1.1 “Confidential Information” means, in respect of a party, all data and information of a confidential nature, including know-how and trade secrets, relating to the business, the affairs and any development projects or other products or services of such party.
Confidential Information may be communicated orally, visually, in writing or in any other recorded or tangible form. Data and information shall be considered to be Confidential Information if:
- the relevant party has marked them as such,
- the relevant party, orally or in writing, has advised the other party of their confidential nature, or
- due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as secret and confidential;
1.2 “Costs” means all costs and indirect costs incurred by Colorpeak Ltd in the performance of the Services under this Agreement;
1.3 “Parties” means the named parties to this Agreement and their respective successors and assigns, and “Party” refers to any one of them, as the context requires;
1.4 “Services” or “Scope of Work” means the services and the scope of work detailed, it includes and is not limed to marketing, website design, pay per click and search engine optimisation (“SEO”) management services; all services may be amended by the parties in writing from time to time;
1.5 “Service Fees” means ascribed to such term in the Services.
2. General Terms and Conditions
2.1 Once all outstanding balances for services are paid in full to Colorpeak Ltd, any elements of text, graphics, photos, contents, trademarks, or other artwork furnished to the Client for inclusion in website, email, or otherwise are owned by the Client.
2.2 All payments will be made by Stripe Online Payments, bank transfer, with details to be provided by Colorpeak Ltd to the Client.
2.3 Colorpeak Ltd assumes that the Client has permission from the rightful owner to use any images or design elements that are provided to Colorpeak Ltd for inclusion in the work it creates on behalf of the Client and will hold harmless, protect, and defend Colorpeak Ltd from any claim or suit arising from the use of such elements. Colorpeak Ltd will not be held liable for the content provided by any Client.
2.4 Colorpeak Ltd warrants that their work is free of bugs and errors. Should any bugs be discovered at any time before project completion, they will be fixed promptly and free of charge.
2.5 Colorpeak Ltd agrees that the Client has the right to edit the work in a time frame agreed upon in advance as it deems appropriate for publication and that Colorpeak Ltd will cooperate with the Client in editing and otherwise review the work prior to publication.
2.6 Colorpeak Ltd retains the right to display all content components and A/B or MVT tests as examples of its work online and as content features in other projects, including but not limited to conference presentations, webinars and free or paid products. Unless expressly agreed, Colorpeak Ltd agrees not to disclose information of a confidential nature, including the following data about the Client: traffic volume, conversion rates, average order value.
2.7 The Client allows Colorpeak Ltd to disclose at least the following for the purposes of at least one case study: the process of working with the Client; information about the visitors, customers and prospects of the Client; voice of customer data gathered during this project; the process of turning raw data into testable copy for use on the Client home page and/or pricing page; the process of setting up the test, including the platform used and the dates in which the test run; and the test results, including goals, conversion lift, confidence reached and next steps. At no time will business-sensitive data be shared in any case study presented by Colorpeak Ltd.
2.8 If communications, materials, deliverables or other necessary items are not provided to Colorpeak Ltd within 30 days of an agreed deadline, the project will be placed on hold. Client and Colorpeak Ltd will agree upon a restart date for the project or engagement.
2.9 This agreement becomes effective only when accepted by agents of the Client and Colorpeak Ltd. The Client agrees that for purposes of venue, this contract was entered into in the United Kingdom and any dispute will be litigated or arbitrated in the United Kingdom.
2.10 The agreement contained in this contract constitutes the sole agreement between the Client and Colorpeak Ltd regarding all items included in this agreement, and it is non-transferrable to any other project unless explicitly stated and agreed upon by Colorpeak Ltd.
2.11 At all times during the term of this Agreement, Client shall maintain full, complete and accurate books of account and records with regard to its activities under this Agreement.
3. Jurisdiction and Arbitration
3.1 This Agreement shall be governed by the laws of the United Kingdom which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Colorpeak Ltd and the Client. The said contract is void where prohibited by law.
