client.
(i) "Representatives" shall mean either as individuals or collectively, employees, officers, directors, agents and consultants of the Agency and the Client, as the case may be.
(j) "Records" shall mean such notes, sketches, drawings, photocopies or other written or photographic records of or relating to each Project.
(k) "Proprietary Rights" shall mean all patents, copyrights, trademarks and trade secrets in any Services or Deliverables.
(l) "Pricing" shall mean the fees paid by the Client to the Agency as set forth on the Agencies website, written quotation and/or the Project Brief.
(m) "Services" shall mean all work performed by the Agency for the Client on each Project.
(n) "Due Date" of the Invoice is the date by which effective payment of the invoice is to be received by the Agency. Unless otherwise agreed in writing the due date is ten calendar days from the date of issue of the invoice.
2. Payment Terms
Full payment for all projects shall be made in advance to the Agency for every project on submission of the Project Brief, unless otherwise agreed in writing or provided in the Project Brief. Where it is agreed that some or all of the payment may be deferred until after work has commenced, payment is due on presentation of the invoice. Once the final payment has been received, Deliverables will be published or delivered as appropriate and any returnable materials provided by the Client will be returned by the Agency. If payment is not received by the Due Date, the Agency reserves the right to charge interest and recover collection charges as permitted in The Late Payment of Commercial Debts (Interest) Act 1998 and the amendments and supplements in The Late Payment of Commercial Debts Regulations 2002. In addition the Agency may send out reminder letters and the Client will be charged the sum of £25 + VAT for each reminder letter.
3. Variation of Charges, Services And Terms
The Agency reserves the right to increase or decrease charges and/or introduce new charges and/or add or remove or change the services provided by the Agency to the Client from time to time. In the event of any such changes, 14 days prior notice will be given to the Client by the Agency.
4. Proprietary Rights
(a) The Client shall retain sole title and ownership of all Proprietary Rights previously held by the Client. The Agency shall have sole title and ownership of all Proprietary Rights created or developed by the Agency in the provision of the Deliverables.
(b) The Client shall ensure that any items, including but not limited to pictures text video sound, supplied by the Client for inclusion in the Project have the appropriate rights to be used in the intended fashion. The Client shall inform the Agency of rights restrictions relating thereto and client shall be responsible for payment of fees, royalties etc. for the use of such items.
(b) The Client hereby irrevocably and unconditionally indemnifies and shall hold the Agency fully harmless from and against any and all actions, proceedings, losses, damages, liabilities, obligations, costs, claims, charges and expenses suffered by the Agency of whatever nature arising out of or in connection with the Agency's use of any materials supplied to it by the Client in the course of its performance of its obligations under the Project. This shall include (but is not limited to) any applicable copyrights, trade secrets, trade names, patents, intellectual property rights or obscenity laws in any country of jurisdiction in which the content of the Project can be reviewed or retrieved.
(c) Once full payment has been received by the Agency, the Agency will grant to the Client, a non-exclusive royalty free licence to use the intellectual property in connection with the Deliverables. This licence is personal to the Client and cannot be assigned or transferred to any person (including, for the avoidance of doubt, any group Agency or associate of the Client) without the prior written consent of the Agency.
(d) The Client hereby grants the Agency an irrevocable licence to use images or extracts from the Project for promotional purposes for the Agency and for the Agency to identify itself as creator within the project.
5. Warranties
(a) The Agency warrants that any Services provided shall be done in a workmanlike manner by competent personnel, knowledgeable in the Services and Deliverables thereunder.
(b) The Agency makes no other warranties of any kind or nature, whether express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or use or warranties of uninterrupted or error free performance of computer systems, hardware, software, application or equipment.
(c) The Client warrants that the Services will be used within the provisions of the Acceptable Use Policy as set out on the Web-Wright web site.
6. Damages
It is expressly agreed between the Client and the Agency that the liability for any damages arising out of provision of the services under this agreement to the Client by the Agency whether caused by negligence of the Agency, its employees, agents and subcontractors or otherwise is limited to actual damages, but shall in no event exceed £100.00. The Client and the Agency hereby acknowledge that damages would be difficult to ascertain and quantify and agree that this provision liquidates the damages and is not a penalty.
7. Confidentiality
(a) The Agency shall, cause each of the Representatives working on the projects, to keep all Confidential Information of the Client or the Clients customers confidential, not to disclose it to any third party without the prior written consent of the Client or the Clients customers, and not to use it for any purpose other than that for which it was provided to the Agency.
(b) The Agency shall only disclose Confidential Information to those Representatives who need to know the same for legitimate business purposes.
