T&C’s

Terms & Conditions of Service

The following are the SEMS Terms & Conditions of Service that you will be deemed to have accepted when signing an order form, or confirming your acceptance of costs by reply email, or verbal confirmation via the telephone, or by using any of the services provided to you by SEMS.

This Agreement is made

Between:

(1) Search Engine Marketing Specialists Ltd who’s Registered Office address is 593 Holly Lane, Birmingham. B24 9LU (“SEMS”) and

(2) The Customer

Background

A contract for services between the Customer and Search Engine Marketing Specialists Ltd, a web service provider.

The precise nature of the services is as specified under Schedule 1 or otherwise in the order form as presented, or as posted on Search Engine Marketing Specialists Ltd’s website where

It is agreed as follows:

1. Definitions and interpretation

1.1 In this Agreement, unless the context otherwise requires, the following words have the following meanings:

“Commencement Date” as set out in schedule 1 ;

“Initial Term” the initial term referred to in clause 2;

“Law” any applicable legislation, EU regulation or directive having direct effect, or provision of common law, in each case having the force of law and any change to it then in force;

“Notice” includes any notice, demand, consent or other communication;

“Price” the price for the services set out in schedule 2;

“Renewed Term” a renewed term referred to in clause 2;

“Services” the provision of a web publishing service as more particularly described in Schedule 1;

“Term” the Initial Term and any Renewed Term.

1.2 In this Agreement, unless the context otherwise requires:

(a) words in the singular include the plural and vice versa and words in one gender include any other gender;

(b) a reference to a statute or statutory provision includes any subordinate legislation  made under it, any repealed statute or statutory provision which it re-enacts (with or without modification), any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;

(c) a reference to any party includes its successors in title, permitted assigns, employees, agents and sub-contractors and clauses and schedules are to clauses and schedules of this Agreement and references to sub-clauses and paragraphs of the clause or schedule in which they appear; and

(d) the table of contents and headings are for convenience only and shall not affect the interpretation of this Agreement.

2. Duration

Subject to termination as set out in clause 12, this Agreement shall come into effect on the Commencement Date and shall remain in effect for 1 year, or less if agreed in writing by Search Engine Marketing Specialists Ltd under Schedule 1, which shall be the Initial Term.  At the end of the Initial Term, or any subsequent term of it subject to renewal under this clause (“a Renewed Term”) this Agreement shall be renewed automatically for a period of 1 year (or other term as agreed in writing)

3. Obligations of Search Engine Marketing Specialists Ltd

3.1 Search Engine Marketing Specialists Ltd shall provide the Services as agreed under Schedule 1.  Time shall not be of the essence in the performance of its obligations under this Agreement. Search Engine Marketing Specialists Ltd shall however endeavour to provide services in accordance with the service specification as agreed in writing with the Customer.

3.2 Notwithstanding any times or dates given for performance of the services Search Engine Marketing Specialists Ltd may make such changes to the times or dates of performance as may be necessary due to its reasonable operational requirements and shall where possible give the Customer reasonable notice of such changes.   If such changes are made but as a result of any act or omission of the Customer Search Engine Marketing Specialists Ltd incurs additional costs, Search Engine Marketing Specialists Ltd may charge the Customer accordingly.

3.3 Search Engine Marketing Specialists Ltd may sub-contract performance of the whole or any part of its obligations under this Agreement.

3.4 In performing the Service, Search Engine Marketing Specialists Ltd shall comply with:

(a) all special conditions and safe working procedures notified in writing by the Customer to Search Engine Marketing Specialists Ltd in accordance with the Customer’s obligations under Law;

(b) Law relating to the performance of Search Engine Marketing Specialists Ltd obligations; and

(c) Good Operating Practice.

3.5 Search Engine Marketing Specialists Ltd shall carry out the services in accordance with the Law and to a standard as agreed with the Customer in writing. Such standard shall not be less than reasonable as would be expected from a web service provider of Search Engine Marketing Specialists Ltd’s experience and shall take into account Search Engine Marketing Specialists Ltd’s size, resources and manpower.

4. Obligations of the Customer

4.1 The Customer shall be deemed to have accepted the Services as satisfactory if the Customer has not notified Search Engine Marketing Specialists Ltd within 5 working days of completion of the Services.

