1. DEFINITIONS AND INTERPRETATION
The following definitions apply in these terms and conditions unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in the US and Canada are open for business.
'Contract'< means the contract between the company and the customer for the supply of these terms and services governed by the order.
‘Client’ ‘Customer’ ‘You’ means the individual or business entity who purchases Services from Incredible and whose details are set out in the Order.
'Force Majeure Event' An event means beyond the proper control of any party, which includes, but not limited to attacks, strikes, lock-out or other industrial disputes, utility services or transportation networks failure, act of God, riot, war, malicious damage, civil commotion, incident with the default of any law or government order, rule, regulation or direction, breakdown of plant or machinery, accident, fire, flood, storm.
‘The Agency’ means Incredible a company incorporated in whose registered office is at 26 Country Ridge Court, Brampton ON, L6P 3S2, Canada, trading as Incredible.org
‘Order’ ‘Order Form’ means the order given by the Client through manually signing the Company’s Quotation form.
‘Quotation’ means the written quotation created by the Company which includes its proposals for issuing Services to the Clients.
‘Services’ means the services the Agency will provide to the Customer/Client as specified in the Order form.
‘SEO’ ‘Search Engine Optimization’ means the process of upgrading ranking in search engine pages/results.
‘OSO’ ‘Organic Search Services’ The process of maximizing your website(s) Organic content in order to potentially grow higher ranking on search engines.
‘FTP’ ‘File Transfer Protocol’ File Transfer Protocol (FTP) is a common network protocol used to copy a file from a host to another TCP / IP-based network, such as the Internet. Through this method, your website can be customized.
‘PSM’ ‘Paid Search Marketing’ means Optimization of Adverts acquired for a fee charged by the advert host.
‘SMS’ ‘Social Media Services’ The process of upgrading your social media “brand” worth to improve your social media profiles visibility and brand awareness
Where these words use words in their singular form, they will also be read to include the plural form of the word and vice versa. Where these conditions use words that represent a particular gender, they will also be read to include all the gender and vice versa.
2. TERM AND TERMINATION
This contract will be effective on the order form as per the deadline set. This agreement can be terminated by the written notice to the other party within thirty (30) days of receiving notice. This contract can be terminated immediately by the agency (i) if the customer fails to pay any fee hereunder, or (ii) if the customer fails to cooperate with the agency or obstructs the agency's ability to execute the service hereunder. Customer will pay all outstanding invoices and all other amounts due to the agency (or related services) under this agreement. In addition to its obligations to pay under the express terms of this contract, if the customer arranges a third party to provide services during the period of notice, then the agency will pay the equivalent amount of remuneration to the agency which the Agency would have received if they had provided the Services during that period.
3. SEO SERVCIES
(A) In carrying out organic search services, the agency will develop a plan aimed at improving the visibility of the customer's website and improving the search ranking of the website regarding search terms related to the business of the customer, and related program strategy and provide strategic recommendations. (B) The client accepts that the OSO services will require modifications in the website (s), which may include site title, metadata, copy, structure, link and other factors which affect the higher Index visibility and keyword ranking. (C) The client will be responsible for providing appropriate personnel to work with the agency to implement the recommendations provided in the form of OSO Services. (D) The client will be fully responsible for the operation, maintenance, and management of all aspects of the website. (E)Unless all the work is done and payment is made, (the agency) will keep the right of search engine optimization applicable to those websites, platforms or applications.
4. WEB DEVELOPMENT
(A) Copyright. The client keeps the rights to the data, files, and graphics provided by the client. Client warrants that they hold all the rights, permissions and copyright for all information provided and condemn the agency completely against any and all claims, costs or actions, which are related to the use of information, files and graphics provided by the client for the agency to use in respect of web development services provided to the client. (B) Law. It is the customer's responsibility to comply with the laws, taxes, and charges related to websites and the agency does not provide legal advice in these cases. (C) Proprietary code. Whether the agency should write custom code for the website or application required by the client, then the copyright of such code will remain with the agency. In such cases, the agency will authorize the client to make full use of such codes within the limits of their own business, unless there is a separate agreement in writing. (D) Agency shall have the right to IP for all online websites, platforms or applications (including modifications / bespoke coding made to open source solution) that are being created or edited until all the work is done on them and the payment is made. (E) Please contact Incredible for more information on website management packages where hosting security and backups of websites are included.
The client agrees to pay any and all fees as stated in the Order Form.
In case of adequate change in customer's requirements, remuneration and assignment will be reviewed every year or at any time. Any agreed review will be confirmed in writing by both parties. Where the remuneration of the agency is a fee which is based on the estimated time required to provide the service, the agency has the right to adjust the fee every six months to reflect the real time given by the agency.
If the customer and agency are unable to agree on remuneration prior to the due date for annual review, then the remuneration previously applied will be payable until the agreement is reached, at which point there is no necessary balance payment have to be made, or until the appointment of the agreement ends.
