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1.1 The following terms shall have the following meanings:-
"Internet Search Marketing" means Internet Search Marketing Ltd and any of the domain names owned by Internet Search Marketing Ltd/ "Microsite" means website advertisements rented to the User that are hosted by or on behalf of Internet Search Marketing / "Custom Website Management Services" are the services provided by Internet Search Marketing that support the provision of a custom website to the User. / "Sites" means internetsearchmarketing.co.uk and any User Microsite or Custom Website./" "Services" means any of the services provided by Internet Search Marketing under these terms and conditions./"Clause" and "schedule" means respectively clauses or schedules in this agreement unless the context shows a contrary meaning. / "Now" and "today" means at the date of this agreement. / "Comply with" includes "observe and perform" / "Parties" means the parties to this agreement and where the context permits, their successors in title . / "Completion" means the date the Sites are notified to the User as live on the internet by Internet Search Marketing. [Sites will normally only be put live on the internet following content approval by the User].
COMMENCEMENT AND TERM OF AGREEMENT
2.1 These terms and conditions are effective from the date the Services begin to be provided to the User by Internet Search Marketing and form an agreement between the Parties in relation to such Services ("the Commencement Date") and subject to the right of termination contained herein they shall remain in force for a period of 12 months from the Commencement Date ("the Term"). Internet Search Marketing or the User may, by giving one month's notice in writing to the other, terminate the agreement between them under these terms and conditions before the expiry of the Term. Failing the provision of such notice, the agreement between the Parties under these terms and conditions will be renewed automatically and will continue until terminated in accordance with the clause 11.
PERMISSION TO USE and CONSIDERATION
3.1 Internet Search Marketing grants to the User an exclusive right during the Term to use the Microsite in accordance with these terms and conditions and for no other purpose.
3.2 The User shall pay Internet Search Marketing for the Microsite (the "Annual Rental") and where applicable for the Custom Website Management Services. The Annual Rental shall be agreed prior to the Commencement Date. The Annual Rental may be increased at the discretion of Internet Search Marketing by an amount as notified in writing. Such increase shall take effect on each anniversary of the Commencement Date.
3.3 For sales with 'Payment in Full' terms, payment of the Annual Rental shall be made within 14 days of receiving an invoice, unless otherwise agreed between the Parties in advance of invoicing. Any agreed alternative payment term will be clearly stated on the invoice.
3.4 For sales with 'Deposit & Balance on Completion' terms, a payment of 50% of the Annual Rental shall be made within 14 days of receiving the invoice with the remaining balance payable within 14 days of Completion.
3.5 For sales without any payment in advance, payment of the Annual Rental will be due within 14 days of Completion.
FREQUENCY OF CHANGES
4.1 Internet Search Marketing will accept all changes to written content and new images from the User throughout the Term, subject to a fair usage policy. Fair usage is considered to be up to twenty (20) changes for each Microsite/custom website site per annum. Internet Search Marketing reserves the right to apply an extra charge for each change request in excess of the agreed fair usage.
CUSTOM WEBSITE MANAGEMENT SERVICES
5.1 Custom Website Management Services will include the provision of the following services where applicable:- a) hosting on Internet Search Marketing servers; b) daily backup to Internet Search Marketing servers; c) email account(s) provision and up to 5 specific accounts plus a catch all account; d) website search engine optimisation (SEO) on a best endeavours basis; e) security updates as required to website code; f) site changes subject to 4.1 above; g) custom shop functionality with online shopping basket and payment processing; and h) accommodation booking/reservation functionality.
5.2. In return for use of the Custom Website Management Services, the User will pay an annual maintenance charge (currently £750 plus VAT) on each anniversary of this agreement upon receipt of a renewal invoice and in respect of each custom website managed by Internet Search Marketing on the User's behalf. The initial year's annual maintenance change is included within the first year's invoice.
5.3 Internet Search Marketing will use a nominated domain name owned by the User, or if required will propose and/or acquire a suitable domain name on the User's behalf. Domain names acquired for Users will initially be registered in the name of Internet Search Marketing and ownership will be transferred to the User within three months of the agreement. The charge for purchase and transfer of a domain name is currently £75 plus VAT.