3.2 Colorpeak Ltd delivers advertisement copy in accordance with the Client specifications. It is the Client’s responsibility to ensure that the copy and its content comply with standing regulations.
3.3 Any dispute arising out of, or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
4. Survival of Contract
4.1 Where one or more terms of the said contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable by law.
5. Change of Terms and Conditions
5.1 These terms and conditions may change from time to time. The Client will be informed of revisions as and when they are issued.
6. Non-Disclosure Agreement
6.1 At any time during or after the agreement period, the client agrees to keep in strictest confidence and trust all of the Colorpeak Ltd confidential information to which the client has access. The Client will not use or disclose the Colorpeak Ltd confidential information (including, but not limited to, the quoted price for any and all of the services) without the written consent of Colorpeak Ltd.
6.2 The Client agrees not to attack/criticise Colorpeak Ltd and any of its employee, associate or partner publicly (on public forums, blogs, social networks etc.) at any time during or subsequent to the agreement period.
6.3 Similarly, the Client agrees not to seek for AdWords advice on forums, blogs, community groups or any social media in a way which brings a bad name to the company or any of its employee, associate or partner. In case of breach of the non-disclosure agreement, the client agrees to pay a monetary damages award with an intention to reimburse to Colorpeak Ltd any losses caused by the breach.
6.4 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.
6.5 Nothing in this Agreement shall exclude or limit any liability of a party for fraud or fraudulent misrepresentation, or any other liability of a party that may not be excluded or limited under applicable law.
6.6 Covenant Not to Compete (CNC). Colorpeak Ltd agrees that at no time during the term of the contract with the Client will Colorpeak Ltd engage in any business activity which is competitive with the Client nor work for any company which competes with the Client.
7. Use and Training
7.1 Client shall limit use of the Service to its employees who have been appropriately trained.
8. Third Party Use
8.1 If the Permitted Applications include providing a Service to End Users, Client agrees to contractually require all End Users to sign an agreement with substantially similar terms to this Agreement. Client warrants that in no event shall End Users’ use of the data be unrestricted or expand beyond the Permitted Applications of this Agreement. This Section is not intended to provide the Service to End Users unless specifically provided for in the Permitted Applications. Client shall be liable for any violation of the terms and conditions of this Agreement on behalf of the End Users, or Processor arising out of End Users’, or Processor’s use of the Service as defined under this Agreement.
9. Proprietary Information
9.1 The Proprietary Information is and shall remain the sole and exclusive property of Colorpeak Ltd. Client shall have only the limited rights with respect to the Proprietary Information expressly granted in this Agreement, and all rights not expressly granted by Colorpeak Ltd are reserved.
9.2 Client agrees that only Colorpeak Ltd shall have the right to alter, maintain, enhance or otherwise modify the Proprietary Information. Client shall not disassemble, decompile, manipulate or reverse engineer the Proprietary Information and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the Proprietary Information.
9.3 Under no circumstances shall Client sell, Services, publish, display, copy, distribute, or otherwise make available the Proprietary Information in any form or by any means, except as expressly permitted by this Agreement, including without limitation the transfer to a third party or, if not expressly prohibited by this Agreement, as allowed under the fair use provision of Copyright, Designs and Patents Act 1988.
9.4 Client will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Proprietary Information and to prevent unauthorized use or disclosure. Client is responsible for all access to and use of the Proprietary Information by Client’s employees or agents or by means of Client’s equipment or Client’s Colorpeak Ltd usernames and passwords, whether or not Client has knowledge of or authorizes such access or use.
10. Consumer Privacy
10.1 Client acknowledges that the Service, while comprised in part of data keyed in by the Client, describes information that may be deemed to be sensitive information by some consumers.
10.2 It is the policy of Colorpeak Ltd to respect the request of consumers to remove their name, mailing address, e-mail address or telephone number from use in solicitation. Client’s agreement to comply with this policy is an integral condition to Colorpeak Ltd entering into this Agreement.
