Terms & Conditions for Digital Blueprint Consulting.
1. AGREED TERMS
1.1 Definitions:
“Assigned Materials” means the Deliverables excluding any DP Materials and excluding Third-Party Materials.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in the UK are open for business.
"Charges" means the charges set out in the Documents in respect of the supply of the Services which are payable by the Client to DP in accordance with clause 5.
"Client" means the person or firm who purchases Services from DP as named in the Documents.
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 13.5.
"Contract" means the contract between DP and the Client for the supply of Services in accordance with these Conditions and the Statement of Work.
“Client Content” means any and all materials, documents, records, research, photography, names, trade marks, logos, designs, software or other property (including all Intellectual Property Rights therein) belonging to the Client and/or any of its licensors which are provided to DP by or on behalf of the Client and/or otherwise came into the possession or control of DP in the course of providing the Services.
"Client Default" has the meaning set out in clause 4.8.
"Deliverables" means any outputs of the Services as specified in the Statement of Work and any other documents, products and materials provided by DP to the Client in the course of providing the Services. This can include branding and identity; graphics; illustrations; marketing materials; artwork; text; printed materials; logos and/or animation;
"Documents" means the Statement of Work and/or the Proposal.
"DPA" means the Data Protection Act 1998, all amendments and secondary legislation related thereto and codes of practice issued by the Information Commissioner from time to time.
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Personal Data" means data which relate to a living individual who can be identified:
(a) from those data; or
(b) from those data and other information which is in the possession or, or is likely to come into the possession of, the Data Controller (as defined in the DPA) and includes any expression of opinion about the individual and any indication of the intentions or the data controller or any other person in respect of the individual.
"Proposal" means the document between the Client and DP for the provision of Services by DP to the Client. Proposals may be added, removed or revised from time to time by mutual written agreement of the parties and in accordance with the terms of this Contract.
"DP" means Digital Blueprint which is the trading name of Digital Blueprint Consulting Limited. incorporated and registered in England and Wales with company number 10654310 whose registered office is at 2 Corner Cottage, Silfield Street, Silfield, Norfolk, NR19 9NS.
"DP Materials" means all materials, equipment, documents, methodologies, designs, software, software development tools, testing tools, methods, processes, templates, reports, concepts and techniques and other materials (including any enhancements thereto) owned by or licensed to DP and used by DP in the provision of Services.
"Recommencement Date" means the mutually agreed date between The Client and DP that The Contract will restart following a period of Suspension
"Services" means the services, supplied by DP to the Client as set out in the Statement of Work.
"Statement of Work" means the document that is agreed by the Client and DP for the provision of Services by DP to the Client. Statement of Works may be added, removed or revised from time to time by mutual written agreement of the parties and in accordance with these Conditions.
"Suspension" means a temporary pause on the provision of Services for a period of no more than 3 consecutive months within the Term of the Contract
"Suspension Period" means the mutually agreed duration of the Suspension
“Term” shall mean the term of the Contract as specified in the Statement of Work.
"Territory" shall mean the country or geographical area to which the Deliverables will be provided as specified in the Statement of Work.
“Third-Party Materials” means any work or materials authored, created or performed by a third party (including a Third-Party Provider) and either commissioned for, or used in relation to, the Services.
“Third-Party Provider” means any third party provider of services that are incidental to the provision of the Services, as set out in the applicable Statement of Work or otherwise agreed between the parties from time to time.
1.2 Interpretation:
1.2.1 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 any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to writing or written includes email.
1.2.4 A reference to signed or signature includes electronic signing or signature.
1.2.5 If there is any conflict between the clauses of these Conditions and the Documents and/or any other documents referred to in the Contract, the conflict shall be resolved in accordance with the following descending order of precedence:
1.2.5.1. the Statement of Work
1.2.5.2 these Conditions
1.2.5.3 the Proposal, if any
1.2.5.4 any other documents, if any.
2. BASIS OF CONTRACT
2.1 The Contract shall come into existence at the point when and on the date which the Statement of Work is signed by both DP and the Client.
2.2 Any samples, drawings, descriptive matter or advertising issued by TA, and any descriptions or illustrations contained on a website or in marketing materials, 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.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which may otherwise be implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 DP shall supply the Services to the Client in accordance with the Documents in all material respects.
3.2 DP warrants to the Client that the Services will be provided using reasonable skill and care.
3.3 DP shall use its reasonable endeavours to meet any performance dates specified or referenced in in the Statement of Work but, unless explicitly agreed, time shall not be of the essence in the Contract.
3.4 DP shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and DP shall notify the Client in any such event.
3.5 The Client may request the Contract to be placed into Suspension for a period as defined by the Suspension Period
3.5.1 agreement of a Suspension will be reached via mutual consent with DP
3.5.2 a request by The Client to enter Suspension can be made no less than thirty (30) days prior to the agreed Suspension Date
3.5.3 Following the agreed Suspension Period the Contract will automatically restart as of the Recommencement Date
3.6 DP will provide for the Deliverables, two sets of consolidated reasonable amends from the Client
3.6.1 If DP is requested by the Client to conduct further amends to the Deliverables over and above that stated in 3.6 then DP will be within their rights to charge for the additional Services at per the Charges laid out in the Statement of Work
3.6.2 DP will make reasonable endeavours to contact the Client to inform them of any potential additional Charges in relation to the Services over and above the level of amends as per 3.6
3.6.3 DP will invoice for any additional Services over and above those laid out in the Statement of Work as part of the final payment or installment.
