1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email.
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted on the Commencement Date.
2.3 Any descriptive matter issued by Deeply Digital prior to the Order being signed (including any descriptions or illustrations contained in Deeply Digital’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 have any contractual force unless specifically referred to in the Order.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.1 Deeply Digital shall supply the Services to the Client in accordance with the Order (and / or any variation to it as agreed in writing) in all material respects.
3.2 Deeply Digital shall use its reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Deeply Digital reserves the right to amend the Order and / or the scope of the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Deeply Digital shall notify the Client in any such event.
3.4 Deeply Digital warrants to the Client that the Services will be provided using reasonable care and skill.
4.1 The Client shall:
4.1.1 ensure that the terms of the Order are complete and accurate;
4.1.2 co-operate with Deeply Digital in all matters relating to the Services;
4.1.3 provide Deeply Digital, its employees, agents, consultants and subcontractors, with access to the Client's premises, office accommodation, all social media software websites, marketing and CRM tools and any other facilities and / or access as reasonably required by Deeply Digital;
4.1.4 promptly provide Deeply Digital with such information and materials as Deeply Digital may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 where applicable prepare the Client's premises for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7 keep all materials, equipment, documents and other physical and / or digital property of Deeply Digital (Deeply Digital Materials) at the Client's premises in safe custody at its own risk, maintain Deeply Digital Materials in good condition until returned to Deeply Digital, and not dispose of or use Deeply Digital Materials other than in accordance with Deeply Digital’s written instructions or authorisation; and
4.1.8 comply with any additional obligations as set out in the Order.
4.2 If Deeply Digital’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 without limiting or affecting any other right or remedy available to it, Deeply Digital shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Deeply Digital’s performance of any of its obligations;
4.2.2 Deeply Digital shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Deeply Digital’s failure or delay to perform any of its obligations as set out in this 4.2; and
4.2.3 the Client shall reimburse Deeply Digital on written demand for any costs or losses sustained or incurred by Deeply Digital arising directly or indirectly from the Client Default.
5.1 The Charges for the Services shall be calculated as detailed in the Order.
5.2 Deeply Digital shall be entitled to charge the Client for any pre-agreed expenses reasonably incurred by the individuals whom Deeply Digital engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Deeply Digital for the performance of the Services, and for the cost of any materials.
5.3 Deeply Digital reserves the right to increase the Charges at any time in line with the percentage increase in the Retail Prices Index in the preceding 12-month period by giving the Client three (3) months written notice, such notice to expire at the expiry of the Initial Term or any Renewal Term. The increase shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
5.4 Deeply Digital shall invoice the Client for the Charges monthly in arrears unless specified otherwise in the Order.
5.5 The Client shall pay each invoice submitted by Deeply Digital:
5.5.1 unless specified otherwise in the Order, within 30 days of the date of the invoice; and
5.5.2 in full and in cleared funds to a bank account nominated in writing by Deeply Digital;
and time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Deeply Digital to the Client, the Client shall, on receipt of a valid VAT invoice from Deeply Digital, pay to Deeply Digital such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Client fails to make a payment due to Deeply Digital under the Contract by the due date, then, without limiting Deeply Digital's remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1 Subject to payment by the Client of the Charges, all Intellectual Property Rights in or arising out of or in connection with the Services and the Deliverables (other than pre-existing Intellectual Property Rights in any materials provided and / or owned by Deeply Digital) shall be owned by the Client.
6.2 The Client grants to Deeply Digital or shall procure the direct grant to Deeply Digital of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of promoting its business.
6.3 The Client grants Deeply Digital a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Deeply Digital for the term of the Contract for the purpose of providing the Services to the Client. The Client warrants that it is the owner or licensor of all the rights in such materials and is entitled to grant the above licence to Deeply Digital under this clause 6.3.