REFUNDS & CANCELLATIONS
6.1 In respect of the Services, the following refund and cancellation policy will apply:-
6.1.1 A "cooling off" period of 14 days from the date of order processing, during which a full refund of fees paid will be payable by Internet Search Marketing to the User;
6.1.2Cancellations will only be accepted in the following forms: a) in writing to the address shown on internetsearchmarketing.co.uk or b) by email sent to customerservices@ism.co.uk;
6.1.3 In the case of payment by credit or debit card, only the card used for the original payment will be refunded;
6.1.4Refunds will be processed as soon as possible, but within 14 days of the refund being agreed by Internet Search Marketing; and
6.1.5Cancellations made after the 14 day "cooling off" period will only result in a refund at the discretion of Internet Search Marketing.
INTELLECTUAL PROPERTY and CONDITIONS OF USE
7.1 The User acknowledges that Internet Search Marketing, the Service, and all programs, data, information and other items included in the Services constitute valuable intellectual property and trade secrets of Internet Search Marketing. The User agrees to take all reasonable steps to protect the intellectual property rights ("IPR") of Internet Search Marketing both during and after the Term.
7.2 The User shall not make any use of any Internet Search Marketing IPR including without limitation any trade marks, service marks, business names, logos, designs or domain names of Internet Search Marketing without the prior written consent of Internet Search Marketing.
7.3 Internet Search Marketing will indemnify the User against all claims and proceedings arising from infringement of any IPRs by reason of Internet Search Marketing's provision of the Services to the User. Provided that the User shall: (a) notify Internet Search Marketing promptly in writing of any allegation of infringement; (b) make no admission relating to the infringement; (c) allow Internet Search Marketing to conduct all negotiations and proceedings and give Internet Search Marketing all reasonable assistance in doing so (Internet Search Marketing will pay the User's reasonable expenses for such assistance); and (d) allow Internet Search Marketing to modify the Services, or any item provided as part of the Services, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Services.
7.4 The indemnity in clause 7.3 does not apply to infringements caused by the use of the Services in conjunction with other equipment, or software or services not supplied by Internet Search Marketing or to infringements caused by designs or specifications made by, or on behalf of, the User. The User will indemnify Internet Search Marketing against all claims, proceedings and expenses arising from such infringements.
7.5 The User will procure that it will at all times comply with the restrictions on the use of Internet Search Marketing and the Services set out herein or on Internet Search Marketing or otherwise notified to them by or on behalf of Internet Search Marketing.
7.6 None of the User, its employees or agents will use any automatic device or manual process to monitor or copy any pages of Internet Search Marketing or the content contained therein other than in accordance with the proper functionality thereof nor will any of the foregoing use any device, software or routine to interfere or attempt to interfere with the proper working of Internet Search Marketing.
LIMITATION ON LIABILITY
8.1 All content, materials and information on the Site are provided on an "as is" and "as available" basis without any representation or endorsement made and without warranty of any kind whether expressed or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.
8.2 To the fullest extent permitted by applicable law, Internet Search Marketing will not be liable for any indirect or consequential loss or damage whatsoever (including without limitation loss of business, profits, contracts, goodwill and/or any other economic loss).
8.3 Internet Search Marketing makes no warranty that the Site or any Services available on the Site will meet your requirements, that content will be accurate or reliable, that the functionality of the Site or any Services available on it will be uninterrupted or error free, that defects will be corrected or the Services or server that makes them available are free of viruses or anything else which maybe harmful or destructive.
8.4 Nothing in these terms and conditions shall be construed so as to exclude or limit the liability of Internet Search Marketing for death or personal injury as a result of the negligence of Internet Search Marketing.
ASSIGNMENT AND SUB-LICENCE
9.1 The agreement between the Parties under these terms and conditions is personal to the User who may not without Internet Search Marketing's prior written consent a) assign or dispose of it; b) part with any interest in it; or c) grant any lease or licence or delegate any of the rights conferred by it.
