Definitions and Interpretation
In the Contract, unless the context requires otherwise, the following words and expressions shall have the following meanings:
(for so long as and to the extent that they apply to DMTL, the Law of the European Union, the Law of any member state of the European Union and /or domestic UK Law;
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
all charges and fees payable by the Client to DMTL in respect of the Services including those set out in the Quote Proposal;
the client as set out in the Quote Proposal;
has the meaning set out in Condition 7;
all documents, books, manuals, materials, records, correspondence, papers, data and information (on whatever media and wherever located) relating to the business or affairs of Client or its customers and business contacts, and any equipment, hardware or software provided (and to be provided) to DMTL by the Client for the provision of the Services;
Client Personal Data
any personal data comprised in any information which the Client may supply, or otherwise make available to the Supplier in connection with the Contract and the performance of the Services, a summary of which is set out in Part 2 of the Schedule;
has the meaning set out in Condition 9.4;
the date the Contract comes into effect in accordance with Condition 2.2;
these terms and conditions for the supply of media and marketing services;
the contract between DMTL and the Client for the supply of the Services comprising of these Conditions, the Schedule to these Conditions, and the Quote Proposal and as may be amended in accordance with Condition 9;
has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
consumer prices index, or, if such index shall no longer be published such other retail prices index as may be published in substitution for it;
Daily Rate Fees
the daily rate fees set out in the Quote Proposal (if any);
Data Protection Legislation
the Data Protection Act 2018 or any successor legislation in force in the UK from time to time, and (for as long as and to the extent that the law of the European Union has legal effect in the UK) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) as amended and implemented by national laws, regulations and secondary legislation from time to time in the UK;
those items set out as such in the Quote Proposal (if any);
Digital Media Team Limited, incorporated and registered in England and Wales with company number 09343087 whose registered office is at 5 Ambassador Place, Stockport Road, Altrincham, England, WA15 8DB;
has the meaning set out in Condition 12.1;
the expenses incurred by DMTL in connection with the provision of the Services, including:
(a) those set out in the Quote Proposal (if any); and
(b) such other expenses that are agreed by the Client and DMTL from time to time.
means 33ConceptLtd registered under company number 07286718 and whose registered office is located at 16 Colossus Way, Bletchley, Milton Keynes, Buckinghamshire, MK3 6GW;
Force Majeure Event
any event beyond the reasonable control of either Party including, acts of God, pandemic, epidemic, war, riot, civil commotion, malicious damage, rule, regulation or direction or any overriding emergency procedures, any law or action taken by government or public authorities including, imposing restrictions on movement of goods, people or the provision of services, accident, fire, flood, storm, severe weather conditions, failure or inability to use a third party’s infrastructure or refusal by such third party to allow such use, inability to source supplies, strikes or any industrial action by employees of a Party but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay the Charges due under or in connection with the Contract;
GoCardless Ltd registered under company number 07495895 and whose registered office is located at Sutton Yard, 65 Goswell Road, London, England, EC1V 7EN;
the Charges set out as such in the Quote Proposal which are to be paid by the Client to DMTL upon the commencement of the Services in accordance with Condition 8.2.1;
the period commencing on the Commencement Date and ending on a date that is 12 calendar months from the later of the Commencement Date or Service Start Date (where this is one for the first Service to be provided under the Contract);
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
all applicable statutory and other laws, rules, regulations, instruments order and/or provisions in force in from time to time;
has the meaning set out in Condition 16.1;
the marketing services to be provided by DMTL to the Client pursuant to the Contract, the details of which as at the Commencement Date are set out in the Quote Proposal and include any Service;
a party to the Contract;
the payment terms (if any) as set out in the Quote Proposal;
DMTL’s standard pre-service checklist from time to time that clients are required to complete in order for DMTL to be able to provide its services;
DMTL’s standard pricing matrix which may be provided to the Client from time to time, which is used by DMTL to automatically calculate the Charges payable in respect of a relevant Service;
the individuals appointed as such by each Party from time to time, being as at the Commencement Date those persons set out in the Quote Proposal;
the quote proposal issued by DMTL;
has the meaning set out in Condition 4.1;
the employees, agents, representatives, consultants and sub-contractors of a Party;
a particular individual service that forms part of the Marketing Services, being as at Commencement Date, those individual services set out in the Quote Proposal, together with the Deliverables to be provided as part of such Service;
(a)any fees set out as such in the Quote Proposal; and/or
(b)any fees calculated using the Pricing Matrix;
Service Start Date:
the date the provision of a particular Service is to commence, being the date as agreed between the Parties from time to time;
the period of time set out in the Quote Proposal that a Service will be provided for (if any).
