1.1. This Agreement is an agreement between Marketernity Ltd (herein called « Marketernity») and the party agreeing to purchase any of the services provided by Marketernity, herein called the «Client». This Agreement applies to the purchase of all and / or any of the services provided by Marketernity, including web design, web development, hosting, support and maintenance, and other web-based tasks, herein called the «Services».
PLEASE READ THIS AGREEMENT CAREFULLY.
UPON THE SIGNING OF THE OFFER BY THE CLIENT FOR THE PURCHASE OF SERVICES OFFERED BY Marketernity, A CONTRACT IS CREATED BETWEEN Marketernity AND THE CLIENT, CONSISTING OF THE OFFER AND THE PRESENT CLIENT AGREEMENT. THE CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CLIENT’S USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
2. SERVICES OFFERED BY Marketernity
2.1. Marketernity will design and develop a website for the Client, as requested by the Offer, herein called the «Website». The Website, if requested by the Client, will be installed on Marketernity hosting server.
2.2. The design and development process will be as follows:
2.2.1. Marketernity will begin the design of the Website and will present to the client Design Screens, based on the Offer, which will include the major design elements with no functionalities of the Website. Herein called «The Design Screens Phase»
2.2.2. Upon approval of the Design Screens by the Client, Marketernity will continue with the development of the Website until it meets the demands and specifications of the Client as stipulated in the Offer.
2.3. Marketernity agrees that after the Design Screens Phase, if requested by the Client, they will make reasonable changes to the Design Screens. However, Client agrees and acknowledges that any changes beyond reasonable commercial practice will be charged extra from the quotation given by the Offer at an agreed rate of €50 plus applicable VAT per hour of work.
2.4. Marketernity will offer maintenance and support services to the Client’s Website for twelve (12) months, commencing on the date of installing the Client’s Website on Marketernity’ hosting server. The maintenance and support services to be provided shall be detailed in the Offer (herein called «Maintenance and Support Services»).
2.5. The Client agrees that functionality and interactivity enhancements are not included in the Maintenance and Support Services and if requested by the Client will be charged extra from the quotation given by the Offer.
2.6. Marketernity will be responsible for hosting and other web-based services which will be provided to the Client, if agreed, in accordance with the terms and conditions of this Agreement.
2.7. The Client agrees that for the period which the Website is installed on Marketernity’ server’s hosting space, Marketernity will have the right to access the Website in order to perform any tasks, necessary for the smooth, reliable and secure operation for the Website.
2.8. If agreed, Marketernity will be responsible for providing internet marketing services to the Client, in accordance with the terms and conditions of this Agreement by using, including but not limited to, Search Engine Optimization and Social Media. For this purpose Marketernity will use specific keywords and / or phrases to improve the search engine ranking of the Website, Brand Visibility, Social Media presence and General Web Presences of, and / or position the contents of the Website. Herein called «Digital Marketing».
2.9. The Client agrees that for the period which Marketernity provides to the Client Digital Marketing:
2.9.1. Marketernity will provide to the Client Website audit and guidelines, including but not limited to Website content creation and Social Media activities, and further the Client agrees and acknowledges that if the Client fails to follow these guidelines, Marketernity may not be able to deliver the optimal results.
2.9.2. The Client will provide to Marketernity all necessary access and information regarding the Website and the Client’s online presence.
2.9.3. Marketernity does not have the full control over the links, social mention and other Search Engine Optimization activities of the Website that may appear in the Web and Social Media from time to time.
2.9.4. Marketernity does not guarantee any specific results and assumes no liability in the overall success of the Client via the Digital Marketing.
2.9.5. Marketernity will not, at any time, refund the Client for the fees paid by the Client to Marketernity for the Digital Marketing.
2.10. The Client accepts that Marketernity may assign some of the services offered by this Agreement to sub-contractors.
2.11 In case that client’s website is not hosted to Marketernity server, Marketernity will not be responsible for any server issues and cannot guarantee speed, smooth function or any other responsibility.