The Agency will invoice either monthly or quarterly (depending on the agreement between the agency and the customer) and the terms of payment are 10 days from the date of each invoice. If the client fails to pay any invoice within 5 days of the due date, then the agency will have the right to suspend the services
Unless otherwise agreed in writing all fee or commission payments will be invoiced and paid in the USD to the Agency (F) In the event that the client requires any additional services outside of the agreed originally agreed scope, the parties agree to negotiate in harmony with the terms, conditions and compensation for those additional services.
Travel and related expenses and any other out-of-pocket expenses made by the agency and its employees on the prior written request of the customer will be collected from the customer at the cost out of the general duties of the agency.
The existence of a question on an individual commodity in an account will not affect the due date of payment for the balance of the account.
an absence of any customer purchase order number or other job numbers will not be a valid reason for non-payment.
All fees, costs and all other amounts invoiced to the customer are valued by value added tax or other local sales or other taxes or duties, which will be added to all invoices at the prevailing rate when required by law.
In case of overdue payment, 2% per day interest will be credited to the invoice at the statutory rate. At the discretion of the company, a fee of $ 10 for the overdue payment to the client (to cover administrative expenses and not as a penalty) will be charged per reminder for overdue payment submitted to the Client, the company will be entitled to present such a reminder on a weekly basis. The Agency reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid amount.
6. THE CLIENT RESPONSIBITIES
For the purposes of providing these services, Client agrees:
To provide the agency with FTP access of the website(s) to upload new pages, and to make changes with the purpose of optimizing SEO services or approval through a third party.
In order to use all the client’s logos, trademarks, images of the Website, etc., and any other use of information pages, it is considered necessary by the agency for search engine placement and optimization.
If the customer's web site is light in text content then the customer will provide additional relevant text content in electronic format for the purpose of creating additional web pages. Customers agree to provide the content, for example, about 200 to 500 words "articles" about each of their keyword phrases.
7. THE CLIENT ACKNOWLEDGEMENTS
The Client understands, acknowledges and agrees that:
The agency has no control over the search engines or directory policies in relation to those sites and/or types of content that they accept now or in the future. The customer's website can be excluded from any search engine or directory at any time, only at the discretion of the search engine or directory unit. The agency will re-submit pages that have been removed from the index.
Some search engines and directories can take up to two (2) to four (4) months, and in some cases may be longer, after submission to list the Client’s website(s).
Sometimes, search engines and directories would stop accepting submissions for an unspecified period of time.
Sometimes, search engines and directories will remove listings for no obvious or expected reason. Generally, a listing will “reappear” without any additional submissions. If the listing not appears again, the Agency will re-submit the website(s) based on the present policies of the search engine or directory in question.
Some search engines and directories may offer quick listing services for a fee. The Agency encourages the Client to take advantage of these quick services. The Client is responsible for all quick service fees unless otherwise stated in the Order Form.
8. WEB SITE CHANGES
The Agency would not be in circumstances responsible for changes made to the Client’s website(s) by other parties that unfortunately affect the search engine or directory rankings of the Client’s website(s).
The customer shall indemnify and hold safe the Agency (and its affiliates, subsidiaries, agents, officers, co-branders or employees, and other partners) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, Logical legal fees and all related costs and expenses) suffer by Agency as a result of any claim, judgment, or adjudication against the Agency related to or appear from (a) any illustrations photographs, audio clips, video clips, graphics, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) given by the Client to the Agency (the “the Client Content”), or (b) a claim that the Agency’s use of the Client Content violates the intellectual property rights of a third party. To qualify for such defence and cost, the Agency must: (i) give the Client prompt written notice of a claim; and (ii) allow the Client to control, and totally cooperate with the Client in, the defence and all connected negotiations.
10. DISCLAIMER OF ALL OTHER WARRANTIES
The agency cannot warrant that the SEO or other Digital Marketing services will touch the client’s expectations or requirements. The entire risk as to the value and performance is with the client. Except as otherwise mentioned in this agreement, the agency provides its services ‘as is’ and without warranty of any kind. The parties agree that (a) the limited warranties put forward in this section are the only and exclusive warranties, provided by each party. Provided by each party, and (b) each party disclaims all other warranties, express or implicit, including but not limited to, the implicit warranties of merchantability and fitness for a particular purpose, associated to this agreement, performance or helplessness to perform under this agreement, the content, and each party’s computing and distribution system. If any provision of this agreement would be unlawful, useless or for any reason unenforceable, then that provision would be considered severable from the agreement and would not affect the validity and enforceability of any incomplete provisions.
