As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Services Agreement document, including Appendix A, together with any other supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 “The Client Content” means all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the deliverable.
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.K Copyright Law.
1.4 “Deliverable” means the services and work product specified in the Agreement and in Appendix A to be delivered by Keel Over to the Client, in the form and media specified in the Agreement.
1.5 “Final Deliverable” means the final versions of deliverable provided by and accepted by Keel Over.
1.6 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the agreement.
1.7 “Services” means all services and work to be provided to the Client by Keel Over as described and otherwise further defined in the Agreement.
1.8 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the final deliverable to designate the origin or source of the goods or services of the Client.
The terms of the agreement shall be effective for 2 weeks after presentation to the Client. In the event this Agreement is not executed by the Client within the time identified, the Agreement, together with any related terms and conditions and deliverable, may be subject to amendment, change or substitution.
FEES AND CHARGES
3.1 Fees. In consideration of the services to be performed, the Client shall pay to Keel Over fees in the amounts and according to the payment schedule set forth in Appendix A (collectively, the “Service Fees”) and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Invoices. The initial invoice is payable upon receipt thereafter all future invoices are payable within fourteen (14) days of receipt. A 1.5% monthly service charge is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. The Client shall be responsible for all collection or legal fees necessitated by late or default in payment. Keel Over reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding additional costs, taxes, expenses and fees, charges or the costs of any changes.
4.1 General Changes. Unless otherwise provided in the Agreement, and except as otherwise provided for herein, the Client shall pay additional charges for changes requested by the Client which are outside the scope of the Services, on a time and materials basis, at Keel Over’s standard hourly rate of £35.00 + VAT. Such charges shall be in addition to all other amounts payable under the Agreement, despite any maximum budget, contract price or final price identified therein. Keel Over may extend or modify any delivery schedule or deadlines in the Agreement and Deliverable as may be required by such Changes.
4.2 Substantive Changes. If The Client requests or instructs changes that amount to a revision in or near excess of ten percent (10%) of the time required to produce the deliverable, and or the value or scope of the services, Keel Over shall be entitled to submit a new and separate Agreement to The Client for written approval. Work shall not begin on the revised services until a fully signed revised Agreement and, if required, any additional retainer fees are received by Keel Over
4.3 Timing. Keel Over will prioritise performance of the Services as may be necessary or as identified in the Agreement and will take reasonable efforts to perform the Services within the time(s) identified in the Agreement. The Client agrees to review deliverables within the time identified for such reviews and to promptly.
THE CLIENT RESPONSIBILITIES
The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) Co-ordination of any decision-making with parties other than Keel Over
(b) Provision of the Client Content in a form suitable for reproduction or incorporation into the deliverable without further preparation, unless otherwise expressly provided in the Agreement; and
(c) final proofreading and in the event that the Client has approved deliverable but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, The Client shall incur the cost of correcting such errors.
All displays or publications of the deliverable shall bear accreditation and/or copyright notice in Keel Over’s name in the form, size and location as incorporated by Keel Over in the deliverable, or as otherwise directed by Keel Over. Keel Over retains the right to reproduce, publish and display the deliverable in Keel Over’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the deliverable in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Agreement except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality
RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. Keel Over is an independent contractor, not an employee of The Client or any company affiliated with The Client. Keel Over shall provide the Services under the general direction of The Client, but Keel Over shall determine, in Keel Over’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Keel Over and the work product or Deliverable prepared by Keel Over shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to The Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, The Client agrees not to solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other kind of basis, any Keel Over employee or whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, The Client agrees that Keel Over shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with The Client, or (b) 25 percent of fees paid to said person if engaged by The Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for The Client. Keel Over, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.3 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by Keel Over, and Keel Over shall be entitled to offer and provide design services to others, solicit other the Clients and otherwise advertise the services offered by Keel Over.
WARRANTIES AND REPRESENTATIONS
9.1 The Client represents, warrants and covenants to Keel Over that (a) The Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of The Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) The Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) The Client shall comply with all laws and regulations as they relate to the Services and Deliverable.
9.2 By Keel Over (a) Keel Over hereby represents, warrants and covenants to The Client that Keel Over will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, KEEL OVER MAKES NO WARRANTIES WHATSOEVER. KEEL OVER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
10.1 By The Client. The Client agrees to indemnify, save and hold harmless Keel Over from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of The Client’s responsibilities or obligations, representations or warranties under this Agreement.
