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THIS AGREEMENT is made the day of
These Terms and Conditions govern the provision of Pay-Per-Click (PPC) services offered by Effemey Cosby Advertising Limited ("Company," "we," "us," or "our") to the client ("you" or "Client"). By using our PPC services, you agree to these terms and conditions. Please read them carefully before signing any agreement or starting any campaigns.
WHEREAS:
(1) At all material times the Company is engaged in the business of providing pay-per-click advertising (“PPC”) management services.
(2) The Client wishes to improve the search engine visibility of their website (“the Website”).
(3) The Company hereby agrees to provide its services to the Client subject to the terms and conditions of this Agreement.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
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“Business Day” |
means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales; |
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“Confidential Information” |
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); |
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“Designated Search Engine” |
means a search engine on which the Company shall perform the PPC Services as chosen by the Client; |
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“Fee” |
means the consideration payable to the Company for the PPC Services as defined in Clause 5; |
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“Intellectual Property Rights” |
means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights; |
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“PPC Campaign” |
means a pay-per-click advertising campaign set up and managed by the Company for and on behalf of the Client in the course of providing the PPC Services; |
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“PPC Proposal” |
means a document detailing the Company’s proposed PPC Campaign(s) and, where relevant, other information pertaining to the PPC Services; |
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“PPC Services” |
means the pay-per-click advertising management services to be provided by the Company under this Agreement as described in Schedule 1; |
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“PPC Setup” |
means the setting up of the PPC Campaign(s) as is more fully described under the description of PPC Services in Schedule 1; and |
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“Required Information” |
means the information (and materials) which the Client must supply to the Company to enable the Company to carry out the PPC Services as defined in Schedule 1. |
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement;
1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a "Party" or the "Parties" refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
2. Engagement of the Company
2.1 The Client hereby engages the Company to provide the PPC Services.
2.2 The Company shall complete the PPC Setup.
2.3 The Client shall provide the Required Information to the Company by <
2.4 The ongoing PPC Services shall continue for a minimum period of 6 months, which period may be renewed upon the agreement of both Parties.
2.5 The Company shall be responsible for the quality of the PPC Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by it to perform all or any part of the PPC Services shall also do so competently and with reasonable care.
3. Nature of Engagement
3.1 The Company shall at all times be responsible for organising how and in what order the PPC Services are performed and shall liaise with the Client (or the Client’s representative) to ensure that due account is taken of the impact of the timing of the PPC Services to be performed upon the activities of the Client and any other contractors, consultants and similar third parties also engaged by the Client.
3.2 The engagement under this Agreement is mutually non-exclusive and the Company shall be entitled, at its own expense, to subcontract the performance of the PPC Services.
3.3 The engagement and appointment of the Company under this Agreement does not create any mutual obligations on the part of the Client or the Company to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
4. The PPC Services
4.1 The Company shall provide the PPC Services specified in this Clause 4 and Schedule 1 in accordance with this Agreement and in particular Clause 2.
4.2 The Company shall base the PPC Setup and its provision of the PPC Services upon the Required Information provided by the Client in accordance with Clause 2.
4.3 The Client understands and acknowledges the following:
4.3.1 The Company cannot control search engines and cannot provide any guarantee of success.
4.3.2 The Company cannot control search engines and cannot provide any guarantee that the Designated Search Engine(s) will not change their policies or functionality in such a way that will have a detrimental effect on the effectiveness of the PPC Campaign(s). Where ongoing PPC Services are to be provided, the Company shall use reasonable endeavours to counteract any detrimental effects resulting from any such changes.
4.3.3 The Company accepts no responsibility for any detrimental effect on the effectiveness of the PPC Campaign(s) which results from any activity of the Client or any third party including, but not limited to, alterations to the Website.
4.3.4 The effectiveness of the PPC Campaign(s) will be determined in part by the budget allotted thereto and available therefor. Failure by the Client to make the required budget(s) available may have a negative effect on the related PPC Campaign(s). The Company accepts no responsibility for any such negative effects.
5. Consideration
5.1 In consideration of the PPC Services the Client shall pay to the Company a monthly fee of £495+VAT and 2% of the monthly PPC spend.
5.2 Payment of all Fees due under this Agreement shall be made on receipt by the Client of the Company’s invoice for the same.
5.3 The Company shall keep the Client fully informed of any and all sums due in relation to the PPC Campaign(s). The Client shall transfer all such sums to the Designated Search Engine(s)
5.4 All payments made under this Agreement shall be expressly exclusive of any value added tax chargeable thereon.
5.5 No further payment shall be made to the Company for the PPC Services over and above the entitlement set out in this Clause 5.
