- Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
|means the agreement which comes into existence between us under the following terms and conditions;
|means the Client’s brand guidelines communicated to Zapp, in writing, by the Client;
|means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;
|means the business hours of Zapp which will be 9:00 am to 5:00 pm Monday to Friday;
|means any and all content supplied by the Client to Zapp from time to time as it requires in order to supply the Services;
|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 or otherwise (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked or may be interpreted as such) and includes (but not by way of limitation) all and any reports produced by Zapp;
|means the deliverables which are to be supplied by Zapp to the Client as part of the Services and outlined on the Site;
|means the fees payable by the Client to Zapp in accordance with the rates set out on the Site;
|means graphic design work undertaken by Zapp as a Service;
|means the hosting services purchased by the Client using the Site, and as defined on the Site;
|Intellectual Property Rights
(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 email 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;
|means the schedule of Service terms appearing at the end of this Agreement;
|Search Engine Optimisation/SEO
|means the application of such techniques as Zapp shall from time to time and at its own discretion decide are designed or intended to increase traffic to the Site;
|means the provision of the Services to the standard shown in the Schedule;
|means the equipment upon which the Client’s Site is installed;
|means the period agreed between Zapp and the Client for the provision of the Services or the completion of the Works;
|means a website to be designed or hosted by Zapp;
|means the works to be completed by Zapp pursuant to this Agreement; and
|means any and all content developed or licensed from third parties by Zapp at any time for use in relation to its business or with its clients generally that is not specifically created for the provision of the Services to the Client.
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 Clause or paragraph is a reference to a clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.5 a “Party” or the “Parties” refers to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and will have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number will include the plural and vice versa.
- Term of Agreement and Estimates
2.1 This Agreement will last for the Term.
2.2 Zapp’s estimates are valid for 5 days from the date they are issued by Zapp. After that date all prices, completion dates and all other terms may change.
- Zapp’s Obligations
3.1 render the Services to the Client in accordance with the provisions of Clause 6 and in accordance with the Brand Guidelines but will be solely responsible for organising how and in what order the Services are to be provided;
3.2 use all reasonable endeavours to provide the Services in such a manner that the Service Levels are achieved;
3.3 perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement;
3.4 provide the Client with such information and advice in connection with the Services and the provision thereof as the Client may, from time to time, reasonably require both before and during the provision of the Services;
3.5 use reasonable endeavours to keep the Client informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the Services. To the extent necessary and appropriate, Zapp and the Client will promptly take steps to comply with any such requirements;
3.6 ensure that the techniques it utilises comply with all reasonable standards;
3.7 be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services;
3.8 use all reasonable care to ensure that the manner in which it provides the Services does not have any adverse effect on the name, reputation, image or business of the Client; and
3.9 endeavour to ensure that the Services function correctly with all leading web browers but the Client accepts that such Services may not function correctly with all web browsers all of the time.
- Client’s Obligations
4.1 The Client will:
4.1.1 provide Zapp with such information and Client Materials in connection with the Services and the provision thereof as Zapp may, from time to time, reasonably require both before and during the provision of the Services;
4.1.2 perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement;
4.1.3 act in accordance with any and all reasonable instructions issued by Zapp in relation to the Services. Zapp will not be liable for any failure to provide the Services or any part thereof which arises out of the Client’s failure to follow any such instructions;
4.1.4 at all times, when required to provide the Services, allow Zapp and its personnel full and unfettered remote or on-site access to the System so as to permit Zapp to carry out the Services and will provide Zapp with all access and pass codes needed to obtain such access;
4.1.5 use reasonable endeavours to keep Zapp informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the Services. To the extent necessary and appropriate, Zapp and the Client will (as under Clause 3.5) promptly take steps to comply with any such requirements. These steps will not otherwise alter this Agreement in any way; and
4.1.6 make no alteration to the Site or to any part of its contents or the way it is structured without first having advised Zapp in full as to the nature of those alterations.
4.2 The Client warrants:
4.2.1 that it is the owner of the Site and has full authority to use, adapt and maintain the Site on the System;
4.2.2 that all software used by the System is used by virtue of full, up-to-date and correct licences and that it has all rights and licences required to use such software for the purpose for which it is being used;
4.2.3 that during the Term, Zapp will be the sole provider of the Services and no other party will have access to the System for this purpose or rights to provide any similar services; and
4.2.4 that all elements of text, graphics, photos, designs, trade marks or other artwork provided to Zapp for inclusion on the Site are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and the Client will assume all liability for any legal action arising from the misuse of such elements and will indemnify Zapp against all and any liability arising out of the use of such elements.
