CWA - Terms & Conditions

Basis of Contract

CWA Europe shall provide the Client with a pre-agreed specified service or package of services. The Client shall purchase these specified services in accordance with the Sales Agreement, or any purchase order of the Client which is accepted in writing by CWA Europe, subject in either case to these Conditions.
These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Sales Agreement is accepted or purported to be accepted, or any such purchase order is made or purported to be made, by the Client.

The Sales Agreement (including any Special Conditions) shall form an integral part of the Contract. If there is any conflict or inconsistency between the terms of the Sales Agreement (including any Special Conditions) and the terms and conditions set out in this document, the terms of the Sales Agreement (and any Special Conditions) shall take precedence.

No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of CWA Europe and the Client.

CWA Europe's employees or agents are not authorised to make any representations concerning the Specified Services unless confirmed by CWA Europe in writing. In entering into the Contract, the Client acknowledges that it does not rely and has not relied on any such representations which are not so confirmed.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by CWA Europe shall be subject to correction without any liability on the part of CWA Europe.

The signed Sales Agreement binds the Client to an exclusive relationship with CWA Europe for the duration of the Term.

Orders and Specified Services

Orders for the supply of the Specified Services shall be made on the Sales Agreement, or by the Client's purchase order in the style, format and content approved by CWA Europe.

No order submitted by the Client shall be deemed to be accepted by CWA Europe unless and until confirmed by CWA Europe's authorised representative in Writing.

The Client shall be responsible to CWA Europe for ensuring the accuracy of the terms of any order (including any specifications) submitted by the Client, and for giving CWA Europe (at the Client's expense) all necessary Input Material relating to the Specified Services within a reasonable period of time to enable CWA Europe to perform the Contract in accordance with its terms.

The Client shall at its own expense retain duplicate copies of all Input Material and insure it against accidental loss or damage. CWA Europe shall have no liability for any accidental loss or damage to such Input Material howsoever caused. All Output Material shall be at the sole risk of the Client from the time of its delivery to the Client or as otherwise made available to the Client.

No order which has been accepted by CWA Europe may be cancelled or varied by the Client except with the agreement in writing of CWA Europe and on terms that the Client shall indemnify CWA Europe in full against all loss (including loss of profit), costs (including suppliers costs), damages, charges and expenses incurred by CWA Europe as a result of such cancellation or variation.

CWA Europe reserves the right but is not under any legal obligation to make any changes in the specification of the Specified Services which are required to conform to any applicable safety or other statutory, regulatory or legal requirements or such other changes which do not materially affect the nature and quality of the Specified Services.

During the continuance of the Contract the Client shall not enter into any contract or arrangement with any third party, or in-house department, for the supply of services that are similar or identical to the Specified Services unless otherwise agreed in Writing by CWA Europe.

Any exclusivity provisions under which the Client agrees not to obtain similar services from third parties shall only apply whilst the Contract is in force and for a maximum period of five years from the date on which this Contract is entered into, following which period, the parties will negotiate in good faith any renewal of such exclusivity.

Charges

The Client shall pay the Charges for the Specified Services.

The Charges are based on information available to CWA Europe at the time of providing the quotation as set out in the Sales Agreement and in the event of any change in supplier commissions at any time, CWA Europe shall be entitled to vary the Charges to take into account such changes.

In the event that CWA Europe is unable to deliver the Specified Services (in full or in part) or comply with its obligations under the terms of the Contract as a result of CWA Europe being required in respect of the delivery of the Specified Services to conform with any legal or statutory obligations or regulations to which the Client is subject and is not at that time compliant, then the Client shall:

pay to CWA Europe such Charges as it would otherwise be required to make if the conformity to ensure compliance with the legal or statutory obligations or regulations had not been necessary; and
indemnify CWA Europe and keep it indemnified from and against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by CWA Europe as a result of such non-compliance by the Client.

The Charges and all other payments for the provision of the Specified Services are exclusive of any applicable Value Added Tax and other duties and taxes which shall be payable by the Client in addition to the Charges and other payments.

All payments by the Client shall be made without set-off or counterclaim and without any deduction. If the Client is compelled to make any deductions whether by law or otherwise the

Client shall pay additional amounts to ensure receipt by CWA Europe of the full amount which CWA Europe would have received but for such deduction.

Payment

1. Pay Per Click Campaign:

CWA Europe shall issue an invoice for a sum representing 100% of the monthly Charges and the Client shall pay such invoice through credit card or direct debit.

The invoice for a Pay Per Click Campaign is for management of same, and all clicks accumulated during said Campaign will be paid directly to the Search Engines involved.

