Last Updated: 7th April 2020
(A) This agreement is a framework agreement, the terms of which are to be incorporated into any number of Statements of Work and Schedules which are, or may be, attached. Each Statement of Work constitutes a separate agreement on the terms of this framework agreement. Termination of any one Statement of Work shall not affect termination of any other Statement of Work (although this shall not prevent more than one Statement of Work being subject to termination if termination circumstances apply to them).
(B) The framework agreement shall subsist for as long as at least one Statement of Work subsists. The limitations of liability cover in this Agreement including all the Statements of Work in aggregate.
(C) Each Statement of Work, together with any Annexes will form a separate and independent contract for the applicable transaction between us and will commence on the date on which it is signed by both parties.
(D) For the supply of any further Software and/or Services the parties shall agree new Statements of Work. All Statements of Work are automatically made on the terms of this Agreement together with any specifically agreed terms set out in the Statement of Work.
(E) If there is any conflict or inconsistency between any provision of this framework agreement and any Statement of Work the terms of the framework agreement shall prevail unless specifically stated in writing in a Statement of Work with reference to this clause.
(F) Except as set out in this Agreement, all dates, timescales and Services are estimates only and this is a time and materials contract.
(G) The Client acknowledges that these Terms and Conditions can be updated by Neon at any time for a variety of reasons, such as to reflect changes in applicable law or updates to services, and to account for new services or functionality and the Client will be bound to the updated Terms and Conditions. Any updates to this Agreement will be communicated to the Client by Neon via email. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Neon to obtain your consent to such changes, or to provide you with sufficient advance notice of them.
1. Interpretation
The definitions and rules of interpretation in this clause apply in this Agreement.
1.1 Definitions
“Acceptance Date” means the date on which the agreement is accepted (or deemed to be accepted) by Neon
“Acceptance Tests” means the tests specified or agreed in writing between the Company and Neon;
“Acceptance Date” the date on which the Acceptance Certificate is issued by the Client.
“Acceptance Certificate” the certificate to be signed by the Client.
“Agreement” means the Statement of Work and these Terms and Conditions.
“Client” means the client defined under the Statement of Work.
“Commencement Date” means the date on which this Agreement comes into force.
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Data Protection Legislation” means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently) any legislation which succeeds the GDPR;
“Deposit” means an advance payment made to Neon before Neon commence work.
“Downtime” means the non-availability of one or more parts of the Hosting Services as defined in the Schedules (hosting service levels);
“Error” any failure of a developed application to substantially conform to the specifications;
“Fees” means the fees payable by the Client to Neon in accordance with the payment schedule in the Statement of Work;
“Hosting Package” means the specification under which the Hosting Services and Fees shall be determined and provided in a proposal or quote;
“Hosting Services” means the website hosting services provided by Neon;
“Intellectual Property Rights” means:
(a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
“Implementation Plan” the time schedule and sequence of events for the performance of this agreement set out in the statement of Work, which may be varied in accordance with Clause 8.
“Licence” means the licence to use an application developed by Neon granted by Neon to the Client
“Maintenance Charge” the fee for any Maintenance Services to be provided if required;
“Maintenance Services” the maintenance services to be provided by Neon including analysis, coding, testing, release of corrections to software faults and any maintenance to hosting. Maintenance shall be within reasonable limits, as determined by Neon, and does not include requests for basic product training or technical consulting;
“Normal Support Hours” from Monday through to Friday and from 0900 to 1730 (excluding national holidays);
“NEON” means the supplier of the Services as defined under the Statement of Work specifically being Neon Digital Limited incorporated and registered in England And Wales under number 05248836.
“Payment Schedule” means the payment details as set out in the Statement of Work;
“Price” means the price payable for the Services as fully detailed in the related Statement of Work.
“Project” means, collectively, the development, delivery and testing of the Service being provided by Neon;
“Services” means the services to be provided by Neon to the Client as set out in Schedule 1
“Service Levels” means the agreed performance levels to which the hosting provided through Neon must adhere as set out in Schedule 1;
“Scheduled Service Downtime” means Downtime which is pre-planned by Neon for maintenance, upgrades and similar activities in accordance. This downtime is excluded from the agreed downtime in the SLA
“Specification” the specification of the application being developed, or the service being offered as set out in the Statement of Work.
“Statement of Work” means the document attached to this agreement signed by the parties setting out the details of the services to be provided by Neon to the Client.
“Support” support services to be provided by Neon in respect of the services offered and available for the continuance of the agreement, if specified in the Statement of Work.
“Support Fee” the fee for the Support Services to be provided under the agreement as specified in the Statement of Work.
“Support Ticket” means a message sent to Neon via Neon’s online support system support@neondigital.co.uk;
“Term” means the term of this Agreement as set out in Clause 2
“Uptime” means the normal, fully functional availability of the Hosting Services and all components thereof.
