TERMS AND CONDITIONS
- Order Form
These Conditions (together with the documents referred to in it) set out the terms and conditions on which Digital D agrees to supply the Services ordered the Client which are stated in the signed Order Form which exist between the Parties. The Client should understand that by ordering any Services from Digital D, it agrees that it shall be bound by these Conditions, and a copy should be retained by the Client for future reference.
- Definitions and Interpretation
The definitions and rules of interpretation set out in Schedule 1 apply in these terms and conditions (including any Schedules) (these “Conditions”).
- Basis of the Agreement
3.1 These Conditions apply to the Order Form between the Client and Digital D 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.
3.2 Submission of an Order Form constitutes an offer by the Client to receive the Services from Digital D in accordance with these Conditions. The Client is responsible for ensuring that the details of each Order Form are complete and accurate.
3.3 Any quotation for the Services given by Digital D shall not constitute or replace an Order Form. Unless otherwise specified in writing in the quotation, a quotation shall only be valid for a period of 60 days from its date of issue.
3.4 The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with the Order Form and these Conditions.
4.1 The Services are defined in the Order Form and in accordance with these Conditions which have been agreed and signed by both Parties.
4.2 An Order Form shall be not be deemed to have been accepted by Digital D until a signed copy has been returned to the Client.
- Intellectual Property
5.1 The Parties acknowledge that all intellectual property rights including but not limited to copyright, trademarks, patents, knowhow, techniques, methodologies, inventions, improvements, discoveries, designs, logos, software design and software coding existing prior to the start date of the Order Form shall entirely remain vested with the party that created the intellectual property.
5.2 The Client agrees that all intellectual property rights including but not limited to copyright, trademarks, patents, knowhow, techniques, methodologies, inventions, improvements, discoveries, designs, logos, software design and software coding created by Digital D for the Client shall remain with Digital D within the term of the Order Form and shall transfer to the Client at the end of the term stated in the Order Form and once Digital D is satisfied, in its sole discretion, that all Fees have been paid by the Client for the Services.
5.3 The disclosure to the other party of any intellectual property shall not give the other party any licence or other rights whatsoever in respect of any part of such intellectual property beyond the rights contained in these Conditions.
5.4 The Parties agree that they will not copy, distribute, plagiarise, rent, lease, transfer, modify, translate, reverse engineer, decompile, deconstruct, disassemble or create derivative works from any intellectual property without the express permission of the party owning the intellectual property. All rights of any kind, which are not expressly granted in writing, are entirely and exclusively reserved to and by the party owning the intellectual property.
- Digital D’s Obligations
6.1 Digital D undertakes that the Services will be performed with reasonable skill and care.
6.2 The Order Form with the Client shall not prevent Digital D from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Order Form.
6.3 Digital D warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of the Services.
- Client’s Obligations
7.1 The Client shall provide Digital D with: (i) all necessary co-operation in relation to the Order Form; and (ii) all necessary information as may be required by Digital D, in order to provide the Services.
7.2 The Client shall, without affecting its other obligations under the Order Form, comply with all applicable laws and regulations with respect to its activities under the Order Form; and obtain and maintain all necessary licences, consents, and permissions necessary in connection with the Order Form.
7.3 The Client warrants that any content, information, materials, instructions or other items provided in connection with the Order Form, shall: (i) to the best of its knowledge, be accurate and complete and suitable for the purpose for which they were provided or requested; and (ii) will not infringe any rights of any other person or any applicable law or regulation.
- Charges and Payment
8.1 The Client shall pay the Fees to Digital D for the Services in accordance with this clause 8.
8.2 The Client shall, prior to the start date of the Order Form provide to Digital D with valid and approved purchase order information acceptable to Digital D and any other relevant valid, up-to-date and complete contact and billing details. Digital D shall invoice the Client for the Fees in accordance the Order Form and the Client shall pay each invoice within 14 days after the date of such invoice.
8.3 The Client is not permitted to make partial payments; all invoices issued in accordance with the Order Form shall be paid in full and in accordance with this clause 8.
8.4 If Digital D has not received payment within 10 days after the due date, and without prejudice to any other rights and remedies of Digital D, Digital D shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
8.5 All Fees stated or referred to within the Order Form shall be payable in pounds sterling and are exclusive of value-added tax.
8.6 The Fees stated within the agreed Order Form may only be changed with the agreement of both Parties and by updating and signing a new/replacement Order Form.
