Updated 18th March 2022
DURTY Media Ltd (company number 10196937) (we and us) is a company registered in England and Wales and our registered office is at Kemp House, 160 City Road, London, England, EC1V 2NX. Our main trading address is DURTY Media Ltd., First Floor, 90-92 King Street, Maidstone, Kent, ME14 1BH. Our VAT number is GB255352213. We operate the website durty.co.uk.
These terms and conditions apply to any video and image production, web marketing, design, development, consultancy and other related services supplied by DURTY Media.
Your attention is particularly drawn to the provisions of clause 8 (delays and complaints), clause 9 (liability) and clause 10 (limitation of liability).
DEFINITIONS AND INTERPRETATIONS
1.1. In these terms and conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Charges’ means the sums payable for the Services pursuant to these Terms.
‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.
‘Company’ means DURTY Media whose registered office is at Kemp House, 160 City Road, London, England, EC1V 2NX.
‘Contract’ means the contract between the Company and the Client for the supply of Services governed by these Terms as varied from time to time pursuant to clause 2.2.
‘Costs’ shall have the meaning given in clause 7.3.
‘Deliverables’ means any output of the Services to be provided by the Company to the Client in relation to the Services.
‘Due Date’ means the date an invoice or payment becomes due under clause 7.6 of these Terms or another agreement between the Company and the Client.
‘Estimate’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Clients.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport 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 subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Materials’ means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, provided by the Client pursuant to the Contract.
‘Order’ means the Client’s written acceptance of the Estimate, and which acts as an offer by the Client to the Company to enter into a Contract on the terms set out within it.
‘Services’ means the services the Company will provide to the Client as specified in the Order and in accordance with the Contract.
‘Specification’ means the description or specification of the Services set out in the Estimate.
‘SEO Services’ means Services provided to the Client which are aimed to increase the number of visitors to a website generated from the search engines.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘Ultimate Client’ means any third party or client of a Client who will receive the ultimate benefit or ownership of the Services provided by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.
1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision 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.
1.5. A reference to writing or written includes emails.
2. TERMS AND CONDITIONS
2.1. These Terms shall apply to all agreements concluded between the Company and the Client 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.
2.2. Subject to clauses 2.2 and 2.3 below, these Terms and the Specifications set out in the Order may only be varied by express written agreement of the Company and the Client.
2.3. In the event of any inconsistency between these Terms and the Order, these Terms shall prevail.
2.4. For the avoidance of doubt, an express written agreement referred to in this clause 2 shall include an email from the Company confirming a variation.
3. THE CONTRACT
3.1. The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any information provided in respect of the Services are complete and accurate.
3.2. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.3. The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms and clause 17 in particular (entire agreement).
3.4. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures 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 any other contract between the Company and the Client for the supply of Services.
3.5. An Estimate for the supply of Services given by the Company shall not constitute an offer. An Estimate shall only be valid for a period of 14 Business Days from its date of issue.
3.6. The Company shall have no contractual relationship and no liability in contract or tort (including negligence), breach of statutory duty, or otherwise in respect of third parties or Ultimate Clients. The Client understands and agrees that they will be responsible to any Ultimate Client in relation to any Services passed onto them.
3.7. For the avoidance of doubt, the Client will not own or have the rights to any source files or other assets used by the Company to provide the Services, including but not limited to the right to use or in any way copy the same. The Company may choose to provide the Client with source files or other assets, however this will be subject to additional fees as determined by the Company from time to time.
4. COMPANY OBLIGATIONS AND WARRANTIES
4.1. The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
4.2. The Company shall use all reasonable endeavours to meet any performance dates set out in the Estimate or otherwise agreed with the Client but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure Event or the Client’s failure to provide the Company with adequate instructions or materials relevant to the supply of the Services.
4.3. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law and such changes shall not constitute a breach of Contract.
