Digital Associate (Mktg) Limited
Terms and Conditions for the Supply of Services (November 2018)
The Client’s attention is drawn to the limitations of liability contained in these Terms and Conditions and in particular to the provisions of Clauses 4, 5, 8.3, 8.5, 9, 13, 16, 20 and 21 below.
1.1. In these Conditions:
1.1.1. “DA” means Digital Associate (Mktg) Limited, a company registered in England under number 10747290 whose registered office is Suite 9 Newspaper House, Tannery Lane, Penketh, Warrington, WA5 2UD and trading address is 1 Venture Point, Stanney Mill Road, Cheshire Oaks, Chester, CH2 4RG.
1.1.2. “Booking Form” means the booking form submitted by the Client outlining the services to be supplied by DA comprising:
126.96.36.199. assistance from DA drafting and settling an email advertisement, marketing communication or similar; and
188.8.131.52. submitting that communication to selected recipients in the Database; and
184.108.40.206. contacting recipients on the telephone.
1.1.3. “Business Day” means a day other than a day which is a Saturday, Sunday or a public holiday in either England or the country in which the Client is situated.
1.1.4. “Client” means a company, person, partnership, authority or other undertaking who orders or buys the Services.
1.1.5. “Clause” means a clause of these Conditions.
1.1.6. “Contract” means the contract for the supply of Services by DA to the Client.
1.1.7. “Database” means the database comprising details of individuals whom DA has assembled in order to provide promotional advertising campaign services to Clients where applicable.
1.1.8. “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended; any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
1.1.9. “Deliverables” means all Documents and materials that DA agrees to provide to the Client as part of the Services.
1.1.10. “Fees” means DA’s fees for the Services as indicated in Clause 7 and the Booking Form.
1.1.11. “Intellectual Property Rights” means patents, registered and unregistered trademarks, registered and unregistered designs, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world, confidential information, business names, brand names, copyright and rights in the nature of copyright and get up, know how, domain names, inventions, service marks, and database rights and like rights wherever situated in the world.
1.1.12. “Material for Publication” includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying copy or content in any form submitted to DA by or on behalf of the Client for publication.
1.1.13. “Party” means DA or the Client.
1.1.14. “Proposal” means the email or letter from DA (if any) offering to undertake Services and describing itself as a “proposal”, and which email or letter does not form part of the Contract between the Parties.
1.1.15. “Services” means the services and materials to be provided by DA under the Booking Form and any such further services as DA agrees to provide to the Client.
1.1.16. “Subscriber” means an individual on the Database.
1.1.17. “Suitable” material means any material that is not any of the following: obscene, hateful, profane, defamatory, which contains racist terminology or images of pornography or which is intended to annoy, harass or intimidate another person; material which contains discriminatory remarks; material which is in breach of a third party’s Intellectual Property Right; or material which is otherwise antisocial in nature or is otherwise unlawful.
1.1.18. “Third Party” means a company, person, partnership, authority or other undertaking other than a Party.
1.1.19. “VAT” means value added tax chargeable under English law for the time being and any similar, additional or replacement tax.
1.2. In these Conditions:
1.2.1. The headings are for convenience only and will not affect the interpretation of these Conditions.
1.2.2. The use of the plural will include the singular and the use of the singular will include the plural.
1.2.3. Where the words include(s), including or in particular are used, they are deemed to have the words without limitation following them.
1.2.4. Where the context permits, the words other and otherwise are illustrative and will not limit the sense of the words preceding them.
1.2.5. References to the masculine, feminine or neuter genders will include each gender.
1.2.6. References to any statutory provision includes a reference to that statute or statutory provision a from time to time amended, extended or re-enacted.
2. APPLICABILITY OF TERMS AND CONDITIONS
2.1. The provisions in these Conditions apply to any contract between DA and the Client arising from any Proposal or Booking Form referring to these Conditions.
