Terms & Conditions

It’s important that we make our terms and conditions clear and readily accessible. So here they are!

Terms and Conditions

Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions.

Definitions:
Charges: the charges payable by the Customer for the Services, as calculated in accordance with the Purchase Order and/or clause 6.

Commencement Date: has the meaning set out in the Purchase Order.

Contract: the Purchase Order and these Terms and Conditions, as created under clause 3.

Customer: has the meaning set out in the Purchase Order.

Deliverables: all documents, creations and materials developed by the Supplier in relation to the Services in any media, including ads, data, diagrams, reports, documents and specifications (including drafts), including the Deliverables set out in the Purchase Order.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Pre-existing Materials: materials which existed before the Commencement Date.

Purchase Order: the cover sheet, email or other document setting out the details of the services required by the Customer.

Related Parties: means a party’s parent, subsidiaries, assigns, transferees, representatives, principals, agents, employees, officers or directors, and any company controlled by a party or its Related Party, and/or a company with which a party is under common control, and any such company’s Related Parties. “Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
Services: the services to be provided by the Supplier under the Contract.

Subsequent Contracts: has the meaning given to it in clause 2.2.

Supplier: has the meaning set out in the Purchase Order.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Condition, Schedule and paragraph headings shall not affect the interpretation of this agreement.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

A reference to writing or written includes email.

References to conditions and Schedules are to the conditions and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

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.

Application of conditions

These conditions shall:
– apply to and be incorporated in the Contract; and
– prevail over any inconsistent terms or conditions contained in, or referred to in, any confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

From time to time, the parties shall be entitled to enter into further Purchase Orders or further agreements for the provision of additional Services (including agreements agreed to between the parties by email) (Subsequent Contracts). These conditions shall apply to Subsequent Contracts unless expressly stated otherwise, and such Subsequent Contracts shall be deemed to be a Contract for the purposes of these conditions.

No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.

Unless agreed otherwise, these conditions shall apply to all work carried out by the Supplier for the Customer on or after the date of the first Contract between the parties, whether or not any subsequent Purchase Orders are completed or further contracts are formally concluded.

These conditions apply to the Customer and also to any of its Related Parties to which the Supplier provides Services. For such purposes, the Customer acts as agent on behalf of such Related Parties and confirms that it has authority to act as such.

The parties may agree to pause the provision of Services for up to three months by mutual written agreement.

Effect of Purchase Order
The Customer’s completion of the Purchase Order constitutes an offer by the Customer to purchase the Services specified in it on these conditions. Accordingly, the execution and return of the acknowledgement copy of the Purchase Order by the Supplier, or the Supplier’s commencement or execution of work pursuant to the Purchase Order, notwithstanding the failure of either party to sign the Purchase Order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Purchase Order shall not govern the Contract.

Supplier’s obligations
The Supplier shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Purchase Order.

The Supplier shall use reasonable endeavours to meet any performance dates specified in the Purchase Order, but any such dates shall be estimates only and time for performance shall not be of the essence of the Contract.

The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

Customer’s obligations
The Customer shall:
– co-operate with the Supplier in all matters relating to the Services; 
– provide in a timely manner such information and data as the Supplier may request, and ensure that such information is accurate in all material respects; and
– be solely responsible for negotiating and entering into any contracts with clients who respond to any ads placed by the Supplier on the Customer’s behalf.

If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (including seeking to cancel or otherwise terminate the Contract early) or the Customer’s agents, subcontractors or employees, the Customer shall in all circumstances:
– pay to the Supplier the agreed Charges in full; and
– be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it, subject to the Supplier confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.

The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier. The Customer shall not be in breach of this clause 5.3 if it hires an employee or subcontractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of the Supplier.

Any consent given by the Supplier in accordance with clause 5.3 shall be subject to the Customer paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor.

– The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to its expiry or termination, engage any third party to deliver the Services or any services similar in nature to the Services.

Charges and payment
The Customer shall pay the Charges to the Supplier in accordance with the Purchase Order.

The Supplier shall have no obligation to complete time sheets recording time spent on the Services.

The Customer shall pay to the Supplier any expenses or other costs (including ad spend) incurred by the Supplier in the performance of the Services, which the Supplier shall invoice at the same time as invoicing for the Charges.

The Charges exclude VAT, which the Supplier shall add to its invoices at the appropriate rate.

Unless agreed otherwise in the Purchase Order, the Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, on receipt.

Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
– charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; 
– suspend all Services until payment has been made in full; and
– refuse to commence any Services not yet started until payment has been made in advance.