4.4. The Client shall not, without the prior written consent of the Company, at any time from the date the Contract comes into existence to the expiry of 36 months after the termination or expiry of the Contract, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
4.5. Any consent given by the Company in accordance with clause 4.4 shall be subject to the Client paying to the Company a sum equivalent to one third of the then current annual remuneration of the Company’s employee, consultant or subcontractor plus the reasonable recruitment costs of finding a replacement.
5. CLIENT’S OBLIGATIONS AND INDEMNITIES
5.1. The Client shall provide assistance and technical information to the Company as reasonably required by the Company and do so in sufficient time to facilitate the execution of a Contract in accordance with any estimated delivery dates or milestones.
5.2. The Client shall have sole responsibility for ensuring the accuracy and completeness of all information provided to the Company.
5.3. The Client warrants and undertakes to the Company that the Client’s employees, agents and sub-contractors engaged in matters relating to the Contract shall have the necessary skills and authority to provide accurate information and instructions to the Company on behalf of the Client.
5.4. The Client shall be obliged as quickly as possible and within the agreed timelines to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed timelines to implement changes on websites, in IT systems or where it may otherwise be required by the Company in order to facilitate the provision of the Services.
5.5. The Client shall be obliged to inform the Company immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
5.6. The Client undertakes to obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Company to provide the Services, including in relation to the user of all Materials, and in all cases before the date on which the Services are to start.
5.7. In the event that the Client fails to undertake those acts or provide that information or those materials required under this clause 5 within 15 Business Days of the date requested by the Company, or within any other timeline agreed from time to time between the Company and the Client and notwithstanding any other provision of these Terms, the Company shall be entitled to invoice for the Services that it has supplied as well as for the remaining Services to be provided under the Contract whether or not the Company has been able to deliver them.
5.8. The Client shall indemnify and keep the Company indemnified fully against all liabilities, damages, loses (including any direct, indirect or consequential loses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses), costs and expenses whatsoever and howsoever suffered or incurred by the Company in respect of any third parties as a result of the provision of the Services using any Material or information supplied on behalf of the Client, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for actual or alleged infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation. This clause 5.8 shall survive termination of the Contract.
5.9. The Client warrants to the Company that the receipt and use of the Materials in the performance of this agreement by the Company, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party.
5.10. The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services and provision of Materials, including without limitation its obligations under the Data Protection Act 2018, the Regulation of Investigatory Powers Act 2000, Competition Act 1998, General Data Protection Regulation 2016/679 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.
5.11. Unless otherwise agreed between the parties, the Client shall be exclusively responsible for implementing any optimisation changes recommended by the Company. As notified by the Company, in certain cases for amendments to existing optimisations, the Client shall allow the Company use of the site’s FTP or content management system’s username and password in order to gain access to add in keywords or files.
5.12. The Client shall provide the Company with prior written notice for any alterations relating to the Client’s website(s) that may affect the Services supplied by the Company. If alterations are made by the Client or a third party to the Client’s site(s) search engine or website, the Client acknowledges that placements and the outcome of the Services may be affected and the Company cannot be held responsible.
5.13. The Client understands that regular, fresh content added to a website will help to improve the stability of rankings within search engines and the Client acknowledges and understands that regular additional and unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO Services.
5.14. The Client shall indemnify the Company in respect of all White Label Work against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and the Ultimate Client for the White Label Work. This clause shall 5.14 shall survive termination of the Contract.
5.15. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Client shall in all circumstances be liable to pay to the Company on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit, loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Company confirming such costs, charges and losses to the Client in writing.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. In relation to the Services:
6.1.1. the Company and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Materials;
6.1.2. subject to clause 6.2, the Company grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables excluding the Materials for the purpose of receiving and using the Services.
6.2. Where place holder content is included in the Deliverables and the Client is advised accordingly:
6.2.1. the licence granted under clause 6.1 shall not extend to such place holder content; and
6.2.2. the Client shall remove such content prior to exercising its rights under such licence;
6.2.3. the Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the Client’s failure to do so.