2.2. These Conditions prevail over any contract provisions which the Client may purport to apply whether in correspondence or under a purchase order, letter of intent, confirmation of order or similar document, including any implied from a course of dealing.
2.3. The copyright and other Intellectual Property Rights in a Proposal and the Booking Form will remain with DA. The Client must not make copies of a Proposal or the Booking Form save with the prior consent of DA granted in writing or by email. The Client must treat the contents of a Proposal and the Booking Form as Confidential Information of DA pursuant to the provisions of Clause 12 below.
2.4. To the extent of any conflict between the Booking Form and these Conditions, the Booking Form will prevail.
3. APPOINTMENT AND DURATION
3.1. The Client hereby appoints DA to provide the Services to the Client on and subject to the provisions of these Conditions. Any other services provided by DA to the Client will be provided subject to the provisions of these Conditions.
3.2. The Contract will continue until the Services are completed unless the Contract is terminated earlier in accordance with Clause 15.
3.3. Nothing in these Conditions or any Contract will be interpreted as requiring either of the Parties to enter into any future Booking Form.
3.4. A Booking Form will become binding only when an acknowledgment of the signed Booking Form has been sent by email by DA to the Client.
3.5. For the avoidance of doubt the entry into every booking form will be regarded as a new contract between DA and the Client.
4. DA’s OBLIGATIONS, PUBLICATION
4.1. DA must provide the Services with the reasonable skill and care equivalent to that which may reasonably be expected of consultants providing services of a similar scope, type, nature and complexity to the Services.
4.2. DA must in its absolute discretion be entitled to restrict the publication of any Material for Publication which it deems unsuitable for publication. Notwithstanding the same the failure to exercise such right will not detract from the Client’s responsibilities in respect of all Material for Publication.
4.3. In particular the Client must ensure, and it is their sole responsibility that all Material for Publication is Suitable for publication.
4.4. The Client must compensate DA fully and effectually from and against and in respect of all costs, claims, liabilities and demands relating to or arising from any failure by the Client:
4.4.1. to ensure that the Material for Publication is not Suitable for publication and also in respect of any loss, damage, expense or injury sustained by any Third Party howsoever caused where such loss, damage, expense or injury arises out of a claim that the Material for Publication by DA on the Client’s behalf is not Suitable for publication; or
4.4.2. to comply with any of the Client’s obligations set out in Clause 5 below.
5. CLIENT’S OBLIGATIONS
5.1. The Client must provide in a timely manner any Material for Publication, calculation, determination, facilities, assistance, information, specifications, materials, comment, approval and access to personnel and facilities:
5.1.1. as may be specified in this Contract; or
5.1.2. which DA may reasonably require for the performance of the Services (the “Client Provided Information”);
the Client must ensure that the Client Provided Information is accurate in all material respects, unambiguous, legible and that it meets the Client’s requirements. The Client must pay DA any additional charges arising from errors or delays in providing the Client Provided Information.
5.2. Without prejudice to the provisions of Clause 5.1 above, any Material for Publication, copy, content, logo and supporting materials must be settled and received by DA no less than three clear Business Days before any agreed publication date, in order for DA to meet that publication date.
5.3. DA will not be liable for any loss, damages, costs or expenses incurred or suffered by a Subscriber arising (directly or indirectly) from any inaccuracy, ambiguity or illegibility of the Client Provided Information. The same will be true irrespective of any review of the Client Provided Information by DA, which review is undertaken solely for the benefit of DA.
5.4. The Client must obtain and maintain all necessary licences and consents as may be required for the performance of the Services, unless and to the extent (if any) DA has indicated to the contrary in the Booking Form. This obligation will not apply to Data Protection Legislation as it applies to the Database and its use.
5.5. For the avoidance of doubt, the Client is solely responsible for the content and accuracy of any information or the quality or performance of any good and services provided to Subscribers (including without limitation for the quality of the Material for Publication).