4. CLIENT'S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of the Documents are complete and accurate;
4.1.2 co-operate with DP in all matters relating to the Services;
4.1.3 if reasonably required by DP in order to perform the Services, provide DP and its officers, employees, agents, consultants and subcontractors, with access to the Client's premises, personnel, materials, systems and other facilities;
4.1.4 provide DP with such information and materials as DP may reasonably require in order to supply the Services, and use its reasonable endeavours to ensure that such information is accurate in all material respects;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required in respect of the Services including in respect of the use of the Client Content and, if applicable, processing of any Personal Data under clause 9 (including, if applicable, Personal Data relating to the Client's own customers);
4.1.6 where applicable, keep and maintain all DP Materials at the Client's premises in safe custody at its own risk, maintain DP Materials in good condition until returned to DP, and not dispose of or use DP Materials other than in accordance with written instructions;
4.1.7 be responsible for ensuring that all registrations and formalities are complied with in relation to the Deliverables set out in the Documents, including, where applicable, registration of trademarks and compliance with data protection laws;
4.1.8 comply with any additional obligations as set out in the Documents; and
4.1.9 as applicable, comply with all additional obligations of any Third-Party Provider and not through any act or omission cause DP to breach any such obligations as may apply.
4.2 The Client acknowledges that to the extent the Deliverables are circulated, used or viewed in countries or geographical areas outside of the Territory, DP shall not be liable for any content of the Deliverables which may cause offence in the relevant country or geographical area.
4.3 The Client warrants to DP that all Intellectual Property Rights subsisting in the Client Content are owned by the Client or its authorised licensor and that the Client has obtained any and all necessary permissions, authorisations, licenses or consents in favour of DP and, as the case may be, its officers, employees, agents, consultants and subcontractors, to use the Client Content to deliver the Services.
4.4 The Client shall indemnify DP against all loss, damages, costs, and expenses awarded against or incurred by DP due to any claim arising as a result of any breach by the Client of the warranty specified within clauses 4.2, 4.3 and 4.5.
4.5 The Client warrants to DP that the Client Content does not: contain any material which is defamatory of any person; contain any material which is obscene, offensive, hateful or inflammatory; promote sexually explicit material; promote violence; promote discrimination based on race, religion, sex, nationality, disability, sexual orientation or age; be likely to deceive any person; be made in breach of any legal duty to a third party including a contractual duty or duty of confidence; or promote any illegal activity.
4.6 The Client acknowledges that, unless otherwise agreed in writing, the fact that the Client is or has been a client of DP and the nature of the services provided to the Client by DP will not be deemed to be confidential information and DP may promote its engagement by the Client to provide services in pitch documents, website or in other marketing documentation.
4.7 Subject to the approval process set out in this clause 4.7 the Client acknowledges that DP may publicly make reference to its engagement by the Client to provide services by way of a client case study. DP shall send the proposed case study to the Client for the Client’s approval no less than 14 days prior to its proposed publication. The Client shall be entitled to withhold its approval to the case study by providing written notice to DP within 7 days of receiving the notice of the proposed material. If no written notice is received by DP within this 7 day period, DP shall be entitled to publish the case study without further notice to the Client.
4.8 If performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation ("Client Default"):
4.8.1 DP shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays DP’s performance of any of its own obligations; and
4.8.2 DP shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from failure or delay to perform any of its obligations directly as a result and due to the Client Default as set out in this clause 4.8.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be specified in the Statement of Work.
5.2 DP shall invoice the Client in accordance with the Documents or otherwise on a periodic basis from time to time.
5.3 If the Client fails to make any payment due to DP under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above The Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
5.4 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). DP may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by DP to the Client.
5.5 Unless otherwise stated in the Order, payment of our invoices will be due within 14 days of the date of the relevant invoice. VAT and any expenses to be incurred will be shown separately on all invoices where applicable. You will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.
6. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS TO THE CLIENT
6.1 Subject to the Client's payment of the applicable Charges, DP hereby assigns to the Client, with full title guarantee all existing and future Intellectual Property Rights in and to the Assigned Materials with effect from the date of their inception.
6.2 DP shall, promptly at the Client's request, do or procure to be done all such further acts and things and the execution of all such other documents as the Client may from time to time require for the purpose of securing for the Client all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Client in accordance with clause 6.1.
7. LICENCE OF INTELLECTUAL PROPERTY RIGHTS TO THE CLIENT
7.1 All Intellectual Property Rights in and to the DP Materials vest in and shall remain vested in DP or its licensors, and where any of such DP Materials are required by the Client to receive and make effective use of the Services and/or the Deliverables, DP shall grant to the Client a non-exclusive, perpetual, personal, royalty-free and fully paid up licence to use such DP Materials for its internal business purposes, subject always to payment by the Client of the applicable Charges.