11. LIMITED LIABILITY
In any event will the agency be liable to client for any indirect, particular, exemplary or significant damages, including any implied warranty or merchantability or fitness for a specific purpose and in specific any claim of the failure of any software contained on rented or owned servers of the client or implied warranties arising from course of performance, missing profits, whether or not predictable or alleged to be based on violate of warranty, contract, negligence or strict liability, arising under this contract, loss of data or any performance under this contract, even if such party has been advised of the possibility of such damages and notwithstanding the failure of vital purpose of any limited remedy given herein. There would be no refunds. The agency gives no warranty of any sort, whether state of implied with reference to any third party content, products or any application, software, equipment, or hardware received from third parties. The client is responsible for back up of the entire system and re-installing in event of failure of the software.
Where we the agency carry out design work or bespoke coding all intellectual property rights will remain with Incredible until all work has been paid for in full.
13. THE CLIENT REPRESENTATIONS
The Client provides the following representations and warranties for the convenience of the Agency:
The Client entitles to the Agency and without any condition guarantees that any elements of graphics, text, trademarks, photos, designs or other artwork provided to the Agency are owned by the Client, or that the Client has authorization from the legal owner to use each of these components, and will hold safe, secure, and defend the Agency and its subcontractors from any claim or protest arising from the use of such components provided by the Client.
From time to time the government may approve laws and impose taxes and tariffs affecting Internet electronic commerce. The Client agrees that the client is entirely responsible for obeying with such laws, taxes, and tariffs, and will hold safe, secure, and defend the Agency and its subcontractors from any claim, protest, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
The parties ‘The Agency’ and ‘The Client’ agree to carry each other’s Proprietary or Private Information in strict confidence. The “Proprietary or Private Information” would cover, and is not limited to, oral or written agreement, business secrets, know-how, business techniques, business strategies, memoranda, document, reports, records, computer retained information, notes, or financial information. Proprietary or Private Information would not include any information which: (i) is or becomes mainly known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously well known to the receiving party or rightly collected by the receiving party from a third party; (iii) is separately developed by the receiving party; or (iv) is subject to declare under court order or other lawful activity. The parties agree not to make each other’s Proprietary or Private Information available in any appearance to any third party or to use each other’s Proprietary or Private Information for any purpose other than as described in this contract. Each party’s proprietary or private information would remain the sole and complete property of that party. The parties agree that in the event of declare or disclosure by the other party other than as clearly provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Despite expiration or termination of this Agreement, both the parties ‘The Agency’ and ‘The Client’ admit and agree that their obligations of confidentiality with respect to Proprietary or Private Information would continue in effect for total spam of three (3) years from the effective date.
15. DATA PROTECTION
All information carried from or for the client will be held subject to the confidentiality terms of this agreement and in accordance with data protection laws. Such information will only be held by Incredible during the term of this contract. The client will have full authority with respect to complying with the Data Protection Act for all information that Incredible collects and supplies to the client in the course of carrying out the contracted work.
16. FAILURE TO PERFORM
Neither party will be responsible for any delay or for failure to execute its obligations if that delay or failure is originated by circumstances outside the control of the party including but not limited to, industrial dispute, strikes (other than strikes by that party’s employees or its sub-contractor’s employees), acts of God, civil disturbance, or lockouts or impossibility of obtaining source material. Such party shall be responsible for a reasonable extension of time for the performance of such obligations.
17. RELATIONSHIP OF PARTIES
The Agency, in portraying performance under the Agreement, would be considered as an independent contractor and nothing enclosed herein shall constitute this arrangement to be a joint venture, employment, or a partnership. The Client does not assume by this Agreement, the Order Form or otherwise to perform any obligation of the Agency, whether by regulation or contract. In no way is the Agency to be interpreted as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement in spite of.
18. NOTICE AND PAYMENT
Any notice needs to be given under this contract shall be in writing and personally delivered to the other selected party at the addresses mentioned in the Order Form. Either party may change its address to which notice or payment is to be sent by giving written notice to the other under any provision of this paragraph.
The client may not allocate this Agreement or the rights and obligations hereunder to any third party without the prior state written approval of the Agency. The Agency reserves the right to assign subcontractors as needed to this project to certify on-time completion.
This Agreement represents the complete understanding of the Parties, and revokes and supersedes all prior contracts between the parties and is considered as a final declaration of their Agreement. It shall not be revised or modified except in writing signed by the Parties hereto and exclusively referring to this Agreement. This Agreement shall take priority over any other documents which may clash with this Agreement.
21. NO INFERENCE AGAINST AUTHOR
No provision of this contract would be interpreted against any Party because such Party or its legal representative drafted such provision.
In the occasion of any dispute appearing out of the Agreement, the parties will attempt to settle it by negotiation. To this end, they shall use their personal best endeavours to discuss or negotiate with each other, in good belief and, recognising their joint interests attempt to reach a just and reasonable settlement acceptable to both parties. Negotiations shall be managed between the respective senior executives of the parties who gave authority to resolve disputes.