5.6. Without prejudice to Clause 5.5, in addition, where the Client is an agent working for a third-party principal, the Client must procure that its principal accepts responsibility for that content, accuracy, quality and performance.
5.7. The Client must promptly inform DA of any email the receipt of which is rejected and, in any event, must inform DA within 72 hours of becoming aware of such rejection.
5.8. Where the Client is an agent working for a third-party principal, the Client must:
5.8.1. at all times be regarded as the “Client” for the purposes of this agreement;
5.8.2. confirm by providing instructions that it is at all times acting on behalf of and in accordance with the principal’s instructions;
5.8.3. be responsible for all acts and omissions of the principal; and
5.8.4. impose like obligations on the principal as are imposed on the agent pursuant to this agreement and will enforce such obligations.
6. CHANGED OR ADDITIONAL SERVICES
6.1. Either Party may request a change to the scope or execution of the Services. DA has no obligation to perform any changed or additional services unless and until the Parties have agreed (in writing or by email) the necessary variations to the Fees, the Services, and any other relevant terms of the Contract to take account of the change and the Contract has been varied in accordance with Clause 17.
6.2. Notwithstanding Clause 6.1 above and of Clause 17 below, where DA does undertake any variation at the written or verbal request of the Client, the Client will be liable to pay for that variation in accordance with DA’s standard charges for time, materials and services from time to time prevailing.
7.1. The Fees will be specified in the Booking Form.
7.2. All Fees are payable in the currency specified in the Booking Form.
7.3. DA must notify the Client of any significant changes to any estimates of the Fees previously provided by DA.
7.4. Save as expressly stated otherwise by DA in writing, fees are quoted by DA exclusive of Value Added Tax, which DA must add to the invoice (and which the Client must be liable to pay for) at the appropriate prevailing rate.
8.1. In consideration of the provision of the Services by DA, the Client must pay to DA the Fees.
8.2. DA will be entitled to invoice the Client for payment and to submit an invoice to the Client on commencement of the relevant campaign by DA, save to the extent indicated to the contrary in the Booking Form.
8.3. Where any acceptance of Deliverables is to be undertaken by the Client then:
8.3.1. the Client must raise any query regarding a Deliverable within three Business Days unless a contrary period is explicitly stated in the Booking Form;
8.3.2. where the Client fails to raise any queries within the time period indicated in Clause 8.3.1, DA may deem acceptance of the relevant Deliverable to have occurred and proceed with the Services and raise any invoice accordingly;
8.3.3. the Client must in any event not unreasonably withhold or delay any acceptance of a Deliverable;
8.3.4. where there has been any acceptance of a Deliverable on behalf of the Client that acceptance will be taken as unconditional acceptance of that Deliverable on behalf of the Client.
8.4. The Client must pay DA’s invoice in full within thirty (30) days of the date of DA’s invoice.
8.5. All sums payable under the Contract must be paid by the Client in full without deduction, withholding, set-off or counterclaim save as may be required by law.
8.6. Payment is not dependent upon the number or proportion of campaign response generated by DA, unless a guaranteed number of leads has been explicitly agreed in the Booking Form. Where a guaranteed number has been agreed, this refers to the volume of leads DA will generate against a fixed budget. DA does not guarantee lead conversion rates or return on investment.
8.7. For the avoidance of doubt, where the Client is an agency working for a third-party principal, payment must be due from the Client irrespective of any payment being withheld or delayed to the agent by the Client’s principal.
8.8. If DA does not receive a payment or part of a payment from the Client by the due date, then without prejudice to DA’s other rights or remedies:
8.8.1. DA will be entitled to charge the Client simple interest on any sums paid late pursuant to the Contract from the due date until the date of payment. Such interest will be calculated on a daily basis at the rate of four per cent (4%) above the base lending rate of Barclays Bank plc from time to time prevailing, as well after as before any judgment;
8.8.2. DA will have the right to suspend performance of the Services until the Client pays all monies due; and
8.8.3. DA will be entitled to require payment in full in advance for all other monies due under the Contract before performing the remainder of the Services.