4.3 The Client will provide to Zapp (where needed to provide the Service):
4.3.1 administrative/backend access to the System for analysis of content and structure;
4.3.2 administrative access to all its existing social media accounts or the addition of Zapp as administrator to the social media platforms it uses;
4.3.3 permission to make changes for the purpose of optimisation, and to communicate directly with any third parties, e.g. the Client’s web designer, if necessary;
4.3.4 unlimited access to its existing and future Site traffic statistics for analysis and tracking purposes;
4.3.5 authorisation to use Client pictures, logos, trade marks, Site images, pamphlets, content, etc. for any use deemed (in its absolute discretion); and
4.3.6 from time to time and as requested by Zapp, additional text content in electronic format for the purpose of creating additional or richer web pages or to provide information for any postings to be undertaken by Zapp.
4.4 The Client accepts that it has full and complete responsibility to proofread all Works undertaken by Zapp and to point out any errors to Zapp before any final version of such Works is completed.
4.5 The Client acknowledges that neither the Fee nor any part of the Fee is refundable if the Client terminates the Service for any reason.
4.6 The Client accepts and acknowledges that Zapp is under no obligation to accept any order from the Client and that Zapp may reject that order for any reason that it, in its sole discretion, shall decide.
- Fees, Payment Records and Cancellation
5.1 The Client will pay the Fees to Zapp in advance or otherwise in accordance with the terms published on the Site.
5.2 All payments required to be made pursuant to this Agreement will be made within 14 days of the date of the relevant invoice in Pounds Sterling in cleared funds to such bank as Zapp may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as the Client is required to deduct or withhold by law.
5.3 Where any payment pursuant to this Agreement is required to be made on a day which is not a Business Day, it may be made on the next following Business Day.
5.4 If the Client fails to pay on the due date any amount which is payable to the other pursuant to this Agreement then, without prejudice to and notwithstanding sub-Clause 10.1.1, that amount will bear interest from the due date until payment is made in full, both before and after any judgment, at a rate of 6% per annum over the base rate from time to time in force of Barclays Bank PLC.
5.5 Zapp will:
5.5.1 record all work it has undertaken for the Client in whatever form it deems appropriate;
5.5.2 retain those records for a period of 12 months from the date of the invoice which relates to them; and
5.5.3 make such records available to the Client on request.
5.6 The Client may cancel this Agreement at any time in the period of 7 days after it has been made and will receive a full refund of all Fees paid unless Zapp has, at the Client’s request, already started work.
5.7 After the expiry of the period mentioned in Clause 5.6 the Client may cancel this Agreement but Zapp may retain the whole fee paid.
- Services Terms
The Services provided by Zapp will be provided in accordance with the additional terms shown in the schedule relevant to such Service and including the specifications and pricing shown on the Site.
No agreement to provide the Services will come into existence between the Parties until Zapp has confirmed such agreement by email to the Client. If Zapp does not wish to enter into any agreement with the Client, it may decline a request for such agreement, without assigning a reason thereto and will refund any money paid by the Client, using the method by which such money was paid.
- Intellectual Property Rights and Licensing
8.1 All Intellectual Property Rights subsisting in the Deliverables shall be the property of Zapp.
8.2 Zapp hereby grants to the Client a non-exclusive, transferable, irrevocable, worldwide, perpetual licence to use the Zapp Materials for the purposes for which the same are provided under this Agreement but only for that use and not any other use without the prior written permission of Zapp.
8.3 Zapp will not, knowingly, use or permit the use of any Material which is illegal, or which infringes the Intellectual Property Rights of any third party.
8.4 Where any Zapp Materials incorporate materials owned by third parties, Zapp shall procure the grant of a licence of such materials to the Client from such third parties on the same terms as that set out in Clause 8.2.
8.5 Where any Client Materials are supplied to Zapp, the Client hereby grants a limited, non-exclusive, non-transferable, revocable, worldwide licence to Zapp to use the same solely for the purposes of providing, and only to the extent required to provide, the Services.
8.6 The Client agrees:
8.6.1 that resale or distribution of the completed files (which comprise the Works, in full or in part) is forbidden without the prior written agreement of Zapp;
8.6.2 that Zapp may include development credits and links within any code it designs, builds or amends pursuant to the Services; and
8.6.3 that Zapp has the right to include any work done for the Client in a portfolio of work.