2.12 Further, Marketernity confirms that it will comply at all times with all applicable laws and regulations, including without limitation its obligations under Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, applicable as of 25 May 2018, the “GDPR”), the Cyprus Data Protection Law 125(I)2018 and any other EU or local privacy related legislation (“Data Protection Law”); and undertakes to cooperate with and provide reasonable assistance to the Client in good faith for the fulfillment of the Client’s obligations under the Data Protection Law. Marketernity shall make available to the Client all information necessary to demonstrate compliance with this clause and Data Protection Law
3. CLIENT’S RESPONSIBILITIES
3.1. Client agrees that by signing the Offer, Client is giving specific instructions as to the Services he wants to purchase from Marketernity.
3.2. Client shall at all times cooperate fully with Marketernity in connection with Marketernity’ provision of the Services.
3.3. Client shall provide Marketernity any requested information and / or material and / or equipment that is reasonably necessary for the execution of the Services not later than 6 weeks from the date the Offer has been signed. Client acknowledges and agrees that any delays in Client’s performance of its obligations under this Agreement will extend the time of Marketernity’ performance of its obligations and cause delays on project deadlines, for which delays Marketernity will not in any event be liable.
3.4. In case the Client fails to deliver and / or provide Marketernity with the requested information and / or material and / or equipment within the time period mentioned in paragraph 3.3, Marketernity shall have the right to terminate the Agreement by providing one week’s written notice to the Client. In case of such termination the Client shall be liable to Marketernity for damages and / or any consequential and / or indirect loss and / or loss of profit, whether that was contemplated at the time of signing the Agreement or not.
3.5. Client acknowledges and agrees that any changes or reconsiderations the Client may require from Marketernity to any functional or visual designs of the Website might cause delays on the project deadlines, for which delays Marketernity will not in any event be liable.
3.6 Marketernity to always have priority on client’s new tasks related to the website unless the client decides to assign a specific task to an external associate. In case of any issues caused by such assignment, Marketernity takes no responsibility and will not guarantee the speed, smooth function, or performance of the website.
4.1. Payment of the agreed amount, for the Services offered by Marketernity to the Client, as stipulated in the Offer shall be settled by Client as follows:
i) 50% of the total amount will be paid upon signing of the Offer.
iii) 50% of the total amount will be paid upon the completion and delivery of the Website to the Client.
4.2. Client agrees that the total amount for the Services provided must be paid before the Website’s launch date
4.3. Client agrees that any changes or reconsiderations the Client may require from Marketernity to any functional or visual designs of the Website will be charged extra from the quotation already given by the Offer at an agreed rate of €50 plus applicable VAT per hour of work.
4.4. Client acknowledges and agrees that further functionality and interactivity enhancements, are not included in the Maintenance and Support Services, and if requested, will be charged extra from the annual fee for the Maintenance and Support Services at a rate of €50 plus applicable VAT per hour of work.
4.5. Client agrees that, if Digital Marketing is provided by Marketernity to the Client, the Client must pay the agreed amount for this service to Marketernity, as stipulated in the Offer, on the 1st day of each month, with a 5 days grace period, for the agreed between Marketernity and Client period. Further the Client agrees and acknowledges that if Client does not pay to Marketernity the agreed amount in the way stipulated in this paragraph, then Marketernity retains the right to terminate the provision of Digital Marketing to the Client.
4.6 Regarding “Digital Marketing” services, invoices are generated every month and are due to 30 days.
5. RENEWAL OF THE SUPPORT AND MAINTENANCE SERVICE:
5.1. Marketernity and Client agree and acknowledge that the Maintenance and Support Services will be automatically yearly renewed by the expiration date of the yearly period, unless the Client provides written notice to Marketernity of their intention to terminate the Maintenance and Support Services, one month prior to the expiration date of the yearly period.
5.2. It is agreed that the annual fee for the renewed Maintenance and Support Services shall be settled by Client within one month from the expiration of the yearly support period and that otherwise, Marketernity reserves the right, after providing to Client one week’s written notice, to withhold, suspend or disable all or any of the Services provided by them.