“Warranty Period” means the period during which errors will be fixed as outlined in the Statement of Work, excludes all change requests.
1.2 Each reference in this Agreement to “writing” and any similar expression includes electronic communications whether sent by e-mail, text message, fax or other means.
1.3 Each reference to “this Agreement” is a reference to this Agreement, Statement of Work and specification documents related to a service, job or project and each of its Schedules as amended or supplemented at the relevant time.
1.4 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.5 Each reference to the singular number shall include the plural and vice versa.
1.6 Each reference to any gender shall include the other gender.
1.7 References to persons shall include corporations.
2. Term
This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 20, until the first anniversary of the Effective Date (“Initial Term”), when it shall automatically renew for a periods of continuing 12 months (“Renewal Term”), unless notice is received 6 weeks prior to the end of the Initial Term or any Renewal Term for the contract to not renew in accordance with the terms of this Agreement.
3. Personnel
3.1 Neon shall ensure that all of its personnel engaged in the Project:
a. have the necessary skills, expertise and diligence to undertake such work
b. comply with the provisions in this agreement relating to Confidential Information and Non-Solicitation.
4. Price, Payment and Expenses
4.1 In consideration of Neon providing the Services to the Client, the Client shall pay the Fees to Neon. Details of the Fees are set out in Schedule 2.
4.2 The Client shall pay invoices in full within 28 days of receipt in cleared funds to the bank account nominated in writing by Neon.
4.3 If The Client fails to make any payment due to Neon under this agreement by the due date, then, without limiting Neon’s remedies under clause 20 (Termination), The Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Failure to pay hosting fees, could result in the hosting being switched off. If hosting is switched off there will be a fee of 2 hours work to reinstate. Should the invoice remain outstanding the hosting will be removed from the website and any backups might be deleted
4.4 Interest under clause 4.4 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.5 If the Client disputes any invoice or other request for payment, it shall immediately notify Neon in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. Neon shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of The Client giving notice to Neon, the dispute shall be resolved in accordance with clause 31 (Multi-tiered dispute resolution). Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out under this Agreement. Neon’s obligations to provide the Services shall not be affected by any payment dispute, including its obligations to provide the Services to which the payment dispute relates.
4.6 In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from 5 days after the dispute is resolved until payment.
4.7 The Charges are exclusive of amounts in respect of VAT. The Client shall, on receipt of a valid VAT invoice from Neon, pay to Neon such additional amounts in respect of VAT as are chargeable on a supply of the Services.
4.8 Before Neon begin providing the Services, The Client may be required to pay a Deposit as specified in the Statement of Work.
4.9 In certain circumstances, if the Services are cancelled, The Client Deposit may be refunded in full or in part. The amount due will be calculated based upon the Price for the Services and the amount of work already undertaken by Neon and additional expenses incurred on the project or in provision of the services.
4.10 The Charges shall exclude the following costs which shall be payable by Client monthly in arrears, subject to submission of an appropriate invoice:
a. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Neon deploys in connection with the Services, provided always that Neon shall obtain the Recipient’s written approval before incurring any such expenses which would cause the aggregate of such expenses in respect of all individuals so deployed to exceed £300 in any month; and
b. the cost to Neon of any materials or services procured by Neon from third parties for the provision of the Services as such items and their cost are specified in the Fees or approved by Client in advance from time to time.
4.11 Client shall be entitled to require Neon to provide all such evidence as may be reasonably necessary to verify the Charges and any other matters set out in an invoice.
4.12 Neon shall be entitled to increase the Fees in line with the Retail Price Index every 12th months from the date of this agreement. The changes outlined in this clause shall take effect from the month following the anniversary date.
5. Providing the Services
5.1 Neon will provide the Services with reasonable skill and care, consistent with practices and standards in the industry.
5.2 Neon will begin providing Services on the date specified in each Statement of Work.
5.3 Neon will use reasonable endeavours to complete the Services on time (and in accordance with the specification in the Statement of Work). Neon cannot, however, be held responsible for any delays if an event outside of Neon control occurs.
5.4 If Neon require any information or action from The Client in order to provide the Services, Neon will inform The Client of this as soon as is reasonably possible.
5.5 If the information or action required of The Client under Clause 5.4 is delayed, incomplete or otherwise incorrect, Neon will not be responsible for any delay caused as a result. If additional work is required from Neon to correct or compensate for a mistake made as a result of incomplete or otherwise incorrect information or action on The Client part, Neon may charge The Client a reasonable additional sum for that work.
5.6 In certain circumstances, Neon may suspend the Services (and will inform The Client of that suspension in writing). Should the suspension be for a technical issue, unless the issue is an emergency and requires immediate attention Neon will inform The Client at least 5 working days in advance in writing before suspending the Services.
6. Intellectual Property Rights
6.1 During the course of providing our Services to The Client, Neon may create or produce work for The Client which embody/embodies certain Intellectual Property Rights (such as copyright or patents).
