SimonClark t/a SDC Digital –Terms and Conditions
These Terms and Conditions shall apply to allservicesprovidedbySimonClark t/a SDC Digital at 42 London Road,Godmanchester, Cambs PE29 2JA andhereinafter called “the Agency” to you, the Client.
1.Definitions and Interpretation:
1.1In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance”means the acceptance of theProposal,the signing of a retainer agreement, the placement of an order and/or yourwritten or verbal consent to receive the services,and includes acceptance of these Terms and Conditions;
“Client” means you, the individual, firm or corporate body purchasing the Services;
“Contract”means the contract formed upon acceptance by the Clientas detailed above fortheprovision of the Services;“Proposal”meansthewritten Proposalto providethe services, whichremains open for acceptance for a period of 30 days andshall constitute theentire scope of works; and
“Services” means ourmarketingservicesto beprovided by SimonClark t/a SDC Digitalto you.
1.2Unless the context otherwise requires, each reference in these Terms andConditions to:
1.2.1“we”, “us”, “our” is a reference to the Agencyand includes our employees and agents;
1.2.2“writing”and “written”includes emails and faxes;
1.2.3a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.4“these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevanttime;
1.2.5a Clause or paragraph is a reference to a Clause of these Terms and Conditions;
1.2.6a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.3The headings used in these Terms and Conditions are for convenience only and shall have noeffect upon the interpretation of these Terms and Conditions.
1.4Noterms or conditions stipulated or referred to by youin any form whatsoever shall in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
1.5Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender.References to persons shall include corporations.
2.One-off Services: The following clause shall apply to one-offservices onlyincluding, but not limited to, copywriting, web design, graphic/logodesign, digital advertisingand video production.
2.1Upon acceptance of our Proposalbysigning up, you shall be required to pay a deposit, which shall be 50% of the quotedfee unless otherwise stated. Orders shallnot be deemed confirmed until the deposit is paid in full.Thisdeposit isnon-refundable.
2.2The final payment of 50% of the quotedfee shall be invoicedupon completion of the works. However, if we are delayed in completing the Services through no fault of our own, we shall automatically invoice the final 50% to you 12weeks after our Proposal was accepted, regardless of whether or not the works are complete.
2.3Notwithstanding the above, we also reserve the right torequest 100% of the quotedfee up frontat our sole discretion, or to invoice additional interim progress payments during the course of the Services,but if this is the case, we will state this in our Proposal.
2.4The Services will commence upon your acceptance of our Proposal. Shouldyou wish to cancel the Services after accepting our Proposal, we will retain the deposit andwill invoice for any Services carried out up to the date of cancellation.
2.5Should you require any additional Services after acceptance of our Proposal, we will provide you with an estimated cost for the additional Services, which must be accepted by you in writing before we will proceed. Such additional Services will be charged in accordance with our standard hourly rate applicable at the time.
2.6Any alterations required after approval of the works, any changes to the brief following the initial consultation or any additional visits required above the allowance included for in the Proposalwill be chargeable at our standard hourly rate applicable at the time.
2.7We reserve copyright in all works produced by us in accordance with clause 14 below.
2.8.1We will provide copy for your approval and will accommodate a maximum of 3 rewrites of the copy without charge. Should you require more than 3 rewrites, any additional changes may be chargeable at our discretion.
2.8.2You will not be entitled to use the copy, or any of the Services the subject of this Contract, until payment has been received in full.
2.8.3You will be deemed to be satisfied with the Services once youhave approved of the final draft and any changes required to be made after approval of the final draft will be chargeable at our normal hourly rate.
2.9Graphic/Logo and Web Design:
2.9.1We will design one concept and will work on this with your feedback until it isapproved. If this initial concept is not acceptable, we will provide a further two concept designs without charge. Should you require more than 3 redesigns, any additional changes may be chargeable at our discretion.
2.9.2We will provide you with design proofs throughout the course of the Services, which must be signed off by you in writing. Proofs should be approved by you within 7 days of receipt to avoid delays.
2.9.3Any images purchased by us for the provision of the Services will be added to the final invoice.