5.3. Client agrees that Marketernity may invoice the Client for any work necessary for the renewal of the Maintenance and Support Services.
5.4. Client acknowledges that software versions, for example WordPress versions, have life cycle of 3 to 4 years and that after that period websites become very vulnerable to hacking attacks, and that these attacks may cause further problems to the hosting server. Client further acknowledges that Client shall upgrade to the newer software version, every 3 or 4 years, which can be done by Marketernity with the additional cost for the migration work to be settled by Client at Marketernity rate of €50 plus VAT per hour of work. Client agrees and acknowledges that if the Client does not upgrade to the newer software version, Marketernity reserves the right, without prior notice to Client, to withhold or suspend the Client’s Website, in order to protect Marketernity’ hosting server from harmful and hacking attacks.
6.1. This Agreement shall be terminated if one of the following events occurs:
i) By the end of thirty (30) days written notice period sent by the Marketernity where Client has breached any term of this Agreement.
ii) Marketernity may terminate this Agreement, and withhold or suspend or disconnect or discontinue all or any of the Services and / or any other services provided to Client, immediately, without any prior notice to the Client, where Client is in arrears with payments for any amount owed to Marketernity for one month after it becomes due.
iii) Marketernity may terminate this Agreement immediately, without any prior notice to the Client, where Marketernity determines that Client’s use of the Website or any content of the Website is for fraudulent, unlawful or prohibited purposes, or where Client uses content in a way that affects the performance of the safety of Marketernity’ hosting server.
iv) In case Client enters into winding up or voluntary or involuntary liquidation proceedings.
v) Marketernity may suspend or terminate the Services or terminate this Agreement without liability, where a ruling, regulation, or order issued by a judicial, legislative, or regulatory body causes Marketernity to believe that this Agreement and / or the Services provided hereunder may be in conflict with such rules, regulations, and / or orders.
vi) In any other way stipulated in the Agreement.
6.2. In the event of termination of the Agreement Client shall remain liable for any monies due to Marketernity as well as for any damages, direct or indirect, whether such damages were contemplated at the entering into effect of the Agreement or not as well as for any loss of profit Marketernity suffers by result of such termination.
6.3. All terms in the Agreement that relate to the claim of damages from Marketernity against the Client by reason of termination of this Agreement will survive any termination or cancellation of this Agreement.
7. CLIENT’S REPRESENTATIONS AND WARRANTIES
7.1. Client hereby represents and warrants to Marketernity, and agrees that during the provision of the Services by Marketernity will ensure that:
i) Client will comply with all terms and conditions of the software and / or hardware and / or other programs used by Marketernity for the provision of the Services.
ii) Client will comply with all applicable laws, rules and regulations and use the Website only for lawful purposes; and
iii) Client is the owner or valid licensee of the Website content and each element contained therein, and that Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Website content and each element contained therein, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Marketernity to pay any fees, residuals, guild payments or other compensation of any kind to any third person,
iv) Client’s use, publication and display of the Website content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
v) Client has used its best efforts to ensure that the Client’s Website content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
8. PROHIBITED USES
8.1. The Client may not use the Services in connection with any fraudulent, unlawful, illegal or prohibited activity and / or any tortious or actionable activity and / or any disruptive, controversial or abusive activity and / or any activity otherwise prohibited by any Laws or by this Agreement.
8.2. The Client will not store or provide any content to the Website or link the Website to any material which violates local or foreign laws or this Agreement or any of its modifications.
8.3. Marketernity upon becoming aware of the Client’s breach of the terms of this section may upon their reasonable discretion, immediately remove the violating content from the Client’s Website, or even terminate hosting of the Client’s Website and / or notify the authorities. Marketernity may, in its sole discretion, reinstate hosting upon an adequate showing of Client’s right to use the content in question.