6.3. In relation to the Materials, the Client:
6.3.1. and its licensors shall retain ownership of all Intellectual Property Rights in the Materials; and
6.3.2. grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable, perpetual and irrevocable licence to copy and modify the Materials during the term of the Contract for the purpose of providing the Services to the Client and thereafter to use for the Company’s own marketing purposes.
7. CHARGES
7.1. In consideration of the provision of the Services, the Client shall pay the Charges. The Client acknowledges that the Estimate sets out an estimate of the Charges only. The Company shall be obliged to update such estimate on an ongoing basis and particularly following changes made to the Contract.
7.2. Save as otherwise set out in the Estimate, the Charges shall be calculated as the number of hours spent on the provision of the Services multiplied by the Company’s hourly rate as set out in the Estimate or, if not so set out, the Company’s standard hourly rate as amended from time to time.
7.3. The Charges exclude the cost to the Company of any materials or services procured by the Company from third parties for the provision of the Services, as such items are set out in the Estimate (Costs), and such Costs shall be payable by the Client in addition to the Charges. The Client acknowledges that the Estimate sets out an estimate of these Costs only. The Company shall be obliged to update such estimate on an ongoing basis and particularly following changes made to the Contract.
7.4. All sums payable to the Supplier under these Terms:
7.4.1. are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
7.4.2. 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).
7.5. The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party.
7.6. Whilst every effort is made to ensure that estimates are accurate, the Company reserves the right to amend any estimate, should an error or omission have been made.
8. PAYMENT
8.1. Save as otherwise set out in the Estimate and subject to clause 7.6, the Company shall be entitled to invoice the Client as follows:
8.1.1. upon acceptance of the Order, in respect of 50% of the estimated Charges and 100% of the estimated Costs; and
8.1.2. upon notification by the Company that the Services are ready to be delivered to the Client, in respect of the balance of the Charges and Costs.
8.2. Save as otherwise set out in the Estimate, the Client shall pay the Company’s invoice in full and in cleared funds within 14 days of receipt. Payment shall be made to the bank account nominated in writing by the Company. Time for payment is of the essence.
8.3. The Company shall not be required to start work under the Contract until such time as the invoice pursuant to clause 8.1.1 is paid in full.
8.4. The Company shall not be required to deliver the Services to the Client until such time as the invoice pursuant to clause 8.1.2 is paid in full.
8.5. Without prejudice to any other right or remedy that the Company may have, if the Client fails to pay the Company’s invoice in accordance with these Terms, the Company may charge interest on any sum outstanding from the date due until the date of payment (inclusive) at the annual rate of 3% above the base lending rate from time to time of HSBC plc, accruing on a daily basis and being compounded quarterly, whether before or after any judgment.
8.6. On termination of the Contract for any reason, the Company shall be entitled to immediately invoice for any Charges or Costs incurred which have not been previously invoiced. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.7. The Company may, without prejudice to any other rights it may have, set off any liability of the Client to the Company against any liability of the Company to the Client.
8.8. In the event that the Services cannot be delivered either in full or in part due to the Client’s failure or delay in providing any material or information, the Company shall be entitled to charge the Client the full amount due under the Contract, as if the Services had been rendered fully and in compliance with the Contract. The Company shall be entitled to payment on the basis of the Company’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
8.9. If the Client subsequently requires the Company to complete the work within a shorter time frame than specified in the Order, the Company reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
9. DELAYS AND COMPLAINTS
9.1. The Company will make reasonable efforts to allow the Client to review and approve the Services before they are completed and delivered to the Client and the Client acknowledges that they will have two weeks to approve the Services from the time they are submitted to them for review and before the Services are delivered.
9.2. Further to clause 8.1 above, if the Client fails to act on their right to approve the Services within two weeks of the Services being submitted to the Client for review by the Company, the Client shall be deemed to have reviewed and approved the Services.
9.3. Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Client shall be deemed to have accepted the Services.
