July 2019
DEFINED TERMS:
Commencement Date: has the meaning given in Clause 1(b).
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: the deliverables or the objectives and aims set out in the Order Confirmation produced by the Supplier for the Customer.
Intellectual Property Rights: intellectual property rights whether vested or contingent and whether currently in existence or otherwise including (without limitation) patents, inventions, trademarks, service marks, logos, design rights, registered designs, copyright, database rights, domain names, trade or business names, moral rights, trade secrets, the right to sue for passing off and all similar rights whether registered or not (in any country) and all extensions revivals reversions and renewals of any of the above. The above shall include in relation to registerable rights any applications made in respect of such rights.
Order Confirmation: in the Customer’s purchase order form, the Customer’s written acceptance of a quotation by the Supplier, or overleaf, as the case may be.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Social Media: websites and applications that enable users to create and share content or to participate in social networking
Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.
Supplier: Delta Social, or its representatives
INTERPRETATION:
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1. BASIS OF CONTRACT
a) The Order Confirmation constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
b) The Order Confirmation shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
c) Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
d) These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
e) Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of fifteen days from its date of issue.
f) The Company reserves the right to not issue a quotation, Specification or proposal, and refuse or decline work at its own discretion.
2. SUPPLY OF SERVICES
a) The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
b) The Supplier shall use all reasonable endeavours to meet any performance dates specified in The Schedule of Work within your Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
c) The Supplier reserves the right to amend the Specification 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.
d) The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
e) The Supplier reserves the right to outsource some or all of the Services to a third party.
3. CUSTOMER’S OBLIGATIONS
a) The Customer shall:
i) ensure that the terms of the Order Confirmation are complete and accurate;
ii) co-operate with the Supplier in all matters relating to the Services;
iii) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s Social Media and/or website as reasonably required by the Supplier in order to supply the Services;
iv) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
v) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
vi) comply with all applicable laws, including health and safety laws;
vii) keep all materials, documents and other property of the Supplier (Supplier Materials) in safe custody at its own risk, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
viii) any other relevant obligations.
b) If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation:
i) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the situation, and to relieve the Supplier from the performance of any of its obligations;
ii) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations due to failure to meet Customer’s Obligations; and
iii) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from failure to meet Customer’s Obligations.
4. CHARGES AND TERMS OF PAYMENT
a) All rates and fees will be charged at the prevailing rate.
b) We reserve the right to review and modify fees periodically as service provision changes.
c) You will be provided the details of your package and any optional charges within your Specification.
d) Invoices issued by the Supplier must be paid immediately upon receipt unless subject to credit terms as specified in your Order Confirmation.
e) Invoices will be paid by you (without any deduction) by way of set-off or counter claim or otherwise as follows:
f) Service initiation (setup) – immediately payable upon receipt of invoice.
g) On-going service management fees – immediately payable upon receipt of invoice or subject to credit terms as specified in your Order Confirmation.
h) For any services where a contractor or supplier requires payment before work commences, our invoice covering the same and including any additional agency fees shall be paid immediately before work commences.
i) Exceptional out of pocket expenses will be charged at cost. These include air and rail fares, hotels and living expenses. Car travel will be charged at AA rates (but agreed with you beforehand).
5. THIRD-PARTY TERMS
You will indemnify Delta Social, its employees, agents or subcontractors, in full in respect of any third-party expenses suffered or incurred by Delta Social pursuant to your instructions. The Customer acknowledges that certain services may involve the licensing of third-party intellectual property rights and that the Customer may from time to time be required to enter into a licence directly with such third-party. The Customer hereby acknowledges that certain services rely upon goods and/or services being provided by third-parties (‘Third-Party Services’).
The Customer acknowledges that the Third-Party Services will be governed by that third-parties’ terms and conditions and that the supplier cannot provide any warranties in respect of the Third-Party’s Services and will not be liable to the Customer for any delays and/or failings in respect of the same. Providers of Third-Party Services may provide their own warranties to the Customer and the Customer must satisfy itself whether or not such warranties (where given) are acceptable for the Customer’s business purposes or risk management policies.
a) Third-party media expenses may be incurred as part of a marketing mix, planned and agreed before contracts are signed and itemised within your Order Confirmation. These third-party expenses include, but are not limited to influencer fees, photography, design services etc.
b) All third-party software systems and utilities including any Open Source products such as Magento or WordPress, etc., used to provide your solution remain the property of their respective owners and creators and as such are subject to their own licensing and intellectual property terms & conditions to which you must fully agree.