6.2 Neon will retain ownership of any and all Intellectual Property Rights that may subsist in anything Neon create for the Client. Neon will grant to The Client a royalty-free, a non-exclusive licence to use that creation. The licence granted under this Clause 6.2 will continue indefinitely as a perpetual licence. The duration of the licence will not necessarily be related to the duration of the Services themselves and may continue beyond the duration of the Services.
6.3 If this Agreement is cancelled under Clause 20, the licence granted under Clause 6.2 shall cease and The Client will no longer be permitted to use all or part of the related creation.
6.4 The Intellectual Property Rights in any application Neon develop (including the source and object code) together with any related materials or documentation are and shall remain the property of Neon. Neon shall notify the Client immediately if Neon becomes aware of any unauthorised use of the whole or any part of the Source Software by any person.
6.5 The Intellectual Property Rights in any application Neon develop (including the source and object code) and the Documentation shall be and remain vested in Neon apart from any elements which do not form part of the generic functionality of the Services and which implement visual features or layouts created at the specific request of the Company. All Intellectual Property Rights in such distinctive Company features (including the source and object code) shall be and remain vested in the Company.
6.6 Neon will indemnify the Company 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 Services infringes the Intellectual Property Rights of any third-party subject to the following conditions:
a. The Client shall promptly notify Neon in writing of any allegations of infringement of which it is aware and shall not make any admissions without Neon’s prior written consent;
b. The Client, at Neon’s request and expense, shall allow Neon to conduct and/or settle all negotiations and litigation resulting from any such claim; and
c. The Client shall, at the request of Neon, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by Neon on demand for all expenses incurred in doing so.
6.7 If the Company’s use or possession of the Services or any part of the Services is held by a court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights, then Neon shall promptly and at its own expense:
a. procure for the Company the right to continue using and possessing the Services or the infringing part; or
b. modify or replace the Services (or part thereof) without detracting from the overall performance of the Services, so as to avoid the infringement.
6.8 If the remedies set out in Clause 6.7 above are not in Neon’s opinion reasonably available, then the Company shall return the Services which is the subject of the intellectual property claim and Neon shall refund to the Company the corresponding portion of the Price, as normally depreciated, whereupon this Agreement shall immediately terminate.
7. Clients Obligations
7.1 The Client shall:
a. provide Neon with such information in connection with the Services and the provision thereof as Neon may, from time to time, reasonably require both before and during the provision of the Services.
b. ensure that its employees and other independent contractors co-operate reasonably with Neon and its employees in carrying out the Project;
c. promptly furnish Neon with such information and documents as it may reasonably request for the proper performance of its obligations; and
d. ensure that any and all representatives appointed by it are available as reasonably required by Neon.
7.2 The Client shall perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement.
7.3 The Client shall use reasonable endeavours to keep Neon informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the Services. To the extent necessary and appropriate, Neon shall where possible take steps to comply with any such requirements.
8. Change Requests
8.1 If either Party identifies a requirement for a change, a Change Request will be sent to the other Party detailing the change requirements. If sent by Neon, the Change Request shall state the effect such a change shall have on the Service and the Fees. If sent by the Client, the receipt of the Change Request by Neon will constitute a request to Neon to state in writing the effect such a change shall have on the Service and the Fees.
8.2 Neon shall not implement any changes unless confirmed by both parties with a written and signed variation letter.
9. Acceptance Tests
9.1 The Acceptance Tests shall be agreed by the Parties in accordance with the Implementation Plan.
9.2 The Company shall accept the application immediately after the application has passed the Acceptance Tests.
9.3 If at any time the Company shall commence live running of the whole or any part of the Services (other than in the Acceptance Tests) then the Company shall be deemed to have accepted the Services.
10. Title and Risk
10.1 Should Neon be supplying the service only and with no required hosting of any of the Service or any onwards obligations, the title and all associated risk in the Service will pass to the Client on delivery.
10.2 If any part of the Service after delivery be lost, destroyed or damaged, Neon shall not be liable to replace the same.
10.3 Should an event under 10.2 occur the parties shall meet to discuss the required steps to be undertaken and the fee for Neon to replace the Service.
11. Support
11.1 During the term of this Agreement, Neon shall provide the Company with all or any of the following Support services:
a. On-site support will be provided by Neon if and as specified in the Statement of Work and where appropriate in the event that telephone support does not resolve the problem;
b. Out-of-Hours support shall, where specified in the agreement, be provided by Neon. Out-of-hours support is not guaranteed and if billed, this will be at a premium hourly rate;
c. Information on availability of new versions of software; and
d. Telephone support with Neon’s technical team.
11.2 The Client shall supply in writing to Neon a detailed description of any job requiring Support services and the circumstances in which it arose, and shall submit sufficient material and information to enable Neon’s support staff to duplicate the problem.