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- A reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and to a company includes any company, corporation or other body corporate, wherever and however incorporated or established
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms and each of them shall be deemed to incorporate the expression without limitation.
- A reference to a paragraph is a reference to the paragraph of the Schedule.
- In the Contract the terms controller, data subject, personal data, personal data breach, personal data, processor and process shall have the meanings given to them in the Data Protection Legislation.
- A reference to writing or written includes email.
- The Quote Proposal provided by DMTL to the Client constitutes an offer by DMTL to supply the Services to the Client in accordance with the terms of the Contract. The offer shall remain valid and capable of acceptance (without amendment) by the Client for a period of 30 days from the date the Quote Proposal is provided to the Client.
- The Client shall be deemed to have accepted the terms of the Quote Proposal and the documents attached to the Quote Proposal (including these Conditions) when the Client returns a signed but otherwise unamended copy of the Quote Proposal (and documents attached) to DMTL and upon such date the Contract shall come into existence (the Commencement Date).
- If the Client does not return a signed but otherwise unamended copy of the Quote Proposal (and attached documents) within 30 days, then the Quote Proposal shall automatically expire and will no longer be capable of acceptance.
- Any samples, drawings, descriptive matter or advertising issued by DMTL, and any descriptions or illustrations contained in DMTL’S catalogues, brochures, or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
Order of precedence
The Contract is made up of the following:
- the Quote Proposal; and
- the Conditions; and
- the Schedules attached to these Conditions.
- If there is any conflict or ambiguity between the Conditions, the Schedules and the Quote Proposal the document ranked higher in the list above shall have priority.
- These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Commencement and Term
The Contract shall commence on the Commencement Date and shall, subject to earlier termination in accordance with Condition 13:
- Continue for the Initial Term and shall continue thereafter for successive periods of 12 calendar months (each a Renewal Term), unless either Party serves not less that 1 months’ written notice to terminate on the other Party such notice to expire on the expiry of the Initial Term of Renewal Term (as applicable) in which case the Contract shall end upon the expiry of the Initial Term of relevant Renewal Term.
- Unless otherwise stated in the Quote Proposal, the supply of a Service shall commence on its Service Start Date and shall continue for the Service Term, provided always that if the Contract is terminated in accordance with Condition 13 the supply of any Services shall immediately cease as at the date of termination and DMTL shall no longer be obliged to provide any of the Services set out in the Quote Proposal or (where the provision of a Service has yet to commence) be obliged to start providing such Service.
- Notwithstanding Conditions 4.1 and 4.2, the Client agrees and acknowledges that DMTL will not commence the provision of the Marketing Services including any Service until the Client has completed and provided the Pre-Service Checklist to DMTL and complied with all matters set out in the Pre-Service Checklist including ensuring that the Client is subscribed to GoCardless and/or Feed Optimise, and such other requirements as dictated by the Pre-Service Checklist.
Supply of Services
Subject to the terms of the Contract and in consideration of the Client paying the Charges, DMTL undertakes to use its reasonable endeavours to:
- provide the Marketing Services in accordance with the terms of the Contract in all material respects;
- meet any performance dates set out in the Quote Proposal but any such dates shall be estimates only and time for performance of any Services by DMTL shall not be of the essence; and
Notwithstanding the generality of Condition 5, DMTL shall not be obliged to:
- commence the provision of the Service until DMTL has received the Initial Fee or where the Charges are to be paid on a monthly basis, the Charges due in respect of the first month in full and cleared funds; or
- commence the provision of a Service until the Service Start Date for that Service.
- DMTL warrants to the Client that the Marketing Services will be provided using reasonable care and skill.
- DMTL may at any time and without notifying the Client make any changes to the Marketing Services and/or the Deliverables which are necessary to comply with any Laws or which do not materially affect the nature or quality of the Marketing Services or particular Deliverable(s).
