Terms & Conditions

These Terms and Conditions apply to the provision of all Services by us, Nerd Affects.

1. Outline of Work

1.1  Client is hiring Nerd Affects, henceforth referred to as ‘Nerd Affects’ to develop a new web site as outlined in our previous correspondence.

1.2  Your project will includes everything as detailed in the Scope Of Services document.

2. Definitions and Interpretation

2.1  In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

“Client” means you, the individual, firm or corporate body purchasing the Services. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to do so and to contractually bind that business and the business shall be the Client in the context of this Contract;

“Contract” means the contract formed as detailed in clause 2, which includes the acceptance of these Terms and Conditions;

“Quotation” means the written quotation provided by us to you, which unless otherwise stated, remains open for acceptance for a period of 14 days and constitutes our entire scope of works; and

“Order” means the order placed by the Client through counter-signing Our Quotation form

“Services” means the web design, hosting, and/or any other services provided by us to you as specified in the Quotation

“Specification” means the description or specification of the Services in the Quotation

2.2  Unless the context otherwise requires, each reference in these Terms and Conditions to:

• 2.2.1  “we”, “us”, “our” is a reference to the Agency (Nerd Affects) and includes our employees and agents;
• 2.2.2  “you” and “your” is a reference to the Client and includes your employees and agents;
• 2.2.3  “writing” and “written” includes emails and similar transmissions;
• 2.2.4  a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
• 2.2.5  “these Terms and Conditions” is a reference to these Terms and Conditions as may be amended or supplemented at the relevant time;
• 2.2.6  a clause is a reference to a clause of these Terms and Conditions;
• 2.2.7  a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

2.3  The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation. Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.

2.4  No terms or conditions stipulated or referred to by you in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless agreed by us in writing.

3. The Contract

3.1 We will provide you with a written Quotation for our Services. The acceptance of our Quotation, electronically or otherwise, or the placement of an order, creates a legally binding Contract between you and us, and includes the acceptance of these Terms and Conditions, which will apply between us.

3.2 You are responsible for the accuracy of any information you submit to us and for ensuring that our Quotation reflects your requirements. Our Quotation is based on the information provided to us at the time we prepare it. If any errors or discrepancies become evident, we reserve the right to make adjustments to it.

3.3 You agree to provide us with any information, advice and assistance as we may reasonably require within sufficient time to enable us to perform the Services. However, any timescales we provide are a guideline only and are not of the essence of the Contract.

4. Company obligations and warranties

4.1. We warrant we will provide the Services as stipulated in the Quotation using reasonable care and skill to conform in all material respects with the Specification.

4.2. We shall use all reasonable endeavours to meet any performance dates specified in the Quotation but any such dates shall be estimates only. We shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide Us with adequate delivery instructions or any other instructions relevant to the supply of the Services.

4.3. We shall have the right to make any changes to the Services which are necessary to comply with any applicable law.

5. Client’s obligations and indemnities

5.1. The Client shall provide assistance and technical information to Us, as reasonably required and in sufficient time to facilitate the execution of any Services in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to Us and warrants and undertakes to Us that the Client’s employees assisting in the execution of any Services have the necessary skills and authority.

5.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by Us. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by Us.

5.3. The Client shall be obliged to inform Us immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by Us.

5.4. The Client shall indemnify and keep Us indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by Us in respect of any third parties as a result of the provision of the Services in accordance with the Quotation, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against Us for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.

5.5. The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, Competition Act 1998 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep Us indemnified in respect of any and all costs, claims or proceedings whatsoever brought against Us by any third party in connection with any breach of the same by the Client.

5.6. As standard across the Services and unless otherwise notified, the Client shall be exclusively responsible for implementing the optimisation changes recommended by Us. As notified by Us, in certain cases for amendments to existing optimisations, the Client shall allow Us use of the site’s FTP or content management system’s username and password in order to gain access.

5.7. We require that prior notice be given for any alterations relating to the Client’s website(s) that may affect the Services supplied by Us. If alterations are made by the Client or a third party to the Client’s site(s) search engine placements may be affected and We cannot be held responsible.

5.8. We advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO Services.

6. Prices

6.1. Unless otherwise expressly stated, all prices shall be in Pounds Sterling and shall be exclusive of VAT and other duties. In the event that duties are introduced or changed after the conclusion of an Order, We shall be entitled to adjust the agreed prices accordingly.

6.2. The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licences from third party owners and licensors.

6.3. Whilst every effort is made to ensure that costing estimates are accurate, We reserve the right to amend any estimate, should an error or omission have been made.

7. Payment

7.1. We shall invoice the Client as agreed on a per project basis.  For fixed price work, this will consist of an agreed percentage sum prior to work being undertaken with the remaining sum being paid following Services delivered or at agreed project milestones.

• 7.1.1 No further works shall be carried out until each stage payment is received and any digital works shall not be launched until we have received final payment. We shall not be liable for any delays where your payment obligations have not been complied with.
• 7.1.2 All payments made to Us, including deposit payments, are non-refundable.

7.2. The Client shall pay each invoice submitted by Us within 14 Business Days of the date of the invoice and in cleared funds in accordance with clause 7.3 below. The invoice number shall be stated on all payments and payment by BACS, CHAPS, Cheque and Bank Transfer are accepted.