11.3 When appropriate, Neon will endeavour to give an estimate of how long a problem may take to resolve. Neon will keep the Client informed of the progress of problem resolution. Neon’s staff will attempt to solve a problem in a timely manner.
12. Maintenance
12.1 Unless Specified in any Service any maintenance required to the Services will be only performed by Neon in line with Fees outlined in the Service.
12.2 Neon will upon notification of the Client will carry out any required maintenance including error correction, updates to the Service.
12.3 Any maintenance under this clause 12 will be carried out during Neon Business Hours only.
12.4 Any maintenance required to the Service shall not include service in respect of:
a. defects or errors resulting from any modifications of the current release made by any person other than Neon;
b. any version of the Licensed Programs other than the current release or the immediate current release;
c. incorrect use of the current release or operator error;
d. any fault in the client or third-party equipment or in any programs used in conjunction with the current release;
e. defects or errors caused by the use of the current release on or with equipment or programs not supplied by or approved in writing by Neon, provided that for this purpose any programs designated for use with the current release in the Services shall be deemed to have the written approval of Neon.
13. Releases
13.1 Neon shall not be responsible for notifying the Client of any improved version to the Service
14. Changes in Law
Neon will not be liable for any modifications to the Services due to any change to any legislation or new legal requirements which affect the Service. Should the Client wish for any changes to the Service due to any change in legislation the parties shall agree a fee for the changes.
15. Licence
15.1 On payment in full of the Fees, Neon shall grant to the Client a non-exclusive perpetual, non-transferrable right to use the Services.
16. Warranties
16.1 Neon warrants that:
a. all Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated;
b. the Service provided will be carried out in a professional manner;
c. It has the full authority to enter into this Agreement; and
d. The Services shall not infringe any third-party rights, subject to clause 16.2.
16.2 The Client warrants that:
a. It has the authority to enter into this Agreement
b. any material the Client supplies to Neon for the Service that it has any required necessary licenses and rights to use the material; and
c. any material supplied to Neon confirms with all legislation and does not contain any material that is illegal.
17. Confidentiality
17.1 Each Party undertakes that, except as provided by this clause, it shall, at all times during the continuance of this agreement and for 10 years after its termination:
a. keep confidential all Confidential Information;
b. not disclose any Confidential Information to any other party;
c. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Statement of Work and this agreement;
d. not make any copies of, record in any way or part with possession of any Confidential Information; and
e. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of this clause.
17.2 Either Party may disclose any Confidential Information to:
a. any sub-contractor or Neon;
b. any governmental or other authority or regulatory body; or
c. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies.
The use of any information under this clause for any purpose, or disclose it to any other person, to the extent only that it is at the date of the job specification, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the confidential information which is not public knowledge.
17.3 The provisions of this Clause 17 shall continue in force in accordance with their terms, notwithstanding the termination of the agreement for any reason.
18. Liability and Indemnity
18.1 Except as expressly provided in this Agreement, neither Party shall be liable or responsible to the other in contract, tort or otherwise (including any liability for negligence) for:
18.2 any loss of revenue, business, contracts, anticipated savings or profits, or any loss of use of facilities; or
18.3 any special indirect or consequential loss howsoever arising.
19. Force Majeure
19.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.
20. Termination
20.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
b. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so;
c. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
d. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
e. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
f. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
g. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
h. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
i. the other party (being an individual) is the subject of a bankruptcy petition, application or order;
j. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
k. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause; or
l. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
20.2 On termination of this Agreement by the Host pursuant to clause 12.2, all licences granted by the Host under this Agreement shall terminate immediately.
20.3 On expiry or termination of this Agreement otherwise than on termination by the Host under clause 12.2 the Host shall:
a. promptly return to the Client the Site Software and all Materials, and shall provide to the Client an electronic copy of the Site (including all content on the Site); and
b. provide such assistance as is reasonably requested by the Client to transfer the hosting of the Site to the Client or another service provider, subject to payment of the Host’s expenses reasonably incurred.
20.4 Upon the termination of this Agreement for any reason:
a. any sum owing by either Party to the other Party under any of the provisions of this Agreement shall become immediately due and payable;
b. any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination shall remain in full force and effect where they are expressly stated to survive such termination;
c. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
d. subject as provided in this Clause, and except in respect of any accrued rights, neither Party shall be under any further obligation to the other;
e. each Party shall return to the other Party any materials in which the ownership has not been transferred to that other Party which have, for any reason, been provided for the purposes of this Agreement; and
f. each Party shall (except to the extent referred to in Clause 9) forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other Party any documents in its possession or control which contain or record any Confidential Information.
21. Notices
21.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
a. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b. sent by fax to its main fax number or sent by email.
21.2 Any notice or communication shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
b. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
c. if sent by fax or email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when business hours resume.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22. Data Protection
22.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
22.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Recipient is the controller and Neon is the processor.
22.3 Without prejudice to the generality of clause 22.1, the Recipient will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Neon for the duration and purposes of this agreement.
