Please note before you read these Terms & Conditions:
These Product Terms and Conditions apply to all the products and services we offer. Clauses 1 to 18 of these Terms and Conditions are general terms which apply to all our products and services.
These Terms and Conditions and the Proposal together form an agreement between 121 Online Media Limited trading as TDA and the Client.
- DEFINITIONS AND INTERPRETATIONS
- In these Terms and Conditions unless the context otherwise requires:
Agreement means the agreement between TDA and the Client for the provision of the Services pursuant to the Proposal and subject to these Terms and Conditions;
Client or You means the person, corporate body, unincorporated association or partnership named in the Proposal;
Commencement Date means the date upon which the Agreement commences being either the date the Proposal is signed by You or the date of the electronic acceptance of the Proposal by You;
Information means all personal data and information of whatever kind or nature which one party obtains from the other under this Agreement whether or not it is in tangible or documented form;
Initial Term means the minimum term of the Agreement as set out in Clause 8 and as may be extended in accordance with Clause 10.3;
Intellectual Property Rights means all copyright and other intellectual property rights howsoever arising and in whatever media, whether or not registered including, without limitation, patents, trademarks, service marks, database rights, trade names, logos, rights in designs and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world and all know-how, goodwill, confidential information and all other intellectual property rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, for their full term and any extension or renewal thereof;
Proposal means the document provided by TDA setting out the Client’s order for the Services and incorporating the Services and Invoicing Schedule;
SEO means Search Engine Optimisation;
Services mean the services to be provided to You by TDA as set out in the Proposal and in accordance with these Terms and Conditions;
Services and Invoicing Schedule means the schedule within the Proposal that details when the Services will be provided and when You will be invoiced for those Services (subject to any variation in accordance with Clause 10.3);
Software means the software, toolkits or technology developed and/or to be developed by TDA including the structure and architecture of the software, toolkits or technology and the underlying code;
VAT means value added tax and any tax which may from time to time replace it;
TDA or We means 121 Online Media Limited trading as TDA (registered in Scotland under Company Number SC540382) of Crabtree Hall Business Park, Northallerton, DL7 9LN
TDA Content means all articles, papers, news and promotional stories in any form and other related materials developed and/or provided by TDA for use in, connection to or in relation to the Services;
TDA IPR means the Intellectual Property Rights vested in TDA including but not limited to the Intellectual Property Rights in the Software and the TDA’s Content; and
Website means the website owned by TDA at www.trustdigitalagency.com
- The headings in these Terms and Conditions are for ease of reference and shall not affect the interpretation of the Agreement.
- Any reference in these Terms and Conditions to any provision of a statute shall (except where the context otherwise requires) be construed as a reference to that provision as amended, modified, extended or re-enacted at the relevant time and shall include any subordinate legislation, including statutory instruments or regulations made under any of the foregoing.
- The Services
- We will provide You with the Services in accordance with the Agreement and based on the information confirmed by You in the Proposal. You are responsible for ensuring that the details on the Proposal are correct.
- We will provide the Services with reasonable skill and care.
- Changes to the Services during the term of this Agreement will not normally be permitted. Any changes to the Services requested by You during the term of this Agreement must be agreed in writing and such agreement shall be at our sole discretion. Changes to the Services so agreed may incur additional costs in accordance with Clause 3.5.
- Our performance of the Services is dependent upon You providing such information or feedback as We may reasonably require from time to time. Should You not provide information or feedback within 7 days of any such request, You acknowledge that this may affect our ability to provide the Services and You shall not be entitled to any refund or credit against fees in the event that We are prevented from providing the Services.
- You must inform us in advance of any changes to (or in respect of) your website that may affect the provision or the performance of the Services. You acknowledge that You are solely responsible if any such changes affect the provision or performance of the Services and You shall not be entitled to any refund or credit against fees in this event.
- You acknowledge that the provision of the Services is not subject to any performance guarantees or promises including but not limited to ranking positions on internet search engines or the number of searches, visitors or click-throughs, except where expressly stated otherwise in Schedule 1 of this Agreement.