4.2 The risk of loss or damage to the Customer’s web site shall pass to and remain with the Customer from the earlier of:

(a) the completion of the Services;

(b) the Customer receiving notice from Search Engine Marketing Specialists Ltd that completion of the Services is not possible;

(c) the Customer instructing Search Engine Marketing Specialists Ltd to delay Service for any reason.

4.3 The web site design shall remain the property of Search Engine Marketing Specialists Ltd and the Customer shall have no rights to it other than those set out in this Agreement. The output files as created by Search Engine Marketing Specialists Ltd shall however become the property of the Customer upon payment in full of the contract price.

4.4 The Customer shall:

(a) adequately insure its business for any necessary and inevitable business interruption loss as a result of ongoing web site design modifications;

(b) accept that whilst all care is taken in providing time estimates for resumption/initiation of web site services ,including marketing and sales, there exist certain imponderables that make it unwise to rely solely upon such estimates and means for marketing and selling their business services and products and Customers are advised to have in place an alternative scheme should such web site work overrun or not be complete by the agreed Completion date;

(c) be solely responsible for the safety, security and protection of the web site once in operation, unless otherwise agreed in writing between the parties.;

(d) be responsible for providing the Service specification which cannot be modified by the Customer without Search Engine Marketing Specialists Ltd written consent once the Services have been commenced on the Commencement date. In the event that such consent may be granted it shall be dependent upon such additional expense being agreed first between the parties.

4.5 If the web site design is lost, stolen or damaged due to the failure of the Customer in full or in part the Customer shall indemnify Search Engine Marketing Specialists Ltd in respect of such loss including the loss of profit and all other expenses.

4.6 The Customer shall be responsible for the marketing and use of the web site.

5. Description of services

5.1 If the Customer notifies Search Engine Marketing Specialists Ltd of any service change different from that the Service specification initially agreed Search Engine Marketing Specialists Ltd may (without prejudice to any other right or remedy available to it):

(a) suspend performance of the Services or

(b) adjust the Price.

5.2 Search Engine Marketing Specialists Ltd will not be obliged to provide the Services outwith the initial design specification as agreed under Schedule 1 except by later agreed variation.

5.3 Search Engine Marketing Specialists Ltd may at its sole discretion provide the Services for a period longer than the Initial or Renewed Term for the purposes of further testing and modifying the Services where defects have been claimed by the Customer.

5.4 Search Engine Marketing Specialists Ltd may refuse to deal with any late or frequent amendments to the agreed design/services specification by the Customer and Search Engine Marketing Specialists Ltd accepts no liability for the consequences of such refusal.

6. Price and Payment

6.1 In consideration of the provision of the Services, the Customer shall pay to Search Engine Marketing Specialists Ltd the amounts set out in Schedule 2,subject to variation as set out in clause 7.

6.2 Search Engine Marketing Specialists Ltd may make an additional charge for Services provided at the request of the Customer at times outside of normal working periods or which at the request of the Customer vary from the agreed specification. In this case Search Engine Marketing Specialists Ltd shall be entitled to such fees and costs as are agreed between the parties or where not agreed determined by the Director of Search Engine Marketing Specialists Ltd whose decision shall be final and binding between the parties.

6.3 Subject to any special terms agreed in writing between Search Engine Marketing Specialists Ltd and the Customer, Search Engine Marketing Specialists Ltd may invoice the Customer on or at any time after performance.

6.4 All payments to Search Engine Marketing Specialists Ltd shall be made against Search Engine Marketing Specialists Ltd invoices which shall be presented at the end of each calendar month during the period of the provision of the Services.  All payments shall be made by the Customer within 30 days following the receipt by the Customer of Search Engine Marketing Specialists Ltd’s invoice save that payment of all outstanding invoices shall become due on the happening of any event set out in clause 12.2.

6.5 Payment shall be made in full by the Customer in accordance with this Agreement and the Customer shall not set-off any payment against any other sums claimed.  However Search Engine Marketing Specialists Ltd shall be entitled to deduct or set off against any payment due by it to the Customer any sum that is claimed.

6.6 Time of payment shall be of the essence and Search Engine Marketing Specialists Ltdhe rate of 4% over and above the base rate from time to time of National Westminster Bank plc.

6.7 All Prices are exclusive of Value Added Tax which shall be charged by Search Engine Marketing Specialists Ltd and be payable by the Customer at the appropriate rate.