22.4 Without prejudice to the generality of clause 22.1, Neon shall, in relation to any personal data processed in connection with the performance by Neon of its obligations under this agreement:
a. process that personal data only on the written instructions of the Recipient unless Neon is required by the laws of any member of the European Union or by the laws of the European Union applicable to Neon to process that personal data (Applicable Data Processing Laws). Where Neon is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, Neon shall promptly notify the Recipient of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Neon from so notifying the Recipient;
b. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Recipient, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
d. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Recipient has been obtained and the following conditions are fulfilled:
(a) the Recipient or Neon has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Neon complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) Neon complies with reasonable instructions notified to it in advance by the Recipient with respect to the processing of the personal data;
e. assist the Recipient, at the Recipient’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f. notify the Recipient without undue delay on becoming aware of a personal data breach;
g. at the written direction of the Recipient, delete or return personal data and copies thereof to the Recipient on termination of the agreement unless required by Applicable Data Processing Law to store the personal data; and
h. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits of such records and information by the Recipient or the Recipient’s designated auditor and immediately inform the Recipient if, in the opinion of Neon, an instruction infringes the Data Protection Legislation.
22.5 The Recipient consents to Neon appointing any member of its group of companies including any subsidiary as a third-party processor of Personal Data under this agreement. Neon confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause and in either case which the Suppler undertakes to reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Recipient and Neon, Neon shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
22.6 Neon will indemnify and keep indemnified and hold harmless the Recipient and any other Data Controllers of the information that Neon processors on demand against any costs, claims and proceedings, damages and other liabilities (including monetary penalties or other regulatory fines) incurred by the Recipient and the third parties as a result of the breach of the Data Protection Legislation by Neon.
22.7 Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement)
23. Acceptance Tests
23.1 No later than 60 days from the Commencement Date, the Client shall deliver proposed user acceptance criteria to Neon and test data for the Acceptance Tests for the Application.
23.2 These criteria and data shall be such as are reasonably required to show that the Application complies with the Technical Specification.
23.3 Neon shall provide the Client with reasonable assistance to prepare such user acceptance criteria and test data at the Client’s request and at Neon’s standard rates then in force.
23.4 The parties shall use best endeavours to agree the Acceptance Tests for the Application within ten days from the date of delivery to Neon of the proposed criteria and data.
23.5 Neon shall carry out the agreed Acceptance Tests for each module of the Application within ten days of its Go-Live Date. Neon shall give the Client at least 24 hours’ notice of the start of the Acceptance Tests and permit the Client to observe all or any part of the testing.
23.6 If any module of the Application or Website fails to pass the Acceptance Tests, the Client shall, within 7 days from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). Neon shall remedy the Defects and deficiencies, and the relevant test(s) shall be repeated within a reasonable time.
23.7 If any module of the Application or website fails in some material respect to pass any repeated Acceptance Tests from the date of its second submission to the Acceptance Tests, then the Client may, by written notice to Neon, choose at its sole discretion:
a. to fix (without prejudice to the Client’s other rights and remedies) a new date for carrying out further tests on the module of the Application or website fails on the same terms and conditions. If the module of the Application fails, such further tests then the Client may request a repeat test under this clause or
b. to permit installation of the module of the Application subject to such change of acceptance criteria, amendment of the Business Requirements Specification and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable.
24. Acceptance
24.1 Acceptance of Neon Software shall be deemed to have occurred on whichever is the earliest of:
a. the signing by the Client of an Acceptance Certificate for the final module of the Application to pass the Acceptance Tests;
b. the expiry of seven days after the completion of all the Acceptance Tests, unless the Client has given any written notice;
c. the expiry of ten days after the Go-Live Date of the final module of the Application; or
d. the placing of the Application in an App Store.
25. Assignment and Other Dealings
25.1 Neon may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement, provided that it gives prior written notice of such dealing to the Recipient.
25.2 The Recipient shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the prior written consent of Neon.
26. Entire Agreement
26.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representation and understandings between them, whether written or oral, relating to its subject matter.
26.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statements in this agreement.
27. Variation
27.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
28. Waiver
28.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
29. Severance
29.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
29.2 If any provision or part-provision of this agreement is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
30. Third-Party Rights
30.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
30.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
31. Multi-Tiered Dispute Resolution Procedure
31.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
a. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, Neon and the Client shall attempt in good faith to resolve the Dispute;
b. if Neon and the Client are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
31.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 33 which clause shall apply at all times.
32. Governing Law
32.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
33. Jurisdiction
33.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
AS WITNESS the hands of the parties or their duly authorised representatives on the date stated at the beginning of this Agreement.
SCHEDULE 1 – SERVICES
PART 1 - WEBSITE HOSTING
A. Neon shall, throughout the term of this Agreement, provide the Hosting Services to the Client in accordance with the terms and conditions of this Agreement, the provisions of the Hosting Package and the Service Levels.
