Project delivery – Terms & Conditions
Please read these terms and conditions carefully and retain a copy of these terms and your purchase order for future reference. These Terms and Conditions and the Purchase Order together form an agreement between Digital State Marketing Ltd and the client.
These were last updated on 3rd February 2022 and supersede all previous versions published and/or used by Digital State Marketing Ltd (Digital State). Digital State may update these terms and conditions for legal or regulatory reasons, or to reflect changes in our services or business practices. We will provide notice of such changes in Section 14 below.
You should regularly check Section 14 to see if any changes have been made.
1. These terms
and conditions together with the purchase order or letter to which they are attached will form a binding contract between the Client named on the Purchase order (“Client”) and Digital State Marketing Limited (T/A Digital State Consulting) which shall constitute the entire agreement between Client and Digital State and apply to any trading agreement or other contract or arrangement between Client and Digital State;
2. These terms
apply to the exclusion of all other terms or conditions of contract Client may propose and shall not be varied unless agreed in writing, signed by Digital State.
3. DIGITAL STATE
a. In consideration of the payment by Client to Digital State of the Fees as set out in the Purchase Order Digital State agrees to provide to Client the goods and services described in the Purchase Order in accordance with the Proposal (where one exists), with reasonable and due care in accordance with and subject to these terms.
b. Digital State undertakes that the Work shall be faithful to the basic conceptualisation of the underlying work, pitch or proposal (where one exists) and reflect the same standards of quality and integrity. Works shall commence at the start of the detailed calendar month, unless agreed to commence part way through a calendar month. In absence of further instruction from Client, Digital State shall work in accordance to the proposal (where one exists), or, in absence of a proposal shall begin works using its own methodologies and internal best practices.
c. This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent Digital State acting for or providing work the same or similar to the Work to any third party.
d. It is agreed and understood that any activities undertaken by Client (or by any third party on its behalf) which is in relation to or similar to the Work, including without limitation any modification of the Work or the Client’s web site or the use of or inclusion of any third party product or service which might relate to the Work shall interfere with the provision of the Work by Digital State and affect the results, outcomes and positions in search engines. All such things should be discussed with Digital State prior to implementation and Client shall not implement the same without the prior written consent of Digital State. Remedy of such matters shall be dealt with by way of hourly or project charge.
a. Client will co-operate with and act in good faith towards Digital State and, on request, undertake such acts and provide such source materials (including those listed in the Purchase Order) as Digital State are to incorporate into the Work, or as Digital State require to carry out its obligations hereunder. In the event that Client does not undertake those acts or provide those Materials required under clause 3a above within a reasonable time (and at least within 3 months) of being requested to do so, including without limitation carrying out any changes, modifications or optimisations to Client’s web site or other Materials as requested, recommended or required by Digital State, Digital State shall be entitled to invoice for the remaining Work as if Client had done so whether such are provided or not.
a. Invoices shall be issued monthly in advance as appropriate, unless by separate individual negotiation, including following receipt of a completed Purchase Order and Client shall pay Digital State the Fees without deduction or set-off (with VAT thereon) within timescale specified in the Purchase Order. Invoices will be sent by email and deemed received by the client on the same day. Under no circumstance is payment dependent upon the receipt of a report. Digital State shall be entitled to withhold or suspend the Work until such time as it receives the Fees or other payments due including, in respect of the first month’s Work, receiving the Fees for that month prior to commencement.
b. Digital State shall be entitled to charge interest on any overdue payment at the rate of 8% over National Westminster Bank’s base rate prevailing at the time and shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments.
c. Digital State may charge additional Fees in accordance with its then prevailing rates:
i. In the event of delays or additional work caused or required by Client including its failure to provide Digital State with such information, Materials, instructions, media or approvals, as are reasonably required for the supply of the Work, properly and / or on time;
ii. in the event of changes to the cost of labour, materials, services and other circumstances outside of Digital State’s reasonable control.
iii. in the event that Client requires the supply of Work, goods and services in addition to those described in the Purchase Order or any variations to workload or project.
iv. in the event that the Client cancels a visit (external to the Digital State Offices) without 24 hours prior notice. The additional fees will relate to travel and associated legitimate costs incurred.
