(1) ruralwebsites ltd (trading as clickcreations), a company incorporated in England and Wales (registration number 988 1204 94) having its registered office at Whitsleigh Cottages, St-Giles-in-the-Woods, Devon, EX38 7EJ (the “Provider”); and
1. Definitions and interpretation
1.1 In this Agreement:
“Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company, firm or individual;
“Agreement” means this agreement (including the Schedule) and any amendments to it from time to time;
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between [09:00] and [17:30] on a Business Day;
“Charges” means the amounts payable by the Customer to the Provider under or in relation to this Agreement (including expenses), calculated in accordance with Clause ;
“Confidential Information” means the Provider Confidential Information and the Customer Confidential Information;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“CustomerConfidential Information” means:
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider that at the time of disclosure: (i) is marked as “confidential”, or (ii) should have been reasonably understood by the Provider to be confidential; and
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means the period agreed (usually monthly);
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“ProviderConfidential Information” means:
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Customer that at the time of disclosure: (i) is marked as “confidential”, or (ii) should have been reasonably understood by the Customer to be confidential; and
“Schedule” means the schedule attached to this Agreement;
“Services” means marketing services relating to the Website, as detailed in Clause ;
“Term” means the term of this Agreement;
“Website” means the websites and/or web services specified in the Schedule, to be marketed by the Provider under this Agreement; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on [the Effective Date] or on any anniversary of [the Effective Date].
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
This Agreement will come into force on the Effective Date and will continue in force [indefinitely, unless and until terminated in accordance with Clause  / until completion, upon which it will terminate automatically, unless terminated earlier in accordance with Clause ].
3.1 The Provider will promote the Website during the Term; and promotion of the Website will include the Services specified in the Schedule and may in addition include the provision of some or all of the following Services:
(a) modification of the Website (including adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, applications, internal and external links and Website structure);
(b) paid and unpaid submission of the Website to search engines and directories;
(c) the creation and publication of material and applications relating to the Website on other websites;
(d) drafting and issuing electronic press releases;
(e) link building and link baiting;
(f) the arrangement of internet advertising including pay-per-click advertising, pay-per-view advertising, banner advertising, and other forms of paid internet advertising;
(g) the implementation, management and operation of affiliate marketing programmes;
(h) the implementation, management and operation of email marketing programmes; and/or
(i) other website and web service marketing and promotion techniques, whether known on the Effective Date or invented or disseminated thereafter.
4. Customer responsibilities
4.1 The Customer will provide to the Provider:
(a) the ability to access and make changes to the Website;
(b) assistance in determining appropriate keywords and keyword phrases which should be targeted using the Services;
(c) direct access to analytical data concerning the Website, such as data concerning referral sources, visitor activity, Website usage, conversion rates, and similar data; and
(d) all other co-operation, information and documentation reasonably required by the Provider for the provision of the Services.
4.2 The Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.
4.3 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) that are required for the full use of the Services.
5.1 The Customer must not use the Website:
(a) to host, store, send, relay or process any material; or
(b) for any purpose,
which is unlawful, illegal, fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against the Provider or the Customer or any third party.
5.2 The Customer warrants that any marketing list (including any email marketing list) provided by or on behalf of the Customer to the Provider in connection with the Agreement will have been collected and collated in accordance with all applicable laws and regulations, and that the use of any such list by the Provider for the purposes of the Services:
(a) will not breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003);
(b) will not infringe any person’s legal rights; and
(c) will not give rise to any cause of action in any jurisdiction, whether against the Provider, the Customer, or any other person.
5.3 Where the Provider reasonably suspects that there has been a breach of the provisions of this Clause , the Provider may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
5.4 Any breach by the Customer of this Clause  will be deemed to be a material breach of this Agreement.
5.5 The Customer hereby indemnifies and undertakes to keep indemnified the Provider against any and all liabilities, damages, losses, expenses and costs (including legal expenses and amounts paid in settlement of any claim or legal action) arising, directly or indirectly, out of any breach [or alleged breach] by the Customer of this Clause .
6. Intellectual Property Rights
6.1 The Customer grants to the Provider a non-exclusive licence to use the Website to the extent required for the Provider to perform its obligations and exercise its rights under the Agreement.
6.2 All Intellectual Property Rights in any works arising in connection with the performance of the Services by the Provider will be the property of the Provider. Where the Provider modifies the Website in the process of providing the Services, the Provider hereby grants to the Customer a non-exclusive royalty-free licence to use such modifications in connection with the Website.
7. Charges and payment
7.1 The Customer will pay to the Provider the Charges in respect of the Services. The Charges shall consist of the following elements:
(a) fixed Charges as specified in the Schedule;
(b) variable Charges as specified in the Schedule;
(b) Charges calculated by multiplying the number of hours incurred providing the relevant Services by the Provider’s hourly rate as specified in the Schedule; and
(b) any expenses falling within the categories detailed in the Schedule incurred by the Provider in providing the Services (which expenses will be passed on at cost).
7.2 The Provider will ensure that the aggregate Charges in respect of the Services provided in any period do not exceed the budget specified in the Schedule in respect of that period.
