Anicca Digital Ltd – Terms and Conditions of Supply of Marketing Services – Updated November 2015

Registered office: 19 Warren Park Way, Enderby, Leicester, LE19 4SA, United Kingdom. Company No: 06984338. VAT registration number: 156 864375.

This contract and the enclosed terms of business represent the whole agreement between the parties and can only be varied by written agreement signed by each of us expressly referring to this contract.
Note: Additional conditions apply for supply of websites and hosting, these will be provided with your contract.

1. CHARGES

a)    All rates and fees are exclusive of VAT, which will be charged at the prevailing rate.
b)    We reserve the right to review and modify fees periodically as service provision changes.
c)    You will be provided separately with the details of your package and any optional charges, these are referred to as The Schedule of Works. These charges are reviewed periodically and any changes will be notified to you in writing 28 days prior to implementation.

2. STANDARD TERMS OF PAYMENT

a)  Anicca invoices must be paid immediately upon receipt unless subject to credit terms as specified in your offer and you will indemnify Anicca in full in respect of any third party expenses suffered or incurred by Anicca pursuant to your instructions.
b)  Invoices will be paid by you (without any deduction) by way of set-off or counter claim or otherwise as follows:
c)  Service initiation (setup) – immediately payable upon receipt of invoice.
d) On-going service management fees – immediately payable upon receipt of invoice or up to 14 days from date of invoice if credit terms are made available.
e)  For any services where a contractor or supplier requires payment before work commences, our invoice covering the same shall be paid in full 10 workings days before work commences.
f)  For software development projects we will issue invoices for stage payments of the total project cost and the payments to be made will be referred to as The Payment Schedule.  The initial Project Mobilisation invoice is subject to immediate payment. Subsequent stage payments shall be payable up to 14 days from date of invoice.
g) Exceptional out of pocket expenses will be charged at cost. These include air and rail fares, hotels and living expenses. Car travel will be charged at AA rates (but agreed with you beforehand). Normal office disbursements such as post, telephone and fax will not be charged.
h) You will remain wholly responsible for paying all advertising costs (Google AdWords, etc) directly with suppliers.
i) You may be charged for other third party costs eg call tracking, reporting etc. A deposit equivalent to a months fees is requiried to cover the cost of all other third party charges.  You will be invoiced the actual amount at the end of each month and this must be paid immediately. No credit terms are available for third party fees and a handling charge will normally be applied.
j) Graphic design costs are charged after each peice of work (or ammendments) are completed. You will be provided an estimate of the number of hours and cost in advance, which you must agree in wriitng (by email) before the work can commence. Once you have paid for the design (in full), the IP will be transferred to you.

3. CREDIT INSURANCE

We reserve the right to take out insurance against perceived credit risks and all our clients must be acceptable to our insurers. In the event of our insurers revising or withdrawing the normal insurance cover in respect of you, we may revise our terms of payment and may require payment in advance.

4. OVERDUE ACCOUNTS

a)    If payment of invoices is not made when due, we reserve the right to charge late payment fees on overdue amounts, these fees are calculated at the following banded rates.  These fees will accrue daily from the due date until payment is made:

For invoices up to £1,000 ex VAT – £3.30 per day
For invoices from £1,001 up to £2,500 ex VAT – £6.85 per day
For invoices from £2,501 up to £5,000 ex VAT – £13.70 per day
For invoices from £5,001 up to £10,000 ex VAT – £27.40 per day
For invoices above £10,000 ex VAT – 5% per day

b)    If payment of invoices is not made when due, we reserve the right to terminate or suspend performance of the services provided under this contract, at our absolute discretion.  This includes suspension and locking of all supplier accounts within our control until full payment is made and an on-going payment plan is agreed. If the payment plan is not adhered to, then we reserve the right to terminate your account(s) and/or the hosting of your website. We will also undertake legal proceedings to recover any outstanding debts.

c)      We reserve the right to retain all work, materials, account login details, intellectual property and any other items in our possession relating to any matter until all invoices are paid in full.

d)    Any queries in respect of an invoice must be raised within 7 days of the date of the invoice. After this date it will be deemed that the invoice has been accepted by you.

5. CHANGES AND/OR CANCELLATION OF AGREED PROJECTS

In the event of change or cancellation, we reserve the right to charge you for all costs of complying with your request, which may include our expenses, production costs, cancellation fees, and our fees in respect of such plans, schedules and any work-in-progress. In cases where the cancelation was not due to any fault on the part of Anicca (for example where you changed your mind); we also reserve the right to charge you for our time in preparation of audits, proposals, invoices and meetings that were incurred prior to the cancellation date.

6. INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT) AND USE OF LOGOS/CLIENT DETAILS IN MARKETING MATERIALS OR CASE STUDIES

a)   Existing PPC accounts will be linked to our MCC (My Client Centre) these will remain your property. However any new campaigns or restructuring of the account will remain our property until the end of the contract and full payment is received.  You can then take back the ownership of the account and run the account in-house; alternatively you can opt for us to continue the management of the account.

b) New PPC accounts will be set up in our MCC (My Client Centre) and will remain the property of Anicca Digital. At the end of the project you can end the contract or opt for us to continue the management of the account.  Subsequently, ownership of the account will be transferred to you if you provide us one month’s notice that you wish to terminate the contract.

c) The intellectual property rights (including, where appropriate, copyright and design rights) in all works created or commissioned by us and used under this agreement shall be vested in us until full payment is made. The IP will then pass to you in full except where identified in the following sub-clauses.

d) Any Content Management System (CMS) software developed by us remains the property of Anicca Digital Ltd but you are granted unlimited and unrestricted lifetime use of the system.

e) Where Software development, CMS configuration and customisation is undertaken and all other such work carried out under this contract becomes wholly-owned by you on receipt of full payment for the work done.  This includes but is not limited to designs, images, content, etc.

f) All third party software systems and utilities including any Open Source products such as Magento or WordPress, etc., used to provide your solution remain the property of their respective owners and creators and as such are subject to their own licensing and intellectual property terms & conditions to which you must fully agree.

g) We reserve the rights to use your logo in our marketing material, PR, website or portfolio; unless we have agreed a mutual NDA. For any websites that we build we will include a link back to our site with a link identifying that we have designed or developed the site.  We will request separate permission to include your results in our case studies. We will provide a copy of the any text or results for you to approve prior to publishing. If preferred we are happy to present case studies results anonymously. Where relevant we will provide an online link back to your site so you can get the SEO benefit from our site authority.

7. PERFORMANCE GUARANTEES

a)  Please note that we cannot guarantee any improvement in the performance of your PPC (or other paid advertising), due to many variables including your website and its ability to convert and competitor activity, amongst many, which may also affect the Cost per Click and/or the performance of your campaign.  We cannot accept responsibility for any variation in the performance of your website due to seasonality, competitor activity, design and usability and other marketing conditions outside our control.

b) Whilst we cannot guarantee any specific improvement of rankings or traffic, from organic search traffic we do use techniques in line with industry best practice as approved and/or advise by Google.

c)  It must be understood that we have no control over future algorithm or policy changes by Google or other search engines, but we do undertake various checks and techniques to try to ensure that the risk of a future penalty is minimised. It is essential that you inform us of any link building or digital advertsing that you may carry out independently; as these may carry risks of a manual penalty if the source of the link is from a site that is known for using spammy techniques or accepting payments for links.

d) The perfomance of an SEO project relies on you (or your developer) implementing any technical recommendations and/or uploading new optimised content within a timely manner (typically 2-4 weeks). Any delay in carrying out these tasks may seriously impact the effectiveness of a project and could even result in drops in rankings e.g. if duplicate content or spammy links are not removed.
Delays may also hold up later phases of the project. In such cases when you or your developer have held up the progress of a project; you will continue to recieve monthly invoices according to the agreed schedule, but if required the days will be banked and used at a later stage of the project i.e. once all the changes have been made.

e) For PR and/or social media projects; the timing and placement of your content on third party and media sites cannot be guarenteed.  Therefore the performance of the project will be judged against the agreed plan of activities to create and place content, (as well as our knowledge of the journalists and influencers in each sector).

We will provide estimates of the likely hit rate from the planned activities and then report on the actual amount of content placed and the engagement with the published content (with regard to audience reach, social shares, click throughs and traffic to your site,  links generated etc.). If applicable we will also determine the commercial value and ROI of the coverage  (as compared to buying the equivalent media space through advertising).