10.2 By Keel Over. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Keel Over agrees to indemnify, save and hold harmless the Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Keel Over’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of The Client provided that (a) The Client promptly notifies Keel Over in writing of the claim; (b) Keel Over shall have sole control of the defence and all related settlement negotiations; and (c) The Client shall provide Keel Over with the assistance, information and authority necessary to perform Keel Over’s obligations under this section. Notwithstanding the foregoing, Keel Over shall have no obligation to defend or otherwise indemnify The Client for any claim or adverse finding of fact arising out of or due to The Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverable provided by Keel Over
10.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF KEEL OVER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF KEEL OVER, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES (“KEEL OVER PARTIES”), TO THE CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, THOUGHT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF KEEL OVER. IN NO EVENT SHALL KEEL OVER BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY KEEL OVER, EVEN IF KEEL OVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
11.1 The term of the Contract shall be 6 months from the date of the Order (Initial Term). Save where the Contract is terminated pursuant to this clause 11, the Initial Term shall automatically extend for successive 6-month periods (each, an Extension Term).
11.2 The Client may terminate its Contract with Keel Over by giving written notice of not less than 1 month:
11.2.1 for convenience, such notice to expire at the end of the Initial Term or any Extension Term; or
11.3 Without limiting its other rights or remedies, Keel Over may terminate its Contract with the Client with immediate effect by issuing a final invoice to the Client if:
11.3.1 the Client fails to comply with any of its obligations under the Contract;
11.3.2 the Client ceases to carry on business, becomes insolvent or enters into or is subject to any form of winding up, administration, receivership, liquidation, bankruptcy, arrangement with creditors generally or any other insolvency procedure in respect of it or any of its assets, or suffers from enforcement of security or legal process or repossession or any event analogous to any of the above in the United Kingdom;
11.3.3 the Client fails to make any payment due to Keel Over under the Contract and/or any other contract with Keel Over by the due date for payment; or
11.3.4 where, in Keel Over’s reasonable opinion, the Contract is no longer profitable.
11.4 Without limiting its other rights and remedies under the Contract and notwithstanding earlier termination thereof, where Keel Over terminates the Contract pursuant to any of clauses 8.3.1 to 8.3.3 (inclusive), the Client shall be liable to Keel Over for all Charges, whether or not the Services under it have been performed. The Charges will be calculated by multiplying the monthly Charges, outlined in the Service Fees section of Appendix A, by the number of months remaining on the Contract Term and applying a 10% discount.
12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Keel Over’s invoices may include, and The Client shall pay, expenses or costs that The Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure. Keel Over shall not be deemed in breach of this Agreement if Keel Over is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of Keel Over or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Keel Over’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Keel Over shall give notice to The Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United Kingdom without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, county courts located in the United Kingdom. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. The Client acknowledges that Keel Over will have no adequate remedy at law in the event The Client uses the deliverable in any way not permitted hereunder, and hereby agrees that Keel Over shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.
12.8 Access to data. Having full access to the campaign the Client will be able to view and download all metrics that Google report on. These include but are not limited to:
Clicks – The number of people who have clicked onto the website from the ad.
Impressions – The amount of times the ads have been shown.
Click-Through Rate (CTR) – The percentage of people who have clicked through to the website after viewing the ad (Clicks ÷ Impressions x100)
Cost per Click (CPC) – This is the cost to the account for every click
Average Position – Where the ad will appear in the paid search results.
Conversions (Conv.) – The number of sales/leads/enquiries etc. that have been received
Cost per Conversion (CPA) – The overall cost divided by the number of conversions (Cost ÷ Conversions)
Click Conversion Rate (Conv. Rate) – The percentage of people who have converted after clicking on the ad (Conversions ÷ Clicks x100)
12.9 Intellectual Property: All Intellectual Property will belong under the sole ownership of the Client. This includes but is not limited to: The Google Ads campaign, all contained data and any Analytics tracking data.
12.10 Campaign Modifications: The Client agrees that only Keel Over shall have the right to alter, maintain, enhance or otherwise modify the Google Ads campaigns or any other campaigns covered by this agreement and while this agreement is in effect. The Client shall not disassemble, decompile, manipulate or reverse engineer the campaigns and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the campaigns during the course of this agreement. In addition, Keel Over cannot be held responsible for results if the Client or any franchisee make changes in the Google Ads account while this agreement is in place.