TERMINATION
10.1 In addition to both Parties rights under clause 2.1, Internet Search Marketing may at any time by written notice, terminate this agreement or suspend its performance of all or any of its obligations under it immediately and without liability for compensation or damages if the User –
(a) commits a material breach of these terms and conditions and if such breach (if capable of being remedied) remains un-remedied fourteen days after being called to the attention of the User in writing by Internet Search Marketing; or
(b) becomes or is declared insolvent or a resolution is passed for the winding up of the User or the User convenes a meeting of its creditors or makes or proposes to make any arrangement or composition with its creditors or becomes subject to any other insolvency procedure in any jurisdiction or any person takes any step to appoint an administrator or a liquidator, an administrative receiver, a receiver, manager, trustee, custodian or analogous officer is appointed (whether out of court or otherwise) in respect of all or any part of its property, undertaking or assets or which entitle the court to make a winding up or bankruptcy order.
CONSEQUENCES OF TERMINATION
11.1 On the termination of the agreement between the Parties under these terms and conditions, the User shall at his own expense promptly withdraw and return to Internet Search Marketing or otherwise dispose of, as Internet Search Marketing instructs, all samples, publicity material or other documents relating to Internet Search Marketing which the User has in its possession or under its control.
11.2 The expiration or earlier termination of the agreement between the Parties under these terms and conditions shall not affect (a) such of the provisions that are expressed to operate or have effect afterwards; or b) any right of action already accrued to either party in respect of any breach of this agreement by the other party.
11.3 The User shall as promptly as reasonably practicable after the termination, and in any event withinin 7 days of the date of termination, remove Internet Search Marketing from all samples, publicity materials, documents or any web or internet site.
FORCE MAJEURE
12.1 Internet Search Marketing shall not be liable for any failure in the performance of any of its obligations under these terms and conditions caused by factors outside its control.
ENTIRE UNDERSTANDING
13.1 These terms and conditions are the exclusive statement of the agreement between the Parties related to the subject matter hereof. It supersedes all understandings and prior agreements, whether oral or written, between the Parties in respect of the subject matter hereof. The Parties both agree that they did not rely on any statement made by the other party before agreeing to these terms and conditions and hereby waives any remedy which might otherwise be available to them in respect of any untrue statement (whether made innocently or negligently) before agreeing to these terms and conditions.
LAW AND JURISDICTION
14.1 These terms and conditions shall be governed by and construed in accordance with the laws of England, and the rules and regulations of any intermediary organisation or entity through which any Services are provided, as any of the same may be amended from time to time, and the User acknowledges that use of a Service following any amendment shall be deemed to be the User's consent to such amendment. The User hereby irrevocably submits to the exclusive jurisdiction of the courts of England over any action or proceeding relating to these terms and conditions.
14.2 Internet Search Marketing makes no claim that the Site is appropriate for access or use in any particular jurisdiction, and cannot be held responsible for non-compliance with any local laws or regulations in relation to the contents or the Sites. Access and/or use of the Sites and their contents is at the User's own risk, and the User is responsible for compliance with the laws of any jurisdiction to which the User is subject.
NOTICES
15.1 Any notice given under these terms and conditions shall be in writing and may be served:-
a) by registered mail to the address provided to Internet Search Marketing at the commencement date; b) by e-mail provided to Internet Search Marketing at the commencement date
15.2 At Each party's address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the other notice shall be deemed to have been served:-
a) if served by registered mail 48 hours after it was posted; and b) if it was served by e-mail at the time of transmission.
GENERAL
16.1 Except as expressly provided for in these terms and conditions no variation or amendment these terms and conditions or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both Parties.
16.2 If any provision of these terms and conditions is declared invalid or unenforceable, such provision shall be struck out and the remaining provisions shall remain in full force and effect.
16.3 The headings are for convenience of reference and shall not affect the construction or interpretation of these terms and conditions.
16.4 A third party who is not a party to the agreement made under these terms and conditions has no right under the Contract (Rights of Third Parties) Act 1999 (the "Act") to enforce any term of these terms and conditions but this does not affect any right or remedy of a third party which exists or is available apart from the Act. |
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