9.1 Each Party undertakes that, except as provided by Clause 9.2 or as authorised in writing by the other Party, it will, at all times during the continuance of this Agreement and after its termination:
9.1.1 keep confidential all Confidential Information;
9.1.2 not disclose any Confidential Information to any other person;
9.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms and conditions of this Agreement;
9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.1.5 ensure that 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 sub-Clauses 9.1.1 to 9.1.4 above.
9.2 Either Party may:
9.2.1 disclose any Confidential Information to:
188.8.131.52 any sub-contractor or supplier of that Party;
184.108.40.206 any governmental or other authority or regulatory body; or
220.127.116.11 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies,
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 18.104.22.168 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 9, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
9.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
9.3 The provisions of this Clause 9 will continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
10.1 Either Party may forthwith terminate this Agreement by giving written notice to the other Party if:
10.1.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 14 days of the due date for payment;
10.1.2 the other Party commits any other material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 28 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.1.3 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;
10.1.4 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);
10.1.5 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);
10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.1.7 the other Party ceases, or threatens to cease, to carry on business; or
10.1.8 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” will have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.2 The Client will have the right to forthwith terminate this Agreement by giving written notice to Zapp in the event that Zapp fails to provide the Services in compliance with the Service Levels as set out in the Schedule.
10.3 The right to terminate this Agreement given by this Clause 10 will not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Upon the termination of this Agreement for any reason:
11.1 any sum owing by the Client to Zapp under any of the provisions of this Agreement will become immediately due and payable;
11.2 any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination will remain in full force and effect where they are expressly stated to survive such termination;
11.3 termination will not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
11.4 subject as provided in this Clause 11, and except in respect of any accrued rights, neither Party will be under any further obligation to the other;
11.5 each Party will return to the other Party any materials the ownership of which has not been transferred to that other Party and which have, for any reason, been provided for the purposes of this Agreement; and
11.6 each Party will (except to the extent referred to in Clause 9) forthwith cease to use, either directly or indirectly, any Confidential Information, and will forthwith return to the other Party any documents in its possession or control which contain or record any Confidential Information.
- Liability and Indemnity
12.1 Zapp will ensure that it has in place at all times suitable and valid insurance that will include public liability insurance.
12.2 In the event that Zapp fails to perform the Services with reasonable care and skill it will carry out any and all necessary remedial action at no additional cost to the Client.
12.3 Whilst Zapp will take all reasonable steps available to it to prevent any information which may be misleading or damaging being published, the Client accepts that unless such publication has been deliberate or malicious Zapp has no liability therefor other than that referred to in this Clause 12 and any liability is subject to the limits imposed in this Clause.
12.4 Zapp’s total liability for any loss or damage caused as a result of its negligence or breach of this Agreement will be limited to the limit of the cover provided by the Professional Indemnity Insurance Policy it holds and which is applicable to this transaction.
12.5 Nothing in this Agreement will limit or exclude Zapp’s liability for death or personal injury.
12.6 Subject to Clause 12.4 Zapp will indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of Zapp’s breach of this Agreement.
12.7 The Client will indemnify Zapp against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by Zapp) caused by the Client or its agents or employees.
12.8 Neither Party will be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
13.1 Zapp hereby represents, warrants and undertakes that:
13.1.1 it shall provide the Services with all reasonable skill and care;
13.1.2 it shall neither access nor alter any part of the Site, the access to or alteration of which is not necessary for the purposes of providing the Services;
13.1.3 it has the right to use all materials (including, but not limited to, Zapp Materials) which comprise the Deliverables and, where relevant, has received any and all necessary consents and permissions to use such materials in accordance with this Agreement from third parties;
13.1.5 where any Deliverables are provided in electronic form, they shall be free from any and all viruses, malware and other malicious code.
13.2 The Client hereby represents, warrants and undertakes that it has the right to use all materials which comprise the Client Materials and, where relevant, has received any and all consents and permissions to use such materials in accordance with this Agreement from third parties.
13.3 Each Party warrants to the other that it has the necessary power and authority to enter into, and comply with its obligations under, this Agreement.
- Force Majeure
Neither Party to this Agreement will be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question.
