Terms & Conditions
CONDITIONS FOR THE SUPPLY OF DIGITAL MEDIA SERVICES
- The following definitions and rules of interpretation apply in these Conditions.
- Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Charges: the charges payable by the Client to the Supplier for the supply of the Services as set out in the Statement of Work and payable in accordance with clause 5 of these Conditions.
- Client: the person or firm who purchases Services from the Supplier, as identified in the Contract.
- Client Materials: all and any materials and advertising and marketing content (including all logos, designs, trademarks, video, software, data and documents) provided by the Client to the Supplier in connection with the Services.
- Commencement Date: as set out in the Contract.
- Conditions: these terms and conditions as amended from time to time in accordance with clause 2.2.
- Contract: the contract between the Supplier and the Client for the supply of Services incorporating these Conditions.
- Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
- Data Processing Agreement: the data processing agreement entered into between the Supplier and the Client and referred to in the Contract.
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.
- Media: any advertising media to be used in the provision of the Services, as described on any Media Schedule approved by the Client, or as otherwise agreed in writing between the Supplier and the Client.
- Media Expenditure: the Third Party Costs relating to the purchase of Media.
- Media Owner: any person from whom Media is to be purchased.
- Media Schedule: a schedule of proposed Media to be purchased as part of the Services and the anticipated Media Expenditure in relation thereto. In some cases, the Media Schedule will be incorporated in the Statement of Work.
- 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 Client is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
- Services: the digital media services to be supplied by the Supplier to the Client as described in the Statement of Work.
- Statement of Work: the description or specification of the Services provided in writing by the Supplier to the Client and identified in the Contract, including any variations or additions thereto agreed in writing between the Supplier and the Client.
- Supplier: Open Communication Partners Limited registered in England and Wales with company number 10906718.
- Third Party Costs: fees and costs payable to third parties in relation to the provision of the Services, including (but not limited to) Media Expenditure.
- 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.
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes email.
Incorporation of Conditions
- These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- Except as set out in these Conditions, no variation of the Contract (or these Conditions) shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Supply of Services
- The Supplier shall supply the Services to the Client in accordance with the Statement of Work in all material respects and in accordance with these Conditions.
- The Statement of Work may be amended from time to time by agreement in writing of the parties to reflect the Client’s requirements.
- The Supplier is appointed on an exclusive basis in respect of the provision of the Services.
- The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
- The Supplier reserves the right to amend the Services (or any aspect thereof) if necessary to comply with any applicable law or regulatory requirement.
- The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
- By signing or otherwise approving a Media Schedule the Client is authorising the Supplier to procure the Media set out in that Media Schedule on behalf of the Client, acting as its duly appointed and authorised agent.
- The Supplier will use reasonable endeavours to agree all Third Party Costs in advance with the Client. However, the Client shall remain liable for all Third Party Costs properly incurred by the Supplier in delivering the Services.
- Although the Supplier may from time to time agree to receive and pay invoices on the Client’s behalf, full liability for payment of those invoices remains entirely with the Client and the Supplier shall not be obliged to settle those invoices until it has received sufficient monies (in cleared funds) from the Client to discharge the same.
- The Client shall:
- (a) ensure that the Services as set out in the Statement of Work meet its requirement;
- (b) co-operate with the Supplier in all matters relating to the Services;
- (c) provide the Supplier with such additional information and such Client Materials as the Supplier may reasonably require in order to supply the Services;
- (d) ensure that any information provided to the Supplier is complete and accurate in all material respects;
- (e) comply with any additional obligations as set out in the Statement of Work; and
- (f) respond reasonably promptly to any request by the Supplier for information, Client Materials or approval and within any time frame specified by the Supplier.
If the Supplier's 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):
- (a) 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 Client remedies the Client Default; and
- (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2.
- The Client shall:
Charges and Payment
- The Charges for the Services shall be calculated as set out in the Statement of Work or as agreed in writing between the Supplier and the Client. In the absence of specific agreement on the Charges for Services provided, these shall be calculated on a time cost basis at the Supplier’s standard rate of £250 per hour.
- The Client shall pay on demand and indemnify the Supplier against all Third Party Costs.
- In addition, the Client shall reimburse the Supplier for any expenses reasonably and properly incurred by the Supplier (other than Third Party Costs) in providing the Services. The Supplier shall use reasonable endeavours to agree any such expenses in advance with the Client.
- Unless agreed otherwise, the Supplier shall invoice the Client for charges under clause 5.1 and expenses under clause 5.3 monthly in arrear.