8. LEGAL LIABILITY

a)    You shall be responsible for checking any material submitted by us to you for approval in conneccannot be guaranteedtion with any product or service delivered and you shall approve such material or notify us if any such material is false or misleading or is in any way contrary to law or any applicable UK or EU regulation or law.  If no approval or notification is given by you within any required time limit (or in the absence of any time limit within a reasonable time) following submission of any material in connection with this clause that material shall be deemed to have been approved by you in connection with this clause.

b)    We shall not be liable for any delay in or omission of publication, transmission or any error in any advertisement in the absence of any serious default or neglect on our part.

c)    You shall indemnify us in respect of all costs, damages, or other charges falling upon us as a result of any legal action or threatened legal action brought against us arising from the publication of any promotion or advertising campaign prepared for you by us and approved or deemed approved by you before publication.

d)    We shall not be liable for any costs, loss or damage arising from our failure to fulfil our obligations where failure results from circumstances wholly or in part beyond our control including, for example, inclement weather, industrial action, power failure, etc. We advise you to take out appropriate insurance cover when necessary.

e)    We shall not be liable for any (i) loss of profit (whether direct or indirect); (ii) loss of business (iii) depletion of goodwill and/or similar losses; (iv) loss of contract (v) loss or corruption of data or information; or (vi) special, indirect consequential or pure economic loss, costs, damages, charges or expenses.

f)     Our entire liability in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with this contract shall not exceed the associated fees and/or charges received by us under this contract.

9. DURATION AND TERMINATION

a)  This project or engagement will run for the full duration agreed at the outset, i.e. in our Order Confirmation document. Between signing the order confimeation and prior to starting work on the project,  either party may terminate the contract for any reason upon 1 months notice except where this duration is modified and mutually agreed (see clause 5 above).

b)  If you request to terminate this contract prior to its full contracted duration, the full contract cost including all setup costs and contracted monthly fees and notice period will become payable immediately.  In this circumstance all pre-agreed discounts will be lost.

c)  We may terminate this contract forthwith on written notice in any of the following circumstances:

i)  You make any voluntary arrangement with or convene a meeting or make or propose to make any arrangement or composition with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation or pass a resolution for winding up or a court makes an order to that effect;
ii)  A receiver, administrator, administrative receiver, manager, trustee or similar officer is appointed over any of your assets;
iii)   You cease or threaten to cease to carry on business;
iv)  You are in material breach of any of the terms of this client contract and, in the case of a breach capable of remedy you fail to remedy such breach within 10 days of written notice from us requiring remedy of such breach.

d)  All clauses which expressly or by implication have effect after termination shall continue in full force and effect.
e)  Without prejudice to any other rights we may have, we shall on termination be entitled to turn off and take down any website which we may be hosting for you as part of the services which we supply to you.
f)  Ownership of all supplier accounts, including PPC and Hosting, will remain the property of us until the project, service or engagement is terminated and all monies owed are paid in full.

11. DATA PROTECTION

a)    You shall ensure that any mailing list, database or other personal data supplied to us by you shall comply with all legislation in force from time to time including without limitation the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. You shall ensure that such mailing list, database or other personal data shall include only data which may be used (in accordance with all relevant legislation) for the purpose for which such mailing list, database or other personal data has been supplied.

b)    You shall indemnify us in full against any claim that the passing to us or our use of any mailing list, database or other personal data supplied by you in accordance with clause 10a) above is in breach of any legislation in force from time to time.

12. CONFIDENTIALITY

a)    Both parties shall keep in strict confidence all ideas, concepts which are proposed in connection with our engagement or project together with all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and which either party has disclosed to each other, and any other confidential information concerning either party’s business or services.

b)    Nothing in this agreement shall affect either party’s right to use as they see fit any general marketing or advertising intelligence which is gained in the course of the engagement or project.

13. NON SOLICITATION

You agree that you will not either on your own account or in association with any other person, firm, company or organisation or otherwise and whether directly or indirectly solicit or entice away or attempt to solicit or entice away any employee of ours who has worked on any project or service delivery for you in the previous 12 months.

14. CHOICE OF LAW AND JURISDICTION

The construction and performance of this agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any disputes between them.

15. GENERAL

a) Force majeure: If a party is obstructed in performing any of its obligations by an event outside its reasonable control, then performance to the extent obstructed is suspended for so long as the obstruction continues. Whilst performance has been suspended for more than 7 days, either party may terminate the Contract by immediate written notice without prejudice.

b) Waiver: Failure to enforce any of these terms is not a waiver of a party’s rights and shall not prejudice its rights to take action in respect of the same or any later breach.

c) Severability: Any part of a Term which is wholly or partially void, invalid, or unenforceable shall be severed from the remainder (which remains enforceable).

d) Notices: Any notice to be given by either party to the other shall be in writing, may be sent by recorded delivery, and shall be deemed served 2 days after posting.