- We are unable to ensure or guarantee the security of information transmitted over the internet. Any information or data transmitted through the use of or in connection or relation to the Services is at your risk.
- Fees and Payment
- The fees for the Services are as stated in the Proposal.
- You will be invoiced as set out in the Services and Invoicing Schedule of the Proposal and will be invoiced in advance. Payment will be due in accordance with the following payment terms unless expressly stated otherwise in the Proposal:
- where the Services are subject to a set-up fee or deposit, such fee will be payable by You immediately upon the Commencement Date. Any setup fee or deposit is non-refundable.
- all other fees including ongoing or recurring monthly fees will be payable in advance immediately upon receipt of invoice throughout the term of the Agreement.
- If payment is not received in accordance with the payment terms specified in the Agreement, We shall be entitled, without prejudice to any other rights that We may have, to charge You interest accruing on the sum due at the rate of four per cent above the annual base lending rate of Barclays Bank plc, from time to time.
- If payment is not received in accordance with the payment terms specified in the Agreement, We reserve the right to suspend the provision of the Services and restrict your use of the Services until such time as payment is received. Such suspension of the Services will extend the Initial Term of the Agreement as detailed in Clause 10.3.
- Any changes to the Services requested by You during the term of this Agreement in accordance with Clause 2.3 may result in an additional fee being charged to You.
- All fees for the Services are stated and payable in British Pounds. Fees do not include VAT or any other taxes that may from time to time be applicable.
- Cancellation and Refunds
- The Agreement cannot be cancelled or terminated other than in accordance with Clause 8, Clause 10.3 or Clause 15.2, except with TDA’s express written agreement.
- If You wish to cancel the Agreement other than in accordance with Clause 15.2 or Clause 8.2, You must write to Us giving one month’s notice of your request to cancel. Such cancellation will be subject to a minimum cancellation charge of 50 per cent of the remaining fees chargeable under the Agreement. Any cancellation request by You will only be valid if it is acknowledged in writing by Us.
- If We cancel the Agreement in accordance with Clause 8 or Clause 10.3, You will be charged a minimum cancellation charge of 50 per cent of the remaining fees chargeable under the Agreement in respect of liquidated damages.
- Intellectual Property Rights
- Except as expressly set out herein, all work performed by TDA is the copyrighted works of TDA and all Intellectual Property Rights in and in relation to the Software, the TDA Content and any other materials, documents and analyses developed or to be developed by TDA shall remain vested in and be the exclusive property of TDA.
- All Intellectual Property Rights in any materials, articles or documents supplied by You shall remain vested in You.
- If You become aware of any infringement or threatened infringement of any of the TDA IPR or of any action detrimental to any of such rights, You shall immediately notify Us giving full particulars of such matters and You shall make no comment or admission to any third party in respect of such matter.
- We shall have the sole conduct of any proceedings relating to any of the TDA IPR and shall in our sole discretion decide what action (including litigation, arbitration or compromise), if any, to take in respect of any infringement or alleged infringement of any of such rights or any other claim brought or threatened in respect of the use of any of such rights.
- Warranties and Indemnities
- Each party warrants to the other that it has full power and authority to grant the rights to the other party as provided in the Agreement.
- We represent and warrant to You that We will provide the Services contemplated by the Agreement with reasonable care and skill, in good faith and in accordance with good industry practice.
- You represent and warrant to Us that:
- any materials delivered to Us under the Agreement shall be your property or You shall have licensed or obtained copyright permission to use such materials and none of the materials shall infringe copyright or patent laws, or involve the unauthorised use of the rights of any third party and do not contain any matter which is injurious or which is illegal, scandalous, obscene, libellous, defamatory or which would constitute a contempt of court; and
- as at the Commencement Date, there is no litigation, proceeding or claim pending or threatened against You or any other party relating to any material to be utilised in performance of the Agreement.
- Each party warrants to the other that in relation to the Information, it has and will at all times comply with all relevant requirements of the Data Protection Act 1998.
- Except as expressly set out herein and to the fullest extent permitted by law, We exclude all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Services or materials supplied pursuant to the Agreement, whether imposed by statute or by operation of law or otherwise, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.