- If at any time the Client wishes DMTL to provide services that are outside the scope of those set out in the Quote Proposal, the Client shall provide full details of the services required which shall constitute a Change Request and be dealt with in accordance with Condition 9.4.
- DMTL shall inform the Client as soon as reasonably possible if there is any reason that may prevent DMTL from delivering the Services in accordance with the terms of the Contract.
The Client shall and shall procure and ensure that that its Representatives shall:
- co-operate with DMTL in all matters relating to the Services;
- complete the Pre-Service Checklist;
- attend any workshops and/or meetings with DMTL and actively engage in the same;
- provide to DMTL and/or its Representatives, in a timely manner and at no charge:
(a) access to the Client’s facilities, social media accounts and any online marketing or media account the Client may hold from time to time as are reasonably required by DMTL to provide the Marketing Services;
(b) the Client Materials, and such other information, specifications, descriptions and quantities required by the Client, as required by DMTL to enable DMTL to provide the Marketing Services and where appropriate such information shall form part of the Client Materials;
- ensure that any Client Materials and other information provided to DMTL under Condition 6.1.4(b) is complete and accurate;
- immediately notify DMTL if it has any concern in relation to the provision of the Marketing Services or any Deliverables;
- obtain and maintain all necessary approvals, authorisations, licences, consents, permissions and waivers necessary for DMTL to use all Client Materials, provide the Marketing Services and comply with its obligations under and as envisaged by the Contract;
- without affecting its other obligations under the Contract, comply with all Laws which apply to the Client in connection with the Contract; and
- carry out all other Client obligations and responsibilities set out in the Contract in a timely and efficient manner.
- The Client acknowledges that DMTL’s ability to provide the Marketing Services is dependent on the Client complying with its obligations under the Contract and any failure or omission by the Client to comply with its obligations under this Condition 6 shall be a material breach of the Contract.
The Client warrants to DMTL that:
- it has full power and authority to enter into and perform its rights and obligations under the Contract;
- it owns all of the Intellectual Property Rights in the Client Materials and it has the right to grant DMTL the rights set out in Condition 11; and
- it has obtained all required consents and licences and complied with all regulatory and legal requirements to enable DMTL to provide the Marketing Services under the Contract.
If, at any time, a Party becomes aware of any cause, matter or circumstance that it considers may or is likely to cause a delay, it shall as soon as reasonably practicable notify the other Party of such fact.
- Each Party shall take reasonable steps to eliminate or mitigate any delays.
If DMTL’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Client (including any Representative of the Client) or failure by the Client (or its Representatives) to perform any of the Client’s obligations under the Contract (a Client Default):
- without limiting or affecting any other right or remedy available to it, DMTL shall have the right to;
(a) suspend performance of the Marketing Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays DMTL’s performance of any of its obligations; and/or
(b) adjust any timescales including Service Start Dates, as reasonably necessary to take account of such Client Default and DMTL shall not be in breach of the Contract as a result of a failure to meet a particular date or timescale where such failure is as a result of or arises in connection with a Client Default;
- DMTL shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from DMTL’s failure or delay to perform any of its obligations as set out in this Condition 7.3; and
- the Client shall reimburse DMTL on written demand for any additional costs or losses sustained or incurred by DMTL arising directly or indirectly from the Client Default.
- without limiting or affecting any other right or remedy available to it, DMTL shall have the right to;
The Client shall pay the Charges to DMTL in accordance with the Payment Terms and this Condition 8.
DMTL shall be entitled to issue its invoice for:
- the Initial Fee (if any) on or after the Commencement Date;
- the Charges due on a monthly basis on the Commencement Date and monthly in arrears thereafter;
- all other Charges upon completion of the Marketing Service to which the Charges relate;
- any Service Charge on or after the Service Start Date for the Service that the Service Charge relates to; and
- Expenses upon incurring the same, unless DMTL determines that it is appropriate to invoice such Expenses on a monthly basis.
All Services shall, unless subject to a Service Charge, be charged on a time and materials basis:
- the Charges shall be calculated in accordance with DMTL’s Daily Fee rates as set out in the Quote Proposal;
- DMTL’s Daily Fee Rates for each individual are calculated on the basis of an eight-hour day from 9.00am to 5.00 pm worked on Business Days; and
- DMTL shall be entitled to charge:
(a) an overtime rate of £125 per hour (or such hourly rate as determined by DMTL from time to time) (the Studio Rate) on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Marketing Services outside the hours referred to in Condition 8.3.2; and/or
(b) such additional Charges as notified by DMTL to the Client from time to time as required in order to provide the Services. Such additional Charges incurred pursuant to this Condition 8.3.3(b) shall be in the event that the Services provided to the Client exceed the original Charges quoted to the Client as set out in the Quote Proposal.