The Pay Per Click Campaign Management fee will be invoiced on a monthly basis for the duration of the Contract.

2. Consultancy Services and Search Engine Optimisation Services

CWA Europe shall issue an invoice for a sum representing 100% of the monthly Charges and the Client shall pay such invoice through credit card or direct debit.

The Consultancy Services and Search Engine Optimisation Services fee will be invoiced on a monthly basis for the duration of the Contract.

In the event the Client disputes any invoice, the Client shall notify CWA Europe in writing of such dispute within 7 days of the date of the invoice and at the same time shall provide all documents and information in support of its reasons for such dispute to CWA Europe and if the parties are unable to resolve the difference between them within 21 days of the date of the invoice, the dispute shall be referred on the application of either party to an independent accountant nominated by the President for the time being of the Institute of Chartered Accountants of England and Wales. Such invoice (or balance thereof) shall be paid by the Client within 7 days of the determination by the nominated independent accountant. In the event no notification is received by CWA Europe in accordance with this clause, the Client shall not be entitled to dispute such invoice thereafter.

The Client shall be entitled to pay the Charges by cheque, cash, standing order, bankers order, direct debit or credit card. Should payment be made by monthly standing order, the number of monthly payments shall be equal to the length of the Term.

CWA Europe shall be entitled to appropriate any payments received from the Client to any outstanding invoices or other payments due to CWA Europe in any order CWA Europe may deem appropriate.

In the event any request in writing is received from the Client for a postponement in delivery or completion of part or all of the Specified Services for any reason whatsoever CWA Europe shall be entitled to invoice the Client for the full amount for which it would have been entitled to invoice at such time had no such postponement been requested and such invoice shall be paid as if the Specified Services had been delivered or completed.

In the event of failure by the Client to make payment of any sums payable by the due date then without prejudice to any other right or remedy available to CWA Europe, CWA Europe shall be entitled to:

cancel the Contract and suspend any further provision of the Specified Services;
charge the Client interest (both before and after any judgment) on the amount unpaid at the rate of 1% per month until payment in full.

Delivery and Acceptance

The Client shall use tracking mechanisms agreed in Writing by CWA Europe to verify delivery of the Deliverables by CWA Europe. Any time and date given by CWA Europe for delivery is given and intended as an estimate only and time shall not be of the essence.

Both Client and Company will have the right to audit the tracking mechanism to verify achievement of the Deliverables upon 48 hours notice.

Upon delivery of the Deliverables (which for the purpose of this clause 6c shall include any report relating to achievement of the Deliverables) the Client shall be responsible for inspecting the Deliverables and shall notify CWA Europe in Writing within 3 days of delivery of any matter or thing by reason whereof the Client alleges that the Deliverables do not comply with the specifications of the Contract or are otherwise incorrect. If the Client fails to give such notice in accordance with this clause the Deliverables shall be deemed to comply with the specifications of the Contract (and are otherwise correct) and the Client shall not be entitled to make a claim thereafter that the Deliverables do not comply with the specifications of the Contract (or are otherwise incorrect).

Intellectual Property Rights

All Intellectual Property Rights used or subsisting in or in connection with the Specified Services and with respect of all Output Materials and Deliverables are owned and will be the sole property of CWA Europe. The Client will not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership by CWA Europe thereof.

The Client shall, subject to payment in full of all Charges on the due dates for payment and compliance with the other terms and conditions of the Contract, benefit from a non-exclusive licence granted to it by CWA Europe for the use of CWA Europe's Intellectual Property Rights in the Output Materials and Deliverables only.

The Client undertakes not to use, re-use or recreate the content or other material relating to the Output Materials or the Deliverables or the Intellectual Property Rights relating thereto, all of which belong to or have vested in CWA Europe.

All Intellectual Property Rights in any Input Materials shall belong to the Client and the Client hereby grants to CWA Europe a non-exclusive licence to use all Intellectual Property Rights in such Input Materials for the purpose of providing the Specified Services.

The Client warrants that it owns all Input Materials or has a valid and subsisting licence to use such Input Materials and the use by CWA Europe of the Input Materials for the purpose of providing the Specified Services will not infringe the Intellectual Property Rights or any other rights of any third party. The Client shall indemnify CWA Europe against any losses, damages, costs, expenses or other claims arising from any such infringement or breach of this clause.

The Client will indemnify CWA Europe on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the Input Materials or the provision of the Specified Services in accordance with the Client's specifications infringes the Intellectual Property Rights or any other rights of any third party.