23. READ AND UNDERSTOOD
Each Party accepts that it has read and understands this Agreement and agrees to be bound by its terms and conditions.
28. SOCIAL MEDIA
In executing Social Media Services (SMS) the agency shall develop a plan considered to enhance the visibility of the client’s business profile on the selected social media platforms.
The client accepts that the Social Media Services will require the client to enable the agency to create posts on the clients' behalf over the social media platforms included with the service in order to improve the visibility and ranking of the client’s profile.
The client shall be responsible for giving the agency with the required login details to make posts and also for giving the copy and/or information required for the agency to ensure posts are completely functional.
The client keeps full responsibility for maintaining their social media profile and all links and content contained therein.
FURTHER TERMS AND CONDITIONS ASSOCIATING TO PAID SEARCH MARKETING SERVICES
Where the Client assigns the Agency to supply paid search marketing services (“PSM Services”), the terms of this Annex A shall apply.
The work in performing the PSM services, the Agency would:
• Proactively monitor, track, manage and measure search engine marketing strategies and promote the marketing of the Client’s products and/or services on the Website(s) (and all successor or replacement sites thereto);
• Manage the relationships with and payments to the possessors, owners, operators and/or administrators of the applicable search engines or directories (“Search Partners”);
• Manage offer price, listing conditions, monthly expenditure, adding and removing listings, generating new listings and changing bid quota;
• Provide, monitor and maintain the essential technology applications needed to link the Website(s) to Search Partners; and
• Track and report certain metrics including the total number of clicks, sales conversion data and ROI measurements and, if appropriate to the Agency’s fees, track and report the nature and amount of all relevant actions as recognized in the MSA by Qualified Customers (as defined below).
Payment for PSM Services
The fees placed out in the Service Agreement are exclusive of any application program interface (“API”) similar fees that a Search Partner may levy to the Agency in connection with the Client’s search marketing program. The Agency reserves the right to charge the Client (and the Client agrees to pay) the quantity of such fees. Where such Search Partners assess a specific cost-per-click charge, that cost will be billed by the Agency to the Client. In occasions where a Search Partner charges the Agency a flat fee for API access, the Agency shall pass all such API fees to its PSM clients on a pro-rata basis. For purposes of explanations, in such instances, the Agency shall use commercially sensible efforts to determine the rough effective API cost on a per-click basis for all applicable clients. Each such client would then be charged its proportionate part of the API expense.
Responsibilities of Client
The Client would be only responsible for operating, monitoring, managing and maintaining the content of the Website(s).
The Client would be only responsible for providing and/or approving applicable and suitable offers so that the Agency can look for to manage and optimize search engine placement of the Offers. The Client agrees and acknowledges that a Search Partner may, in its sole discretion, refuse to display or continue to display any of the Client’s Offers and that neither the Agency nor any Search Partner would be answerable for such refusal.
The Client would be only responsible for all characteristics of the relationship with all persons and/or entities that buy Products or submit a registration, as the case may be, including without limitation:
• Creating all prices for Products;
• Accepting, managing and fulfilling orders for Products;
• Collecting payment, which include all taxes or other charges due, from Qualified Customers;
• Managing return of Products and cancellations;
• Making sure that the sale of all Products is made in conformance with all applicable laws (including export control laws);
• Determining all customer service, guarantee, refund, warranty and/or operational policies;
• Accepting and processing registrations;
• Satisfying all loyalty or obligations occurring from each completed registration;
• Making sure that each registration and the information received in processing each registration, is obtained and used in conformance with all the applicable laws.
The Client would provide the Agency with sales and marketing data appropriate to the Products as is available regularly in order to help the Agency in creating relationships with Search Partners.
The Client would provide its logical cooperation with respect to efforts made by the Agency to:
enhance the tracking and reporting of appropriate information including but not limited to the number of clicks and sales conversion data and/or purchases made or registrations submitted by Qualified Customers and
execute and test the technology applications used to link the Website(s) to Search Partners. The Agency shall provide the Client with a one-by-one (1×1) clear pixel (the “Image Tag”) to allow for tracking by the Agency. The Client will not take any action with respect to this Image Tag that would obstruct with the Agency’s ability to carry out its tasks under this Agreement and will provide reasonable advance notice to the Agency of any activity reasonably anticipated to have such effect.
The Client would secure or protect any passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to the Client that are used to enter the Agency’s online program management and reporting tools. In the event that the Client makes such Passwords visible to any third party, the Client shall
obligate each such third party to provide a written confidentiality agreement that sticks that third party to confidentiality obligations consistent with those imposed upon the Client hereunder; and
be responsible for all activity taken by such third party in relation with or associated to that third party’s entry to the Agency’s online program management and reporting tools. Except as clearly set forth in this Agreement, the Client would not reveal or make available the Client’s Passwords other than to the Client’s authorised employees.