9. LIMITATION OF LIABILITY
9.1. Marketernity assume no liability against Client or any other third person, for any direct, indirect, secondary damages or loss of profits or any similar damage occurred due to technical problems and disturbances within the Internet that are not in their sphere of influence, including, but not limited to, communications failure, server downtime, bugs, software updates, theft, destruction or unauthorized access to Marketernity’ records, programs, equipment or services.
9.2. It is explicitly stated and agreed that Marketernity’ liability to Client in relation to this Agreement, whether in tort and / or contract and / or other causes, and whether caused by failure of delivery, non-performance, defects, breach of warranty or howsoever otherwise caused, will not exceed the aggregate service fee already paid to Marketernity by the Client for the Services provided.
9.3. In relation with any indirect, special, incidental, consequential or similar damage and with any loss of profit or revenues, loss of use or loss of data, or similar economic loss, Marketernity will be only liable in cases of intentional infliction of such loss or if they are found to be grossly negligent. In this case Marketernity will only be liable for predictable damage, for a maximum of the aggregate service fee already paid to Marketernity by the Client for the Services provided. For the avoidance of doubt, this limitation of liability does not apply to liability stemming from the failure of Marketernity to comply with any of its obligations under the GDPR or similar legislation.
9.4. The Client agrees and acknowledges that for the period which Marketernity provides to the Client Digital Marketing, Marketernity assumes no liability for the following:
9.4.1. For the exclusion of the Website from any search engine and / or any Social Media at any time, as Marketernity has no control over the search engine and Social Media’s policies as to which sites and content are acceptable by them.
9.4.2. For rankings / traffic / indexing issues related to Google penalties or Algorithm changes.
9.4.3. For the Client’s choice to link to or obtain a link from any particular website without prior consultation with Marketernity.
9.4.4. For the activities and comments of other Social Media users.
9.5. Marketernity will not be liable for any unauthorised access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of data, information or content transmitted, received or stored in its system by the Client or any other third party.
9.6. This limitation of liability reflects an informed, voluntary allocation of risks (known and unknown) between the parties that may exist in connection with this Agreement. The terms of this section will survive any termination of this Agreement.
10.1. Client agrees to indemnify and keep indemnified and harmless Marketernity and shall be liable to Marketernity for any direct or indirect damages, including but not limited to financial loss and property damage, resulting from any claims, suits, actions, demands, proceedings and expenses (including, but not limited to lawyer’s fees) threatened, asserted or filed by a third party against Marketernity arising out of the Client’s use of the Services which breaches this Agreement or is for unlawful, prohibited or fraudulent purposes.
10.2. Notwithstanding the above, Client agrees to indemnify and keep indemnified and harmless Marketernity from all claims by third parties arising out of illegal internet content stored in the Website by the Client.
10.3. The terms of this section will survive any termination or cancellation of this Agreement.
11. DISCLAIMER OF WARRANTY
11.1. The Client acknowledges that neither Marketernity nor any of their respective employees, officers, directors, shareholders, agents, representatives, attorneys, suppliers, and merchants makes any warranties or representations of any kind, expressed or implied, including but not limited to warranties or representations of merchantability or fitness for a particular purpose, or non-infringement, for the Services they provide. Further no warranties or representations are being made that the Services will not be interrupted or error free, or as to the results that may be obtained from the use of the Services or as to their accuracy, reliability or content. No oral advice or written information given by Marketernity will create a warranty and the Client may not rely on any such information or advice.
11.2. Marketernity will not be liable, and they expressly disclaim liability for the content of any data transferred either to or from the Client or stored by the Client or any of the Client’s clients via the Services provided by Marketernity.
11.3. Marketernity does not guarantee continuous service, service at any particular time, integrity of data, information or content stored or transmitted via the Internet.
11.4. The terms of this section shall survive any termination of this Agreement.
12. PROPERTY RIGHTS
12.1. The Client agrees that the responsibility for all actions necessary regarding the copyright protection for the designs created by Marketernity especially for the Client will be the Client’s.
12.2. Notwithstanding the above terms of this section, Marketernity will not transfer to Client any Marketernity technology. All rights, titles and interests in and to any Marketernity technology will remain solely with Marketernity. Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from Marketernity.