9.1. Any estimate or indication by DA as to the number of man days or time required by DA to undertake a specific task and any date for delivery must be construed as being an estimate only.
9.2. DA will in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature suffered or incurred by the Client where such estimate or indication is incorrect.
10. PROPERTY IN DELIVERABLES
10.1. Notwithstanding delivery and the passing of risk in the Deliverables, the property in (including without limitation any copyright in) the Deliverables must not pass to the Client until DA has received payment in full for the Deliverables.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. The Client acknowledges and agrees that all Intellectual Property Rights in the Services, the Deliverables and the Database (including without limitation database rights in the Database) will vest in and will be and remain the sole and exclusive property of DA.
11.2. Any access to the Database by the Client, whether or not permitted by DA will not give the Client any continuing right of access to the Database. The Client will not attempt to recreate the whole or any part of the Database from any access to the Database which the Client may have or from the responses which the Client may receive to any mailshot sent using the Database.
12.1. Each Party agrees with the other in respect of all information of the other Party of a confidential nature disclosed pursuant to the Contract or discovered further to the operation of these Conditions (which includes without limitation in the case of information belonging to DA information as to the operation of the business of DA and information relating to the structure of the Database) (the “Confidential Information”):
12.1.1. to use its reasonable endeavours to keep the Confidential Information in strict confidence and secrecy;
12.1.2. not to use the Confidential Information save for complying with its obligations under the Contract;
12.1.3. not to disclose the same to a Third Party;
12.1.4. to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who reasonably need the same in the performance of their duties as envisaged by these Conditions and in such circumstances to ensure that such employees and others are aware of the confidential nature of the Confidential Information, and to use its reasonable endeavours to enforce that duty of confidence in respect of those employees and others;
provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under the Contract) then the foregoing obligations of confidentiality in respect of such part will not apply or will cease to apply (as the case may be).
12.2. This obligation of confidentiality must survive any termination of the Contract.
13. LIABILITY AND INSURANCE
13.1. Save as expressly provided in these Conditions or in any individual Contract, all terms, conditions and warranties implied by statute, common law or otherwise howsoever arising are excluded to the fullest extent permitted by law. The Client is solely responsible for satisfying itself and others as to the suitability of the Services for any particular purpose and the Client acknowledges that it is relying solely on the Client’s own skill and judgment and not DA’s in determining such suitability. DA’s only warranty is that the Services must be supplied with reasonable skill and care as more particularly provided for in Clause 4.1 above.
13.2. DA’s charges to the Client are determined on the basis of the exclusions from and limitations of liability contained in these Conditions. The Client expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the possibility that the amount of damages awardable to the Client for a breach by DA of the Contract may be disproportionately greater than the monies payable for the Services.
13.3. The following provisions in this Clause 13 set out DA’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Client in respect of:
13.3.1. a breach of DA’s contractual obligations;
13.3.2. a tortious act or omission for which DA is liable;
13.3.3. an action arising out of a misrepresentation made by or on behalf of DA;
13.3.4. arising in connection with the performance or contemplated performance of this Contract or out of an act done or omission made as a consequence of the entry into by DA of this Contract.
13.4. Subject to clause 13.5 below, the total liability which DA will owe to the Client and in respect of all claims howsoever arising pursuant to this agreement will not exceed an amount equal to two hundred thousand pounds (£200,000.00).
13.5. Without prejudice to the operation of Clause 13.4, where a breach of security by DA occurs for which DA is liable to compensate more than two (2) customers, DA’s total liability to the Customer in respect of all claims howsoever arising pursuant to this agreement out of that breach of security must not exceed an amount equal to ten thousand pounds (£10,000.00).