The Client shall pay each invoice submitted by DMTL:
- within 30 days of the date of the invoice or in accordance with any credit terms agreed by DMTL and confirmed in writing to the Client; and
- in full and in cleared funds to a bank account nominated in writing by DMTL, and
- time for payment shall be of the essence of the Contract.
DMTL may increase its Daily Fee Rate, Studio Rate and/or other Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase (if any) in the CPI, from the Commencement Date, or if later, the date the last increase in the relevant Daily Fee Rate, Studio Rate and/or Charges (as applicable) to the date proposed by DMTL for such increase.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by DMTL to the Client, the Client shall, on receipt of a valid VAT invoice from DMTL, pay to DMTL such additional amounts in respect of VAT as are chargeable on the supply of the Marketing Services at the same time as payment is due for the supply of the Marketing Services.
If the Client fails to make a payment due to DMTL under the Contract by the due date, then, without limiting DMTL’s remedies under Condition 13:
- the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Condition 8.7 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%; and/or
- DMTL shall have the right to suspend the provision of the Service until any and all payment due to DMTL has been received in full cleared funds.
All amounts due to DMTL under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Project Management and Change Control
Each Party shall appoint a Project Manager during the term of the Contract, who shall:
- be the point of contact for communicating instructions and agreeing specifications, estimate timescales and Charges; and
- provide professional and prompt liaison with the other Party; and
- have the necessary expertise and authority to commit the relevant Party; and
- receive all submissions for approval; and
- sign off submitted work;
and shall notify the other of any changes to the same.
Should DMTL seek the Client’s approval or comment of any element of the Marketing Services and/or Deliverables, at any time, the Client shall promptly respond in writing by such date as agreed between the Parties and when no date has been agreed, within 10 calendar days, with its approval or feedback. If DMTL does not receive approval or feedback during such period, the Client shall be deemed to have approved that element of the Marketing Services, and/or Deliverables.
Where the Client provides feedback in accordance with Condition 9.2 it shall provide DMTL with all information and support necessary for DMTL to make the required amendments.
If the Client wishes to change the Marketing Services, Deliverables or request additional services, it shall submit details of the requested change to DMTL in writing (a Change Request).
In respect of each Change Request, DMTL shall, within a reasonable time, provide a written estimate to the Client of:
- the likely time required to implement the change;
- the Charges and any Expenses payable for implementing the change or providing such requested services and the relevant payment terms;
- any other variations to the Charges including any Service Charges or payment terms arising from the change; and
- any other impact of the change on the terms of the Contract.
If the Client wishes DMTL to proceed with the change, DMTL has no obligation to do so unless and until the Parties have agreed all matters set out in Condition 9.5, in writing and any necessary variations to the terms of the Contract to take account of the Change Request. Following such agreement, the services and/or changes shall from part of the Marketing Services.
Either Party may have access to the Confidential Information of the other Party under the Contract. Confidential Information is highly sensitive and highly confidential by reason of the damage that could be done to the other’s Party’s business by any disclosure to or use by any third party of any such information. The Parties therefore agree to accept the restrictions in this Condition 10.
Neither Party shall (except in the proper course of DMTL providing the Services and complying with its obligations under the Contract) either during the Term or at any time after the termination of the Contract, use or disclose to any third party other than its Representatives who have a genuine need to know the same for the purpose of carrying out that Party’s obligations under the Contract, any Confidential Information belonging to the other Party. The restrictions in this Condition shall not apply to:
- any use or disclosure authorised by the Party to whom the Confidential Information belongs;
- any disclosure required by Law, any court of competent jurisdiction or by any regulatory or administrative body; or
- any information which is already in, or comes into, the public domain otherwise than through the receiving Party’s unauthorised disclosure.
The Client shall take all reasonable steps to ensure that DMTL’s Confidential Information is not disclosed or distributed by the Client or its Representatives in breach of the terms of the Contract and shall be responsible for any such breach by its Representatives.