Confidentiality

Both during the Contract and after its termination, the parties shall treat as confidential (and shall procure that the personnel of each of them treat as confidential) and shall not (and shall procure that the personnel of each of them does not) other than in the proper provision of the Specified Services, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its clients or suppliers, nor permit its use or disclosure.

These provisions shall not apply where Confidential Information is divulged to:

either party's own employees and then only to those employees who need to know the same;
either party's auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.

Both parties undertake to ensure that persons and bodies are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.

Each party shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.

The provisions of this clause shall survive the termination of the Contract.

The restrictions contained in these Confidentiality provisions shall not apply to any information which:

may come into the public domain otherwise than through unauthorised disclosure;
the recipient can show was in its possession or known to it by being in its use or recorded on its files prior to receipt from the disclosing party and was not previously acquired from the disclosing party under an obligation of confidence;
the recipient obtains or has available from another source without breach by it of any confidentiality obligations owed to that source or the disclosing party; or
is required to be disclosed to any court of competent jurisdiction or any competent judicial, governmental or regulatory body provided that prior to such disclosure the recipient shall notify the disclosing party (to the extent permitted by law) of the full circumstances and the information that will be disclosed.

Term and Termination

The Contract shall commence on the date of acceptance of the Sales Agreement by CWA Europe (which date shall be notified by CWA Europe to the Client) and continue, subject until either party gives to the other one month's notice in writing to terminate the Contract, such notice to expire at the expiry of the Term.

In the event whereby no notice is given the Contract shall continue for a subsequent periods equal to the Term until either party gives to the other one month's notice in writing to terminate the Contract, such notice to expire on any anniversary date of the date of the Contract.

Either party shall be entitled to terminate the Contract forthwith at any time in writing to the other party if:

the other party commits a material breach of any of the terms of the Contract including these Conditions and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, goes into liquidation or bankruptcy, becomes insolvent, or ceases to be able to pay its debts as they fall due.

The Client shall be entitled to terminate the Contract by giving notice in writing to CWA Europe as aforementioned.

Termination Consequences

Forthwith upon the termination of the Contract for any reason whatsoever:

the Client shall pay all sums then owing to CWA Europe in respect of invoices already issued by CWA Europe;
the Client shall return to CWA Europe any Confidential Information belonging to CWA Europe and all copies of the whole or any part thereof or, if requested by CWA Europe, shall destroy the same and certify in writing to CWA Europe that it has been destroyed.

In the event of the termination of the Contract for any reason other than the expiry of the Term or a lawful termination of the Contract by the Client pursuant to the provisions here within, CWA Europe shall be entitled forthwith to issue to the Client an invoice in respect of 25% of the total Charges which would have been payable in respect of the Contract during the Term (on the assumption that such termination had not occurred) and the Client shall pay such invoice forthwith upon receipt.

Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

Warranties and Liabilities

CWA Europe warrants that:

in providing the Specified Services CWA Europe shall use all reasonable skill and care; and
the Deliverables will materially correspond with their specification in the Contract at the time of delivery.

CWA Europe shall not be liable for any losses, damages, costs, expenses, injuries or other claims of any nature whatsoever caused by or arising from:

any Input Material, information or instructions supplied by the Client being incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form;
any act or omission of the Client, any personnel of the Client, or any other body or person contracted to the Client in respect of the Specified Services;
any failure by the Client to comply with any legal or statutory obligations
or regulations; any act or omission of any third party personnel, or any other body or person.

CWA Europe shall not be liable for any claims arising out of the provision of the Specified Services insofar as the same arose as a result of any infringement of copyright arising from the Input Materials supplied by the Client to CWA Europe used to provide the Specified Services.

Any guaranteed minimum in respect of the Deliverables as contained in the Sales Agreement is, other than as set out in this clause, for guidance only provided that:

in the event that there is a 20% shortfall of the Deliverables delivered by CWA Europe as against any guaranteed minimum in any agreed time period, the Client and CWA Europe shall co-operate together to attempt to resolve the matter;
in the event that there is a 40% shortfall of the Deliverables delivered by CWA Europe as against any guaranteed minimum in any agreed time period, the Client shall be entitled to terminate the Contract in Writing to CWA Europe.

Nothing in these Conditions shall exclude or limit the liability of CWA Europe for death or personal injury caused by CWA Europe's negligence or for any other liability for which it is not possible to exclude or limit by operation of law.

CWA Europe's liability whether arising under contract, misrepresentation, misstatement, any tortious act or omission including negligence, infringement of Intellectual Property Rights or otherwise, arising from or in connection with the supply of the Specified Services, the Output Materials or the Deliverables or their use by the Client shall be limited to the Charges payable by the Client over the period of the Term.