7.3 The Provider will issue invoices to the Customer in respect of Charges for the Services monthly in arrears on the appropriate day of each calendar month during the Term / from time to time in arrears during the Term.
7.4 The Customer will pay the Charges to the Provider within 14 days of the date of issue of an invoice issued in accordance with Clause [7.3].
7.5 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
7.6 Charges must be paid by debit or credit card, direct debit, bank transfer or by cheque (using such payment details as are notified by the Provider to the Customer from time to time).
7.7 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7.8 The Provider will:
(a) collect and collate evidence of all expenses;
7.9 Subject to Clause [7.10],] the Provider may vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation expiring at any time after the end of the Minimum Term.
7.10 Variations under Clause [7.9] must not result in a percentage increase in any element of the Charges during the period between the Effective Date and the date of the notice of variation exceeding the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office of National Statistics.
8.1 The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
8.2 The Provider warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that it will perform its obligations under this Agreement with reasonable care and skill.
8.3 The Customer acknowledges that:
(a) search engine algorithms will change from time-to-time, which may affect the Website’s rankings in the search engine results pages, and the Provider has no control over such changes;
(b) it can take many months for the Services to have any significant effects upon the ranking of a Website in the search engine results pages;
(c) web site promotion is an ongoing task and, should the Customer terminate this Agreement and/or stop promoting the Website, that would be likely to have a negative impact upon the effects of the Services;
(d) the Provider will not be responsible for any alterations to the Website made by the Customer or any third party that reverse or otherwise affect changes made to the Website by the Provider as part of the Services;
(e) the promotion of the Website may lead to higher traffic levels and bandwidth requirements for the Website, and the Customer will be responsible for arranging and paying for such requirements; and
(f) notwithstanding the Services, the Website’s search engine results page rankings and traffic levels may decrease as well as increase.
8.4 The Provider does not warrant that any particular results will be achieved through the Services. Where the Provider indicates specific targets that it will attempt to meet through the provision of the Services, such targets are not warranted and a failure to meet such targets will not be a breach of the Agreement.
8.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law and subject to Clause [9.1], no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9. Limitations and exclusions of liability
9.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause  [and elsewhere in the Agreement]:
(a) are subject to Clause [9.1];
(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement[, and any amounts paid under any indemnity in the Agreement shall not count towards any aggregate liability cap under Clause [9.10].
9.4 The Provider will not be liable for any loss of business, contracts or commercial opportunities.
9.5 The Provider will not be liable for any loss of or damage to goodwill or reputation.
9.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.
9.7 The Provider will not be liable in respect of any special, indirect or consequential loss or damage.
9.8 The Provider will not be liable for any losses arising out of a Force Majeure Event.
9.9 The Provider’s liability in relation to any event or series of related events will not exceed the greater of:
(a) £0.01; and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement during the [number] month period immediately preceding the event or events giving rise to the claim.
9.10 The Provider’s aggregate liability under the Agreement and any collateral contracts will not exceed the greater of:
(a) £0.01; and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under this Agreement, and that the processing of that Personal Data by the Provider for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws (including the Data Protection Act 1998).
10.2 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.
11.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause ; and
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
11.2 The Customer will:
(a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause ; and
(b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
11.3 Confidential Information of a party may be disclosed by the other party to that other party’s [officers, employees, agents, insurers and professional advisers], provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.
11.4 The obligations set out in this Clause  shall not apply to:
(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer, and Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider; or
(c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information.
11.5 Nothing in this Agreement shall restrict a party from making any disclosure of Confidential Information that is:
(a) required by law; or
(b) required by a governmental authority, stock exchange or regulatory body[,
provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement].
The Customer will not make any public disclosure about the Agreement or the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the the Provider, not to be unreasonably withheld or delayed.
13.1 Either party may terminate this Agreement at any time by giving at least 30 days’ written notice to the other party expiring at any time after the end of the Minimum Term.
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement.
13.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
14. Effects of termination
14.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5.5, 6.2, 7.7, 7.8, 9, 11, 14 and 15.3 to 15.12].
14.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
14.3 If this Agreement is terminated under Clause [13.1], or by the Customer under Clause [13.2] or [13.3] (but not in any other case) the Customer will be entitled to a refund of any Charges paid by the Customer to the Provider in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Provider (such amount to be calculated by the Provider using any reasonable methodology).
14.4 Save as provided in Clause [14.3], the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Provider.
15.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by [recorded signed-for] post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or [email address] given in the Schedule (or as notified by one party to the other in accordance with this Clause).
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by [recorded signed-for] post, [48 hours] after posting; and
(c) where the notice is sent by fax [or email], at the time of the transmission (providing the sending party retains written evidence of the transmission).
15.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
15.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
15.5 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
15.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
15.7 The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
15.8 The Provider may subcontract any of its obligations under this Agreement to any third party.
15.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
15.10 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.4
15.11 Subject to Clause [9.1]:
(a) this Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and
(c) neither party will have any liability other than pursuant to the express terms of this Agreement.
15.12 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.