6. OVERDUE ACCOUNTS
a) If payment of invoices is not made when due, we reserve the right to charge late payment fees on overdue amounts, these fees are calculated at the following banded rates. These fees will accrue daily from the due date until payment is made:
For invoices up to £1,000 – £4.30 per day
For invoices from £1,001 up to £2,500 – £8.50 per day
For invoices from £2,501 up to £5,000 – £17.90 per day
For invoices above £5,001 – 5% per day
b) If payment of invoices is not made when due, we reserve the right to terminate or suspend performance of the services provided under this contract, at our absolute discretion. This includes suspension and locking of all supplier accounts within our control until full payment is made and an on-going payment plan is agreed. If the payment plan is not adhered to, then we reserve the right to undertake legal proceedings to recover any outstanding debts.
c) We reserve the right to retain all work, materials, account login details, intellectual property and any other items in our possession relating to any matter until all invoices are paid in full.
d) Any queries in respect of an invoice must be raised within 7 days of the date of the invoice. After this date it will be deemed that the invoice has been accepted by you.
7.CHANGES, DELAYS AND/OR CANCELLATION OF AGREED PROJECTS
a) In the event of change or cancellation, we reserve the right to charge you for all costs of complying with your request, which may include our expenses, production costs, cancellation fees, and our fees in respect of such plans, schedules and any work-in-progress. In cases where the cancelation was not due to any fault on the part of Delta Social (for example where you changed your mind); we also reserve the right to charge you for our time in preparation of audits, proposals, invoices and meetings that were incurred prior to the cancellation date.
b)In the event of any project being delayed by more than two full billable months, during which no work takes place, the supplier reserves the right to continue charging at 50% of the full monthly invoice amount, up to a maximum of four consecutive months, upon which the Supplier considers the project to be cancelled by the Customer.
8.INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT) AND USE OF LOGOS/CUSTOMER DETAILS IN MARKETING MATERIALS OR CASE STUDIES
a) Existing PPC accounts will remain your property. However, any new campaigns or restructuring of the account will remain our property until the end of the contract and full payment is received. You can then take back the ownership of the account and run the account in-house; alternatively, you can opt for us to continue the management of the account.
b) New PPC accounts will remain the property of Delta Social. At the end of the project you can end the contract or opt for us to continue the management of the account. Subsequently, ownership of the account will be transferred to you if you provide us one month’s notice that you wish to terminate the contract.
c) The intellectual property rights (including, where appropriate, copyright and design rights) in all works created or commissioned by us and used under this agreement shall be vested in us until full payment is made. The IP will then pass to you in full except where identified in the following sub-clauses.
e) Where CMS configuration and customisation are undertaken, and all other such work carried out under this contract becomes wholly-owned by you on receipt of full payment for the work done. This includes but is not limited to designs, images, content, etc., except where material has been licensed for use within your project, e.g., stock images, in which case IP remains with the creator of the material, subject to the licence agreement.
f) We reserve the rights to use your logo and project results in our marketing material, PR, website, case studies or portfolio unless we have agreed a mutual NDA. If preferred, we are happy to present case studies results anonymously. Where relevant we will provide an online link back to your site, so you can get the SEO benefit from our site authority. For any websites that we build we will include a link back to our site with a link identifying that we have designed or developed the site
9. PERFORMANCE GUARANTEES
a) Please note that, although Services will be provided to the best of our knowledge and ability, we cannot guarantee any improvement in the performance of your website, lead generation, ROI, or goals you set to achieve. We cannot accept responsibility for any variation in the performance of your website, social media results, or other marketing campaigns due to seasonality, competitor activity, design and usability and other marketing conditions outside our control.
c) It must be understood that we have no control over future algorithm or policy changes by Google, other search engines, or Social Media Platforms. It is essential that you inform us of any other digital marketing activity you may be undertaking.
d) For PR and/or social media projects, the timing and placement of your content on third-party and media sites cannot be guaranteed. Therefore, the performance of the project will be judged against the agreed plan of activities to create and place content.
10. LEGAL LIABILITY
a) You shall be responsible for checking any material submitted by us to you for approval. You shall approve such material or notify us if any such material is false or misleading or is in any way contrary to law or any applicable UK or EU regulation or law. If no approval or notification is given by you within any required time limit (or in the absence of any time limit within a reasonable time) following submission of any material in connection with this clause that material shall be deemed to have been approved by you in connection with this clause.
b) We shall not be liable for any delay in or omission of publication, transmission or any error in any advertisement in the absence of any serious default or neglect on our part.
c) You shall indemnify us in respect of all costs, damages, or other charges falling upon us as a result of any legal action or threatened legal action brought against us arising from the publication of any promotion or advertising campaign prepared for you by us..
d) We shall not be liable for any costs, loss or damage arising from our failure to fulfil our obligations where failure results from circumstances wholly or in part beyond our control including, for example, inclement weather, industrial action, power failure, etc. We advise you to take out appropriate insurance cover when necessary.
e) Nothing in the contract shall limit or exclude our liability for:
i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
ii) 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.
f) We shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the contract for:
i) loss of profits;
ii) loss of sales or business;
iii) loss of agreements or contracts;
iv) loss of anticipated savings;
v) loss of use or corruption of software, data or information;
vi) loss of or damage to goodwill; and
vii) any indirect or consequential loss.
g) Our total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the contract shall not exceed of the total charges paid under the contract, and excludes charges related to advertising spend.
h) 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 the contract.
i) This Clause 11 shall survive termination of the contract.
