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PPC Terms & Conditions

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1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in the UK are open for business.

Campaign: the creation, installation, management, development and employment of a PPC advertising network strategy as set out in the PPC Brief.

Charges: the charges payable by the Client for the supply of the Services in accordance with clause 6, including the Initial Fee and the Monthly Charge.

Client: the person or firm who purchases Services from Websquare.

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.

Contract: the contract between Websquare and the Client for the supply of Services in accordance with these Conditions.

Contract Order Form: the order form issued by Websquare to the Client.

Conversion Tracking Codes: the Google conversion tracking codes or other conversion tracking codes installed on the Website.

Deliverables: any amendments or other work carried out to the Website, including the design or development of any additional Website Pages, by Websquare as part of the Services.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Initial Fee: Websquare’s fee for setting up the Campaign.

Input Material: has the meaning set out in clause 4.1(c).

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Initial Term: has the meaning set out in clause 3.2.

Monthly Charge: the monthly fee for the Services.

PPC: Pay-per-click advertising.

PPC Advertising Networks: the PPC adverting networks that Websquare agrees to provide the Services in connection with as set out in the PPC Brief.

PPC Brief: the brief setting out in writing the description or specification of the Services to be provided by Websquare to the Client.

Pre-existing Materials: all Documents, information and materials provided by Websquare relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports, graphics and specifications.

Proposal: Websquare’s initial quote for the provision of the Services.

Resources: the resources that Websquare may use or employ in order to provide the Services, including Third Party Resources.

Search Engines: the search engines that Websquare agrees to provide the Services in connection with as set out in the PPC Brief.

Websquare: TSQ Media Limited trading as Websquare, registered in England and Wales with company number 08094854.

Services: the PPC services supplied by Websquare to the Client as set out in the PPC Brief, together with any additional services that Websquare agrees to provide to the Client.

Third Party Resources: PPC Advertising Networks, Search Engines, web analytics software, PPC programs, directories or third-party websites or any other third-party resources that Websquare may use or employ in order to provide the Services.

Website: any website, intranet or extranet of the Client that Websquare is to provide PPC services on as part of the Services.

Website Pages: pages on the Website, including any additional pages created by Websquare as part of the Services.

1.2 Construction. In these Conditions, the following rules apply:

  • person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • A reference to a party includes its personal representatives, successors or permitted assigns;
  • A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  • Any phrase introduced by the terms includingincludein particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  • A reference to writing or written includes faxes and e-mails.

2. Basis of Contract

2.1 The Client shall sign the Contract Order Form and return it to Websquare. This constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2 The Contract Order Form shall only be deemed to be accepted when Websquare signs it and returns a copy of it to the Client at which point, and on which date the Contract shall come into existence.

2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Websquare which is not set out in the Contract.

2.4 Any samples, drawings, descriptive matter or advertising issued by Websquare, and any descriptions or illustrations contained in Websquare’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by Websquare shall not constitute an offer, and, unless otherwise agreed, is subject to amendment at any time to meet any rise or fall in Websquare’s costs.

3. Supply of Services

3.1 Websquare shall supply the Services to the Client in accordance with the Contract Proposal Form and PPC Brief in all material respects.

3.2 The Services shall be supplied for the term (Initial Term) set out in the Contract Proposal Form and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving the other at least one months’ notice. The Contract shall terminate on the last day of the Month following the Month after which the notice is given. The earliest date at which notice can be given is during the penultimate month of the Initial Term.

3.3 Websquare shall use all reasonable endeavours to meet any performance dates specified in Contract Proposal Form or PPC Brief, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4 Websquare warrants to the Client that the Services will be provided using reasonable care and skill.

3.5 Websquare will not commence performance of the Services until it has received the Initial Fee.

3.6 Websquare shall be entitled to refuse to accept or use any Input Material in the provision of the Services:

  • Which may be deemed offensive, illegal or in any way controversial;
  • For which the Client has not obtained an appropriate licence, permission or consent pursuant to clause 4.1(f).
  • If the Client or any third party makes any changes to the Website which overwrite the Deliverables, Websquare will not be responsible for reinstating the Deliverables and if the Client does require Websquare to reinstate them then the Client is liable to pay to Websquare additional charges to cover the cost of reinstating the Deliverables.
  • Websquare shall be entitled for the duration of the Contract to approve or disapprove any design strategies, existing code or other techniques requested or currently used by the Client which in the sole opinion of Websquare are detrimental to the Campaign or other Services to be provided by Websquare.

