DIGITY LTD TERMS AND CONDITIONS OF SERVICE
3.1 These Terms and Conditions shall apply to the provision of Services by the Service Provider to the Client.
3.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Service Provider in writing.
4. Definitions and Interpretation
4.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
- “Agreement” means an agreement between the Service Provider and the Client entered into by the same which shall incorporate, and be subject to, these Terms and Conditions and the attached Work Schedule & Fees;
- “Business Day” means a day other than a Saturday, Sunday, bank or public holiday in England & Wales;
- “Client” means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which purchases services from the Service Provider;
- “Commencement Date” means the commencement date for the Agreement being 21st February 2017;
- “Completion Date(s)” shall have the meaning ascribed to it in the Work Schedule
- “Confidential Information” means information (i) concerning the business, affairs, customers, clients or suppliers of the other party, (ii) documents or information of the other party marked as “confidential” and (iii) information of the other party which a reasonable business person would regard as confidential.
- “Fees” means the fees payable by the Client under Clause 4 in accordance with the Terms of Payment;
- “Services” means the services to be provided by the Service Provider to the Client as set out in the Agreement;
- “Service Provider” means Digity Ltd
- “Terms of Payment” means the terms of payment of Fees as set out in the Agreement.
4.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
4.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
4.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
4.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
4.2.4 a Schedule is a schedule to these Terms and Conditions; and
4.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
4.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
4.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
4.4 Words imparting the singular number shall include the plural and vice versa.
4.5 References to any gender shall include the other gender.
5. The Services
5.1 With effect from the Commencement Date the Service Provider shall, in consideration of the Fees being paid in accordance with the Terms of Payment, provide the Services to the Client.
5.2 The Service Provider will use reasonable care and skill to perform the Services and shall perform the Services in accordance with the Standards expected of a leading provider of services the same or similar to the Services.
5.3 Time shall be of the essence in the performance of the Service Provider’s obligations under this agreement.
5.4 The Service Provider shall not implement or publish any materials or literature (whether on line or off line) including without limitation social media reviews or posts without the relevant materials having first been approved by the Client in writing.
6.1 The Client agrees to pay the Fees via direct debit on the 25th of each month in-line with the planned activity.
6.2 The Service Provider shall not be entitled to recover from the Client any expenses incurred by it in connection with the Services.
6.3 Where the Client requests in writing the Service Provider to perform any additional Services, then unless the parties agree an alternative fee structure, the Client will pay the Service Provider for any additional services provided by the Service Provider that are not specified in the Agreement in accordance with the Service Provider’s then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for expenses as agreed in advance.
6.4 All sums payable by either Party pursuant to the Agreement are exclusive of any value added or other tax (except corporation tax) or other taxes on profit, for which that Party shall be additionally liable.
7.1 All payments required to be made pursuant to the Agreement shall be made on the 25th day of the month by direct debit or the next Business Day where 25th of the month is not a Business Day.
7.2 If the Client fails to make any payment on the due date the Service Provider shall cease activity until the point cleared funds are received.
8.1 Both the Service Provider and the Client shall undertake that, except as provided by sub-Clause 6.2 or as authorised in writing by the other Party, it shall at all times during the continuance of the Agreement and thereafter:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other party;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by the Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
8.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 6.1.1 to 6.1.4.
8.2 Subject to sub-Clause 8.3, either Party may disclose any Confidential Information to:
8.2.1 any of their sub-contractors or suppliers who need to know the same for the purposes of this agreement;
8.2.2 any governmental or other authority or regulatory body; or
8.2.3 any of their employees or officers or those of any party described in sub-Clauses 8.2.1 or 8.2.2;
8.3 Disclosure under sub-Clause 8.2 may be made only to the extent that is necessary for the purposes contemplated by the Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made. The disclosing party shall be responsible for the acts and omissions of any persons to whom it discloses Confidential Information in complying with the terms of this Agreement as if such acts and omissions were its own.