11. Colorpeak Ltd Warranties, Indemnification & Disclaimers
11.1 Colorpeak Ltd hereby represents and warrants that it has:
- qualified personnel, appropriate facilities and adequate resources in order to discharge the Services in a timely and efficient manner, and
- the necessary experience required to perform the Services in a competent and professional manner.
11.2 Colorpeak Ltd does not represent or warrant that the service is complete or free from error, and does not assume, and expressly disclaims, any liability to any person or entity for loss or damage caused by errors or omissions in the service, whether such errors or omissions result from negligence, accident, or other cause. However, Colorpeak Ltd will always use its best efforts to provide complete information and ensure its accuracy and timeliness.
12. Colorpeak Ltd’s Limitation of Liability
12.1 Colorpeak Ltd shall have no liability under or in any way related to this agreement for any loss, loss of profit or revenue or for any consequential, indirect, incidental, special or exemplary damages, even if Colorpeak Ltd is aware of the possibility of such loss or damages.
13. Client’s Indemnification
13.1 Client agrees to indemnify, defend and hold Colorpeak Ltd harmless from and against all third-party claims, losses, liabilities, costs and expenses arising out of or related to the use of the Service by the Client, or attributable to Client’s breach of this Agreement, provided that Colorpeak Ltd gives Client prompt written notice of any such claim.
14. Entire Agreement
14.1 This Agreement constitutes the entire agreement between the parties, and supersedes any prior understanding or agreement, oral or written, relating to the Service. Any alterations to this agreement must be in writing and signed by both parties.
15. Relationship of Parties
15.1 Neither party is nor shall be a partner, joint-venturer, agent or representative of the other party solely by virtue of this Agreement. Neither party has the right, power or authority to enter into any contract or incur any obligation, debt or liability on behalf of the other party.
16. Uncontrollable Events
16.1 No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected, however, shall use its best efforts to avoid or remove such causes of non-performance and to complete performance of the act delayed, whenever such causes are removed.
17.1 Client may not assign or transfer this Agreement or any rights or obligations under this Agreement without the prior written consent of Colorpeak Ltd, which shall not be unreasonably withheld.
18.1 Any notice or other communication required or permitted under this Agreement shall be sufficiently given if delivered in person or sent by one of the following methods in writing:
- registered mail with tracking capabilities, return receipt requested;
All notices must be sent to the address as shown on the signature page of this Agreement, or to email address [email protected]
19. Payment upon Expiration
19.1 Upon the expiration or termination of this Agreement, Client shall pay Colorpeak Ltd in full for all products actually delivered and services actually performed by Colorpeak Ltd under this Agreement prior to the effective date of such expiration or termination.
20. Contract Renewal
20.1 Client agrees that this contract will be in effect for the agreed upon duration, and from month-to-month immediately following the completion of this agreement. If the project is cancelled by Client at any time, none (0%) of the other received payments will be returned to Client. Upon the cancellation Client agrees to pay all outstanding invoices including the 30 days’ notice.
21. Cancellation & Early Contract Termination
21.1 For contracts for the supply of goods and/or services entered into “off business premises”, you have the right to cancel without giving any explanation or reason within the 14 days beginning at execution of this contract.
21.2 Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013 – Important Customer Information.
It is our responsibility to supply you with information about your right to cancel goods and/or services, that meets with the requirements of your statutory rights.
If you have any concerns that we have not met our legal obligations please contact us; or if you are unclear about your rights and require advice, you can contact the Citizens Advice Consumer Service on 03454 040506.
21.3. This contract shall be for an initial period of 6 months from the commencement date. Either party may terminate this agreement in writing at any time with 30 days’ cancellation notice if other party:
- commits a breach of this contract and, in the case of a breach capable of remedy, he fails to remedy the breach within 30 days of being required to do so in writing; or
- becomes insolvent, or has a liquidator, receiver, manager or administrative receiver appointed.
If you wish to cancel, and are entitled to do so, you must inform us of your decision by a clear statement (e.g. letter sent by post, or email).