Terms and Conditions of Supply
Last updated: January 2016
- In these Terms:
“Agreement” means these terms and where applicable any Schedule to these terms or other document attached to these terms;
“Charge” means the fees payable by the Client for the Services as set out in the Quote;
“Client Content” means all creative or other content and material provided by the Client for use by Intedex Digital Expert in providing the Services;
“Intellectual Property” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), (including but not limited to patents, trademarks, service marks, design rights, copyright, database rights, know-how rights, goodwill, reputation, get-up, logos, plans, models, data, diagrams, specifications, source and object code materials);
“Project” means the provision of Services by Intedex Digital Expert to achieve the instructions provided by the Client as detailed in the Quote;
“Services” means the internet marketing services to be provided by Intedex Digital Expert to the Client pursuant to the agreed Quote and Statement of Works;
“Schedule of Retained Services” means the agreed scope of the Services to be provided by Intedex Digital Expert to the Client under this Agreement.
- Supply of Services
2.1 Intedex Digital Expert shall supply the Services on the terms of this agreement and those outlined in the Statement of Works. All Services will be supplied with due skill, care and attention.
2.2 If in the course of supplying the Services, and at the express request of the Client, it becomes necessary for Intedex Digital Expert to contract with a third party on behalf of a Client then the Client shall indemnify Intedex Digital Expert against all costs and losses that Intedex Digital Expert incurs in contracting with the third party.
2.3 Where Services are commissioned that do not have an agreed end date these shall be referred to as “Ad-hoc Services”. The contractual period for Ad-hoc Services shall continue at the agreed Charge until either party provides to the other at least 1 months written notice to terminate the Services.
2.4 Services are supplied for a 12 month period and shall be referred to as a “Subscription Services”. Cancellation of Subscription Services is terminable by either party providing to the other at least 90 days written notice before renewal.
2.5 Intedex Digital Expert reserves the right to suspend Services if a Client is undertaking or threatens to undertake any activity which is reasonably deemed by Intedex Digital Expert to be detrimental to Intedex Digital Expert or Intedex Digital Expert’s reputation. No such suspension shall affect the liability of the Client to pay accrued Charges.
2.6 If the performance of any Services hereunder requires the use of any of the Client Content then the Client agrees to provide Intedex Digital Expert promptly with the Client Contents at no charge in such format as Intedex Digital Expert shall reasonably require and the Client shall ensure that such Client Content is accurate in all material respects.
2.7 Intedex Digital Expert’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. To the extent that the Client does not fulfil its obligations under this Agreement, then (without prejudice to Intedex Digital Expert’s rights and remedies) Intedex Digital Expert will be relieved of its obligations to the Client to the extent that Intedex Digital Expert is prevented from performing the Service in accordance with this Agreement and Intedex Digital Expert shall not be liable for any costs, charges or losses sustained by the Client arising from any failure of the Client to fulfil its obligations under this Agreement.
- Charges and Payment
3.1 Payment for the Services shall be in accordance with the payment schedule dates agreed prior to commencing works as set out in the Quote.
3.2 All invoices for Charges for providing the Services will be issued and are payable within 14 days of the date of the invoice, or if that date falls on a public holiday or weekend, the last working day before that date. The Charges are shown exclusive of Value Added Tax (and/or any similar tax that may be imposed from time to time), which will be applied in accordance with UK legislation in force at the tax point date.
3.3 Intedex Digital Expert reserves the right to apply a handling charge of 15% to goods or services purchased from third parties on the Client’s behalf. Intedex Digital Expert reserves the right to apply an administrative charge for services or media purchased from third parties on the Client’s behalf. No such purchases will be made without the Client’s prior approval.
3.4 Intedex Digital Expert will not be obliged to make payment to intermediaries unless it has received cleared funds from the Client in advance of the payment date. The Client shall indemnify Intedex Digital Expert in respect of any reasonably proven fees, late payment charges, penalties and interest incurred by Intedex Digital Expert as a result of the Client’s late or non-payment. If any part of the Charges is subject to a dispute between the Client and the Supplier, the following provisions shall apply:
3.4.1 The Client shall pay to the Supplier all amounts not disputed by the Client in accordance with the terms of payment;
3.4.2 The Client shall notify the Supplier within 14 days after the date of receipt by the Client of the relevant invoice of any disputed items and shall as soon as reasonably practicable after it has so notified the Supplier to describe in reasonable detail the Client’s reasons for disputing each item;
3.4.3 The Client and Supplier shall use all reasonable endeavours to resolve the dispute in a timely manner and; and
3.4.4 should all or part of the disputed amount over 30 days subsequently be agreed or found as being due then that amount (plus interest pursuant to Clause 3.8 from the date the sum would have been due if it had not been disputed) shall be paid within thirty days of such agreement or termination.