B. Neon shall provide the Hosting Services only as specified in the Hosting Package Agreement.
C. Neon may alter, improve or otherwise modify the Hosting Package provided that any such change will not significantly alter the provision of the Hosting Services or result in the removal of any features or services that form part of the Hosting Package.
D. The Client will be notified no later than 10 Business Days in advance of any planned changes.
E. Neon will be entitled to turn off the Client website should the amount of data traffic exceeds the specified limits that Neon has informed the Client of.
Service Levels
1. Neon shall use reasonable endeavours to ensure an Uptime rate of 99.5%.
2. Neon shall implement such organisational, technological and other measures as are reasonably required to ensure the Uptime rate.
3. For the purposes of this Agreement, Downtime refers to one or more whole periods of 90 minutes commencing upon the submission by the Client of a Support Ticket informing Neon of the non-availability of the Hosting Services.
4. In the event that the Hosting Services are unavailable for a period exceeding 24 hours Neon shall provide a 2% discount to the annual hosting fees as detailed under the Fees.
5. Clause 4 shall not apply to any Downtime which results from any of the following:
a. Scheduled Service Downtime;
b. Failure of the Client’s own computer systems, network or software;
c. Failure by the Client, its employees, subcontractors, agents or other similar third parties to comply with any reasonable instructions issued by Neon;
d. Any Breach by the Client of any terms or restrictions of the Hosting Package including, but not limited to, exceeding data storage or transfer limitations;
e. Problems which are beyond the reasonable control of Neon including, but not limited to, internet failure
Scheduled Service Downtime
1. Neon may, from time to time, require Scheduled Service Downtime in order to perform maintenance and upgrades on its computer systems, network and infrastructure.
2. Neon shall use reasonable endeavours to ensure that any period of Scheduled Service Downtime causes minimal disruption to the Hosting Services and is as brief as is reasonably possible. Nothing in this clause shall constitute a guarantee of the same.
3. Neon shall notify the Client of Scheduled Service Downtime no later than 12 hours prior to the start of the same.
4. Whenever possible, Neon shall use reasonable endeavours to perform maintenance and upgrades without incurring any Scheduled Service Downtime.
Service and Performance Monitoring
5. Neon shall monitor to ensure that the hosting Services are provided in accordance with these Service Levels and the terms and conditions of this Agreement.
Fees and Access
6. The Client shall not have any right to access the hosting server from Neon and any attempt to access the server by the Client will result in the website being removed from the hosting server. For the avoidance of doubt the Client in this clause would not be entitled to any refunds or reductions in Fees.
7. The Client accepts that the fee for the hosting is no refundable and should the Client remove the website from Neon hosting server during the term of the agreement.
Automated Backup
8. Scheduled backups of the data are undertaken shall be taken minimum every day. These back-ups will be stored for a period of 5 working days. Should the client wish Neon will back-up more frequently in line with the Fees.
9. Should the Client wish for a backup under point 8 above to be restored to the host server the Client shall pay Neon’s hourly rate as defined under the Fee. For the avoidance of doubt there will be no charge for restoring a backup should the hosting be brought down or corrupted under an action of Neon.
PART 2 - APPLICATION BUILDING
“Application” the application software comprised of Neon Software developed for operation on the Operating System.
“Application Delivery Date” the estimated delivery date specified in the Implementation Plan on which Neon will deliver a module of the Application to the Client.
“App Store” an online or remote-accessed location where the Applications will be made available for downloading.
“Bespoke Software” software programs developed by Neon specifically for the Client as part of the Application.
“Go-Live Date” the estimated date by which Neon will complete the design, build and delivery to the Site of the Application or a module of it as specified in the Implementation Plan.
Application and Documents
1. Neon shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, and shall use its reasonable endeavours to provide the Application, in accordance with the Technical Specification in all material aspects, by the Completion Date.
2. Neon shall provide the Third-Party Software and any Modified Software (Third Party) to the Client under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Client, and the Client agrees to be bound to the relevant third parties by such licence terms and to ensure that its Affiliates are bound under similar obligations owed to the relevant third parties.
3. Neon shall provide the Service under the terms of this Agreement.
4. If specified by the parties prior to commencement of the services:
a. Neon shall provide to the Client, from time to time, copies of the documents containing up-to-date information for the proper use and maintenance of the Application. These Documents may be supplied in electronic form.
b. The Client may make such further copies of the documents as are reasonably necessary for the use and maintenance of the Application. The Client shall ensure that all of Neon’s proprietary notices are reproduced in any such copy.
c. The Client may provide copies of the Documents to any third party who needs to know the information contained in it, provided that such third party first enters into a confidentiality obligation in accordance with this Agreement.
Services
5. Neon agrees:
a. to carry out, in conjunction with the Client, the Acceptance Tests; and
b. to use its reasonable endeavours to provide the Application is ready for service by the Completion Date,
on the terms and conditions set out in this Agreement.