6.4 Notwithstanding any provision to the contrary in the Contract, Deeply Digital retains the right to use all know-how and residual knowledge obtained in connection with the Services and/or the Deliverables and nothing in the Contract shall prevent Deeply Digital from using any know-how, methodologies, ideas or concepts acquired before or during the performance of the Services, for any purpose, subject always to the obligation not to disclose the Client’s Confidential Information under clause 11.3.
7.1 In the event that Personal Data is processed in the provision of the Services, both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
7.2 The parties agree that for the purposes of the Data Protection Legislation, the Client is the Controller and Deeply Digital is the Processor. Schedule 2 of the Order sets out the scope, nature and purpose of processing by Deeply Digital, the duration of the processing and the types of Personal Data and categories of Data Subject.
7.3 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Deeply Digital for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of 7.1, Deeply Digital shall, in relation to any Personal Data processed in connection with the performance by Deeply Digital of its obligations under the Contract:
7.4.1 process that Personal Data only on the documented written instructions of the Client which are set out in Schedule 2 of the Order unless Deeply Digital is required by Domestic Law to otherwise process that Personal Data. Where Deeply Digital is relying on Domestic Law as the basis for processing Personal Data, Deeply Digital shall promptly notify the Client of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits from so notifying the Client;
7.4.2 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);
7.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential.
7.5 The Client shall indemnify and keep Deeply Digital indemnified in full for any and all consequences (including a personal data breach) arising as a result of the Client’s failure to comply with any of its obligations under this clause 7.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.1.1 death or personal injury caused by negligence;
8.1.2 fraud or fraudulent misrepresentation; and
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1, neither party shall have any liability to the other in respect of the following types of loss listed below:
8.2.1 loss of profits;
8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of or damage to goodwill; and
8.2.7 indirect or consequential loss.
8.3 Subject to clauses 8.1 and 8.2, Deeply Digital’s total liability to the Client in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall not exceed 50% (fifty per cent) of the total Charges (excluding for these purposes any element of the Charges (or any disbursements) relating to any third party) paid or payable in the twelve (12) months preceding the event giving rise to the claim.
8.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
9.1 The Contract shall commence on the Commencement Date and shall continue for the Initial Term, and thereafter on the same terms for subsequent Extension Period(s). Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days’ written notice to terminate, such notice to expire:
9.1.1 (in relation to the Initial Term) on the expiry of the Initial Term;
9.1.2 (in relation to any Extension Period) at any time after the commencement of the relevant Extension Period.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.2.4 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, Deeply Digital may:
9.3.1 terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment; or
9.3.2 suspend the supply of Services under the Contract or any other contract between the Client and Deeply Digital if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment; or
(b) the Client becomes subject to any of the events listed in clauses 9.2.2 to 9.2.4, or Deeply Digital reasonably believes that the Client is about to become subject to any of them.
10.1 On termination of the Contract:
10.1.1 Deeply Digital shall submit an invoice, which shall be payable by the Client immediately on receipt, in respect of:
(a) all of Deeply Digital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted; and
(b) (in the event that the Client terminates the Contract pursuant to clause 9.1.2), the Charges payable for the unexpired period of the Extension Period;
10.1.2 the Client shall (at Deeply Digital’s option return and / or destroy all of the Deeply Digital Materials (together with any Deliverables which have not been fully paid for). If the Client fails to do so, then Deeply Digital may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event). If a Force Majeure Event prevents one party from performing its obligations under the Contract for a continuous period of 30 days or more, then the other party may terminate the Contract on thirty (30) days written notice.
11.2 Assignment and other dealings. Deeply Digital may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Deeply Digital.
11.3 Confidentiality. Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.4.
11.4 Each party may disclose the other party's confidential information:
11.4.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.4; and
11.4.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.5 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract. Any information which is generally publicly available shall not be deemed to be confidential information for the purposes of clause 11.3 and clause 11.4.
11.6 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.8 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.9 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this 11.9 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.10 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order. Any notice or communication shall be deemed to have been received:
11.10.1 if delivered by hand, at the time the notice is left at the proper address;
11.10.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
11.10.3 if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.10.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.11 Clause 11.10 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.12 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.13 Governing law and Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.