3.5 Without prejudice to its other rights, where any invoice is not paid within fourteen (14) days, Intedex Digital Expert may suspend all Services. The full Charge for the Services shall remain payable. A £50 administrative fee shall be payable before Services shall be resumed.
3.6 The Charges shall be exclusive of VAT.
3.7 Where a provision of the Services requires Intedex Digital Expert incurring third party costs or charges, if any budget changes are required from those specified in the scheduled payment dates then a written instruction to vary the budget must be provided by the Client.
3.8 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Intedex Digital Expert on the due date, Intedex Digital Expert may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client shall pay the interest immediately on demand. Intedex Digital Expert may claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
3.9 The Client agrees to indemnify Intedex Digital Expert in respect of all reasonable legal fees incurred by Intedex Digital Expert in attempting to recover payment of overdue invoices.
3.10 Unless specifically stated in the Quote, the Charge will not include ancillary expenses such as travel costs incurred at the client’s request. Intedex Digital Expert will always advise a client of ancillary costs prior to incurring them.
- Domain Names
Where the Client requests that Intedex Digital Expert register a domain name(s) as part of the Services, Intedex Digital Expert does not accept responsibility for renewal of the domain name(s), or any liability in the event of the Clients failing to renew the domain name.
- Design Services
Where a provision of the Services involves creative work to be undertaken, the Client’s written approval is required to sign off the creative work. The Client can make minor changes to draft creative produced by Intedex Digital Expert once. If non-minor changes or additional changes are required beyond one revision, then Intedex Digital Expert shall charge for the additional time required at its then prevailing charge out rate. Intedex Digital Expert shall have the sole discretion to determine what constitutes “major” changes.
6.1 Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
6.2 Confidential Information shall include details of Intedex Digital Expert’s fees, commission rates, together with any document marked “Confidential” and any information which the recipient has been informed is confidential or which it ought reasonably to expect the other party would regard as confidential.
6.3 Confidential Information shall exclude information which: (i) at the time of receipt by the recipient is in the public domain; (ii) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (iii) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (iv) is already known to the recipient before receipt hereunder.
6.4 Each of the parties undertakes to use reasonable endeavours to maintain the confidentiality of the other party’s Confidential Information at all times and to keep the other party’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither party shall at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
6.5 Neither party shall be in breach of this clause if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
6.6 The terms of and obligations imposed by this clause shall survive the termination of this Agreement for any reason.
- Media Buying Charges
7.1 Any advertising media required in the provision of the Services shall be bought at competitive rates by Intedex Digital Expert.
7.2 Intedex Digital Expert reserves the right to use third-party media buyers when providing the Services.
- Affiliate Marketing
8.1 Where Intedex Digital Expert manages an affiliate marketing campaign it shall use all reasonable endeavours to ensure that suitable affiliates are engaged but Intedex Digital Expert shall not be responsible for the actions or conduct of such affiliates.
8.2 Where a budget for an affiliate marketing campaign is agreed, Intedex Digital Expert shall use reasonable efforts to remain within that budget however the client acknowledges the logistical difficulties in keeping within such a budget given the service involved. As such, the Client shall remain liable for all reasonable costs accrued, including those outside of the agreed budget.
8.3 The nature of affiliate marketing is such that even when a campaign has ended there will be continued costs associated with our affiliate networks tracking sales for the life of the cookie associated with the campaign. The Client will be liable for all costs accrued until all cookies created by the campaign have expired.
- Pay Per Click Management
9.1 Where Intedex Digital Expert takes over the management or administration of a Client’s search engine pay per click account the account and its contents will remain the property of the Client. The Client shall be responsible for funding and maintaining the active status of the accounts and shall supply Intedex Digital Expert with up to date access details.
9.2 Where Intedex Digital Expert sets up or funds a pay per click account and the account is created within Intedex Digital Experts’ Client Centre then the account will belong to Intedex Digital Expert. If the Client terminates the management service then Intedex Digital Expert shall supply to the Client a copy of the keywords and adverts that were contained in the account so that the Client can set up their own new account.