4. Client’s Obligations

4.1 The Client shall:

  • Ensure that the terms of the Contract Proposal Form and any information it provides in the PPC Brief are complete and accurate;
  • Co-operate with Websquare in all matters relating to the Services;
  • Provide Websquare with such Documents, information and materials as Websquare may reasonably require in order to supply the Services (Input Material) including additional relevant text content for the Website for the purpose of creating additional Website Pages where Websquare considers that the text content of the Website is too low, and ensure that such information is accurate in all material respects;
  • Provide Websquare with such administrator rights to any Third-Party Resources as are necessary for Websquare to supply the Services;
  • Ensure that the Conversion Tracking Codes are installed properly and are working; and
  • Obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start and provide Websquare with evidence of such licence, permission or consent when requested by Websquare.

4.2 If Websquare’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

  • Websquare shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Websquare’s performance of any of its obligations;
  • Websquare shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Websquare’s failure or delay performing any of its obligations as set out in this clause 4. For the avoidance of doubt, the Client shall continue to be liable for the Monthly Charge during any period that Websquare suspends performance of the Services; and
  • The Client shall reimburse Websquare on written demand for any costs or losses sustained or incurred by Websquare arising directly or indirectly from the Client Default.

5. Amendments

5.1 If the Client wishes to change the scope or execution of the Services, it shall submit details of the requested change to Websquare in writing.

5.2 If the Client requests a change to the scope or execution of the Services, Websquare shall, within a reasonable time, provide a written estimate to the Client of:

  • the likely time required to implement the change;
  • any necessary variations to the Charges arising from the change; and
  • any other impact of the change on this agreement.
  • If the Client wishes Websquare to proceed with the change, Websquare has no obligation to do so unless and until the parties have agreed the necessary variations to the Charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 8.
  • Websquare may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

6. Charges and Payment

6.1 The Charges for the Services shall be as set out in the Contract Proposal Form.

6.2 The Initial Fee shall be payable to Websquare before it commences provision of the Services. The Monthly Charges shall be paid by the Client in accordance with the payment terms set out in the Contract Proposal Form in full and in cleared funds to a bank account nominated in writing by Websquare.

6.3 Time for payment shall be of the essence of the Contract.

6.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Websquare to the Client, the Client shall, on receipt of a valid VAT invoice from Websquare, pay to Websquare such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.5 Without limiting any other right or remedy of Websquare, if the Client fails to make any payment due to Websquare under the Contract by the due date for payment (Due Date), Websquare shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

6.6 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Websquare in order to justify withholding payment of any such amount in whole or in part. Websquare may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Websquare to the Client.

6.7 The Client shall be responsible for the fees of any Third-Party Resources and shall maintain such adequate funds in any third-party accounts as are required to maintain inclusion in such resources. The Proposal sets out an estimate of the fees that the Client will incur for the inclusion of keywords and other listings in the Third-Party Resources.

7. Intellectual Property Rights

7.1 The Client hereby authorises Websquare to use any Intellectual Property Rights of the Client that are on the Website for the purpose of providing the Services.

7.2 Subject to clause 7.3 all Intellectual Property Rights arising out of the Deliverables, including any graphics or programming code, shall be owned by Websquare until the Client has paid the Charges in full. Once the Client has paid the charges in full all such Intellectual Property Rights shall automatically be transferred to the Client.

7.3 The Client acknowledges that, where Websquare does not own any Pre-existing Materials, Websquare licences all such rights to the Client on a royalty-fee non-exclusive worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and that such licence and the Client’s use of any Intellectual Property Rights in the Pre-Existing Materials is conditional on Websquare obtaining a written licence from the relevant licensor on such terms as will entitle Websquare to license such rights to the Client.

7.4 As between the Client and Websquare the Input Material shall be owned by the Client. The Client licences all Intellectual Property Rights and other rights in the Input Material to Websquare on a royalty-fee non-exclusive worldwide basis to such an extent as is necessary to enable Websquare to provide the Services.

7.5 The Client undertakes that they have all necessary licences and consents to allow Websquare to use the Input Material for the purposes of providing the Services.

7.6 The Client hereby authorises Websquare to annotate and insert onto the Website Websquare’s identification as the author of the specific code it provides as part of the Services providing that Websquare only inserts such identification where it is the legal owner of such code.

8. Indemnities

8.1 The Client shall keep Websquare indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred

or paid by Websquare as a result of or in connection with any claim made against Websquare:

  • For actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Input Material;
  • For death or personal injury or damage to property arising out of, or in connection with any defective goods, products or services sold via the Campaign.