6.8 Search Engine Marketing Specialists Ltd may require the Customer to pay a sum on account before the commencement of any Services to cover the agreed costs of the Services. Such sum shall only be debited upon production of an invoice by Search Engine Marketing Specialists Ltd to which the Customer either:

(a) agrees expressly or

(b) is deemed to agree if no query or objection is raised within 5 days of posting of the invoice.

Where a query or objection is raised in full or in part those elements of the invoice that are not contested may be debited from the monies on account. A note of this shall then be sent to the Customer.

7. Price adjustments

7.1 Where Search Engine Marketing Specialists Ltd provides Services throughout the year Search Engine Marketing Specialists Ltd may increase the charges and rates set out in Schedule 2 in any subsequent year to compensate for any increase in costs caused by any of the following:

(a) an increase in the Index of Retail Prices (all items) as published by the Central Statistical Office (or any replacement of that index);

(b) changes in Law applicable to the Services which shall include changes in taxes, duties, fees, licensing or other relevant Government charges.

7.2 Search Engine Marketing Specialists Ltd may only increase the Price for reasons other than those set out in Clause 7.1 with the consent of the Customer.

8. Liability and Indemnity

8.1 Except as expressly provided in this Agreement, all terms implied by Law in relation to the provision of the Services by Search Engine Marketing Specialists Ltd are excluded to the fullest extent permitted by Law.

8.2 No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by Search Engine Marketing Specialists Ltd shall be construed to enlarge, vary or override in any way any of the provisions of this Agreement.

8.3 Search Engine Marketing Specialists Ltd accepts liability for death or personal injury to the extent that it results from its negligence.

8.4 Search Engine Marketing Specialists Ltd shall not be liable to the Customer for any breach of this Agreement caused directly or indirectly by any act or omission of the Customer.

8.5 Search Engine Marketing Specialists Ltd accepts no liability for any loss of or damage to any property of the Customer or property otherwise under its control.

8.6 Search Engine Marketing Specialists Ltd shall not be liable to the Customer for any direct or indirect or consequential loss (including, without limitation, economic loss or loss of profits or goodwill) or for any damage or expense of any nature in connection with the provision of the Services.

8.7 In substitution for all rights which the Customer would or might have had but for this Agreement Search Engine Marketing Specialists Ltd undertakes that if within 7 days of performance of the Services it appears that such Services have been performed defectively or not at all Search Engine Marketing Specialists Ltd will at its sole discretion either re-perform the Services or credit the Customer with the proportionate part of the Price.  Any claim made under this clause shall be notified within 48 hours of the time when such defect was or might reasonably have been discovered.

8.8 Except as specifically provided elsewhere in this Agreement, or as required by Law Search Engine Marketing Specialists Ltd liability to the Customer for any act or omission shall be limited to the lower of (a) the annual value of the Agreement and three times the contract value or (b) £5,000.

8.9 Without prejudice to any other rights or remedies available to Search Engine Marketing Specialists Ltd the Customer shall fully indemnify Search Engine Marketing Specialists Ltd against all losses and costs arising from:

(a) any breach of the Customer’s obligations under this Agreement;

(b) any act or default of the Customer;

(c) any breach of Law by the Customer.

8.10 The provisions of this clause shall survive the termination of this Agreement howsoever caused.

9. Insurance

As and when requested by Search Engine Marketing Specialists Ltd in writing the Customer undertakes and agrees to take out and maintain insurance cover of a minimum of £100,000 to cover its liabilities under this Agreement and agrees to produce at Search Engine Marketing Specialists Ltd request a copy of the insurance policy or policies and the relevant renewal receipts for inspection by Search Engine Marketing Specialists Ltd.

10. Force majeure

Search Engine Marketing Specialists Ltd shall not be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this Agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action or unavailability of equipment or utilities including but not limited to electricity and telephone supplies and/or internet access due to technical difficulties.

11. Suspension of Services

11.1 Search Engine Marketing Specialists Ltd may suspend performance of the Services if at any time it has reasonable cause to believe that the Customer will not be able to meet its obligations under this Agreement.  Any suspension of Services shall not affect the rights of Search Engine Marketing Specialists Ltd to payment.