9.4. In the event that the Client reasonably considers that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to consider the complaint within a reasonable time and inform the Client as to whether the Company agrees with the Client’s assessment of the Services and what steps the Company proposes to take to remedy the complaint.
9.5. Subject to clauses 8.3 and 8.4 above, the Company will endeavor remedy or redeliver Services it has agreed are delayed or not in accordance with the Contract at its own discretion and without undue delay.
9.6. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to terminate the Contract in accordance with clause 13.2 a), provided that the breach is material.
9.7. The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by that third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
9.8. The Company’s only responsibility in respect of the Third Party Services is to exercise reasonable care and skill when selecting the providers of the same.
9.9. The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is cancellation of the Contract and the Company’s sole liability is to the refund of any payments for Services not conforming with the Contract, subject to the limitations set out in clauses 9 and 10 below.
9.10. Nothing in these Terms shall limit the liability of either party for any matter for which it would be unlawful to exclude or restrict liability.
10. LIABILITY
10.1. Except as expressly stated in this clause 9, the Company shall have no liability (in contract or tort, including negligence), breach of statutory duty, or otherwise to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services to an Ultimate Client or for any claim made against the Client by any third party.
10.2. Without prejudice to the generality of clause 9.1 above, the Company shall have no liability in contract, tort (including negligence), breach of statutory duty, or otherwise for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
10.2.1. Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
10.2.2. Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
10.2.3. Loss of data; and
10.2.4. Fraudulent clicks on any of the Client’s accounts managed by the Company.
10.3. To the extent such liability is not excluded by sub-clauses 9.1, 9.2 and clause 10 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
10.4. Nothing in these Terms shall limit or exclude the Company’s liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b. fraud or fraudulent misrepresentation;
c. breach of the statutory terms implied by section 12 of the Sale of Goods Act 1979;
d. defective products under the Consumer Protection Act 1987; or
e. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
11. OTHER LIMITATIONS OF LIABILITY
11.1. The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
11.2. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
11.3. The Company shall use all reasonable endeavors to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of search engines.
11.4. The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
11.5. The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
11.6. If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
11.7. The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services (without notice to the Client). The Company will not be liable for any Services supplied by the Group Company, subcontractors or third parties.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. The Client shall ensure that they have the right to use any Intellectual Property Rights in respect of any Materials provided to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
12.2. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to terminate the Contract if the Materials do not comply with this clause 11.
12.3. The Client shall indemnify the Company and keep it indemnified at all times against all costs, claims, damages, losses and expenses suffered or incurred by the Company, or for which the Company may become liable, as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party. This clause 11.3 shall survive the termination of the Contract.
12.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
12.5. Unless expressly stated otherwise in the Estimate, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
12.6. The Intellectual Property Rights as mentioned in clause 11.5 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement from the Company and any third parties as referred to within clause 11.5.
12.7. If the Company makes software, scripts, ASP/PHP services etc. available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.
12.8. The Client hereby irrevocably licenses the Company to use and display the Client’s relevant Intellectual Property, including but not limited to name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Contract terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.
13. CONFIDENTIALITY
13.1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives in connection with these Terms, including but not limited to:
13.1.1. these Terms, a Contract, Order or Estimate;
13.1.2. any information that would be regarded as confidential by a reasonable business person relating to:
13.1.3. the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and
13.1.4. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
13.1.5. any information developed by the parties in the course of carrying out a Contract; and
13.1.6. all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature.
13.2. Representatives means, in relation to a party, its employees, officers, representatives and advisers.
13.3. The provisions of this clause shall not apply to any Confidential Information that:
13.3.1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
13.3.2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
13.3.3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
13.3.4. the parties agree in writing is not confidential or may be disclosed; or
13.3.5. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
13.4. Each party shall keep the other party’s Confidential Information confidential and shall not:
13.4.1. use such Confidential Information except as required to comply with the terms of this Agreement; or
13.4.2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 12.