2.9.4Unless we are providing copywriting Services, any website copy will be uploaded exactly as we receive it. It is your responsibility to check for mistakes, including spelling mistakes, and we accept no responsibility for the same.
2.9.5All websites provided by us are designed to comply with the World Wide Web Consortium disabled accessibility guidelines. Under the law,it is yourobligation to ensure that your website complies with the United Kingdom Disability Discrimination Act (DDA) 1995.
2.9.6We will endeavour to ensure that the website is optimised for search engines, however, we can make no guarantee as to the levelof search engine success the website will achieve.
2.9.7Domain names and hosting package, where applicable, will be registered in yourname. Itisyour responsibilityto supply the correct registration details in writing to usupon acceptance of the Proposal.
2.9.8We are happy to recommend a suitable hosting company to host your website. However, it is your responsibility to back up any images anddata on the websiteandunder no circumstances can we guaranteethe availability orlack ofinterruption of this service and accept no liability for the same.2.9.9We cannot accept responsibility for any changes to the website once it has been launched including, but not limited to, additions, modifications or deletions caused by youor any third party.
The following clause shall apply to retainedservices onlyincluding, but not limited to, SEO services, social media and marketing management.
3.1We willprovide the retainedservices as specified in our Proposal. The contractis formed uponacceptance of our Proposal, which shall detail the entire scope of works.
3.2The retainer agreement will befor an initial term of calendar 6months, unless otherwise stated, and shallthen be automatically renewed, with the exception of the price, on the same terms and conditions as set out in this agreement on a rolling basis unless a written notice to terminate is given by either party in accordance with clause 10of this agreement. We will notify you of anysuch change in pricein accordance with these terms and conditions.
3.3The first monthly instalment shall be due upon acceptance of our proposal. Subsequent paymentsshall be made monthly in advance on or around the 1stof each calendar month by direct debit.Any pro-rata amount will be calculated
3.4The Client will pay for any additional Servicesprovided by usthat are not specified in the Contract. These additional services shall be charged in accordance with ourcurrent, applicable hourlyrate,or such other rate as may be agreed.
3.5In addition, weshall charge to youourreasonable travelling time and travel expenses, any incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
3.6Anycontent provided by us for use on social media sites is done so in good faith and we are deemed to have your consent to post updates on these websitesuntil the contract is terminated in accordance with clause 10below.
3.7Where the contract states we are to carry out paid advertising campaigns on yourbehalf, youwill be required to agreeto the relevant advertising campaign website’s terms and conditions and a separate contractual relationship will becreated between youand the campaign website. No credit or debit card information will beprovided to us. At our sole discretion, we may offer to agree a budget with youand to pay for these services up front, whereby the payment provisions in clauses 4.4 and 4.5 will apply.
3.8We mayprovide professional advice and recommendations in relation to the Servicesbut we cannot accept responsibility for any actions taken as a result of ouradvice or recommendations, nor can we guarantee the success or outcomes of any marketing campaign or any of the other Servicesprovided. Further, weshall not be liable for any consequences should anyprofessional advice not be taken.We may from time to time provide introductions or referrals to other companies, however, under no circumstances shall we be liable for the actions or lack of actions of said other companies.
4.1The Client agrees to pay the feesin accordance with thesetermsof payment.
4.2All invoices are payable within 7 days from the date of invoice, where not taken by direct debit.
4.3Allpayments shall be made in pounds sterling without any set-off, withholding or deduction except such amount (if any) of tax as you arerequired to deduct or withhold by law.All sums are inclusiveof any value added or other tax (except corporation tax) or othertaxes on profit, for which theParty paying shall be additionally liable.
4.4Anydelays caused by you or any third party instructed by you,including, but not limited to, failing to carry out agreed actions or to providenecessary information or services, or failing to give proper notice to terminate or cancel as detailed herein will be charged at our standard rates applicable at the time.
4.5The time of payment shall be of the essence. If youfailto make any payment on the due date then weshall, without prejudice to any right which wemay have pursuant to any statutory provision in force from time to time, have the right to suspend the servicesand charge youinterest on a daily basis at an annual rate equal to the aggregate of 8% above the base rate of the Bank of England from time to time in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgment.