Application, Delivery, Installation and Delays
8. Neon shall use its reasonable endeavours to deliver each module of the Application to the Client by the applicable Application Delivery Date.
9. Neon shall supply to the Client, within a reasonable time before any Delivery Date, such information and assistance as the Client may reasonably request.
Implementation Plan and Extension of Time
10. Both parties shall perform their obligations under this Agreement in accordance with the Implementation Plan.
11. Neon shall use its reasonable endeavours to complete the Services in each stage of the Implementation Plan by the date specified in the Implementation Plan.
12. Neon shall be given an extension of the timetable of any one or more of the stages in the Implementation Plan if one of more of the following events occurs:
a. a variation to the Application is made at the Client’s request under the change control procedures set out in clause 8;
b. a force majeure event occurs as described in this Agreement;
c. a delay is caused in whole or in part by an action or omission of the Client or its employees, agents or third-party contractors.
13. If Neon is entitled to an extension of time, it shall give written notice to the Client not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a force majeure event, shall estimate the probable extent of the delay.
14. The Client Representative and the Project Manager shall use all reasonable commercial endeavours to agree in writing, signed by both parties, what extension of time is reasonable in the circumstances. The Implementation Plan shall be deemed amended accordingly
PART 3 - WEBSITE BUILDS
“Materials” the content provided to Neon by the Client from time to time for incorporation in the Site.
“Phase” in relation to the Project Plan, one of the key phases of work identified in the Project Plan.
“Project” the provision by Neon of the Services as set out in this Agreement.
“Project Plan” the timetable within which Neon will implement the Project as annexed to this agreement.
“Server” a computer server administered by Neon.
“Site” the website to be hosted by Neon pursuant to this Agreement.
“Site Software” the software for the Site commissioned by the Client as specified in this Agreement.
“Site Specification” the specification for the Site as set out in this Agreement.
“Visitor” a visitor to the Site.
Scope of the Project
1. Neon shall:
a. liaise with the Client in developing the look and feel of the Site;
b. design, develop and deliver the Site in three Phases in accordance with the Project Plan; and
c. provide the Services and host the Site from the Server.
Client Responsibilities
2. The Client acknowledges that Neon’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the design specifications provided by the Client and any information and data the Client provides to Neon. Accordingly, the Client shall:
a. provide Neon with access to, and use of, all information, data and documentation reasonably required by Neon for the performance by Neon of its obligations under this Agreement; and
b. instruct and manage the Client.
3. The Client shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with this Agreement.
Development and acceptance of site
4. Once Neon has completed the design and development of the Site in accordance with the Phases of the Project Plan, Neon shall run the Acceptance Tests. The procedure set out in the Agreement shall be repeated in respect of the Phases and any further development works agreed by the parties from time to time.
5. The Acceptance Tests shall test compliance of the Site with the Site Specification. The form and detail of such tests is set out in this Agreement.
6. Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. Neon shall notify the client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.
7. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Neon has no responsibility (Non-Neon Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Neon Defect. Neon shall provide assistance reasonably requested by the Client in remedying any Non-Neon Defect by supplying additional services or products. The Client shall pay Neon in full for all such additional services and products at Neon’s then current fees and prices.
8. Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
a. the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
b. the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Neon is ready to commence running such Acceptance Tests or retests.
Third-Party Products
The Third-Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third-Party Products is included in the Charges payable pursuant to the Fees.
Project Management
9. Each party shall appoint a project manager who shall:
a. provide professional and prompt liaison with the other party; and
b. have the necessary expertise and authority to commit the relevant party.
10. The project managers shall meet at least once every month. The Client shall provide minutes of these meetings to Neon.
PART 4 - ONLINE MARKETING
SEO – Search Engine Optimisation The process of improving ranking in search engine results
OSO – Organic Search Services The process of maximising your site(s) Organic content in order to potentially increase higher ranking on search engines.
FTP – File Transfer Protocol
File Transfer Protocol (FTP) is a standard network protocol used to copy a file from one host to another over a TCP/IP-based network, such as the Internet. Your website can be adapted through this method.
PSM – Paid Search Marketing Optimisation of Adverts purchased for a fee charged by the advert host.
SMS – Social Media Services The process of improving your social media “brand” value to improve your social media profiles visibility and brand awareness.
SERVICES
1. In performing the Organic Search Services (OSO), Neon shall develop a plan intended to increase the visibility of the Client’s Website(s) and improve the search ranking of the Website(s) in relation to search terms relevant to the Client’s business and provide related program strategy and tactical recommendations.
2. The Client acknowledges that the OSO Services will require modifications to the Website(s) which may include changes to site titles, metadata, copy, structure, links, and other factors that influence higher index visibility and keyword ranking.
3. The Client will be responsible for providing appropriate personnel to work with Neon to implement the recommendations provided as part of the OSO Services.