- The Client shall pay each such invoice:
- (a) within 30 days of the date of the invoice or in accordance with any specific credit terms agreed by the Supplier and confirmed in writing to the Client; and
- (b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
- All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
- If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 9, the Supplier shall have the right to suspend performance of the Services and the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this clause 5.7 will accrue each day at 5% a year above the Bank of England's base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Client Materials and Intellectual Property Rights
- The Client confirms that it owns all of the Intellectual Property Rights in the Client Materials and warrants that the Client Materials:
- (a) comply with all applicable laws and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies;
- (b) do not infringe the Intellectual Property Rights or proprietary rights of any third party;
- (c) are not defamatory, libellous, obscene or otherwise offensive; and
- (d) are not false, misleading or unlawful.
- The Client shall indemnify the Supplier, its subcontractors and their respective officers, agents and employees (together the “Indemnified Parties”) against all liabilities, costs, expenses, damages and losses including penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Indemnified Parties (“Losses”) arising out of or in connection with any third party claims or action, adjudication or decision taken against the Indemnified Parties by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by the Client of clause 6.1.
- The indemnity in clause 6.2 shall not extend to any Losses if the same are caused by:
- (a) any breach of this agreement by the Supplier; or
- (b) the negligence or fraud of any of the Indemnified Parties,
- The limitations of liability in clause 8 shall not apply to the indemnity at clause 6.2.
- The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client.
- All Intellectual Property Rights in or arising out of or in connection with the Services (other than any Intellectual Property Rights in the Client Materials), including any rights in data held on the Supplier’s technology or on technology licensed to the Supplier, or data developed or collected by the Supplier, in each case in providing the Services, shall be owned by the Supplier.
- The Client confirms that it owns all of the Intellectual Property Rights in the Client Materials and warrants that the Client Materials:
Data Protection and Data Processing
- The Client and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Client is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
- The Personal Data shall be processed in accordance with the Data Processing Agreement.
- 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.
Limitation of Liability
- Nothing in the Contract shall limit or exclude the Supplier's liability for:
- (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- (b) fraud or fraudulent misrepresentation; or
- (c) 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.
- Subject to clause 8.1 and the indemnity in clause 6.2, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- (a) loss of profits;
- (b) loss of sales or business;
- (c) loss of agreements or contracts;
- (d) loss of anticipated savings;
- (e) loss of use or corruption of software, data or information;
- (f) loss of or damage to goodwill or reputation; or
- (g) any indirect or consequential loss.
- Without prejudice to clause 8.2, it is specifically agreed that:
- (a) the Supplier cannot guarantee and gives no warranties as to the accuracy of any usage statistics, forecasts or forecasted results, whether stated in the Statement of Work or otherwise; and
- (b) the Supplier shall not be liable for any damage or perceived damage to the Client’s brand, reputation or goodwill caused by the placement of the Client Materials in any Media which results in the unintentional association with, or unintentional endorsement of, inappropriate content or websites on the internet.
- Subject to clause 8.1, the Supplier's 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 £1 million
- 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.
- Neither party shall be in breach nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving written notice to the affected party.
- This clause 8 shall survive termination of the Contract.
- Nothing in the Contract shall limit or exclude the Supplier's liability for:
- Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months' written notice, such notice to expire on or after the end of any fixed minimum period stipulated in the Statement of Work.
- Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- (a) 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 14 days of that party being notified in writing to do so;
- (b) 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;
- (c) 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
- (d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d), or the Supplier reasonably believes that the Client is about to become subject to any of them.
Consequences of Termination
- On termination of the Contract the Client shall immediately pay to the Supplier any unpaid Third Party Costs and all of the Supplier's outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt.
- On termination, the Supplier shall cease to use the Client Materials and shall, upon payment of all sums under clause 10.1 above, promptly return the same to the Client.
- Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Assignment and other dealings
- The Supplier may at any time assign or subcontract any or all of its rights and obligations under the Contract where it subcontracts any of its obligations, the Supplier shall remain liable for any act or omission of any such sub-contractor.
- The Client shall not assign, transfer or declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the express consent in writing of the Supplier.
- 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 12.2.
- Each party may disclose the other party's confidential information:
- (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
- The 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.
- Each party acknowledges that in entering into the Contract it does not rely on, and 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.
- Nothing in this clause shall limit or exclude any liability for fraud.
- A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- 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.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Contract.
- Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9.00 am on the next Business Day after transmission.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
Third Party Rights
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
Governing Law and Justification
- 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.
- 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.