8.7 Digital D reserves the right to carry out credit checks on the Client at any time.
8.8 The Client may withdraw an Order Form within ten (10) days of it been agreed by both Parties and shall do so in writing, after such time the Order Form cannot be withdrawn and may only be terminated in accordance with clause 13 of these Conditions. Digital D reserves the right charge the Client for any works completed if the Order Form is withdrawn by the Client at rate of £250.00 per day and agrees that no more than three (3) days’ work shall be chargeable to the Client within the initial ten (10) days of the Term.
9.1 Each party agrees, during the term of the Order Form and thereafter, to keep confidential, and not to use for its own purposes (other than implementation of the Order Form) nor without the prior written consent of the other to disclose to any third party (except its professional advisors under obligations of confidentiality) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its customers, suppliers or other trading partners. Without limiting the generality of this clause: (i) the Digital D intellectual property shall constitute confidential information of Digital D; (ii) the details of the Services constitute Digital D confidential information; and (iii) the terms of the Order Form shall constitute confidential information of each party.
9.2 The restrictions at clause 9.1 shall not apply to the extent that: (i) such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge, in each case other than by breach of the Order Form; or (ii) subsequently comes lawfully into the possession of such party from a third party; or (iii) such information is required to be disclosed by law or competent authority.
9.3 Neither party shall be responsible for any loss, destruction, alteration or disclosure of confidential information caused by any third party.
9.4 The above provisions of this clause 9 shall survive termination of the Order Form, however arising.
- Data Protection
10.1 In this clause 10:
10.2 Agreed Purposes: in respect of Digital D for the purposes of providing the Services (as defined in the Order Form) and in respect of the Client, the use of Personal Data may be required for its business and contacting potential customers.
10.3 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
10.4 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller.
10.5 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (including the Customer Personal Data) to Digital D and/or lawful collection of the Personal Data (including Digital D’s Personal Data) by Digital D on behalf of the Client for the duration and purposes of the Order Form.
10.6 In respect of the Services for which Digital D is a Processor, Digital D shall, in relation to any Personal Data processed in connection with the performance by Digital D of its obligations under the Order Form:
a) process that Personal Data only on the documented written instructions of the Client unless Digital D is required by Applicable Laws to otherwise process that Personal Data. Where Digital D is relying on Applicable Laws as the basis for processing Personal Data, Digital D shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Digital D from so notifying the Client;
b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, those listed in Article 32 of the GDPR);
c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
d) only transfer any Personal Data outside of the European Economic Area when it is necessary to do so to supply the Services to the Client;
e) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Client without undue delay on becoming aware of a Personal Data Breach;
g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Order Form unless required by Applicable Law to store the Personal Data;
h) maintain complete and accurate records and information to demonstrate its compliance with this clause 10;
i) immediately inform the Client if, in Digital D’s opinion, an instruction infringes the Data Protection Legislation.
10.7 In respect of the Services for which the Client is a Controller:
a) each party acknowledges that one party (referred to in this clause as the Data Discloser) may regularly disclose to the other party Personal Data collected by the Data Discloser for the Agreed Purposes;
b) each party shall:
(i) process the Personal Data only for the Agreed Purposes; and
(ii) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
c) each party shall assist the other in complying with all applicable requirements of the UK Data Protection Legislation.
11.1 Except as expressly and specifically provided in the Order Form:
a) the Client assumes sole responsibility for results obtained from the Services.
b) Digital D shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Digital D by the Client in connection with the Services, or any actions taken by Digital D at the Client’s direction; and
c) the Services are provided to the Client on an “as is” basis and all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions.
11.2 Nothing in this Agreement excludes the liability of Digital D: (i) for death or personal injury caused by Digital D’s negligence; or (ii) for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
a) neither party shall be liable to the other whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
b) Digital D’s total aggregate liability for any claim (or a series of connected claims) in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Order Form shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim (or the first claim in a series of connected claims) arose.
12.1 Unless otherwise agreed in writing, the Term shall be for the period set out in the Order Form and shall, unless terminated pursuant to this clause 0 below:
a) where the Term is six months or less, continue until terminated by either party giving not less than one months’ written notice;
b) where the Term is 12 months or more, continue until terminated by either party giving not less than three months’ written notice;
c) where the Term has no fixed end date (i.e. a rolling contract), continue until terminated by either party giving not less than three months’ written notice.