d. If Client requires any change or alteration to the Purchase Order, Digital State and Client shall, prior to such change being effective or implemented, agree:
i. the nature of the Change;
ii. the procedures for implementation of such Change;
iii. the variation to the Fees.
e. Until any Change is formally agreed between Client and Digital State, Digital State will continue to perform and be paid for the Work as if the Change had not been proposed.
f. All and any Changes to the project/s and or work shall be reflected and accompanied by appropriate amendments to the Proposal and Fees.
g. In the event that the Work include pay-per-click or other search engine placement services which require the payments to third parties and are agreed with Client prior to their implementation, Client shall reimburse and indemnify Digital State for any out of pocket expenses incurred by it in supplying the same.
h. All discounts are negated, if payment of invoices is not received within 7 days of the agreed payment terms.
i. Within contracts that feature a percentage of budget being held back (on the basis of the withheld amount becoming payable upon the completion of the project and the achievement of mutually agreed targets), if the account becomes in arrears for more than a 7 day period, the withheld amount is automatically liable for payment.
j. Digital State reserves the right to periodically review our service/product charges to take into account changes in overhead costs and will notify clients if rates change during the course of your contract. Any change will only apply from the date that you are notified.
k. Digital State shall continue to provide the Services and the Client shall continue to pay the Fees (at the same monthly amount) until such time as Digital State and the Client agree the terms of the renewal of the contract or 30 days after the expiry of the Initial Term (whichever is earlier).
6. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
a. All copyright, design right, registered designs, trademarks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature worldwide whether registered or not of whatever nature in material devised, created or commissioned by Digital State, in supplying the Work and under this Agreement will vest in and belong to Digital State unless otherwise agreed and specified in writing on the Purchase Order or otherwise and signed by both Parties.
b. In consideration of and upon payment of the Fees in full, Client shall have the Rights of Use set out in the Purchase Order which rights shall take effect on receipt by Digital State of the Fees. Where no such rights are specified the client is granted a non-exclusive license to use the Work for the Purpose described in the Purchase Order, Proposal or other documentation. Rights of Use shall be extended only with the consent of Digital State and payment of additional fees.
c. Client grants Digital State a nonexclusive royalty free licence to use the Materials for all purposes relating to this Agreement and warrants that it has obtained and is fully entitled to grant Digital State these rights and that the Materials are free of racist, defamatory, obscene and other legally restricted material.
d. Client undertakes that it will keep secret and confidential the terms of this Agreement and any information supplied by Digital State in connection with this Agreement or the business of Digital State (including the Proposal) and the Work and shall not disclose or make available such information or part thereof to any third party (except to its own employees and advisers and then only on a need to know basis) without the Digital State’s prior written consent on the basis that this Clause shall not extend to information which was and can be shown to be rightfully in the possession of Client prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this Clause);
e. Client undertakes to Digital State to indemnify and hold harmless Digital State in full and defend at its own expense Digital State against all costs, damages and losses incurred by Digital State arising out of its use of the Materials or breach by Client of this clause
f. Client shall not modify, adapt or translate the Work except with the prior written consent of Digital State or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in Digital State unless otherwise agreed and specified in writing on the Purchase Order
g. Digital State warrants that it will use reasonable efforts to ensure that the Work do not infringe the copyright of any third party.
7. INSPECTION AND ACCEPTANCE
a. Client shall inspect all reports and/or summaries of Works issued from time to time by Digital State (each a “Report”).
b. Subject to the remainder of this clause 7, Client shall only be entitled to reject Work in the event, and to the extent, that such Work does not comply with the Proposal and/or is demonstrably lacking reasonable care and skill.
c. If Client considers that any Work detailed in a Report does not comply with the Proposal, and Client wishes to reject such Work, then Client must notify Digital State of its concerns and of its intention to reject Works within 96 hours of the Report in question being issued by Digital State to the Client. If Client does not notify Digital State of any concerns with Work within 96 hours of a Report being issued then Client shall be deemed to accept the Works detailed in that Report. Purporting to reject Work without good reason shall be deemed a breach of these terms.
d. If Work does not comply with the Proposal or is demonstrably lacking reasonable care and skill then Digital State shall, within a reasonable time, correct such Work and Digital State’s liability shall be limited to the lesser of: (a) the cost of correction; and (b Digital State’s invoiced charges for the Works in question.