5.1The Client agrees, where applicable,to:
5.1.1provide us with any information, advice and assistance relating to the services as we may reasonably require within sufficient time to enable us to perform the Services;
5.1.2provideus withsuitable and sufficient material and images to enable us to perform the Services;
5.1.3ensure yourstaff are trained in the proper use and operation of any system provided by us;
5.1.4virus-check all data &material supplied to usand ensure itis backed up regularly;
5.1.5keep secure from third parties any passwords issued by us to you;
5.1.6nominate a suitably qualified individual to act as yourrepresentative to liaise with us regarding the Services;and
5.1.7obtain and maintain all necessary licences, permissions and consents in connection with the Services.
5.2If youfail to meet any of theprovisions of this clause 5,without limiting ourother rights or remedies,we shall:
5.2.1have the right to suspend performance of the Servicesuntil you remedythe default;
5.2.2not be held liable for any costs or losses sustained or incurred by youarising directly or indirectly from ourfailure or delay in performing any of ourobligations as a result;and
5.2.3be entitled to claim for any costs or losses sustained or incurred by usarising directly or indirectly from yourdefault.6.Notice and/or Lead In Period: Unless otherwise agreed in writing between the parties at the time of acceptance,and where applicable,we require a minimum of 7days’formal notice to commence the Services.
7.Errors or Discrepancies:
You areresponsible for the accuracy of any information submitted to usand for ensuring that the Proposalor retainer agreementreflects yourrequirements. OurProposalis based on the information provided to usat the time of its preparation. Should any errors or discrepancies become evident which affect theprice,wereserve the right to make adjustments to it.
8.Variation and Amendments
8.1If youwishto vary the Services, pleasenotify usas soon as possible. Weshall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to you.
8.2If, due to circumstances beyond ourcontrol, wehaveto make any change in the arrangements relating to the Services,weshall notify youimmediately. Weshall endeavour to keep such changes to a minimum and shall seek to offer youarrangements as close to the original as is reasonably possible in the circumstances.
8.3Any agreed variation or amendment will be carried out in accordance with these terms and conditions and anyprice increase as a result shall be payable in accordance with the terms for payment herein.
9.Termination of Retained Services
9.1Either Party has the right to terminate the retained Servicesforthwith:
9.1.1where a term has been agreed, after the expiry of that term;
9.1.2by the giving of 3 month’swritten notice, after the expiry of any agreed term if applicable, whereby there will be no continuing liability by either Party. The three month notice will have deemed to have been started from the last payment date.
9.1.3if the other has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or
9.1.4if the other goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
9.2In the event of termination, all payments owedunder this contractshall be invoiced and shall become immediately due and payable.
9.3With the exception of payment, any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contractshall survive termination under this Clause 9on a pro-rata basis.
10.1Each Party undertakes that throughout the duration of the agreement, the Parties may disclose certain Confidential Information to each other. Both parties agree that they will not use the Confidential Information provided by the other, other than to perform their obligations under this agreement. Each Party will maintain the Confidential Information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other Party in writing.
10.2Wereserve the right to use your companyname and a visualof the Services provided in marketing and promotional literature and on ourwebsite. Pleaseadvise us in writing if you wish to opt out of this.
11.Documentation: We include for any documentation to be submitted in our normal standard format only. If additional copies or specific requirements are needed,we reserve the right to apply additional charges. We shall retain title to the documentation and no documentation shall be handed over until all payments as detailed above have been paid in full.
12.Literature and Representations: Any marketing literature is presented in good faith as a guide to represent the services offered and does not form a part of the agreement. None of our employees or agents are authorised to make any representation concerning the services unless confirmed by us in writing. In entering into the agreement, youacknowledge that youdoes not rely on and waives any claim for breach of any such representations, which are not so confirmed.
13.1Subject to a written agreement to the contrary, we retain ownership in all intellectual property which may subsist in the provision of the Servicesincluding, but not limited to, domain names, hosting packages, designs, graphics and coding. Nothingin the agreement shall vest any ownership rights in the Client.
13.2Upon Acceptance, and provided payment is made in accordance with the terms of payment herein, we will grant youa non-exclusive license to use the intellectual property the subject of the contract only for the purposes for which we wereengaged by you.Youmay not sub-licence the intellectual property rights without our prior written permission.