12.3. Marketernity owns all right, title and interest in and to the Services and Marketernity’ trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems.
13.1. The Client agrees that Marketernity will use reasonable procedural, technical and physical safeguards in order to protect the personal information of the Client. Marketernity will not disclose to any third party the Client’s personal information outside Marketernity and its controlled subsidiaries and affiliates without Client’s consent.
13.2. The Client agrees that this data protection cannot be fully guaranteed by Marketernity, as there are many factors throughout the Internet that they are beyond Marketernity’ reasonable control.
13.3. Notwithstanding the above, Client agrees that Marketernity will use the personal information given by the Client to operate and provide their Services to the Client and to communicate with the Client. Further Marketernity reserves the right at all times to disclose any of the Client’s personal information in order to satisfy any applicable law, regulation, legal process, court order or governmental request.
13.4. Marketernity reserves the right at all times to disclose any information necessary to satisfy any applicable law, regulation, legal process, court order or governmental request.
14. ENTIRE AGREEMENT
14.1. Both Marketernity and Client agree that this Agreement, along with the documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between them and that this Agreement constitutes the sole and entire agreement between them with respect to the matters covered and the subject matter hereby. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Client and Marketernity.
14.2. It is explicitly agreed that this Agreement may be modified from time to time by Marketernity in its sole discretion and this modification will be effective when posting to Marketernity’ website or on any subsequent date as may be set forth in any required notice provided by Marketernity in connection therewith.
15.1. The Client agrees that he may not assign or transfer his rights or obligations derived from this Agreement and / or this Agreement and / or the Offer to any third party, without the prior written consent of Marketernity. In the event that Client attempts to perform such assignment, this will be null and void and with no effect whatsoever. The Client agrees that Marketernity may assign its rights to any agent or subcontracts in order to perform its obligations under this Agreement, without the Client’s prior consent.
16. FORCE MAJEURE:
16.1. Marketernity and Client agree that none of them will be liable for any damage occurred to the other party (other than default of payment) if such damage is, directly or indirectly, beyond the parties’ reasonable control, including, but not limited, to acts of God, fire, flood, accidents, labour disputes, acts of war or terrorism, supply shortages or third party’s failure to perform its duties which are relevant to the performance of either party obligations under this Agreement.
17.1. Without prejudice to Section 13 of this Agreement, Client agrees that during the time period where this Agreement is in force, Marketernity may publicly refer to Client, orally and in writing, as their Client. Any other public reference to Client by Marketernity requires the written consent of Client. Marketernity shall keep its relationship with the Client, including this agreement, confidential and shall not disclose the Client’s name or publish any information relating to its relationship with the Client or relating to the Client in general, without the Client’s prior written consent”
17.2. Client agrees to retain a text with link to http://www. Marketernity.com.cy, on the footer of their Website, after the delivery of the Website. The text will be as below:
«Website Designed and Developed by Marketernity Ltd», Marketernity shall keep its relationship with the Client, including this agreement, confidential and shall not disclose the Client’s name or publish any information relating to its relationship with the Client or relating to the Client in general, without the Client’s prior written consent”
18.1. Each one of the parties agrees that no failure or delay in exercising any of the rights which derive out of this Agreement will constitute a waiver of that right and that the exercise of a single or partial right or remedy by any of the parties will not preclude any other or further exercise of that or any other right or remedy.
19.1. Each one of the parties agree that in the event where a clause of this Agreement is held to be void or unenforceable due to illegality, invalidity or unenforceability, or for any other reason, only this offending clause will be considered as void and unenforceable and the rest of the contract will remain intact and enforceable.
20. GOVERNING LAW – JURISDICTION
20.1. Each of the Parties hereby irrevocably agrees that this Agreement shall be governed by and construed in accordance with the law of the Republic of Cyprus. The District Court of Nicosia shall have exclusive jurisdiction for any matter that may arise from the execution of this Agreement.