8.2 Websquare shall keep the Client indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Client as a result of or in connection with:

  • Any disruption to any third party services used by the Client, including merchant accounts, shopping carts, shipping, hosting, real-time credit card processing, arising out of the provision of the Services; or
  • Any claim made against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the insertion of Websquare’s identification on the Website as the author of the specific code it provides as part of the Services.

9. Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of the Contract.

10. Results

10.1 The Client acknowledges and accepts the following in connection with the Services:

  • Websquare is not responsible for the policies of Third Party Resources. The Website or any content on it may be excluded or banned from the Third Party Resources at any time.
  • Many of the Third Party Resources are competitive in nature. Accordingly, Websquare does not guarantee the position of any PPC keyword, phrase or search term.
  • Websquare’s previous performance in the provision of the Services or services similar to the Services is not indicative of any future results that Websquare may achieve on behalf of the Client.
  • PPC advertising may be subject to the individual PPC Advertising Network’s policies and procedures. Each edit or change made to such policies and procedures may affect the Campaign and the Client acknowledges that this is outside the control of Websquare. Websquare will endeavour to rectify any negative affects on the Campaign arising from an edit or change to these policies and procedures.
  • A Search Engine or PPC Advertising Network may drop a listing for no apparent or predictable reason. If the listing does not reappear in the Search Engine or PPC Advertising Network within a reasonable period of time Websquare will re-submit the Resources based on the current policies of the Search Engine or PPC Advertising Network.
  • Unless otherwise agreed in the PPC Brief, Websquare does not guarantee the placement of the Client’s advertising, its availability or availability related to the fund’s in the Client’s account with the Search Engine or PPC Advertising Network.
  • Websquare will use all reasonable endeavours to keep the Client informed of any changes to Third Party Resources, industry practice or any other changes that Websquare is made aware of which may impact the Campaign and the provision of the Services. However, Websquare may not become aware of such changes.

Limitation of Liability: The Client's Attention is particularly drawn to this Clause

  • Nothing in these Conditions shall limit or exclude Websquare’s liability for:
  • Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • Fraud or fraudulent misrepresentation; or
  • Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  • Subject to clause 11.1:
  • Websquare shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise:
  • For any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, or arising from their late or non-arrival, or any failure of the Client to comply with its obligations in clause 4.1 or any other fault of the Client or the Client’s agents or sub-contractors;
  • For any loss, damage, costs, expenses or other claims for compensation arising from the use of Third Party Resources;
  • For any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  • Websquare’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges.
  • Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
  • This clause 11 shall survive termination of the Contract.

12. Termination

12.1 Without limiting its other rights or remedies, Websquare may terminate the Contract with immediate effect by giving written notice to the Client if:

  • If the Client fails to pay any amount due under the Contract on the due date for payment;
  • The Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach;
  • The Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  • The Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
  • A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
  • The Client (being an individual) is the subject of a bankruptcy petition or order;
  • A creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  • An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client (being a company);
  • A floating charge holder over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • A person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
  • Any event occurs, or proceeding is taken with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(c) to clause 12.1(j)

(inclusive);

  • The Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
  • The Client (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

12.2 Without limiting its other rights or remedies, Websquare shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Websquare if the Client becomes subject to any of the events listed in clause 12.1(c)) to clause 12.1(m), or Websquare reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

13. Consequences of Termination

13.1 On termination of the Contract for any reason:

  • The Client shall immediately pay to Websquare all of Websquare’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Websquare shall submit an invoice, which shall be payable by the Client immediately on receipt;
  • Subject to the Client’s compliance with clause 13.1(a), Websquare shall return to the Client all Input Materials and all information and materials relating to the Campaign and any other Services which are reasonably necessary for the Client or its agents or suppliers to continue to provide similar services to those to be provided under the Contract, except that Websquare shall not be required to disclose any of confidential information relating to its business or systems, including any technical and commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature;
  • The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  • Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

14. Data Protection

14.1 Any personal data processed by and on behalf of the Websquare in connection with the Services will be processed in accordance with Websquare’s Privacy Policy, a copy of which can be obtained from Websquare on request.

15. General

15.1 Force majeure:

  • For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Websquare including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Websquare or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
  • Websquare shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
  • If the Force Majeure Event prevents Websquare from providing any of the Services for more than 6 weeks, Websquare shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

15.2 Assignment and subcontracting:

  • Websquare may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
  • The Client shall not, without the prior written consent of Websquare, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

15.3 Notices:

  • Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business or sent by fax to the other party’s main fax number.
  • Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
  • This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

15.4 Waiver:

  • A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
  • Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15.5 Severance:

  • If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
  • If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
  • No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
  • Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
  • Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Websquare.
  • Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

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