CWA Europe shall not be liable to the Client whether under contract, misrepresentation, mis-statement, any tortious act or omission including negligence, infringement of intellectual property rights or otherwise, for any loss of profit, business contracts, revenues or damage to the Client's reputation or goodwill or for any indirect, special or consequential loss or damage which arise out of or in connection with the supply of the Specified Services, the Output Materials or the Deliverables or their use by the Client.

General

CWA Europe shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of CWA Europe's obligations in relation to the Specified Services, if the delay or failure was due to any cause beyond CWA Europe’s reasonable control.

The Client undertakes that during the currency of the Contract and for a period of six months following its termination for whatever reason it will not directly, or by its agent or otherwise and whether for itself or for the benefit of any other party, employ any of the officers or employees of CWA Europe or induce or endeavour to induce any of CWA Europe's officers or employees to leave his or her employment.

The Client shall not be entitled to assign any of its rights or obligations under the Contract or these Conditions without the prior consent in writing of CWA Europe.

The Contract and these Conditions contain the whole agreement between the parties and supersedes all previous agreements.

No failure or delay by CWA Europe in exercising any right, power or privilege under the Contract or these Conditions shall operate as a waiver thereof or prejudice any other or further exercise by CWA Europe of any of its rights or remedies under the Contract or these Conditions.

The rights and remedies in the Conditions are cumulative and not exclusive of any right or remedies provided by law.

The Conditions shall not be varied except with CWA Europe's prior consent in writing.

A notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

If any provision of the Contract or these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, void ability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract or these Conditions and the remainder of such provision shall continue in full force and effect.

The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and Conditions and the Contract and no person other than the parties to the Contract shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.

The Contract and these Conditions shall be construed in accordance with the Laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts in relation to any matter or dispute arising out of or in connection with the Contract or these Conditions (whether of a contractual or tortious nature or otherwise).

Terminology Guide:
"Action" means a single agreed occurrence as specified on the Sales Agreement within the Paid Search Process Flow;

"Charges" means CWA Europe's quoted charges set out in the Sales Agreement or as varied pursuant to these Conditions together with any additional charges agreed between the Client and CWA Europe from time to time;

"Click" means a visitor delivered to the Client's website from a link in a paid search campaign;

"Client" means the person or company whose details are set out in the Sales Agreement and who has requested the Specified Services;

"Conditions" means the terms and conditions set out in this document and includes any Special Conditions;

"Confidential Information" means any and all information in whatever form whether disclosed orally or in writing (including any electronic or machine readable form) or in any other form including, without limitation, the form, materials and design of any relevant equipment or any part thereof, the methods of operation and the various applications thereof, processes, formulae, plans, strategies, data, know-how, designs, photographs, drawings, specifications, technical literature and any other material made available by one Party to the other Party or gained by the visit by one Party to any establishment of the other Party whether before or after this Agreement is entered into, for the purpose of considering, advising in relation to or furthering the Purpose together with any information derived from such information;

"Contract" means a contract for the provision of the Specified Services;

"Deliverables" means the result of performing the Specified Services as detailed on the Sales Agreement;

"Input Materials" means any materials, data or other information provided by the Client in relation to the Specified Services;

"Intellectual Property Rights" means any patent, patent application, know how, trade or service mark (whether registered or unregistered), trade or service mark application, trade name and logo, registered design, design right, copyright or other similar intellectual or industrial right;

"Output Materials" means any documents, manuals, data, materials or other information provided by CWA Europe in relation to the Specified Services;

"Paid Search Process Flow" means the process commencing with a visitor from a link in a paid search campaign and ending with an Action in respect of a customer;

"Sales Agreement" means CWA Europe's Sales Agreement form setting out amongst other things the Client's details and Specified Services requested;

"Search Engine Optimisation" means on- and off-site improvements to the Client's website to make it more visible on agreed search engines (also referred to as \"natural\" or \"organic\" search);

"Specified Services" means the services detailed in the Sales Agreement and requested by the Client;

"Special Conditions" means any special conditions agreed by CWA Europe and set out in the Sales Agreement;

"Term" means the time period (if any) for the provision of the Specified Services as set out in the Sales Agreement or as otherwise provided in these conditions;

"Writing" includes telex, cable, facsimile transmission, electronic mail and any other comparable means of communications. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation. Any reference to a person includes a reference to an individual or a body corporate or unincorporated or a partnership. Any reference to the masculine includes the feminine and the neuter and to the singular includes the plural and vice versa as the context admits or requires.