Time for payment shall be of the essence of the Contract.

All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

The Supplier shall be entitled to increase the Charges on each anniversary of the Contract by giving not less than 14 days’ written notice to the Customer, provided that such increase shall not be more than 5%.

Intellectual Property Rights
All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. 
The Supplier licenses all such rights to the Customer on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties.

The licence set out in clause 7.2 above shall:
– terminate immediately upon expiry or termination of the Contract; and
– be suspended for the duration of any suspension of the Services in accordance with clause 6.6(b) above.
– The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials and Deliverables may be conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
– The Supplier shall be entitled to terminate or temporarily withdraw the licence granted pursuant to clause 7.1 above if the Customer carries out or is subject to any of the acts set out in clause 10.2(a) or 10.2(j) below.
– The Customer warrants that it owns all Intellectual Property Rights in, and has all necessary consents and notices in place to allow the Supplier to use, any content, documents or other materials provided by the Customer to the Supplier.

Confidentiality and Supplier’s property 
The Customer shall keep in strict confidence:
– all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents; and 
– any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.

The Customer shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
– is or becomes publicly known other than through any act or omission of the receiving party;
– was in the other party’s lawful possession before the disclosure;
– is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
– is independently developed by the receiving party, which independent development can be shown by written evidence.

Subject to clause 8.5, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction. To the extent it is legally permitted to do so, the disclosing party shall give the other party as much notice of such disclosure as possible. Where notice of disclosure is not prohibited and is given in accordance with this clause 8.5, the disclosing party shall take into account the reasonable requests of the other party in relation to the content of such disclosure.

All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.

The above provision of this clause 8 shall survive termination of the Contract, however arising.

Limitation of liability and Insurance
The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
– any breach of the Contract however arising;
– any use made by the Customer of the Services, the Deliverables or any part of them; and
– any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.

Nothing in these conditions excludes the liability of the Supplier:
– for death or personal injury caused by the Supplier’s negligence; or
– for fraud or fraudulent misrepresentation.

Subject to clause 9.2 and clause 9.3:
the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
– loss of profits; 
– loss of business;
– depletion of goodwill or similar losses; 
– loss of anticipated savings; 
– loss of goods; 
– loss of contract; 
– any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;

the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 150% of the price paid by the Customer to the Supplier for Services in the immediately preceding 12 month period;

the Supplier shall not be liable to the Customer for:
the content of any ads placed by the Supplier;

the success or failure of any ads placed by the Supplier, and the Customer acknowledges that nothing in the Contract guarantees any results or return on investment; and

any contracts entered into between the Customer and the actions or omissions of any clients who purchase goods or services from the Customer.

The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
– any contracts entered into between the Customer and its own clients; and/or
– any breach by the Customer of clause 7.6.

Termination
The Contract shall commence on the Commencement Date or upon commencement of the Services (if earlier), and shall continue unless and until:
– terminated in accordance with the termination section of the Purchase Order, or any other term of the Contract;
– the agreed Services have been completed in full; or
– otherwise agreed between the parties in writing.

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate a Contract without liability to the other by giving written notice if:
– the other party commits a material breach of any other term of this agreement 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;
– the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
– the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
– the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
– a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
– an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
– the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
– a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
– a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued – against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
– any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(b) to clause 10.2(i) (inclusive).

Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

Without prejudice to any other rights or remedies to which it may be entitled, the Supplier may terminate the Contract without liability to the Customer by giving written notice if:
– the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in – – – writing to make such payment; or
– there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

If the Supplier terminates the Contract pursuant to clauses 10.2 or 10.5, the Customer shall be liable to immediately pay all Charges that would have been due under the Contract had it continued for its full term.

If no fixed term or notice period is specified in a Purchase Order, either party shall be entitled to terminate the Contract on giving to the other not less than one month’s notice.

Force majeure
The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including:
strikes, lock-outs or other industrial disputes; 
failure of a utility service or transport network;
pandemic or epidemic; 
act of God, flood, drought, earthquake, volcanic eruption or other natural disaster;
war, riot or civil commotion;
malicious damage;
compliance with any law or governmental order, rule, regulation or direction; and
accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under clause 14.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

Entire agreement
Other than any other written agreement entered into between the parties which expressly acknowledges this agreement, this agreement 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 acknowledges that, in entering into this agreement, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

Assignment
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Third party rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

Notices
Any notice given to a party under or in connection with this contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
sent by email to the email addresses specified on the Purchase Order.
Any notice or communication shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
if sent by email, at 9.00 am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.

Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).