- Except to the extent caused by any fraud or dishonesty by Us, You agree to indemnify Us to the fullest extent permitted by law from and against all liabilities, losses, damages, and reasonable expenses, including but not limited to legal fees and expenses, arising from or in connection with any claim or action as a result of the use of or possession of material or information provided by You under the Agreement.
- The obligations set out in this clause shall survive variation, renewal, termination or expiry of the Agreement.
- Exclusion of Liability
- Nothing in this clause shall exclude or limit either party’s liability for fraud or negligent misrepresentation or for personal injury or death resulting from the negligence of either party or its agents or employees.
- We shall not be liable in any way for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings) or any special or indirect or consequential losses, howsoever caused, whether or not such losses were within the contemplation of the parties at the Commencement Date, suffered or incurred by You arising out of or in connection with the use of the Services or any other matter under the Agreement.
- Term and Termination
- The Agreement shall commence on the Commencement Date and shall continue in full force and effect unless terminated in accordance with its provisions for the Initial Term of twelve months unless expressly stated otherwise in the Proposal. Thereafter:
- if no changes are required to the Services, the Agreement will remain in force unless terminated by either party giving to the other party at least one month’s written notice of its intention to terminate the Agreement; and
- where changes are required to the Services, including changes of any keywords, the parties will normally be required to enter into a new Proposal. Where changes are required to the Services during the Initial Term or any subsequent term the parties may agree in writing to vary the Proposal or may enter into a new Proposal for a new term.
- Without prejudice to either party’s other rights and remedies, either party may terminate the Agreement by immediate written notice to the other in the event that the other party:
- ceases or threatens to cease to carry on business; or
- is subject to bankruptcy or liquidation proceedings (other than a voluntary liquidation for the purpose of reconstruction or amalgamation), is determined to be insolvent or otherwise is unable to meet its financial obligations, or has a receiver or administrator appointed over all or any material part of its assets; or
- commits a material breach of any provision of the Agreement, provided that in the case of any such material breach that is capable of remedy, termination shall only occur if the breach shall not have been remedied within thirty days of the other party having been given notice in writing specifying the nature of the breach and requiring it to be remedied. Any restriction or suspension of the Services by TDA in accordance with Clause 3.3 shall not constitute a breach of this Agreement; or
- commits a material breach of any provision of the Agreement which has been previously breached once and then remedied.
- Termination of the Agreement shall be without prejudice to any existing rights and/or claims that a party may have against the other party, and shall not relieve the other party from fulfilling its obligations accrued prior to such termination.
- Consequences of Termination
- Upon termination or expiry of the Agreement however arising:
- We shall cease to provide the Services to You;
- You shall immediately cease to use the TDA IPR and any other Intellectual Property Rights and any other rights of TDA relating to the Services;
- You shall immediately pay all outstanding charges under the Agreement up to the date of termination and any cancellation fees where applicable; and
- You shall immediately deliver and return to Us all material and information supplied by Us pursuant to the Agreement.
- All provisions of the Agreement which in order to give effect to their meaning need to survive its termination shall remain in full force and effect after termination
- Suspension of Services
- We may temporarily suspend the Services without compensation or recourse for the purpose of carrying out work at our premises or maintaining or upgrading our systems. We will endeavour to give You prior notice of such suspension but may be unable to do so and are not obliged to do so.
- We may immediately and without notice suspend the provision of the Services to You without compensation or recourse in the event that:
- We are required to do so in order to comply with a legal order or request from a governmental or other competent authority; or
- We are reasonably aware or suspect that You are in breach of Section 11.
- We may immediately and without notice suspend the provision of the Services to You in the event that We are taking action for non-payment in accordance with Clause 3.4. Any suspension of the Services pursuant to this clause will extend the Initial Term of the Agreement by the number of months during which the Services were suspended. In the event that it is necessary to suspend the provision of the Services by three months or more pursuant to this clause, We reserve the right to cancel the Agreement without notice and the provisions of Section 4 will apply.