7.2 Where Intellectual Property Rights subsist in Third Party Materials and any of such Third Party Materials are required by the Client to receive and make effective use of the Services and/or the Deliverables, DP shall use its reasonable endeavours to procure that the Third Party grants the Client a licence to use such Third Party Materials for its internal business purposes, subject always to payment by the Client of the applicable Charges.
8. CLIENT’S LICENCE OF INTELLECTUAL PROPERTY RIGHTS TO DP
8.1 The Client hereby grants to DP a non-exclusive, non-transferable, sub-licensable, royalty-free licence to use (and permit its officers, employees, agents, consultants and subcontractors to use) the Client Content in the performance of the Services and creation of the Deliverables.
8.2 DP shall use the Client Content in accordance with any applicable brand guidelines or other reasonable requirements as notified by the Client to DP from time to time. No Deliverables incorporating the Client Content shall be supplied to any person other than the Client or its nominees.
8.3 DP acknowledges that it will not gain any right, title or interest in any of the Client Content or associated goodwill, which shall vest automatically in the Client and the Client shall not make any use of them except in performance of the Services and otherwise in accordance with the terms of this Contract.
9. DATA PROTECTION
9.1 If DP is provided with or otherwise given access by the Client to any Personal Data held by the Client for the purposes of providing the Services, to the extent that such Personal Data is processed by DP the provision of the Services, DP shall be deemed the Data Processor of any such Personal Data and the Client shall be deemed the Data Controller, for the purposes of and as defined in the DPA.
9.2 DP shall process the Personal Data only to the extent and in such manner as is necessary for the purposes of the provision of the Services and in accordance with the Client's instructions from time to time.
9.3 The Client acknowledges that DP is reliant on the Client for direction as to the extent to which DP is entitled to use and process the Personal Data. Consequently, DP will not be liable for any claim brought by a Data Subject (as defined in the DPA) arising from any action or omission by DP.
10. LIMITATION OF LIABILITY
10.1 Nothing in the Contract shall limit or exclude liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents, consultants or subcontractors;
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by s.2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
10.1.4 any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, DP shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of Contracts or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of use or corruption of software, data or information;
10.2.6 loss of damage to goodwill; and
10.2.7 any indirect or consequential loss.
10.3 Subject to clause 10.1, total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 50% of the total Charges payable under the Documents, unless otherwise specified in the Documents.
10.4 Where DP procures services on your behalf from a third party provider DP shall not be liable for any act, breach or omission of the third party.
10.5 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.
10.6 This clause 10 shall survive termination of the Contract.
11.TERMINATION
11.1 Without limiting its other rights or remedies, either party may terminate the Contract for convenience by giving the other party no less than sixty (60) days’ written notice, unless any other termination for convenience provision is specified in the Statement of Work.
11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
11.2.2 the other party takes 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), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.2.4 the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 Without limiting its other rights or remedies, DP may suspend provision of the Services under the Contract or any other contract between the Client and DP if the Client becomes subject to any of the events listed in clause 11.2.2 to clause 11.2.4 or DP reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract by the due date for payment.
11.4 Without limiting its other rights or remedies, DP may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified to make such payment.
12.CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason:
12.1.1 the Client shall immediately pay to DP all of outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, DP shall submit an invoice, which shall be payable by the Client immediately on receipt;
12.1.2 the Client shall return all of DP Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then DP may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe-keeping and will not use them for any purpose not connected with this Contract;
12.1.3 the accrued rights, remedies, obligations and liabilities of each party as at expiry or termination of the Contract shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
12.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
13. GENERAL
13.1 Events outside of a party's control.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings.
13.2.1 DP may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.2.2 The Client shall not, without the prior written consent of DP, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
13.3 Confidentiality.
13.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by clause 13.3.2.
13.3.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors, consultants or advisers who need to know such information for the purposes of exercising rights and carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, consultants or advisers to whom it discloses the other party's confidential information comply with this clause 13.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3.3 Neither party shall use the other party's confidential information for any purpose other than to exercise rights and perform its obligations under the Contract.
13.4 Entire agreement.
13.4.1 This Contract 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.
13.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
13.5 Variation.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
13.6.1 waive that or any other right or remedy; or
13.6.2 prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.8 Notices.
13.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or, in the case of DP, its correspondence address as notified to the Client, or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
13.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.8.1; 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
13.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.9 Third parties.
No one other than a party to the Contract shall have any right to enforce any of its terms.
13.10 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
13.11 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
14. Storage
14.1. Please contact us before the commencement of the Services if you would like us to prepare project files in a particular format. 14.2 When the Services have been completed, we will store all final electronic files for the Final Deliverables for you for a maximum of two years. After this time, we will delete the files and therefore you must ensure that these are downloaded before this date. 14.3 All Client Materials and/or Deliverables which we hold and store for you are kept solely at your risk. You are responsible for insuring any such Client Materials or Deliverables as you deem to be appropriate.