9.3 Without prejudice to Intedex Digital Expert’s other rights, where Intedex Digital Expert funds a Client’s pay per click charges and invoices these to the Client in arrears and an invoice remains outstanding after 7 days, Intedex Digital Expert may suspend the pay per click account until the invoice has been paid. Where invoices are not paid within 30 days of the due date, Intedex Digital Expert shall be entitled to charge an additional 8% of the outstanding amount as an administrative fee.
- Search Engine Optimisation
10.1 No warranty can be given as to the results that can be achieved with search engine optimisation due to the fact that changes in search engine algorithms can affect a website’s ranking position without warning.
10.2 Intedex Digital Expert observes best practice at all times in providing search engine optimisation services.
10.3 Where search engine optimisation forms part of a Retained Service and the retainer is terminated Intedex Digital Expert shall be entitled to remove all links that have been placed on websites belonging to Intedex Digital Expert.
11.1 The Client represents, warrants and undertakes that the Client Contents used in or in connection with this Agreement: (i) will not infringe any intellectual property rights of a third party; (ii) will not libel, defame, cause injury to, invade the privacy of or otherwise violate the rights of any other person; and (iii) will not be otherwise unlawful or contrary to any relevant regulatory code, and will comply with all applicable laws and advertising regulations issued, made or given by any advertising regulator.
11.2 Intedex Digital Expert warrants that all Services shall be supplied with appropriate skill and care.
11.3 The Client represents, warrants and undertakes that:
11.3.1 it shall review all materials prepared by Intedex Digital Expert under this Agreement to confirm that descriptions and representations, direct or implied, with respect to the Client’s organisation, products and services are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines. The Client shall furnish Intedex Digital Expert with adequate substantiation and suitable objective factual information and other data for all such descriptions or representations as Impact
Digital Marketing may reasonably request to enable Intedex Digital Expert to deal with any legal or other regulatory complaints raised in relation to the advertising materials produced hereunder;
11.3.2 it shall be responsible for the final decision to use any trademark or other Intellectual Property Rights contained in or used independently of any work product created by Intedex Digital Expert based on its independent evaluation of the scope and level of trademark and other investigations the Client deems appropriate or which it instructs Intedex Digital Expert to carry out on its behalf (and at its cost);
11.3.3 the Client shall remain solely liable during the Term and thereafter for all claims brought by sellers or users of the Client’s products or services and/or those parties with whom the Client has a contractual or supplier relationship, regarding any matters; and
11.3.4 it shall comply strictly with all usage limitations notified to it by Intedex Digital Expert which may apply to any third party materials incorporated into the Services and shall procure that all affiliates and any agents, sub-contractors and other third parties acting on behalf of the Client shall also comply strictly with all such usage limitations.
11.4 Except as expressly provided in this Agreement, each party expressly disclaims any further representations, warranties, conditions or other terms, express or implied by statute.
11.5 The Client shall defend, indemnify and hold Intedex Digital Expert harmless from and against any and all losses which may be incurred by Intedex Digital Expert as the result of any claim, suit or proceeding brought or threatened against Intedex Digital Expert which directly arises from:
11.5.1 any infringement of third party rights, including but not limited to Intellectual Property Rights, resulting from Intedex Digital Expert’s performance of the Services in accordance with the Client’s instructions or Intedex Digital Expert’s use of any Client Content, including third party applications, and where legal risks were notified to the Client by Intedex Digital Expert and the Client-directed Intedex Digital Expert to proceed with the Services as instructed in spite of such notified risks; or
11.5.2 any breach or non-performance by the Client of any of the warranties contained in this clause.
11.6 Where email marketing is included within the Services the Client shall be responsible for ensuring that all email lists supplied to Intedex Digital Expert shall only include opt-in email addresses and that sending emails to such individuals shall be in compliance with all applicable laws including data protection legislation. The Client shall indemnify Intedex Digital Expert against any liability arising as a result of issuing email marketing to email addresses supplied by the Client.
11.7 Where search engine optimisation is included within the Services, Intedex Digital Expert excludes any warranty as to the long term effectiveness of such Services. The Client acknowledges that search engines regularly change the way that they rank a website and no guarantee as to search engine position is given by Intedex Digital Expert.