8. LIABILITY AND WARRANTY
a. Subject to Clause 7b above, Digital State’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by Digital State to Client hereunder.
b. Digital State shall not be liable to the Client for any consequential loss or damage.
c. When instructions or advice are given or received orally by Digital State, it shall have no liability to Client for any misunderstanding or misrepresentation which may arise in relation thereto.
d. Digital State shall have no liability to Client in respect of the Materials. On completion of the Work Client agrees to collect the Materials within 2 months of completion of the work, failing which, Digital State may dispose of them on giving Client 14 days’ notice.
e. Digital State’s liability shall be limited to using reasonable skill and care in the supply of the Work. In particular Digital State shall not, except in the case of gross negligence and wilful or deliberate act, be liable for:
i. any loss or damage caused by it being given access to Client’s computer systems (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of Client.
ii. any interference in or modification of the Work or Client’s web site by Client or any third party or the consequences thereof, remedy of which shall be as a Change.
f. 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.
g. Client acknowledges that in entering into a contract with Digital State 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 expressly set out in either these terms and conditions, the purchase order or any letter to which these terms and conditions are attached.
h. Nothing in these terms and conditions shall limit the liability of any party for fraud (including fraudulent misrepresentation).
a. Client shall comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Work including without limitation its obligations under the Data Protection Act 1998; Regulation of Investigatory Powers Act 2000; Competition Act 1998 and E-commerce Directive and equivalent legislation
10. THIRD PARTY MATERIALS
a. Digital State gives no warranty, representation or undertaking in relation to any third party materials or work.
b. Prior to any selection, use or reproduction by Client of Work, Digital State shall use reasonable efforts to, on reasonable request, provide Client with copies and evidence of such rights, clearances, permissions and licences as shall be necessary for the use of the Work by Client.
c. Subject to the foregoing Digital State shall have no liability to Client whatsoever in relation to the Work and gives no warranty and makes no representation as to whether Work contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted material and explicitly excludes all and any liability in relation thereto.
11. RISK AND TITLE
a. Risk in any reports or information delivered to Client will pass to Client on dispatch and until payment in full has been received in cleared funds by Digital State in respect of the Work, title in any physical products delivered to Client shall remain with Digital State.
b. Client shall take out such insurance as shall be prudent against all risks usually incurred in respect of the Work whilst in its possession or control.
a. Digital State shall be entitled to immediately restrict, suspend or terminate the Work and Client’s use of any Work and or terminate this Agreement upon Client’s material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless Client remedies such breach within 7 days of its occurrence.
b. Digital State will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Digital State including without limitation Internet outages, communications outages, fire, flood, war or act of God.
c. Any cancellation agreed by Digital State will be subject to a cancellation fee of 50% of the remaining order value. (I.e. the portion of the order that has not been fulfilled) and this fee will be charged to and is payable by the client before the cancellation will become effective.
d. During the course of this Agreement and for a period of 12 months afterwards, Client shall not solicit the staff of Digital State or entice them to transfer their employment or services.
a. Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
b. If any part of this Agreement is or becomes unenforceable, such part will at Digital State’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
c. No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
d. Client shall not assign the benefit or burden of this Agreement without the prior written consent of Digital State.
e. The UK shall be considered the place of first publication of any material on the internet.
f. No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
g. These Terms are made in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
h. If Digital State agrees to place work on hold for an agreed period of time, this action will not negate the duration of the of the initial purchase order rather extend the duration of the period.
i. Digital State reserves the right to produce marketing collateral (including case studies) that mentions the client’s brand and campaign. The Client may withdraw this permission at any time by giving thirty days’ written notice.
14. CHANGES TO TERMS AND CONDITIONS
These terms and conditions were published on 3rd February 2022.
In Regard to VAT:
VAT is payable at the applicable rate as of the date of production of the invoice as set by HMRC.