11. DURATION AND TERMINATION
a) This project or engagement will run for the full duration agreed at the outset, i.e. in our Order Confirmation document. Between signing the Order Confirmation and prior to starting work on the project, either party may terminate the contract for any reason upon 1 months’ notice except where this duration is modified and mutually agreed.
b) If you request to terminate this contract prior to its full contracted duration, for fixed cost projects, e.g., web design, the full contract cost including all setup costs and contracted fees will become payable immediately. In this circumstance all pre-agreed discounts will be lost. For continuous management fees, e.g., social media management or advertising, the cost for the notice period will become payable immediately.
c) Without affecting any other right or remedy available to us, we may terminate this contract with immediate effect on giving written notice to you if:
i) You take any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), have a receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of your assets or ceasing to carry on business;
ii) You suspend or threaten to suspend, cease or threaten to cease, to carry on all or a substantial part of your business;
iii) You are in material breach of any of the terms of this contract and, in the case of a breach capable of remedy you fail to remedy such breach within 14 days of written notice from us requiring remedy of such breach.
d) All clauses which expressly or by implication have effect after termination shall continue in full force and effect.
e) Without prejudice to any other rights we may have, we shall on termination be entitled to turn off any paid advertising campaigns without further notice.
f) Without affecting any other right or remedy available to us, we may terminate the contract with immediate effect by giving written notice if you fail to pay any amount due under the contract on the due date for payment or if there is a change of Control of your business.
12. DATA PROTECTION
a) Data Protection Laws are applicable and binding on the Customer, the Supplier and/or the Services. The relevant Laws in the United Kingdom are:
i) the Data Protection Act 1998 and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive); and/or
ii) the General Data Protection Regulations (EU) 2016/679, and/or any corresponding or equivalent national laws or regulations which subsequently come into force.
b) The CCustomer and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
c) The Supplier shall process the Personal Data only in accordance with the Customer’s instructions and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
d) The Customer is solely responsible for ensuring that all data has been collected, controlled and processed in accordance with any and all data protection laws enforceable in the region in which they operate.
e) The Supplier shall take reasonable steps to ensure the reliability of all its systems and employees who have access to the Personal Data.
f) Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
g) The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(1) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(2) take reasonable steps to ensure compliance with those measures.
h) Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause.
i) The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
j) The Supplier may authorise a third-party (subcontractor) to process the Personal Data.
k) You shall ensure that any mailing list, database or other Personal Data supplied to us by you shall comply with all legislation in force from time to time including without limitation the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. You shall ensure that such mailing list, database or other Personal Data shall include only data which may be used (in accordance with all relevant legislation) for the purpose for which such mailing list, database or other Personal Data has been supplied.
l) You shall indemnify us in full against any claim that the passing to us or our use of any mailing list, database or other Personal Data supplied by you in accordance with clause 12(a) above is in breach of any legislation in force from time to time.
m) The Customer shall notify the Supplier and all other parties of a breach of data of any kind within 24 hours of the breach occurring.
n) The Customer shall agree to be bound by the separate Privacy Policy of the Supplier which is available from the Supplier.
13. CONFIDENTIALITY
a) Both parties shall keep in strict confidence all ideas, concepts which are proposed in connection with our engagement or project together with all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and which either party has disclosed to each other, and any other confidential information concerning either party’s business or services.
b) Nothing in this agreement shall affect either party’s right to use as they see fit any general marketing or advertising intelligence which is gained in the course of the engagement or project.
14. CHOICE OF LAW AND JURISDICTION
The construction and performance of this agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any disputes between them.
15. GENERAL
a) Force majeure: If a party is obstructed in performing any of its obligations by an event outside its reasonable control, then performance to the extent obstructed is suspended for so long as the obstruction continues. If performance has been suspended for more than 7 days, either party may terminate the Contract by immediate written notice without prejudice.
b) Waiver: Failure to enforce any of these terms is not a waiver of a party’s rights and shall not prejudice its rights to take action in respect of the same or any later breach.
c) Severability: Any part of a Term which is wholly or partially void, invalid, or unenforceable shall be severed from the remainder (which remains enforceable).
d) Notices: Any notice to be given by either party to the other shall be in writing, including email, may be sent by recorded delivery, and shall be deemed served 2 days after posting.
e) Variation: Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).