Terms & Conditions

Please read these Web Marketing Terms carefully, as they set out our and your legal rights and obligations in relation to our web marketing services.

“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 the agreement between the Company and the Customer incorporating these Web Marketing Terms and the Proposal, and any amendments to it from time to time;

“Business Day” means any week day, other than a bank or public holiday in [England];[2]

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

“Company” means [company name], a [limited company / public limited company] incorporated in [England and Wales] (registration number [number]) having its registered office at [address]];[3]

(a) 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; and

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the customer for services under the Agreement as specified in the Proposal;

“Effective Date” means [the date when the Company sends to the Customer its written confirmation that the Agreement is agreed, following the Customer's acceptance of the Proposal and these Web Marketing Terms];[5]

“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, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Hourly Rate” means the Company's hourly rate as specified in the Proposal and as updated [from time to time / at any time after the end of the Minimum Term][6] by the Company giving at least [30 days'] written notice of the update to the Customer;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

[“Minimum Term” means the period [of 1 Year starting on the Effective Date];][7]

“Personal Data” has the meaning given to it in the Data Protection Act 1998;

“Proposal” means [the proposal document issued by the Company detailing the scope of the Services and other matters relating to the Agreement];

“Services” means marketing services relating to the Website, as detailed in Clause [3];

“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on [the Effective Date] or on any anniversary of [the Effective Date].

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

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.[8]

The Agreement will come into force on the [Effective Date] and will continue in force [indefinitely, unless and until terminated in accordance with Clause [13] / until [date] [event], upon which it will terminate automatically, unless terminated in accordance with Clause [13]].

3.1 From [the Effective Date], the Company will promote the Website; and promotion of the Website may include the provision of some or all of the following Services:

(a) modification of the Website (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, internal and external links and Website structure);

(b) paid and unpaid submission of the Website to search engines and directories;

(f) the arrangement of internet advertising including pay-per-click advertising, pay-per-view advertising, banner advertising, and other forms of paid internet advertising;

(i) other website promotion techniques whether known at the date of the Agreement or discovered or disseminated thereafter.

3.2 At [regular intervals] during the Term, the Company will provide the Customer with written reports about the Services provided in relation to the Website.

(b) assistance in determining appropriate keywords and keyword phrases which should be targeted using the Services;

(c) direct access to analytical data concerning the Website, such as data concerning referral sources, visitor activity, Website usage, conversion rates, and similar data; and

[(d) all other co-operation, information and documentation reasonably required by the Company for the provision of the other Services.]

[4.2 The Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.]

[4.3 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.]

which is unlawful, illegal, fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against the Company or the Customer or any third party.

[5.2 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:

(a) breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003);

5.3 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.

5.4 Any breach by the Customer of this Clause [5] will be deemed to be a material breach of the Agreement.

5.5 The Customer hereby indemnifies and undertakes to keep indemnified the Company against any and all liabilities, damages, losses, expenses and costs (including legal expenses and amounts paid in settlement of any claim or legal action) arising, directly or indirectly, out of any breach [or alleged breach] by the Customer of this Clause [5].

6.1 The Customer grants the Company a non-exclusive licence to use the Website to the extent required for the Company to perform its obligations and exercise its rights under the Agreement.

6.2 All Intellectual Property Rights in any works arising in connection with the performance of the Services by the Company will be the property of the Company. Where the Company modifies the Website in the process of providing the Services, the Company hereby grants to the Customer a non-exclusive royalty-free licence to use such modifications in connection with the Website.

7.1 The Customer will pay to the Company the Charges in respect of the Services, which will be equal to:

(a) an amount calculated by multiplying the Hourly Rate by the number of hours incurred providing the Services; plus

(b) any expenses incurred by the Company in providing the Services (which expenses will be passed on at cost).

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 the Proposal in respect of that period.

7.3 The Company will issue invoices to the Customer in respect of Charges for the Services

7.4 The Customer will pay the Charges to the Company within [30] days of the date of [issue/receipt] of an invoice issued in accordance with Clause [7.3].

7.5 All Charges stated in or in relation to the 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)].[9]

7.7 If the Customer does not pay any amount properly due to the Company under or in connection with the Agreement, the Company may:

(a) charge the Customer interest on the overdue amount at the rate of [5]% per year above the base rate of [HSBC Bank Plc] from time to time (which interest will accrue daily from the due date until the date of actual payment and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

(a) ensure that the personnel providing the Services complete records of their time spent providing those Services;

(d) supply such records and evidence to the Customer within [10] Business Days following receipt of a written request to do so.]

8.1 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and

(b) that it will perform its obligations under the Agreement with reasonable care and skill.

(a) search engine 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;

(b) it can take many months for the Services to have any significant effects upon the ranking of a Website in the search engine results pages;

(c) web site promotion is an ongoing task and, should the Customer terminate the Agreement and/or stop promoting the Website, that would be likely to have a negative impact upon the effects of the Services;

(d) 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;

(e) 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

(f) notwithstanding the Services, the Website’s search engine results page rankings and traffic levels may decrease as well as increase.

[8.4 The Company does not warrant that any particular results will be achieved through the Services. 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.]

8.5 All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

9.1 Nothing in the Agreement will exclude or limit the liability of either party for:

9.2 Subject to Clause [9.1] [and without affecting the indemnity in Clause [5.5]], [each party's] [the Company's] [the Customer's] liability to [the other party] [the Company] [the Customer] under or in connection with the Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:

(b) [neither party] [the Company] [the Customer] will [not] be liable for any losses arising out of a Force Majeure Event; and

(c) [neither party's] [the Company's] [the Customer's] liability in relation to any event or series of related events will [not] exceed the greater of:

(ii) the total amount paid or (if greater) payable by the Customer to the Company under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.