- Nature of the Agreement
15.1 This Agreement is personal to the Parties and neither Party may assign, mortgage or charge (otherwise than by floating charge) any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld, but Zapp will at all times during the Term be able to use such sub-contractors or other persons as it in its sole discretion will decide to perform all or any part of the Services provided that:
15.1.1 such sub-contractors or other persons are made subject to the relevant parts of this Agreement; and
15.1.2 Zapp remains at all times primarily liable for the proper provision of the Services.
15.2 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.
15.3 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.
15.4 No failure or delay by either Party in exercising any of its rights under this Agreement will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
15.5 At any time after the date hereof each of the Parties will, at the request and cost of the other Party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requiring may reasonably require for the purpose of giving to the Party so requiring the full benefit of all the provisions of this Agreement.
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 will be deemed severed from the remainder of this Agreement. The remainder of this Agreement will be valid and enforceable.
- Relationship of the Parties
17.1 Nothing in this Agreement will constitute, or be deemed to constitute, a partnership between the Parties nor, except as expressly provided, will it constitute, or be deemed to constitute, an agency of any other Party for any purpose.
17.2 Subject to any express provisions to the contrary in this Agreement, Zapp will have no right or authority to, and will not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the Client or bind the Client in any way.
18.1 All notices under this Agreement will 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.
18.2 Notices will be deemed to have been duly given:
18.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
18.2.2 when sent, if transmitted by facsimile or email and a successful transmission report or return receipt is generated; or
18.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
18.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, email address or facsimile number notified to the other Party.
- Law and Jurisdiction
19.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) will be governed by, and construed in accordance with, the laws of England and Wales.
19.2 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) will fall within the jurisdiction of the courts of England and Wales.
PART 1 – SEARCH ENGINE OPTIMISATION
- SERVICE SPECIFIC TERMS
- The Client acknowledges:
1.1 Zapp has no control over the policies of search engines and social media sites with respect to the type of sites and/or content that they accept now or in the future. A site may be excluded from any directory or search engine or social media site at any time at the sole discretion of that entity. Zapp can never guarantee any increase in traffic when SEO forms part of the Services.
1.2 Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Zapp does not guarantee number 1 positions or consistent top 10 positions for any particular keyword, phrase or search term, and movement of the Client’s rank/position between page 1 and other pages can sometimes occur.
1.3 Search engines may hinder the rankings of new websites (or pages) until they have proven their viability to exist for a period of time. Zapp assumes no liability for ranking/traffic/indexing issues related to such actions.
1.4 Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any further action required. This event is out of the control of Zapp.
1.5 Linking to “bad neighbourhoods” or getting links from “link farms” can seriously damage all SEO efforts. Zapp will have no liability should the Client choose to link to, or obtain a link from, any particular website without prior consultation with Zapp.
1.6 Zapp is not responsible for changes made to any site, for which it is providing SEO, by other parties that adversely affect the search engine rankings of such site.
1.7 Zapp is not responsible should the Client overwrite Works provided by Zapp.
1.8 The Services may include either SEO and/or social media marketing but they are not a lead generation service. The purpose of the Service is to generate brand awareness.
1.9 In the event that Zapp fails to provide the Services to the Service Levels, the following provisions will apply:
1.9.1 In the event that Zapp fails to meet the Service Levels for a period of 6 months, the Client shall have the right to terminate this Agreement in accordance with clause 10.2 of the Agreement.
1.9.2 Zapp shall not be responsible for any failure to meet the Service Levels or for any adverse impact on the position of the Site in Designated Search Engine rankings which results from:
22.214.171.124 changes to the Site made by the Client without prior consultation and agreement with Zapp;
126.96.36.199 changes to the Site made by third parties without prior consultation and agreement with Zapp;
188.8.131.52 failure or delay on the Client’s part to comply with any of the Client’s obligations set out in this Agreement or any addendum to it; or
184.108.40.206 events beyond Zapp’s reasonable control as described under Clause 14 of the Agreement.
1.10 The rights of the Client under sub-paragraph 1.9 will be in addition to, and without prejudice to, any other rights or remedies of the Client.
1.11 For the avoidance of all doubt should the Client require any Services from Zapp which are not referred to in Clause 6 of the Agreement and this Schedule such Services will be provided only after the execution of a supplemental agreement to supply them.
1.12 The Client acknowledges that in providing the Services Zapp cannot influence every search engine provider nor can it guarantee that the Services will achieve any results and that whilst Zapp must use its best endeavours in achieving good results for the Client it does not guarantee that any specific results will be obtained.