13.5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, ) or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.7, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.6. A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
13.7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
13.8. Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
13.9. The provisions of this clause 12 shall continue to apply for 5 years after the termination of this agreement.
13.10. Each party shall restrict disclosure of Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging that party’s obligations under these Terms and the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the parties. This clause shall survive the termination of the Contract.
13.11. During the term of the Contract and for a period ending 5 years from termination thereof, the Client shall not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non-Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
14. DATA PROTECTION
14.1. Controller, Processor, Data Subject, Personal Data, Personal Data Breach: as defined in the Data Protection Legislation.
14.2. 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); 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 No. 2426) as amended; 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);
14.3. Each party shall comply with all applicable obligations under the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 13, Applicable Laws means (for so long as and to the extent that they apply to the Provider) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
14.4. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and the Company is the Processor.
14.5. Without prejudice to the generality of clause 13.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this agreement.
14.6. Without prejudice to the generality of clause 13.3, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this agreement:
14.6.1. process that Personal Data only on the documented written instructions of the Client unless the Company is required by Applicable Laws to otherwise process that Personal Data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Client;
14.6.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
14.6.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
14.6.4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
i. the Client or the Company has provided appropriate safeguards in relation to the transfer;
ii. the data subject has enforceable rights and effective legal remedies;
iii. the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv. the Company complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
14.6.5. 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;
14.6.6. notify the Client without undue delay on becoming aware of a Personal Data Breach;
14.6.7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
14.6.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 13.
14.7. The Client consents to the Company appointing a third party to process Personal Data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement and the Company undertakes to reflect on the requirements of the Data Protection Legislation. As between the Company and the Client, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 13.
14.8. Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
14.9. The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 1998 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
15. TERM, TERMINATION AND ASSIGNMENT
15.1. Unless otherwise agreed in the Order and in subject to clauses 2.3 and 2.4, the Term of the Contract shall be for one year and shall renew automatically at the end of each Term for a futrher year unless and until either party serves on the other a written notice of its wish to terminate the Contract (‘Notice to Terminate’).
15.2. A Notice to Terminate shall be served in writing, at least 30 days prior to the end of the Term in which it is intended to take effect, and shall state clearly the intention of the serving party to terminate the Contract.
15.3. A valid Notice to Terminate shall cause the Contract to expire at the end of the Term during which it is being served.
15.4. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
15.4.1. commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
15.4.2. becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
15.5. The Company shall in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges or fees for the Services are not paid in accordance with these Terms and on their Due Date.
15.6. Upon termination for whatever reason, the parties shall be obliged to return all Materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes and other relevant Intellectual Property from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
15.7. On termination of the Contract for any reason the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
15.8. Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
15.9. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15.10. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of the Company.
15.11. The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
16. FORCE MAJEURE
16.1. Neither party shall be in breach of this Contract nor held liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.
16.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
16.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
17. MISCELLANEOUS
17.1. The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
17.2. The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
17.3. During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone assigned by the Company to work on the Services.
17.4. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
17.5. If any term, provision or part-provision of these Terms is or becomes illegal, invalid 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.
17.6. Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
17.7. A person who is not a party to the Contract shall not have any rights under or in connection with it, other than any assignees permitted under clause 16.10.
17.8. All notices must be in writing to DURTY Media, First Floor, 90-92 King Street, Maidstone, Kent, ME14 1BH, or such address as is advised by the Company.
17.9. The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.10. The Client may not 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 without the prior written consent of the Company.
18. ENTIRE AGREEMENT
18.1. The parties acknowledge and agree that the Contract supersedes and extinguishes all and any prior agreement, promises, assurances, warranties, representations, understandings or arrangements between the parties, whether made orally or in writing.
18.2. The Contract constitutes the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
18.3. 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18.4. Nothing in this clause shall limit or exclude any liability for fraud.
19. LAW AND JURISDICTION
19.1. The Company and the Client shall attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
19.2. 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 and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.