4. The Client shall be solely responsible for operating, maintaining and managing all aspects of the Website.
5. Neon will own the right to search engine optimisation we implement on websites, platforms or applications until all work has been completed and paid for.
6. In performing the PSM services, Neon shall:
a. proactively manage, monitor, track and measure search engine marketing programs and promote the marketing of the Client’s products and/or services (“Products”) on the Website(s) (and all successor or replacement sites thereto);
b. manage the relationships with and payments to the owners, operators and/or administrators of the relevant search engines or directories (“Search Partners”);
c. manage bid price, listing terms, monthly spend, adding and deleting listings, creating new listings and changing bid amounts;
d. provide, monitor and maintain the necessary technology applications required to link the Website(s) to Search Partners; and
e. track and report certain metrics including number of clicks, sales conversion data and ROI measurements and, if applicable to Neon’s fees, track and report the nature and volume of all relevant actions as identified in the MSA by Qualified Customers (as defined below).
The Client RESPONSIBILITIES
7. For the purposes of providing these services, Client agrees:
a. To provide Neon with access to its web sites, via FTP or other means, for uploading new pages and making changes for the purpose of SEO Services optimisation or approval to go through a third party.
b. To authorise Neon use of all the Client’s logos, trademarks, Web site images, etc., for use in creating informational pages and any other uses as deemed necessary by Agency for search engine positioning and optimisation.
c. That if the Client’s web site(s) is light in textual content, the Client will provide additional relevant text content in electronic format for the purpose of creating additional web pages. Client agrees to provide content, for example 200 to 500 word “articles” about each of their keyword phrases.
SEARCH ENGINES
8. Unless otherwise agreed by the parties in writing, in accordance with industry standard practice, Neon’s contracts with search engines and other suppliers for the Clients’ paid search marketing are made in accordance with the search engine/supplier’s current standard terms, conditions and contracts. Neon shall act as principal in dealing with all search engines/suppliers and all other suppliers unless otherwise mandated by local laws. In respect of the placing of all advertisements, the rights and liabilities between the Client and Neon shall correspond to those between Neon and the various search engines/suppliers under such conditions and contracts. Accordingly, the Client acknowledges and accepts:
a. that terms and rates are subject to revision in accordance with the agreements made by the various search engines/suppliers concerned and
b. that all standard trading terms of search engines and other suppliers will be adhered to by the Client.
9. The Client shall indemnify Neon and the relevant search engine/supplier in respect of any breach of any search engine/supplier terms which occurs as a result of any act or omission by the Client.
The Client ACKNOWLEDGEMENTS
10. The Client understands, acknowledges and agrees that:
a. Neon has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. The Client’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
b. Occasionally, search engines and directories will apply penalties due to Neon Services, these are decided by the search engines and cannot be influenced by Neon. Neon shall not be liable for any penalties applied to the Client.
c. Occasionally, search engines and directories will drop listings for no apparent or predictable reason. Often listing will “reappear” without any additional submissions. Should the listing not reappear, Neon will re-submit the web site(s) based on the current policies of the search engine or directory in question.
d. Some search engines and directories offer expedited listing services for a fee. Neon encourages the Client to take advantage of these expedited services. The Client is responsible for all expedited service fees unless otherwise noted in the Statement of Work.
e. The Client shall protect any passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to the Client that are used to access Neon’s online program management and reporting tools. In the event that the Client makes such Passwords available to any third party, the Client shall
(i) obligate each such third party to execute a written confidentiality agreement that binds that third party to confidentiality obligations consistent with those imposed upon the Client hereunder; and
(ii) be liable for all actions taken by such third party in connection with or related to that third party’s access to Neon’s online program management and reporting tools. Except as specifically set forth in this Agreement, the Client shall not disclose or make available the Client’s Passwords other than to the Client’s authorised employees.
DISCLAIMER OF ALL OTHER WARRANTIES
11. Neon cannot warrant that the SEO services will meet the client’s expectations or requirements. The entire risk as to the quality and performance is with the client. Except as otherwise specified in this agreement, Neon provides its services ‘as is’ and without warranty of any kind. The parties agree that
a. the limited warranties set forth in this section are the sole and exclusive warranties, provided by each party. Provided by each party, and
b. each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this agreement, performance or inability to perform under this agreement, the content, and each party’s computing and distribution system. If any provision of this agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the agreement and shall not affect the validity and enforceability of any remaining provisions.
Social Media
12. In performing Social Media Services (SMS) Neon shall develop a plan intended to improve the visibility of the client’s business profile on the selected social media sites.
13. The client acknowledges that the Social Media Services will require the client to enable Neon to make posts on the client’s behalf across the social media sites included with the service in order to influence the visibility and ranking of the client’s profile.
14. The client shall be responsible for providing Neon with the necessary login details to make posts and also for providing copy and/or information necessary for Neon to ensure posts are fully effective.
15. The client retains full responsibility for maintaining their social media profile and all links and content contained therein.