- Acceptable Use
- You may only use the Services in accordance with the Agreement and for lawful and proper purposes which include complying with all applicable laws and regulations. You agree that You will not:
- do anything or include any information on your website which is or may be harmful, illegal, obscene, offensive, threatening, defamatory, deceptive, discriminatory or otherwise in breach of any applicable laws or regulations including any Google regulations;
- use the Services in a manner which may cause an infringement of copyright, privacy or the rights of TDA or any other party including but not limited to any attempt to reproduce, copy or duplicate TDA Content or other work performed by TDA pursuant to the Agreement;
- use the Services for or in connection with any illegal or unethical marketing practice including but not limited to spamming;
- interfere or attempt to interfere with the operation of the Services or networks connected to the Services or Software via whatever means including but not limited to uploading or transmitting material containing corrupt data or software viruses or to access without authority any system or data;
- attempt to deface, copy, reverse engineer, disassemble, decompile, translate, modify or otherwise alter the Software; or
- take any action that may lead to an unreasonably large load on our networks or infrastructure.
- Changes to the Agreement
- Any variation to these Terms and Conditions in contemplation or execution of the Proposal, including but not limited to any special terms agreed between the parties, shall only be valid if they have been confirmed in writing by a director of TDA. No employee or representative of TDA other than a director has the authority to vary these Terms and Conditions.
- Any notification from You which attempts to vary these Terms and Conditions will be invalid unless it has been agreed in writing by a director of TDA.
- Save as otherwise provided in this Agreement, any notice given under this Agreement shall be in writing and served by hand or by recorded or special delivery post to the address as the relevant party may designate to the other in writing from time to time. References in this Agreement to “in writing” shall also include by email which must be sent to the email address as the relevant party may designate to the other in writing from time to time. Service of notice by facsimile is not acceptable or valid.
- Any notice shall be deemed to have been served immediately if delivered by hand, 48 hours after posting if delivered by recorded or special delivery post and 24 hours after transmission if delivered by email.
- You may not assign or grant any sub-licences of any or all of its rights under the Agreement without our prior written consent.
- We reserve the right to assign or otherwise transfer all or any of our rights under the Agreement at any time provided that such assignment shall not relieve any of our obligations under the Agreement.
- Force Majeure
- Neither party shall be liable to the other for any failure under the Agreement if and to the extent that such failure is due to force majeure which shall mean any circumstances beyond the reasonable control of the party concerned, including but not limited to war, acts of God, riot, terrorism, earthquake, accidents, explosion, fire, floods, any act or omission of Government or other agencies or failure of technical or electrical facilities not within such party’s reasonable control.
- The party affected by such a force majeure event shall as soon as reasonably practicable notify the other party in writing. In the event that the force majeure event so notified continues so as to prevent the performance of the Agreement for a period of six months or more after such notice then either party shall have the right to terminate the Agreement without liability for breach of contract.
- Each party shall keep any information relating to the trade secret and proprietary information, materials and documentation of the other party confidential and will keep all such information secure and protected against theft, damage, loss or unauthorised access and will not disclose any such information to any other person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority. Each party undertakes to procure that its employees and agents are aware of and are bound by the provisions of this clause, and the obligations of this clause shall survive the variation, renewal or termination of the Agreement, but shall cease to apply to any information which has come into the public domain through no fault of the recipient.
- Notwithstanding that any one or more sections, clauses or sub-clauses of the Agreement may prove to be illegal, invalid or unenforceable, the remaining sections, clauses and sub-clauses shall continue in full force and effect.
- The Agreement and any other documents referred to herein shall constitute the entire agreement between the parties for the provision of the Services and supersede all previous agreements, arrangements and undertakings between the parties.
- Sections 6, 7, 16 and 18 of the Agreement shall survive the termination of the Agreement.
- The failure to exercise or delay in exercising any right shall not constitute a waiver of the right or remedy and no course of conduct or acquiescence shall constitute such a waiver other than a notice to that effect given to the other party specifying the right in question.
- Except in the case of any permitted assignment of this Agreement pursuant to Section 14, a person who is not party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any clause of this Agreement.
- Nothing in the Agreement is intended to or shall operate to create a partnership between the parties.
- Governing Law
- The Agreement shall in all respects be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of those countries in respect of any matter arising from or in connection with the Agreement.