7.3. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Us to the Client.

7.4. Late payment shall be considered as constituting a material breach of the Contract entitling Us (at Our discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach;

• 7.4.1 We reserve the right to abandon the project and invoice You the remainder of the quoted fee 30 days after the contract formation, or after 14 days of receiving no contact from You, regardless of the project status, this shall be immediately due and payable.
• 7.4.2 The Client may also be charged statutory interest pursuant to the late payment legislation.
• 7.2.3 Accounts remaining unpaid 60 days after the invoice date will attract a service charge of £40. If payment is not received within a further seven days, the responsibility for recovery of the money will be transferred to a debt recovery agency and recovery costs will be applied.

7.5. In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, We shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Order. We shall be entitled to payment on the basis of Our hourly rate for any additional work required because of the Client’s failure to assist or delay in assisting.

7.6. If the Client subsequently requires Us to complete the work within a shorter time frame than specified in the Order We reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.

8. Delays and complaints

8.1. In the event that the Client proves that the Services are delayed or not in accordance with the Contract, We shall be obliged to remedy or redeliver, at Our own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Order in accordance with clause 13.2 a), provided that the breach is material.

8.2. Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to Our attention within 48 hours the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.

8.3. The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that We cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.

8.4. Our only responsibility in respect of the Third Party Services is to take reasonable care and skill when selecting the providers of the same.

8.5. The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract and Our sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 9 below.

9. Liability

9.1. Except as expressly stated in this Clause 9, We shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.

9.2. Without prejudice to the generality of Clause 9.1 above, We shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:

a) Any indirect or consequential loss arising under or in relation to the Contract even though We were aware of the circumstances in which such loss could arise;
b) Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
c) Loss of data; and
d) Fraudulent clicks on any of the Client’s accounts managed by Us.

9.3. To the extent such liability is not excluded by sub-clauses 9.1, 9.2 and clause 10 below, Our total liability, whether in contract, tort (including negligence or otherwise) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.

10. Other limitations of liability

10.1. We shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. We shall use our reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at Our discretion).

10.2. We shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by Us. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms at Our discretion.

10.3. We shall use all reasonable endeavours to deliver Services relating to search engine optimisation and paid-for advertising applicable to relevant platforms. However, We shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond Our control and reserves the right to make changes to Services as a result of this.

10.4. We shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, We shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.

10.5. We shall not be responsible for URLs dropped or excluded by a search engine for any reason.

10.6. If the Client does not implement some or all of Our recommendations, We shall not bear any liability for any lack of success experienced by the Client relating to the Services.

11. Intellectual property rights

11.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to Us for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to Us to use such Materials for the purposes of providing the Services for the duration of the Contract.

11.2. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. We shall be entitled to reject and delete such material without incurring any liability. In addition, We shall be entitled to cancel the Order.

11.3. The Client shall indemnify Us against all damages, losses and expenses suffered or incurred by Us as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.

11.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.

11.5. Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of Us or the relevant third party from whom We have acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in Us.

11.6. The Intellectual Property Rights as mentioned in Clause 11.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.

11.7. The Client hereby irrevocably licenses Us to use and display the Client’s name, figure, logo etc. as a reference on Our website, other marketing materials or types of media whilst they are a Client of Our’s and for 20 years after the Contract terminates. The Client agrees to send Us it’s most recent logo or figure as and when it is amended from time to time.

12. Confidentiality and personal data

12.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.

12.2. During the term of the Contract and for a period ending five years from the date of its conclusion, We shall take the same care as We use with Our own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.

12.3. The obligation in Clause 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into Our possession without an accompanying obligation of confidence, is independently developed by Us, or which We are required to disclose by law.

12.4. During the term of the Contract and for a period ending five years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non Client materials provided by Us concerning the method or approach We use in providing the Services.

12.5. Each party agrees to comply with its respective obligations under the Data Protection Act 1998.

12.6. The Client shall be obliged to indemnify Us for any loss, including costs incidental to legal proceedings, suffered by Us as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 1998 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.

13. Term, termination and assignment

13.1. Any Contract shall renew automatically for a further term of one year at the end of each year unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the current year by giving the other party at least 30 days’ written notice to expire at the end of that Contract term.

13.2. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:

a) commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.

13.3. We shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.

13.4. Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc, from websites without undue delay. If the Client fails to do so, We shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of Our right to terminate the Contract.

13.5. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent from Us.

13.6. We shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.

14. Force majeure

14.1. Neither party shall be held liable for a Force Majeure Event.

14.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.

14.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than six months due to a Force Majeure Event.

15. Miscellaneous

15.1. We reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and We shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.

15.2. We shall be free to provide Our Services to third parties whether during or following the provision of the Services to the Client.

15.3. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.

15.4. If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.

15.5. Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.

15.6. A person who is not a party to the Contract shall not have any rights under or in connection with it.

16. Entire agreement

The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between Us and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.

17. Law and jurisdiction

17.1. We and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.

17.2. The Contract shall be governed by and construed in accordance with English law and the parties hereby agree to submit to the non-exclusive jurisdiction of the English courts.