(c) The Client and its Representatives similarly agree to maintain information regarding The Agencies processes, tools, methodologies and any other Confidential Information of the Agency strictly confidential, and the foregoing paragraphs shall apply equally to the Clients obligations to the Agency.
(d) Notwithstanding the above, Confidential Information shall not include any information which
(i) is available to the public, or becomes available to the public other than as a result of an improper disclosure hereunder,
(ii) was previously known to the party obligated hereunder, or
(iii) becomes available to the obligated party on a non-confidential basis from a source other than the disclosing party, provided the source is not known by the obligated party to be in violation of a confidentiality obligation to the disclosing party.
8. Standard of Quality
(a) The respective Project Brief may provide a list of the measures to be taken and the quality criteria to be applied in the execution of a Project.
(b) Services provided by the Agency shall be tested by the Client. Successful testing of the designs based on the above provided criteria will signify the completeness of the Services delivered and the fulfillment of the acceptance criteria.
9. Independent Contractor Status
(a) The Agency and the Client agree and understand that the Agency is performing under this Agreement as an independent contractor for the Client, and neither the Agency nor any of its employees, agents or subcontractors are employees or agents of the Client.
(b) The Agency, its employees, agents and subcontractors have no authority to make any contract or create any obligation or liability whatsoever on behalf of the Client.
(c) Nothing contained herein shall be construed as reserving to the Client any right to control the Agency with respect to The Agencies conduct in the performance of this Agreement or the manner in which the Services under this Agreement are performed.
10. Force Majeure
Neither party shall be liable to the other party for any failure to perform or delay in performance of any of its obligations or duties or the terms of the provision of this Agreement, if any, to the extend such failure or delay is caused by or are attributable to any event of force majeure, to the extend the event is not within the control of that party whose performance under this Agreement is effected thereby.
11. Validity
(a) This agreement shall come into force on the Effective Date of this Agreement and in the case of continuous services shall be valid for a period of 12 months. Thereafter the agreement may be extended by a further 12 month period. Renewal of this Agreement shall be taken up one month prior to the expiry of this Agreement.
(b) This Agreement may be terminated by the Client in writing giving three months notice.
(c) Either party may terminate a specific Project Brief, with notice, should any of the following occur:
(i) any material breach of the provisions of this Agreement by the other party;
(ii) theft or fraud by the other party;
(d) In the event that a Project or Project Brief is cancelled before its completion, the Client shall pay the Agency for its Services and Deliverables provided (whether or not complete) until the date of cancellation plus any reasonable a wind-down cost of £100. Expenses incurred by the Agency thereafter (including, without limitation, any reasonable expenses incurred in reallocating employees of the Agency to other projects).
12. Other Provisions
(a) The terms and provisions of this Agreement or any Project Brief cannot be altered or modified without a written instrument duly signed by both parties.
(b) By executing a Project Brief with respect to a Project, the Agency and the Client acknowledge that there are no agreements or understandings written or oral, between them with respect to the Project other than as set forth herein or in the Project Brief and that this Agreement and such Project Brief contain the entire agreement between the Agency and the Client with respect to such Project.
(c) In the event that the Agency provides Services or Deliverables to the Client without a Project Brief being executed with respect thereto, all of the terms and conditions of this Agreement shall apply with respect to the provision of such Services or Deliverables to the extent that they are not in conflict with any other written agreement governing the provision of such Services and Deliverables.
(d) No omission or delay by the Agency or the Client at any time to enforce any right or remedy reserved to it, or to require performance of any other terms, covenants or provisions hereof or of a Project Brief shall be a waiver of any such right or remedy.
(e) All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement or Project Brief shall be given in writing and shall only be deemed received upon actual receipt by the Agency or the Client, as the case may be. Fax, email and courier services are permissible non-exclusive means of delivery. It shall be sent to the person and to the address or fax number for such party set forth on the order form overleaf or to such changed person, address or fax number as may be subsequently submitted by written notice of either party. (name, address, email, fax number & telephone number).
(f) the use of services shall be within the provisions of the Acceptable Use Policy
13. Severability
In the event any one or more of the provisions of this Agreement and/or Project Brief shall be held invalid, illegal or unenforceable, the remaining provisions of this Agreement and/or Project Brief shall be unimpaired and the Agreement and/or Project Brief shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision which comes closest to the intention of the parties underlying the invalid, illegal or unenforcable provision.
14. Jurisdiction
This Agreement shall be construed in accordance with and governed for all purposes by the laws of England and Wales.