12.1 Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
12.2 Each party’s aggregate liability in respect of claims arising out of or in connection with this Agreement shall in no circumstances exceed 100% of the total Charges payable by the Client to Intedex Digital Expert in respect of these services supplied by Intedex Digital Expert directly and to which the liability relates. Where the liability relates to ongoing services the liability shall be capped at the total Service Charge costs in respect of Services delivered directly by Intedex Digital Expert in the preceding 12 months.
12.3 Nothing in this Agreement limits or excludes Intedex Digital Expert’s liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
- Intellectual Property
13.1 The Intellectual Property in anything provided by the Client for a Project shall remain the Client’s. All Intellectual Property arising as a result of the provision of the Services shall vest with the Client on payment of the Charges.
13.2 Any pre-existing Intellectual Property belonging to Intedex Digital Expert but used in the supply of the Services shall remain with Intedex Digital Expert.
13.3 Nothing in this Agreement shall be taken to prevent Intedex Digital Expert from using any expertise acquired or developed during the performance of this Agreement in the provision of services for other companies or on its own behalf.
14.1 Any time given for completion of work is given in good faith but is not guaranteed. The Supplier shall not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from negligence, willful acts or omissions.
- Term and Termination
15.1 The contract shall continue for a period as detailed in clause 2.3 and 2.4.
15.2 Either party may terminate this Agreement with immediate effect upon giving 30 days written notice to the other if:
15.2.1 the other commits a material breach of this Agreement which is not remediable or, if capable of remedy, has not been remedied within 14 days of written notice to do so from the party not in breach;
15.2.2 the other party enters into voluntary or involuntary liquidation (excluding any reconstruction, reorganisation or amalgamation);
15.2.3 the other enters into, or resolves to enter into, an arrangement, composition or compromise with, or assignment for the benefit of its creditors generally, or any class of creditors or proceedings are commenced to sanction such an arrangement, composition or compromise;
15.2.4 an order is made or a resolution is passed for the winding-up or dissolution of the other party; or
15.2.5 a provisional liquidator or similar officer is appointed in respect of the whole or any part of the assets or undertaking of the other party.
- Entire Agreement
This Agreement, and any documents attached to it, set out the entire agreement between the parties and supersede all previous agreements, or arrangements relating to Intedex Digital Expert’s supply of the Services.
- Website Compliance
17.1 Intedex Digital Expert may provide guidance as to the compliance by the Client with any laws or regulations, including but not limited to the Electronic Commerce Regulations 2002; Distance Selling Regulations 2000 and Disability Discrimination Act 1995, but the Client must seek its own legal professional advice in respect of the Project and/or the Client website.
17.2 Intedex Digital Expert shall not be held liable by the Client for a failure of the Project and/or Client Website to comply with any legislation anywhere in the world.
If any court or competent authority finds that any provision of this Agreement (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 this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement 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.
All notices under this agreement should be sent in the English language by first class prepaid post or hand delivered or emailed to [email protected] Notices sent by post will be deemed to be served two working days following posting, notices hand delivered will be deemed served on the day of delivery. All notices shall be sent for the attention of the person, at the address specified in this Agreement.
- Third Parties
20.1 Nothing in this Agreement shall create or confer any rights or other benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, in favour of any person other than the parties to this Agreement.
20.2 Either party may use sub-contractors to provide any of their services and/or their obligations pursuant to this Agreement provided that the parties remain responsible for their acts, omissions and defaults of their sub-contractors.
21 Non Solicitation
The Client and Intedex Digital Expert agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly, during the Term or for a period of twelve months following termination of this Agreement, solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of the other party who is or was engaged in the provision of the Services under this Agreement, at any time during the twelve months prior to termination.
- Variation of Services
If at any time the Client wishes to amend any aspect of the implementation of the Project, the Client shall provide Intedex Digital Expert with written details together with such further information as Intedex Digital Expert may request in order to assess the proposed amendments. Intedex Digital Expert will then advise the Client of the impact that the changes will have on the Charges and the timescale for delivery.
All media releases, public announcements and public disclosure by either party relating to the Services shall be coordinated with the other party and approved jointly by the parties prior to release.
- Governing Law
This Agreement 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, the law of England and Wales. 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 this agreement or its subject matter or formation (including non-contractual disputes or claims).