- SEARCH ENGINE OPTIMISATION SERVICE LEVELS
The Services comprise:
- Providing the Client with increased search engine exposure.
- Driving targeted online traffic to the Site.
- Building brand awareness through the process of Search Engine Optimisation.
The online marketing services that Zapp will provide include (but are not limited to):
- Researching keywords and phrases to select appropriate, relevant search terms.
- Obtaining “back links” from other related websites and directories in order to generate link popularity and traffic.
- Editing and/or optimisation of text for various html tags, metadata, page titles and page text as necessary.
- Analysis and recommendations on optimal website structure, navigation, code, etc. for best SEO purposes.
- Recommend, as required, additional web pages or content for the purpose of “catching” keyword/phrase searches.
- Create traffic and ranking reports and any associated pages showing rankings in the major search engines.
- Only using correct “white hat” SEO techniques in order to gain higher website ranking.
PART 2 – WEBSITE HOSTING
- SERVICE SPECIFIC TERMS
1.1 Zapp shall, throughout the Term, provide the Hosting Services to the Client in accordance with the Agreement and the Service Levels.
1.2 Zapp shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Hosting Services.
1.3 Zapp shall provide the Hosting Services only as specified in the package for hosting services offered by Zapp unless otherwise agreed in writing by the Parties.
1.4 Zapp shall use all due and proper care to ensure that the manner in which it provides the Hosting Services does not have any adverse effect on the name, reputation, image or business of the Client.
1.5 In the event that Zapp fails to provide the Services to the Service Levels, the following provisions will apply:
1.5.1 In the event that Zapp fails to meet the Service Levels for a period of 6 months, the Client shall have the right to terminate this Agreement in accordance with clause 10.3 of the Agreement.
1.5.2 Zapp shall not be responsible for any failure to meet the Service Levels which results from:
220.127.116.11 changes to the Website made by the Client without prior consultation and agreement with Zapp;
18.104.22.168 changes to the Website made by third parties without prior consultation and agreement with Zapp;
22.214.171.124 failure or delay on the Client’s part to comply with any of the Client’s obligations set out in this Agreement or any addendum to it; or
126.96.36.199 events beyond Zapp’s reasonable control.
1.6 The rights of the Client under sub-paragrpah 1.5 will be in addition to, and without prejudice to, any other rights or remedies of the Client.
1.7 If Zapp has not agreed to provide the appropriate services, the Client must ensure that the website being hosted by Zapp and all accounts thereon are at all times secure and, if any security breach occurs and such website has been hacked, Zapp may, immediately and without notice, withdraw such website and cancel this Agreement, without liability of any nature to the Client for any losses it may sustain as a result.
1.8 For the avoidance of all doubt should the Client require any Services from Zapp which are not referred to in Clause 6 of the Agreement and this Schedule such Services will be provided only after the execution of a supplemental agreement to supply them.
- SERVICE LEVELS
- Zapp shall use reasonable endeavours to ensure an uptime rate of 90%.
- Zapp shall implement such organisational, technological and other measures as are reasonably required to ensure the uptime rate set out in paragraph 1 above.
- For the purposes of this Schedule, “Downtime” refers to one or more whole periods of 30 minutes.
- Zapp shall issue a discount of 1% of the monthly fees payable for each whole 30-minute period of Downtime. Such discounts shall be applied to the Fee payment due immediately following the Downtime. Discounts shall be made up to a maximum of 100% of the Fees payable for a given month.
- In the event that the Hosting Services are unavailable for a period exceeding 20 hours per month for 3 consecutive months, the Client shall have the right to terminate this Agreement in accordance with clause 10.3 of the Agreement.
- Paragraphs 4 and 5 shall not apply to any Downtime which results from any of the following:
6.1 Scheduled Service Downtime;
6.2 Failure of the Client’s own computer systems, network or software;
6.3 Failure by the Client, its employees, subcontractors, agents or other similar third parties to comply with any reasonable instructions issued by Zapp;
6.4 Breach by the Client of any of the terms of the Agreement and including, but not limited to, exceeding data storage or transfer limitations;
6.5 Problems which are beyond the reasonable control of Zapp including, but not limited to, internet service provider failure.
- Scheduled Service Downtime
7.1 Zapp may, from time to time, require scheduled Downtime in order to perform maintenance and upgrades on its computer systems, network and infrastructure.