6. Intellectual Property
6.1 The Company shall use material provided by the Client in addition to its own material in performing the PPC services.
6.2 The Intellectual Property Rights subsisting in material provided by the Client shall continue to vest in the Client unless the Client expressly indicates otherwise.
6.3 The Intellectual Property Rights subsisting in material provided by the Company shall be assigned to the Client upon receipt by the Company of all relevant sums due in consideration of the PPC Services. Upon such assignment, the Company shall be deemed to have waived all moral rights in respect of such work arising out of Chapter IV of the Copyright Designs and
Patents Act 1988. Following such assignment, the Client shall be free to use such materials including, but not limited to, the keywords included in the PPC Campaign(s), in the same PPC Campaign(s) or for any other purposes.
6.4 The Company further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Company by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Company by such third parties and will, where relevant, be subject to the requirements of sub-Clause 6.3.
6.5 Nothing in this Agreement shall vest any rights in the Website in the Company and sub-Clause 6.3 shall effect the assignment of any Intellectual Property Rights which may arise to the benefit of the Company in the Website to the Client.
7. Client’s Warranties and Indemnity
7.1 The Client represents, warrants, undertakes, and agrees with the Company as follows:
7.1.1 the Website and the Required Information shall be original to or otherwise owned by the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
7.1.2 the Website and the Required Information shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 2018, the UK GDPR, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the Website or the Required Information will constitute a contempt of court;
7.1.3 the Client shall not enter into any agreement or arrangement which might conflict with the Company’s rights under this Agreement or might interfere with the Company’s performance of its obligations under this Agreement;
7.1.4 the Client agrees to indemnify, defend, and hold harmless Effemey Cosby Advertising Limited ("the Company"), its directors, employees, agents, and representatives from and against any and all claims, liabilities, damages, losses, costs, or expenses (including but not limited to legal fees) arising out of or in connection with:
a) Any errors, omissions, or inaccuracies in the execution, management, or delivery of pay-per-click (PPC) advertising services provided by the Company;
b) The Client’s failure to comply with applicable laws, regulations, or advertising platform policies in connection with the use of the Company’s services;
c) The performance, outcomes, or perceived lack of performance of PPC campaigns, including but not limited to financial loss, decreased website traffic, or reduced sales.
The Company shall not be liable for any direct, indirect, incidental, consequential, or special damages, including loss of revenue, profits, or data, arising from or in connection with the PPC services provided. The Client acknowledges and agrees that the Company does not guarantee any specific outcomes from PPC campaigns, and all services are provided on an "as is" basis. This indemnity shall survive the termination or expiration of this Agreement.
7.2 To the extent allowed by law, the Company not be liable for any direct, indirect, incidental, or consequential damages arising out of or in connection with our PPC services. Our liability is limited to the total amount paid by the Client for the services rendered (not spend) during the last three months.
8. Confidentiality
8.1 Both Parties undertake that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and after its termination:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other party;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
8.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 9.
8.2 Subject to sub-Clause 9.3, either Party may disclose any Confidential Information to:
8.2.1 any of their sub-contractors, substitutes, or suppliers;
8.2.2 any governmental or other authority or regulatory body; or
8.2.3 any of their employees or officers or those of any party described in sub-Clauses 8.2.1 or 8.2.2;
9.3 Disclosure under sub-Clause 8.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 8.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
8.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
8.5 When using or disclosing Confidential Information under sub-Clause 8.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
8.6 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
9. Termination
9.1 Either Party may terminate this Agreement by giving to the other not less than 1 months written notice.
9.2 Without prejudice to the generality of sub-Clause 10.1, this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
9.2.1 either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable of remedy, is not remedied within 1 month of written notice of such failure from the other Party;
9.2.2 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
9.2.3 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
9.2.4 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
9.2.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
9.2.6 the other Party ceases, or threatens to cease, to carry on business; or
9.2.7 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 10, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
9.3 The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
10. Nature of the Agreement
10.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
10.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.3 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
11. Severance
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
12. Notices
12.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
12.2 Notices shall be deemed to have been duly given:
12.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
12.2.2 when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
12.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
12.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address or e-mail address notified to the other Party.
13. Alternative Dispute Resolution
13.1 Any dispute or difference arising between the Parties relating to this Agreement or its subject matter shall be referred to a single arbitrator to be agreed upon by the Parties or, failing such agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales.
13.2 The Parties hereby agree that the decision of the Arbitrator shall not be final and binding on both Parties.
14. Law and Jurisdiction
14.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
14.2 Subject to the provisions of Clause 13, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.