10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Agreement, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998).

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and

(b) 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.

11.1 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 [11].

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

11.3 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.

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

(a) has been published or is known to the public (other than as a result of a breach of the Agreement);

(b) 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

(c) 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.

[Neither party] [The Customer] [The Company] will [not] make any public disclosure relating to the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the [other party] [the Company] [the Customer][, not to be unreasonably withheld or delayed].

13.1 Either party may terminate the Agreement at any time by giving [at least 30 days'] written notice to the other party [expiring at any time after the end of the Minimum Term].

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

(ii) the breach is remediable, but other party fails to remedy the breach within [30] days of receipt of a written notice requiring it to do so; or]

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

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(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 the Agreement);

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

14.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5.5, 7.7, 9, 11, 14 and 15.3 to 15.12].

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

14.3 If the Agreement is terminated under Clause [13.1], or by the Customer under Clause [13.2] or [13.3] (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).

14.4 Save as provided in Clause [14.3], 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.

15.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by [pre-paid first class][14] post, or sent by fax [or email],[15] for the attention of the relevant person, and to the relevant address, fax number or [email address] given in the Proposal (or as notified by one party to the other in accordance with this Clause).

15.2 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):

(c) where the notice sent by fax [or email], at the time of the transmission (providing the sending party retains written evidence of the transmission).

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

15.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the 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).

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

15.6 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.[16]

15.7 [Either party] [the Company] [the Customer] may freely assign [its/their] rights and obligations under the Agreement without [the other party's] [the Customer’s] [the Company's] consent to [any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time.] [Save as expressly provided in this Clause or elsewhere in the Agreement,] neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.

15.8 The Company may [not] subcontract any of its obligations under the Agreement to any third party.

15.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.

15.10 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.[17]

(a) the Agreement will constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;

(b) 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 the Agreement; and

15.12 The Agreement will be governed by and construed in accordance with the laws of [England and Wales];[18] and the courts of [England][19] will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

[1] This template can be used to document the provision of web marketing services by a web services business. The services covered including on-site search engine optimisation, link building and link generation, social media promotion, and the management of email marketing and affiliate marketing programmes.

In addition to the terms in the “basic” version of this document, the template contains provisions covering (inter alia) a minimum term, confidentiality obligations, publicity, additional customer obligations and contractual notices. The document is a “terms and conditions” style document.

As with all of our templates, it will need to be adapted to be suitable for your particular business.

[2] If a party is based outside the UK, you should consider whether to amend this.

[3] Where a party to the contract is a sole trader or partnership rather than a company, the following party definitions may be used:

sole trader: “[individual name] trading as [business name], which has its principal place of business at [address];”

partnership: “[partnership name], a partnership established under [English] law having its principal place of business at [address];”

[4] It can be useful to specify information which is to be treated as Confidential Information, so that there is no room for argument. E.g. “The information provided in the documents listed in the Proposal”.

[5] This is the date from which the Agreement comes into force and the Services will be provided: See Clauses 2 and 3.1.

[6] Where there is a Minimum Term, it will usually be unfair for the Company to have a right to vary the Hourly Rate during that period.

[7] Include this definition if there is a minimum term for the marketing services. See the definition of “Hourly Rate” and Clause 13.1 for related amendments.

[8] Where the ejusdem generis rule applies, then a general provision may be restricted by the listing of particular examples. This is usually undesirable.

[9] You may want to insert payment details into this Clause or the Proposal.

[10] Limitations of liability are subject to close judicial scrutiny and in some circumstances may not be enforceable. Exclusions and limitations of liability in UK B2B contracts for the supply of services are primarily regulated by the Unfair Contract Terms Act 1977.

B2B contracts regulated by UCTA cannot exclude or restrict a party's liability: (i) for death or personal injury resulting from negligence (Section 2(1)); or (ii) arising from the breach of obligations implied into the contract by Section 12 of the Sale of Goods Act 1979.

Except insofar as the relevant term satisfies the requirements of reasonableness, nor can such contracts exclude or restrict liability for: (i) “negligence” (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2)); (ii) arising from the breach of obligations implied into the contract by Sections 13, 14 and 15 of the Sale of Goods Act 1979; or (iii) misrepresentation (Section 3, Misrepresentation Act 1967).

In addition, where a B2B contract is regulated by UCTA, and one of the parties is dealing on the other's written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonable expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3).

Accordingly, if this document will be used as your standard written terms of business, you should ensure that all exclusions and restrictions of liability are reasonable in the particular context in which the document will be used.

[11] Do not delete this Clause. Without it, the limitations of liability in Clause 9.2 will not be enforceable.

[12] This basic data protection clause is primarily intended to assist the party disclosing personal information to comply with the requirements of the Data Protection Act 1998 relating to such disclosures. Delete if no personal information will be disclosed.

[13] This is a fairly light confidentiality clause, and should be beefed-up where highly confidential information is being disclosed.

[14] Where the parties are in different countries, it is common to specify “air mail” rather than “first class post” and to extend the relevant deemed service period in Clause 15.2 (e.g. to 5 days).

[15] If you decide that contractual notices may not be served by email, you should delete the references to “email” in Clauses 15.1 and 15.2.

[16] This is intended to prevent, for example, one party claiming that the contract price was changed in a telephone call.

[17] This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.

[18] This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.

[19] As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside the England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.