7.2 Zapp shall use reasonable endeavours to ensure that any period of scheduled Downtime causes minimal disruption to the Hosting Services and is as brief as is reasonably possible. Nothing in this paragraph shall constitute a guarantee of the same.
7.3 Zapp shall notify the Client of scheduled Downtime no later than 24 hours prior to the start of the same.
- Fair Use
Should the website being hosted by Zapp operate so as to exceed reasonable levels of traffic (as determined by Zapp acting reasonably), then Zapp may limit such traffic or end this Agreement unless the Client agrees to pay Zapp’s reasonable additional fees.
- If Zapp has agreed to provide an email service, then the Client acknowledges that such service is provided by a third party email service provider and that Zapp’s only obligation is to assist the Client in testing the service.
PART 3 – WEBSITE DESIGN & GRAPHIC DESIGN
- SERVICE SPECIFIC TERMS
1.1 Zapp shall provide the Services which shall include the design, development, and delivery of the Website or any Graphic Design work, in accordance with the specification ordered by the Client on the Site.
1.2 The Client may request or propose amendments to the specification to the Website or any Graphic Design. Any proposed amendments must be made in writing and the Client must agree and pay for any additional fees which arise as a result, before such amendments will be made.
1.3 The Client Materials shall be provided by the Client to Zapp on request. The Client shall be fully responsible for the Client Materials and for the content, accuracy, and completeness thereof and shall indemnify Zapp against any and all damages, losses, and expenses arising as a result of any claims or proceedings on the grounds that the Client Materials contain any material that is unlawful or otherwise offensive (including, but not limited to, material that is obscene, pornographic, offensive, defamatory, threatening, incites violence, or that breaches the Intellectual Property Rights of any third party).
1.4 Upon completion of the design and development of a Website the Client shall have a 1 Business Day period during which it shall carry out the tests on the Website to ensure that it meets the requirements agreed between the Parties.
1.5 In the event that a fault or failure in the Website is found to have been caused by an act or omission of the Client, or by any other party associated with the Client for whom Zapp has no responsibility, such fault or failure shall not be considered a defect for the purposes of this Agreement and Zapp will have no responsibility to correct them.
1.6 If a fault or failure in the Website is found to have been caused by Zapp, it will (for the period of 3 months following the date upon the Website goes live), as soon as reasonably possible, correct such fault or failure to the reasonable satisfaction of, and at no cost to, the Client.
1.7 For the avoidance of all doubt should the Client require any Services from Zapp which are not referred to in Clause 6 of the Agreement and this Schedule such Services will be provided only after the execution of a supplemental agreement to supply them.
B. SERVICE LEVELS
1. Zapp will work on one Website page at a time, using the content provided by the Client. Should the Client wish to change such content after it has been delivered to Zapp, Zapp may charge reasonable additional fees.
2. Once the Client has agreed that a page is correct, Zapp will provide no alterations to it, without payment of its reasonable additional fees.
3. Amendments required by the Client must be communicated to Zapp in writing.
4. Zapp will supply a link to Google Business Maps but the Client must first have registered with Google.
5. If the Works include the provision of a logo, Zapp will redesign the logo a maximum of 3 times, after which it may charge reasonable additional fees.
6. Flash banners, if they are to be provided by Zapp, will contain a maximum of 3 images. Further images or any redesign will be chargeable at Zapp’s reasonable additional fees.
7. Zapp will supply a hard copy of the Website at a reasonable charge, to be determined by Zapp.
8. Flash galleries, if provided, will be limited to one gallery, without payment of additional fees, and each gallery will be limited to 15 images.
9. Each Website page created by Zapp will be limited to the length of that shown on the template chosen by the Client. If any page exceeds that volume, the Client will be required to pay for an additional Website page at Zapp’s reasonable additional fees.
11. The Client accepts that HTMP pages may not match, exactly, original designs produced by or for the Client and that Zapp may make reasonable additional amendments to the original designs as are required to make them function properly in HTML.
12. CMS Unlimited Pages and E-commerce Websites will be constructed so that the Client may insert its own data and the Client accepts that Zapp has no obligation to assist in the uploading of any such data to the Website, without an additional agreement.
13. The Client accepts that the layout of CMS Packages is fixed and that Zapp cannot change them once they have been agreed.
14. Zapp will only set up the number of pages agreed in the order for a Website.
15. Zapp will provide a reasonable number of layout changes including, but not by way of limitation, moving the order of boxes, adding images and removing sections but such obligation does not extend to adding new sections and new functionality.