DMTL shall take all reasonable steps to ensure that the Client’s Confidential Information is not disclosed or distributed by the Client or its Representatives in breach of the terms of the Contract and shall be responsible for any such breach by its Representatives.
The Parties agree that if the provision of the Marketing Services involves the processing of personal data by DMTL on behalf of the Client, the Schedule shall apply to the Contract.
Except as expressly stated in the Contract, the Contract does not grant the Client any rights to or in the Intellectual Property Rights arising out of or in connection with the Marketing Services, including any Intellectual Property Rights in the Deliverables (excluding any Intellectual Property Rights of the Client that subsist in the Client Materials) (DMTL IPR).
DMTL grants to the Client or shall use its reasonable endeavours to procure the direct grant to the Client (as applicable) of a non-exclusive, royalty-free, non-transferable, non-sublicensable right to use the DMTL IPR for the purpose of receiving and using the Marketing Services and Deliverables during the term of the Contract. The Client shall not sub-license, assign or otherwise transfer the rights granted by this Condition 12.2.
The Client grants DMTL:
- a fully paid-up, non-exclusive, royalty-free non-transferable licence for the Term to use, copy adapt and modify any Client Materials for the purpose of providing the Services, Deliverables and Works; and
- the right to use the Client’s logo, name and a short description of the Marketing Services provided to the Client on its website and for case study and marketing purposes.
The Client hereby indemnifies DMTL and keeps it indemnified at all times against any and all costs, claims, damages or expenses incurred by DMTL, or for which DMTL may become liable, with respect to any intellectual property infringement claim or other claim relating to any Client Materials used by DMTL in accordance with the terms of the Contract.
Without prejudice to any other right or remedy available to it, DMTL may terminate the Contract with immediate effect by giving notice to the Client, if the Client:
- fails to pay any amount due and remains in default not less than 14 days after being notified in writing to make such payment; and/or
- commits a material breach of any term of the Contract (other than failure to pay any amounts due under the Contract) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- undergoes a change of Control;
- makes a proposal for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors generally or if the Client is unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrator, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Client or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction);
- any event occurs, or proceeding is taken, in any jurisdiction to which the Client is subject that has an effect equivalent or similar to any of the events mentioned in Condition 13.1.4;
- suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- disputes the ownership or validity of DMTL IPR.
Either Party may terminate the Contract in accordance with Condition 18.
DMTL may, without prejudice to its other rights or remedies, suspend the provision of the Marketing Services and delivery of any Deliverables with immediate effect upon providing notice to the Client, if the Client is in breach of its obligations under the Contract until such time as the breach is remedied to DMTL’s satisfaction. The exercise by DMTL of its rights in accordance with this Condition 13.3 shall not affect any obligation of the Client under the Contract.
Effect of Termination
On termination or expiry of the Contract (howsoever arising):
- the Client’s right to receive the Marketing Services (or any Service) shall automatically cease and DMTL shall no longer be obliged to provide the Marketing Services or any Service;
- the Client shall immediately pay to DMTL all of DMTL’s outstanding unpaid invoices and interest and, in respect of the Services and Deliverables supplied and Expenses incurred but for which no invoice has been submitted, DMTL may submit an invoice, which shall become payable immediately on receipt;
- if any amounts due to DMTL under the Contract, remain outstanding, DMTL may retain possession of any Client Materials and Deliverables until such time as all amounts due are fully paid up;
- each Party shall as soon as reasonably practicable return or destroy the Confidential Information of the other Party;
- no Charges or Expenses paid shall be refundable for any reason;
- the Client shall at the option of DMTL either forthwith destroy or return to DMTL any copies of the DMTL IPR in its possession or control and take all steps necessary to ensure that the Client and none of its Representatives can access or use the DMTL IPR. The Client shall, subject to its compliance with Conditions 12.1, continue to have the benefit of the rights granted to it under Condition 11 until completion of the Event; and
- other than as set out in the Contract, neither Party shall have any further obligation to the other under the Contract.
On termination of the Contract by DMTL in accordance with Conditions 13.1, 13.1.2 and 17, any rights or licences granted to the Client in accordance with Condition 11 shall immediately terminate and the Client shall no longer have the right to use any Works or Deliverables and shall at the option of DMTL irretrievably delete or return to DMTL any DMTL Works or Deliverables in its possession or control and take all steps necessary to ensure that the Client and none of its Representatives access or use the same.