Additional Terms and Conditions for Search Engine Services

Definitions:

Client : The customer requesting the work. The Client must have authority to amend the website in question.

Agency: Brian W Nichols trading as Web-Wright Online Business Consultancy and authorised representatives.

Recommended Work: Work that the Agency recommends that the client does so that the optimisation will be effective.

Effective Start Date:The date on which the Agency receives completion of the Recommended Work from the Client.

Keyword: a word or phrase that may be entered into a search engine by a person searching for a site.

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1. Payment for optimisation service is required in advance. Should the client cancel or the contract be terminated by the provisions herein, no refund of payment either in full or in part may be made. The exception being that should a maintenance contract with more than one month prepaid be terminated by the Agency, a refund will be made pro-rata of months not delivered.

2. The optimisation of web pages may require alteration to the visible content of the page. The Agency reserves the right to make such amendments or request the client to make or have made amendments (Recommended Work) either in preparation for optimisation work or during the period cover by the maintenance agreement.

3. The Client will arrange for amendments to be made in accordance with the Agency's recommendations in a timely fashion. Failure to comply with such a request will cancel any guarantee/rebate scheme that may otherwise apply. In extreme circumstances, the Agency reserves the right to cancel the order altogether on delivery of 14 written notice to the client.

4. From the Effective Start Date until informed by the Agency, the Client will not permit, cause or otherwise allow any party to edit change reupload or otherwise alter the content or structure of any of the web pages being optimised

 

Supplementary Terms and Conditions for the Guaranteed Position services

5. The Agency reserves the right not to accept instructions on normal terms for certain sites including but not restricted to sites with highly competitive keywords

6. Guaranteed Position services are provided on a 12 month contract against a limited guarantee as described herein. The Agency will work on achieving and then maintaining high positions during the 12 months.

7. The Agency agrees that the contracted number of high positions will be achieved on setting up the optimisation provided the Client first completes any Recommended Work. The method of determination of the positions is described in Schedule A.

8. The Client agrees that the Agency will have full and exclusive access to the website from the Effective Start Date until the guarantee level is met. The Client shall allow the Agency to work unhindered against the agreed brief. Failure by the Client to meet these requirements will invalidate the guarantee.

9. If the Agency fails to achieve the guaranteed number of positions in 6 months, the final 6 months service will be provided free of charge. If the guarantee is not achieved in 12 months then the Client may claim recompense as detailed in Schedule B.

10. If a Client wishes to make a claim for recompense; it must be done in writing by post or email. If the claim is not acknowledged within 7 days, the Client must satisfy himself that it has been delivered. Recompense can be claimed up to 28 days following the end of the period to which the claim relates. All dates are reckoned in calendar months from the Effective Start Date.

Schedule A

Method of determination:

In order to determine the number of top 'X' positions, the following methodology is used:

• Each search engine to which the Client's site has been submitted will be searched using each of the Keywords that the site has been optimised for.
• The search will be limited to the first 'X' entries returned by each search engine
• Every instance of the Client's website being returned in the search results will count.

 

Schedule B

Recompense for failure to achieve guaranteed positions

NOTE: the Agency reserves the right to alter the details of this schedule without notice.

In the first instance, the Agency may offer at its choice services of equal or greater equivalent value to the monetary figures set out below. In particular, the standard recompense for failure to meet the guaranteed level on a maintenance contract will be free extension of the contract by one month.

In the event of the Agency failing to achieve the guaranteed positions, recompense points will be awarded against a claim. The value of each point varies according to the service taken.

 

% of achieved positions	Recompense Points
100 and above	0
85-99	100
70-84	200
55-70	300
40-54	400
below 40	500

 

Monetary values of points
Package
Economy	30p
Standard	35p
Advanced	47p
Premium	60p

 

Example 1

You contract for the premium service and we only achieve 42% of the guaranteed listings. You may claim 400 recompense points, each valued at 60p, or £240.00

 

Example 2

You contract for the standard package and only 75% of the guarantee. You may claim 200 points each valued at 35p, or £70.00

© 2007 Brian Nichols, Web-Wright Online Business Consultancy

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