13.3Wereserve the right to take such actions as may be appropriate to restrain or prevent infringement of such intellectual property rights.
13.4Anylicence granted shall be automatically revoked if youbreachany of thesetermsor the agreement is terminated in accordance with clause 11 above.Further, where we are responsible for hosting the website, should any payments remain outstanding for a period of 3 months or more, we reserve the right to shut the website down and/or reuse the domain name at our sole discretion.
13.5Youwarrantthat anyimage,document or instruction suppliedor given by youshall not cause usto infringe any advertising codes of conduct or any intellectual property rights, including anyletter patent, registered design or trade mark in the execution of these services and you shall indemnify usagainst all loss, damages, costs and expenses awarded against or incurred by usin settlement ofany claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of suchinformation.
13.6We reserve right to refuse to handle material which may be deemed offensive, illegal or in any way controversial, which shall be decided at our sole discretion. 13.7Under no circumstances shall material provided by us be lent, hired out, sold or otherwise circulated by either manual or electronic means, nor shall it be photocopied or otherwise reproduced without our express written consent.
Nothing in this agreementshall render or be deemed to render usan employee or agent of the Client or the Client an employee or agent of ours.
15.Insurance: We include for Public Liability Insurance and Professional Indemnity Insurance.Details are available on request.
16.Assignment and Sub-Contracting
16.1The Client shall not be entitled to assign the benefits under the agreement.16.2Wemay sub-contract the performance of any of ourobligations under the agreementwithout yourprior written consent. In this event, weshall be responsible for every act or omission of the sub-contractor as if it were an act or omission of our own.
17.Liability and Indemnity
17.1Except in respect of death or personal injury caused by ournegligence, wewill 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 loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by ourservants or agents or otherwise) in connection with the performance of ourobligations under the agreement.
17.2All warranties or conditions whether express or implied by law are hereby expressly excluded.
17.3Youshall indemnify usagainst all damages, costs, claims and expenses sufferedby usarising from loss or damage to any equipment (including that of third parties) caused by you, or youragents or employees.
17.4Neither Party shall be liable or be deemed to be in breach of the agreement 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 beyond the control of the Party in question.
17.5In the event of a breach by usof ourexpress obligations under these Terms and Conditions, yourremedy will be limited to damages, which in any event, shall not exceed the fees and expenses paid by youfor the Services.
Neither Partywill, during the term of the agreementand for a period of 2 years from the expiry of this agreement, without the other’s prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director,consultant or independent contractor of the other. Whilst the above restrictions are considered by the parties to be reasonable in all the circumstances, it is agreed that if, taken together they are adjudged to go beyond what is reasonable in all the circumstances for our protection but would be judged reasonable if part or parts of the wording of them were deleted or its period reduced or an area defined, they shall apply with such words deleted or with such modifications as may be necessary to make it valid and effective.
If either party fails to exercise their rights under this Contract, or fails to enforce their rights following a breach of contract by the other party, it is a one-off, not a waiver, and does not mean they waive their right to subsequently do so.
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 Conditionsshall be valid and enforceable.
Both parties agree to comply with all applicable data protection legislation, including but not limited to the Data Protection Act 1998 and any subsequent amendments thereto.
22.Third Party Rights:
No part of the agreementis intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the agreement.
23.1All notices under the agreementshall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice. Notices shall be deemed to have been duly given:when delivered, if delivered by courier or other messenger (including registered mail) duringnormal business hours of the recipient; orwhen sent, if transmitted by faxor email and a successful transmission report or return receipt is generated; oron the fifth business day following mailing, if mailedbynationalordinarymail,postage prepaid.In each case notices shall be addressed to the most recent address, email address, or faxnumber notified to the other Party.
23.2Service of any document for the purposes of any legal proceedings concerning or arising out of the agreementshall 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 otherParty in writing from time to time.
24.Law and Jurisdiction
24.1The agreement and these Terms and Conditions shall be governed by the laws of Englandand Wales and both parties submit to the exclusive jurisdiction of the courts of England and Wales.Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the agreement(including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.