The Client agrees that it will not on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during the Term and for a period of 12 months following termination or expiry of the Contract solicit or entice away (or attempt to solicit or entice away) or authorise the taking of such action, any Representative of DMTL employed or engaged by DMTL in the provision of the Services.
If the Client commits any breach of Condition 15 it shall, without prejudice to any other rights or remedies DMTL may have, pay to DMTL as liquidated damages a sum equal to 12 months basic salary or the annual fee that was payable by DMTL to that Representative plus the recruitment and/or agency costs incurred by DMTL in replacing such person. Such sum shall be payable on demand.
The Parties confirm that these liquidated damages are reasonable and proportionate to protect DMTL’s legitimate business interests.
Limitation of Liability
This Condition 16 sets out the entire liability of DMTL (including any liability for the acts and omissions of DMTL’s Representatives) in respect of:
- any breach of its contractual obligations arising under and/or in connection with the Contract;
- any use made by the Client of the Services, Deliverables and/or Works or any part of them;
- any misrepresentation, mis-statement or tortious act or omission (including negligence but excluding any of the same made fraudulently) arising under or in connection with the Contract;
- any other provision of the Contract;
(a Liability Event).
Nothing in the Contract shall limit or exclude the liability of DMTL for:
- death or personal injury resulting from its own negligence or that of its Representatives;
- fraud or fraudulent misrepresentation; or
- to the extent that such liability or exclusion is not permitted by Law.
The Client is responsible for any conclusions it or its Representatives draw from the Marketing Services and the Deliverables.
Subject to Condition 16.2, the total liability of DMTL in respect of all Liability Events relating to each Service and the Deliverables to be delivered as part of that Service shall be limited to 100% of the Charges paid for such Service provided always that the aggregate liability of DMTL in respect of all Liability Events relating to the Marketing Services and/or arising under the Contract shall be limited in any Contract Year to the greater of 100% of the Charges paid in the immediately preceding Contract Year and £5,000, or in respect of the first Contract Year 100% of the Charges paid for that Contract Year.
Subject to Condition 16.2, DMTL shall not be liable to the Client in respect of any Liability Event for any loss or damage which may be suffered by the Client (or any person claiming through or under the Client) whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which falls within the following categories:
- loss of profits;
- loss of business;
- loss of goodwill and/or similar losses;
- loss of anticipated savings;
- loss of goods;
- loss of contract;
- loss of use;
- loss of, or corruption of, data or information or software; or
- any special, indirect or consequential loss; provided that this Condition 16.6 shall not prevent claims for direct financial loss that are not excluded by Conditions 16.616.6 to 16.616.6.8 inclusive.
DMTL shall not be liable for any damage or losses to the extent they arise result of or in connection with:
- any failure of the Client to observe and perform its obligations under the Contract;
- any unauthorised or incorrect access or use of the Marketing Services or Deliverables or use other than in accordance with the terms of the Contract or DMTL’s instructions;
- any modification or alteration of the Marketing Services or Deliverables by any party other than DMTL;
- errors or omissions in any Marketing Services or Deliverables to the extent they are based on and/or relate to the information, instructions or Client Materials provided by the Client or its Representatives to DMTL; or
- any actions taken by DMTL at the Client’s direction.
If a number of Liability Events give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under the Contract.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by Law, excluded from the Contract.
The Client shall indemnify DMTL against all claims, costs and expenses which DMTL may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under the Contract, including any claims brought against DMTL alleging that the Marketing Services or any Service provided by the DMTL in accordance with the Contract infringes the Intellectual Property Rights of a third party.
Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract (other than any obligation in relation to payment) if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 180 days or more, the party not affected may terminate the Contract by giving 30 days’ written notice to the other Party.
Partnership – Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party, except as expressly authorised by the Client or DMTL (as the case may be).
Notices – Any notice given to a Party under or in connection with the Contract shall be in writing and shall be delivered personally, emailing or by pre-paid recorded delivery or registered post to the other Party’s registered office. Any such notice shall be deemed to have been received:
- if delivered personally, at the time of delivery;
- in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting;
- in the case of emailing, the time stamp of the email, provided always that email shall not be a valid form of notice for service of any proceedings or other documents in any legal action or other method of dispute resolution.