8.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
8.5 When using or disclosing Confidential Information under sub-Clause 8.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
8.6 The provisions of this Clause 8 shall continue in force in accordance with their terms, notwithstanding the termination or expiry of the Agreement for any reason.
9. Variation and Amendments
9.1 No variation to this agreement shall be valid or binding on the parties unless in writing and signed by or on behalf of both parties.
10.1 Any termination by the Company without Cause or by you for any reason will require prior written notice to the other party of at least nine (9) months if the termination is before the first anniversary of the Effective Date, six (6) months if the termination is on or after the first anniversary, but before the second anniversary, of the Effective Date, or ninety (90) days if the termination is on or after the second anniversary of the Effective Date. Either Party may terminate the Agreement by giving written notice to the other Party if:
10.1.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 days of the due date for payment (other than sums disputed in good faith);
10.1.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice requiring it to be remedied;
10.1.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.1.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.1.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.1.7 the other Party ceases, or threatens to cease, to carry on business; or
10.1.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of this Clause 8, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.2 For the purposes of sub-Clause 10.1.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
10.3 In the event of termination under sub-Clause 10.1 the Service Provider shall (other than in respect of sums disputed in good faith) retain any sums already paid to it by the Client without prejudice to any other rights the Service Provider may have whether at law or otherwise.
10.4 Any clause which is intended by its nature to survive termination or expiry of this Agreement shall survive.
Neither Party may sub-contract the performance of any of its obligations under the Agreement without the prior written consent of the other Party. Where either Party sub-contracts the performance of any of its obligations under the Agreement to any person with the prior consent of the other Party, the sub-contracting Party shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the sub-contracting Party itself.
12. Liability and Indemnity
12.1 Subject always to clauses 12.3 and 12.4, except in respect of death or personal injury caused by the Service Provider’s negligence, the Service Provider will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Service Provider’s servants or agents or otherwise) in connection with the performance of its obligations under the Agreement.
12.2 During the term of this agreement and for a period of 6 years after the expiry or termination of this agreement, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance, each in an amount not less than £1,000,000 (one million pounds) per claim and shall, on the Client's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
12.3 The Service Provider shall indemnify and hold the Client harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Client as a result of or in connection with any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights arising out of the use or supply of the products of the Services.
12.4 Clause 12.1 shall not apply in respect of breaches of clauses 8 (Confidentiality) or 5.4 (The Services).
13. Force Majeure
13.1 Neither the Client nor the Service Provider shall be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
13.2 A party affected by an event of the type described in clause 13.1 shall promptly notify the other in writing and shall use reasonable endeavours to mitigate the impact of the same.
13.3 The non-affected party may terminate this agreement on giving not less than 7 days notice in writing if a force majeure event continues for 7 consecutive days or more.
14.1 No waiver by a party of any breach of the Agreement by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of the Agreement shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which the waiver is given.
14.2 No failure or delay on the part of any Party in exercising any right, power or privilege under the Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and the Agreement, as appropriate). The remainder of these Terms and Conditions shall be valid and enforceable.
16.1 The Client shall own all copyright and any other intellectual property rights (if any) which may subsist in the products of, or in connection with, the provision of the Services or facilities. The Service Provider hereby agrees to take (at no cost to the Client) all such action as requested by the Client to ensure that such rights are so vested.
16.2 The Supplier shall obtain waivers of any moral rights in the products of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
17.1 All notices under the Agreement shall be in writing signed by, or on behalf of, a duly authorised officer of the Party giving the notice. All such notices must be given using one of the methods detailed in clause 17.2.
17.2 Notices shall be deemed to have been duly given:
17.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
17.2.2 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid
in each case addressed to the registered office address of the relevant party.
17.3 Service of any document for the purposes of any legal proceedings concerning or arising out of the Agreement shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
18. Law and Jurisdiction
18.1 These Terms and Conditions and the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales to which the parties hereby exclusively submit.
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