High PositionTerms And Conditions

1. Interpretation
1.1
In these terms and conditions the following words and expressions shall have the following meanings: 'ADR Notice' means a notice served under clause 13.3 requesting mediation; 'Annual Period' means the period of one year from the date of the Agreement or (if the Agreement has been altered under clause 9.1) any subsequent period during which the Agreement remains in force; 'CEDR' means the Centre for Dispute Resolution, Princes House, 95 Gresham Street, London EC2V 7NA, United Kingdom; 'Customer Website' means the website or websites nominated by the Customer. 'Interest' means interest at a rate of 4% above the base lending rate of the Bank of Scotland Plc time to time; 'The Model Procedure' means the Centre for Dispute Resolution's Model Mediation Procedure; 'Month' means a calendar month and 'Monthly' shall be construed accordingly (except in respect of the opening and closing months of the Agreement when the calendar month in question shall be prorated so that it relates to that part of the month in which the Agreement was in force); 'Monthly Management Fee' means:
(a) (for the purpose of clause 2.1(a)) the applicable fee specified;
(b) (in all other situations) the relevant sums specified on the Initial Implementation Contract; 'The Service' means High Position's Search Engine Service more particularly described in the Agreement and on the Service Website; 'Set-up Fee' means the applicable fee specified (where applicable); 'The Service Website' means the website maintained by High Position at www.highposition.net; 'The Specified Email Address' means:
(a) (in the case of High Position) info@highposition.net with the Customer's account number with High Position being noted in the subject matter field; and
(b) (in the case of the Customer) the email address specified.

1.2
In the document 'the Agreement' shall mean the agreement made between High Position and the Customer which shall consist of: (a) the provisions of this document; and (b) any terms and conditions that are intended to be binding on the Customer which are set out by High Position on the Service Website from time to time and (subject to clause 7.3) the Customer confirms that it shall comply with all the terms and conditions.


2. The Customer

2.1 The Customer confirms to High Position that the Customer has and shall at all times provide High Position with accurate, complete and non-misleading information regarding the Customer's identity and any other matters relevant to the Agreement.

2.2 The Customer confirms to High Position that:
(a) the Customer shall not provide High Position with any information or with any materials that infringe the rights of any other person (including any intellectual property rights); and
(b) none of the information or materials supplied by the Customer to High Position shall be libelous, obscene, or abusive nor shall it breach any law or regulation or give rise to any legal claims of any sort and the Customer's Website shall likewise not display or contain any information or materials of the kinds referred to in this clause.

2.3 High Position acknowledges that in relation to web design services all page designs, logos, code or text remains the copyright of High Position Limited until payment has been made in full by the client for the agreed sum. High Position acknowledges that all intellectual property rights in the Customer's Website and the Customer's registered and unregistered trademarks belong to the Customer at all times.


2.4 High Position acknowledges that with relation to the search engine optimisation service all intellectual property rights in the Customer's Website and the Customer's logos and registered and unregistered trademarks belong to the Customer.


2.5 The customer confirms to High Position that in relation to the search engine service any code and information uploaded to the client’s website is removed immediately the agreement period has either lapsed or cancelled for whatever reason by either party.

2.6 The customer confirms to High Position that in relation to the search engine service High Position’s intention is not to sell the clients services but to position them within Internet search engines for their key phrases and words relating to their business / market sector.

2.7 The Customer confirms to High Position that there may be occasions when the Service Website, the Customer's Website or the websites of any third parties may be out of action for limited periods due to technical difficulties or routine maintenance and High Position shall not be liable to the Customer for any downtime of this sort.

2.8 The Customer acknowledges that High Position is not in a position to continuously monitor the Customer's Website and any links from it and that the scope of High Position's investigations regarding the Customer's Website shall be limited to a brief assessment by High Position of the contents primarily for the purpose of evaluating appropriate search terms to be coded into the site under the terms of the Agreement as part of the service.