In proving such service, it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post or, in the case of email, proof of receipt of a read receipt or acknowledgement.
Variation – No variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
Severance – If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Third Party Rights – A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Counterparts – The Contract may be executed in any number of counterparts, each of which when taken together shall together constitute one and the same Contract. No counterpart shall be effective until each Party has executed at least one counterpart.
The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
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 the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
DMTL may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under the Contract. DMTL may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
The Contract is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of DMTL (such consent not to be unreasonably withheld or delayed).
Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
Nothing in the Contract shall prevent DMTL or its Representatives from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Term.
The Parties shall comply with the Laws relating to anti-bribery and anti-corruption including the Bribery Act 2010.
Governing Law and Jurisdiction
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE – Data Protection
Part 1 – Data Protection
Both Parties will comply with their respective obligations under the Data Protection Legislation. The provisions of this Schedule are in addition to, and do not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and DMTL is the processor. The Schedule sets out the scope, nature and purpose of processing by DMTL, the duration of the processing and the types of personal data and categories of data subject.
Without prejudice to the generality of paragraph 1.1, the Client will ensure that it has all necessary appropriate consents and notices in place to:
enable lawful transfer of the Client Personal Data to DMTL for the duration and purpose of the Contract and in particular the Services to be provided by DMTL;
process the Client Personal Data;
permit DMTL to Process the Client Personal Data in accordance with and for the purposes of the provision of the Services and performance of its obligations under the Contract.
The Client is solely responsible for and warrants the accuracy and completeness of the Client Personal Data.
DMTL shall, in relation to any Client Personal Data processed in connection with the performance by DMTL of its obligations under the Contract:
only process that Client Personal Data for the purpose of the Contract, as more particularly set out in the appendix unless DMTL is acting on the written instructions of the Client or is required to do so by Applicable Law and in which case DMTL shall notify the Client of this before processing the Client Personal Data as required by the Applicable Law unless prohibited by such Applicable Law;
ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client 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 Client Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Client 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);
ensure that all personnel who have access to and/or process Client Personal Data are obliged to keep the Client Personal Data confidential;
not transfer any Client Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
- the Client or DMTL has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- DMTL complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Client Personal Data that is transferred; and
- DMTL complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Client Personal Data;
assist the Client (at the Client’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;
notify the Client without undue delay on becoming aware of a personal data breach;
at the written direction of the Client, delete or return to the Client the Client Personal Data and any copies of the same on termination of the Contract unless DMTL is required by Applicable Law to store the Client Personal Data; and
maintain records to demonstrate its compliance with this Schedule and the Data Protection Legislation and allow for the Client or its authorised auditor (at the Client’s cost), on reasonable notice to undertake audits of DMTL’s compliance. The Client shall ensure any such audits do not interfere with DMTL’s business operations.
The Client agrees that DMTL may appoint third-party processors of Client Personal Data under the Contract provided that DMTL has entered a written agreement incorporating terms which are substantially similar to those set out in this Schedule.
DMTL may revise this Schedule by replacing it with any applicable controller to processor standard Conditions or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
Part 2 – Details of Processing undertaking by DMTL
The subject matter and duration of the Processing
Client Personal Data which is provided by or on behalf of the Client to DMTL in connection with the provision of the Marketing Services by DMTL and the general performance of DMTL’s other obligations under the Contract, which includes DMTL using Client Personal Data for the purpose of providing marketing solutions and website development services. DMTL will only process Client Personal Data for as long as is required to comply with the Contract and/or to provide the Services or where it is required to store Client Personal Data to comply with Applicable Law, or for DMTL’s business record keeping purposes in accordance with its data retention protocols.
The nature and purpose of the Processing
Processing of the Client Personal Data in order to perform the Contract and/or provide the Marketing Services.
The type of personal data being processed
Email addresses, mobile phone numbers, biometric data such as gender and age, geographic data such as location, special categories of personal data such as medical conditions, disabilities, religion and ethnic origin, any personal data received in response to the Marketing Services, which may include: postal addresses (where this identifies a person) and such other Client Personal Data as may be supplied by the Client (as part of the provision of the Marketing Services to the Client).
The categories of data subjects
Employees of the Client, customers of the Client, historical or previous customers of the Client and prospective customers of the Client.
Amended November 2020