13.1 Either party may terminate the Order Form without liability to the other party if that other party’s business fails.
13.2 The other party’s business will be treated for this purpose as having failed if: (i) the other party is or appears to be unable to pay its debts as they fall due; (ii) the other party makes any voluntary arrangement with that other party’s creditors; (iii) (being an individual or firm) the other party becomes bankrupt; (iv) (being a company) the other party becomes subject to an administration order or goes into liquidation; (v) any third party takes possessionof, or enforces rights over, any of other party’s property or assets under any form of security; (vi) the other party stops or threatens to stop carrying on business; (vii) the other party suffers any process equivalent to any of these, in any jurisdiction; or (viii) the terminating party reasonably believes that any of the events mentioned above are about to occur and the terminating party notifies the other party accordingly.
13.3 Without prejudice to any other rights or remedies available to it, either party may terminate the Order Form if the other party commits a material breach of the Order Form and fails to rectify the breach within 30 days of the other party requesting it in writing to do so.
13.4 Upon termination of the Order Form, however caused, and without prejudice to any other rights or remedies available to Digital D, the Client shall pay to Digital D on-demand:
a) all Fees due but unpaid at the date of such demand; and
b) any Fees under any invoice which Digital D raises after termination, relating to any Services which have been supplied prior to termination but for which the Client had not raised an invoice before termination; and
13.5 Termination or expiry of the Order Form shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.6 Any term of the Order Form which is specifically stated to continue or which by its very nature is intended to continue after termination of the Order Form shall continue to bind the Parties following termination or expiry of the Order Form.
- Force Majeure
Digital D shall have no liability to the Client under the Order Form if it is prevented from or delayed in performing its obligations under the Order Form, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Digital D or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Rights and Remedies
Except as expressly provided in these Conditions, the rights and remedies provided under the Order Form and these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision or part-provision of the Order Form and these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Order Form and these Conditions.
17.2 If any provision or part-provision of the Order Form and these Conditions is deemed deleted under clause 17.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Entire Agreement
18.1 The signed Order Form incorporates these Conditions and 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.
18.2 Each party acknowledges that in entering into the Order Form and these Conditions 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 Order Form and these Conditions.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Order Form and these Conditions.
19.1 The Client may subcontract, assign, transfer, novate, grant any trust over, or otherwise deal with any of its rights or obligations under the Order Form and these Conditions without the prior written consent of Digital D.
19.2 Digital D shall be entitled to subcontract its obligations under the Order Form and these Conditions (subject to the provisions of the Data Protection Schedule) to any third party or engage third-party agents or subcontractors without obtaining the Client’s prior consent.
- No Partnership or Agency
Nothing in the Order Form and these Conditions is intended to or shall operate to create a partnership between the Parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Third Party Rights
The Order Form and these Conditions does not confer any rights on any person or party (other than the Parties to the Order Form and these Conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
22.1 Any notice required to be given under the Order Form and these Conditions shall be in writing via email to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes.
22.2 A notice sent by email shall be deemed to have been received at the time of transmission.
- Governing Law
The Order Form and these Conditions 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.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 – Interpretation
The definitions and rules of interpretation in this clause apply in these Conditions.
“Applicable Laws” “Business Day” means (for so long as and to the extent that they apply to the Parties) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Client” as stated in the Order Form.
“Conditions” means these terms and conditions.
“Controller” as defined in the Data Protection Legislation;
“Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);
“Digital D” as stated in the Order Form.
“Data Subject” as defined in the Data Protection Legislation;
“Documentation” means any document made available to the Customer and/or any End User by Digital D in connection with the use of the Product(s), whether online or by any other means.
“Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK.
“Fees” means the fees payable by the Client to Digital D for the Services, as set out in the Order Form which is agreed between the Parties.
“Order Form” means, the Client’s request for the provision of the Services by Digital D, submitted by an authorised representative of the Client, which is then agreed in writing and supported by signatures by the Parties.
“Parties” means the Digital D and the Client, as set out in the Order Form.
“Personal Data” and “Personal Data Breach” as defined in the Data Protection Legislation;
“Processor” as defined in the Data Protection Legislation;
“Services” means the services provided by Digital D to the Client as set out within the Order Form and in accordance with these Conditions.
“Term” has the meaning given in clause 12.1 and as set out in the Order Form and in accordance with these Conditions.
“UK Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.