12. Termination

12.1 Either party to this Agreement may terminate it by giving to the other 30 day’s notice in writing to expire at the end of each anniversary of the Commencement Date.

12.2 Search Engine Marketing Specialists Ltd may by notice in writing immediately terminate this Agreement if the Customer shall:

(a) expressly or impliedly repudiate this Agreement by refusing or threatening to refuse to comply with any provision of this Agreement;

(b) be incompetent, guilty of gross misconduct and/or any serious or persistent negligence in its obligations under this Agreement;

(c) commit a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt of a notice from Search Engine Marketing Specialists Ltd identifying the breach and requiring its remedy; or

(d) be unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the Customer) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of Search Engine Marketing Specialists Ltd means that the Customer may be unable to pay its debts.

12.3 If Search Engine Marketing Specialists Ltd terminates the Agreement under the provisions of this Clause the Customer will pay to Search Engine Marketing Specialists Ltd all costs, losses, claims, damages and expenses incurred by Search Engine Marketing Specialists Ltd as a result of the Customer’s breach and the consequent termination.

12.4 Termination of this Agreement shall be without prejudice to any rights or liabilities of either party, which may have accrued up to the time of termination.

12.5 At Search Engine Marketing Specialists Ltd sole discretion where the contract between Search Engine Marketing Specialists Ltd and the customer is prematurely terminated by the Customer, with/without any breach of confidentiality, Search Engine Marketing Specialists Ltd shall be entitled to a sum of liquidated damages amounting to 75% of the outstanding price accruable for the unexpired period to the natural end date of the agreement-such sum representing a fair compensation of time, effort, up-front costs and industry invested and it is agreed that this clause does not operate as a penalty clause and is effective in law.

12.6 Upon termination any services provided shall come to an end unless they are continued by mutual agreement in writing.

13. Assignment

13.1 This Agreement shall be binding on and enure for the benefit of the successors in title of the parties. Such rights shall not be assignable by the Customer without the prior written consent of Search Engine Marketing Specialists Ltd.

13.2 Search Engine Marketing Specialists Ltd may assign the benefit of this Agreement.

14. Confidentiality

14.1 The parties shall at all times keep confidential information acquired as a result of the Agreement.  This obligation shall not apply to information which either party is required to disclose under Law or where required by regulatory agencies or where necessary required for the performance of professional services.

14.2 In particular for the duration of this agreement and for a period in any event not exceeding 6 years from the date of disclosure by Search Engine Marketing Specialists Ltd to the Customer of the agreed design specification the Customer:

(a) Agrees to keep all design information confidential;

(b) Agrees to keep all records of the design in safe custody;

(c) Agrees not to permit or disclose to third parties orally or in writing the details of the design without Search Engine Marketing Specialists Ltd written consent obtained from a proprietor of the company;

(d) Agrees not to make any use of the design information or any adaptation or variation of the same without Search Engine Marketing Specialists Ltd written consent obtained from a proprietor of the company;

(e) Agrees to return to Search Engine Marketing Specialists Ltd all copies of the terms and conditions of the agreement within 1 month of Search Engine Marketing Specialists Ltd’s written request;

15. General

15.1  This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement.

15.2 The Customer acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, Search Engine Marketing Specialists Ltd shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.

15.3 To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

15.4   No purported variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.

15.5 The rights, powers and remedies conferred on any party by this Agreement and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.

15.6 Either party may, in whole or in part, release, compound, compromise, waive, or postpone, in its absolute discretion, any liability owed to it or right granted to it in this Agreement by the other party without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.

15.7 No single or partial exercise, or failure or delay in exercising any right, power or remedy by Search Engine Marketing Specialists Ltd shall constitute a waiver by Search Engine Marketing Specialists Ltd of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.

15.8 Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

16 Notices

16.1 Any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post or prepaid recorded delivery (but not, for the avoidance of doubt, or facsimile or e-mail) to the address of the party as set out on page 1 of this Agreement or as otherwise notified in writing from time to time.

16.2 Notices shall be deemed to be received on the working day following posting or, where delivered by hand, within 2 working hours on the same day.

16.3 A party shall not attempt to prevent or delay the service on it of a notice connected with this Agreement.

17 Governing law and jurisdiction

17.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales.

17.2 Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.

This Agreement has been signed and dated on the corresponding order form.