13.6. Without prejudice to the operation of Clause 13.4, where a claim is made by the Client and the underlying circumstances giving rise to the claim are the same or similar to circumstances which have caused more than twenty (20) other customers of DA to bring a claim against DA, the total liability which DA will owe to the Client and in respect of all claims howsoever arising pursuant to this agreement in respect of those or similar underlying circumstances will not exceed an amount equal to ten thousand pounds (£10,000.00).
13.7. DA will in no circumstances be liable to the Client for any pure economic loss, loss of profit, loss of business and like loss.
13.8. DA will in no circumstances be liable to the Client for any indirect loss.
13.9. The Client will only be entitled to bring a claim against DA where the Client issues legal proceedings against DA within the period of twenty-four (24) months commencing on the date upon which the Deliverables or the Services in respect of which a claim is being made were delivered by DA.
13.10. The exclusions from and limitations of liability referred to in this agreement do not apply so as to exclude or limit DA’s liability for:
13.10.1. death or personal injury resulting from the negligence of DA, its servants or agents;
13.10.2. damage for which DA is liable to the Client under Part I of the Consumer Protection Act 1987 and where the Client acts as a consumer pursuant to that Act; or
13.10.3. breach of DA’s implied undertaking as to title or the warranty as to quiet possession implied by law or statute; save that nothing in this Clause 13 will confer a right or remedy upon the Client to which the Client would not otherwise be entitled.
13.11. The exclusions from and limitations of liability set out in this Clause 13 must be considered severably. The validity or unenforceability of any one part of this Clause 13 must not affect the validity or enforceability of any other part of this Clause 13.
13.12. The provisions of this Clause 13 will survive the termination of this Contract.
14. DATA PROTECTION
14.2. The Client must comply with the Data Protection Legislation.
14.3. Without limitation, the Client must seek the appropriate justification for processing the data of Subscribers who respond to the Material for Publication.
14.4. Where the Client is an agency working for a third-party principal, the Client must in addition procure that the third-party principal must:
14.4.1. comply with the Data Protection legislation; and
14.4.2. obtain the appropriate justification for processing the data of Subscribers who respond to the Material for Publication.
15. SUSPENSION AND TERMINATION
15.1. For the purposes of this Clause 15, a “Termination Event” means where:
15.1.1. the Client makes any voluntary arrangement with its creditors or (being an individual (or in the case of a partnership, any partner) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or has an administrator or administrative receiver appointed over the whole or any part of its assets; or
15.1.2. an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Client; or
15.1.3. the Client ceases, or threatens to cease, to carry on business; or
15.1.4. any event takes place in any jurisdiction other than England which is analogous to any of the above provisions of this Clause 15.1; or
15.1.5. the Client is in breach of any material provision of this Contract (including any late or non-payment of any sums payable hereunder) and fails to remedy such breach within thirty (30) days of a notice from DA indicating the breach and requiring the Client to remedy the same.
15.2. Where a Termination Event occurs then, without prejudice to any other right or remedy available to DA, DA will be entitled to suspend any further deliveries or the provision of any Services under the Contract.
15.3. Where a Termination Event occurs and if any Deliverables have been delivered but not paid for, the price for those Deliverables and any Service connected with them will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15.4. At any time after a Termination Event occurs and whether the Deliverables have been delivered or not, DA may, without prejudice to any other right or remedy, terminate the Contract with immediate effect by written notice so to do.
15.5. Any termination of the Contract will be without prejudice to the antecedent rights and remedies of the Parties.
15.6. On termination of the Contract the following Clauses will survive and continue in full force and effect: Clauses 1, 2, 3, 4.2, 4.3, 4.4, 5, 7, 8, 9, 10, 11, 12, 13, 14.2, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26.
16. FORCE MAJEURE
16.1. For the purposes of this Clause 16, “Force Majeure Event” means an event beyond the reasonable control of the Party claiming the benefit of this Clause (including its sub-contractors) including act of God, war, riot, civil commotion, compliance with a law or governmental order, rule, regulation or direction, fire, flood, storm, strike or other industrial action (including strike or other industrial action by the employees of the Party claiming the benefit of this Clause), failure by any statutory undertaking, utility company, internet service provider, local authority or like body to provide services, any failure, shortage or significant price increase of power, fuel, raw material or transport.