3. High Position

3.1 High Position agree, using their own proprietary knowledge, to optimise the Customer's Website by adding code, structure and information and to maintain the Service Website and generally provide its other services and perform its obligations under the Agreement but it is specifically agreed that optimisation of the Customer's Website in accordance with the terms of the Agreement does not guarantee any particular level of traffic to the Customer's Website throughout the term of the Agreement.

3.2 High Position shall allocate an 'Account Manager' to assist the Customer in exploiting the Service to the Customer's best advantage.

4. Financial Matters

4.1 Unless stated to the contrary in the Agreement or on the Service Website all sums that are to be paid to High Position by the Customer shall be payable in advance and (in all cases) on receipt of invoice and they shall be exclusive of all applicable taxes and duties.

4.2 Payments made under the terms of the Agreement shall be paid monthly by either standing order or on receipt of invoice, which ever is detailed in the Agreement, into the account of High Position and such payment will be made without deduction or set off of any sum.

4.3 Interest may be charged by High Position under the previous condition from and including the date on which the payment in question fell due to the date on which that payment (including all applicable Interest) is paid in full and Interest shall be charged on a daily basis with reference to a year consisting of 365 days and with all unpaid Interest compounded Monthly.

4.4 In the event of a Customer’s cancellation it is the Customer’s responsibility to cancel directly with their bank the standing order for the High Position programme. If this cancellation does not take place High Position will continue to provide the service until such times as the standing order is cancelled and take no responsibility for monies over paid.

5. Email Notifications

5.1 High Position shall send the Customer the following information by email to the Specified Email Address:
(a) future changes to High Position's charges or fees; and
(b) any additional terms and conditions or changes to the way in which the Service shall be run and in any email of this sort referred to in (a) and (b) above High Position shall give the Customer not less than 30 days prior notification of those changes which shall also be posted on the Service Website.

5.2 In the event that any email is sent by High Position to the Specified Email Address and High Position is notified by its email service that the email has not been delivered High Position's obligations to the Customer under clause 5.1 shall be limited to attempting to resend that email on one further occasion and (in respect of the matters provided for in clause 5.1(a) and (b) and if delivery cannot be effected) the Customer shall be deemed to have knowledge of the matters to which the email related which shall be posted in any event on the Service Website.

5.3 In the event that the Customer reasonably believes that any of the changes notified to the Customer under clause 5.1(b) are materially prejudicial to the Customer the Customer may terminate the Agreement by serving 30 days written notice on High Position and (for the avoidance of doubt) the changes to which clause 5.1(b) relates shall not apply to the Customer if the Customer serves notice on High Position under this clause terminating the Agreement.

5.4 Except as provided for in clauses 5.1 and 5.2 all other notices that are sent by either party to the other shall be sent by both email and one of the methods for service noted in clause 11.2.

6. Limitation of Liability

6.1 Subject to clauses 6.3 and 6.4 below High Position's total liability to the Customer shall not exceed the aggregate of any sums paid to High Position by the Customer during the calendar year in which the applicable cause of action against High Position arose.

6.2 The Customer acknowledges that amounts charged by High Position to the Customer under the Agreement have been calculated with reference to the exclusions of liability set out in clause 6.1 but the Customer acknowledges that at the Customer's request High Position would have been prepared to agree a higher limit of liability on the understanding that the Customer pays any additional insurance premiums that may be required to increase High Position's insurance cover in respect of its liabilities to the Customer to the amount of the agreed cap on High Position's liability.

6.3 The limitation on High Position's liability set out in clause 6.1 shall not apply: (a) in respect of death or personal injury caused by High Position's negligence (for which no limit of liability shall apply); or (b) in those circumstances in which High Position and the Customer have agreed a higher limit on High Position's liability (in which event that higher limit shall apply).

6.4 Neither party shall be liable to the other for its failure to comply with its obligations under the Agreement caused by anything beyond its reasonable control.


7. Disclosure and Collection of Information and Confidentiality

7.1 The Customer confirms that High Position shall post on the Service Website information that has been supplied by the Customer to High Position that is not confidential and is relevant to the Service and the Customer consents to this information being used for these purposes.