16.2. A Party will not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract to the extent that the same arises from a Force Majeure Event.
16.3. The Party claiming the benefit of this Clause 16 must:
16.3.1. give the other Party notice as soon as reasonably practicable of the said Force Majeure Event; and
16.3.2. use and continue to use its reasonable endeavours to overcome the said Force Majeure Event and to minimise the effect of the Force Majeure Event.
17.1. All variations to the Deliverable or the Services or to be supplied pursuant to the Contract or these Conditions will be valid only if made in writing and signed by both Parties or recorded by exchange of email.
17.2. Notwithstanding Clause 17.1, where DA acts on a request for such a variation which is made orally or by email by or on behalf of the Client, DA will be entitled to levy a reasonable and proper charge for the work done in respect of that variation.
18.1. Save in respect of a waiver granted in writing, the failure of DA at any time to enforce a provision of this Contract must not be deemed a waiver of such provision or of any other provision of this Contract or of DA’s right thereafter to enforce that or any other provision of this Contract.
19.1. If a provision in this Contract is determined by a Court or tribunal of a competent jurisdiction to be wholly or partly unenforceable for any reason:
19.1.1. such unenforceability will not affect the rest of this Contract; and
19.1.2. the parties must in good faith amend, vary and if necessary, novate this Contract to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.
20. ENTIRE AGREEMENT
20.1. These Conditions and the Booking Form constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of these Conditions, a Proposal or the Booking Form.
20.2. The Client acknowledges that in entering into the Contract, it has not relied upon any representation made by or on behalf of DA (including without limitation any made in a Proposal but not repeated in the Contract) save to the extent that any such representation is set forth in writing and expressly included in the Contract.
20.3. Nothing in the Contract will be taken to exclude DA’s liability for a fraudulent misrepresentation made by DA.
21.1. All descriptions, illustrations and information contained in DA’s catalogues, price lists, web site, circulation figures, advertising matter and other publications (including without limitation in any Proposal) will be regarded as approximate only and are to present merely a general idea of the services described in them and will not form part of the Contract or be deemed to import any warranty regarding the Services. Furthermore, any time estimated by DA for the generation of leads from Subscribers will be regarded as an approximation only, save to the extent that the contrary is explicitly stated in the Booking Form.
22.1. The Client must not, and will not be entitled to assign the benefit or burden of the whole or any part of the Contract without the prior written consent of DA.
22.2. DA may sub-contract the performance of its obligations as it sees fit, provided always that DA will remain responsible for the acts and omissions of its subcontractors.
23.1. Nothing in these Conditions will create any joint venture, agency or partnership between DA and the Client.
24. THIRD PARTY RIGHTS
24.1. A person who is not a Party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Contract.
25.1. Any notice to be given pursuant to these Conditions will be in writing and may be served and if so, served will be sufficiently served if:
25.1.1. sent by pre-paid first-class post or express air mail post; or
25.1.2. delivered by hand; or
25.1.3. sent by email;
and will in the case of delivery by first class post be deemed to have been delivered two Business Days after the letter was posted, in the case of delivery by express air mail class post be deemed to have been delivered five Business Days after the letter was posted, in the case of delivery by email the day after the error free email transmission was made or if delivered by hand on the day of delivery.
25.2. The address for notices for each Party is as set out in these Conditions or as may be notified by a Party from time to time.
26. JURISDICTION AND GOVERNING LAW
26.1. The Contract will be construed and take effect in accordance with the laws of England and Wales.
26.2. The Parties accept the non-exclusive jurisdiction of the English Courts in connection with any dispute relating to the formation, construction or performance of the Contract or any related tortious claim.