7.2 The Customer confirms that in order to enable High Position to improve and/or market the Service: (a) High Position may produce statistics or summaries relating to the use of the Service; and (b) High Position may contact the Customer by email, telephone or post for feedback regarding the Service including any ways in which it might be improved.

7.3 Subject to the provisions of the following clause each party confirms to the other that it shall keep all confidential information submitted by the other reasonably confidential.

7.4 The confidentiality obligations in clause 7.3 shall not apply to any information falling within one of the general exceptions referred to below: (a) any information which comes into the recipient's possession from someone other than the discloser by the recipient with the prior approval of the discloser; and (c) any information which is either in the public domain or comes into the public domain through no act or omission by the recipient.

8. Miscellaneous

8.1 Time shall be of the essence for all payments due to High Position under the Agreement and in relation to the performance of the Customer's obligations generally.

9. Term and Termination

9.1 The Agreement shall commence on the date of its execution and it shall last for an initial period of twelve months. The Agreement may be terminated by either party after four months or after giving 30 days' written notice either at the end of the initial period or at any time after that date.

9.2 High Position may terminate the Agreement: (a) if the Customer shall fail to pay any sum to High Position on the due date; or (b) if the Customer shall breach the provisions of clauses 2.1, 2.2, 4.1 or 9.3.

9.3 Either party may terminate the Agreement: (a) if the other commits a material breach of the Agreement and (in the case of a breach capable of remedy) fails to remedy that breach within 28 days of receiving a written notice requiring it to be remedied; (b) if an encumbrance takes possession or a receiver is appointed over the property or assets of the other; (c) if the other makes any arrangement with its creditor, or ceases to carry on business, or is wound up or dissolved; or (e) if anything equivalent to any of the matters specified in sub-clauses 9.3(b) or 9.3(c) should occur in relation to the other party in any jurisdiction.

9.4 The termination of the Agreement shall not limit the enforceability of any of the rights or obligations of the parties that accrued before the termination date.

10. Dispute Resolution

10.1 If any dispute arises out of the Agreement the parties will attempt to settle it by negotiation. A party may not serve an ADR notice (see clause 10.3) or commence arbitration proceedings until 21 days after it has made a written offer to the party to negotiate a settlement to the dispute.

10.2 If the parties are unable to settle any dispute by negotiation within 21 days of the written offer to negotiate has passed, the parties will attempt to settle it by mediation in accordance with the Centre for Dispute Resolution's Model Mediation Procedure.

10.3 To initiate mediation a party must give notice in writing to the other party to the dispute requesting mediation in accordance with clause 10.1 and a copy of the request must also be sent to CEDR.

10.4 If there is any point on the conduct of the mediation (including as to the nomination of the mediator) upon which the parties cannot agree within 14 days from the date of the ADR notice, CEDR will, at the request of any party, decide that point for the parties, having consulted with them.

10.5 The mediation will start not later than 28 days after the date of the ADR notice.

10.6 No party may commence any court proceedings/arbitration in relation to any dispute arising out of the Agreement until they have attempted to settle it by mediation and that mediation has terminated.

10.7 Neither party may terminate the mediation until each party has made its opening presentation and the mediator has met each party separately for at least one hour and following that paragraph 14 of the Model Procedure will apply.

10.8 If the parties have not settled the dispute by the mediation within 42 days from the date of the ADR notice, the dispute shall be referred to, and finally resolved by, arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference to this clause.

10.9 The law of the arbitration or mediation is English Law. All proceedings shall be conducted in English and the place or arbitration shall be London, England.

11. General

11.1 The Customer may not assign the Agreement without High Position's prior written consent.

11.2 Except as provided for in clause 7 all notices proceedings or other formal documents to be served by either party on the other shall be delivered by hand or be recorded delivery to the other's address as set out at the head of the Agreement (or to an alternative address subsequently notified in writing) and notices shall be deemed to be received upon delivery.

11.3 High Position will retain ownership of any Domain Names bought for the purposes of creating and delivering these services and any programmes created for the purpose of delivering browsers to a target website.

11.4 The Agreement is made under the Laws of England.