In these Terms and Conditions, the following words shall have the following meanings:
'Agreement' the agreement containing these Terms and Conditions;
'Client' The recipient of the services supplied by the Supplier
'Charges' The Supplier's standard charges as set out in Schedule 1 as may be amended from time to time subject always to notice being given to the Client by the Supplier of any change to the Charges or has been agreed between the Supplier and the Client following the provision by the Supplier of an Estimate in accordance with clause 2
'Client Content' The Content provided to the Supplier by the Client for use in accordance with this agreement;
'Materials' any documents supplied by one party to another relating to the service to include, but not limited to: the copy; art-work; layouts; designs; paper; printed material or elec-tronics files that are supplied by the Client (or on the Client's behalf) to the Supplier and which are to be used by the Supplier to provide the Services or are to be the subject of the Services;
'Parties' The Supplier and the Client, and 'Party' shall mean either one of them.
'Project Plan' The proposed details for the project as drawn up by the Supplier and set out at Schedule 1
'Services' To include but not limited to the provision of online and offline marketing campaign services; Google Adwords services; Search Engine Optimisation; Website Design; E-Commerce services; marketing materials; marketing strategy; typesetting, artwork, page layout, reproduction, printing and print finishing services by the Supplier to the Client as specified in an estimate or as agreed by the Parties; and
'Supplier' The supplier of the Service namely Touchpoint Digital Limited
'Terms' The terms and conditions contained herein
'Tool Kit' A set of guidelines, rules, templates, pages, files, code and documentation required by the Customer to enable the building of the Website and all of the Web Pages in accordance with the Website Design in a consistent style, look and feel;
'Web Pages' The pages of the Website containing the Content de-scribed in the project plamn and built using the Tool Kit;
'Website' The website to be designed by the Supplier for the Client;
'Website Design' Means the graphical, technical and navigational design as described in the Supplier Project Plan.
2 Estimates and Methods of Charges
2.1 For provision of marketing campaigns, web site design, online display advertising and other similar charges, an estimate of charges will be provided in the Supplier Project Plan and/or estimate an-nexed hereto at Schedule 1.
2.2 For Search Engine Optimisation; Link Building; Google Adwords services other services, Charges may be made by way of a quoted Account Management Fee, Consultancy fee or Retainer charged on a monthly basis. Such Charges will be detailed in the Supplier Project Plan and/or estimate.
2.3 For e-commerce pay per click strategies, the Supplier will charge a commission relative to the number and value of sales achieved by the Client, at a rate detailed at Schedule 1 and/or has been agreed between the parties and set out in the Project Plan and/or estimate.
2.4 Where an estimate is provided by the Supplier for the provision of Services, and that estimate is used as, or forms, the basis of an order placed by the Client, the Supplier may vary the amount the Supplier charges the Client as against the estimate if on sight by the Supplier of any Materials:
2.4.1 there is a difference between what is specified in the estimate and the Materials provided, or
2.4.2 what is ordered is different to what is stated in the estimate, and
2.5 the Supplier shall be entitled to amend (upwards or downwards) any prices or costs provided in the estimate to reflect the costs of production and raw materials which are to be used in the provision of the Services after the date of the Client's order.
2.6 Any prices or costs stated in any estimate(s) provided to the Client shall remaining valid for a peri-od of 14 days from the date of the estimate.
2.7 Where part of the charges relate to charges made from a third party supplier or service provider, the Client will remain responsible for meeting those charges.
3.1 After the Client places an order, a binding contract shall only come into effect when the Supplier notifies the Client that it accepts that order.
3.2 Acceptance of the terms of this Agreement will be deemed by the placing of an order by the Client.
3.3 The Supplier shall use reasonable endeavours to complete the Services by the date specified in the estimate or order or the date(s) agreed by the Parties. Time shall not be of the essence for:
3.3.1 any dates or times when Services are due to be performed; or
3.3.2 the length of time that any part of the Services will take to perform as stated in this Agreement, any estimate, any order, or as agreed by the Parties; or
3.3.3 any date or time any of the Services will be completed by as stated in this Agreement, any estimate, any order, or as agreed by the Parties.
3.4 The Client shall pay for all Services or other work or services provided by the Supplier to the Client even though not contained or stated in an estimate or an order, including, but not be limited to:
3.4.1 any Services, work or services provided in connection with correcting, amending or redo-ing any Materials and necessary or required in order to provide the Services in accord-ance with an estimate or order; or
3.4.2 alterations, amendments or corrections made or requested to be made by the Client in-cluding after the receipt of proofs by the client.
3.5 Where the Client allows the Supplier to propose, decide or use its judgment as to design, layout, type style, typeface, style etc of any material then, if the Client wishes to make any changes, altera-tions or amendments, the Client shall pay for such changes, alterations or amendments.
3.6 Where Materials are provided which are to be used as the subject matter of the Services, the Client shall promptly provide sufficient Materials necessary for the Supplier to properly perform the Ser-vices.
3.7 The Client will be responsible for retaining duplicate copies of all Materials and insure against their accidental loss or damage. All Materials shall be at the sole risk of the Client from time to time of delivery to the Client.
4.1 Where the Supplier supplies proofs to the Client the Client shall be responsible for checking whether the proofs are in accordance with the Project Plan set out in the estimate or as agreed by the Parties for the provision of the Services or as otherwise agreed by the Supplier and the Client. The Client shall approve the proofs and after approval, any remaining errors, whether in:
4.1.1 the content or Materials provided by the Client,
4.1.2 the design or layout created, made or carried out by the Supplier, or
4.1.3 the application of the specification for the provision of the Services (relating to such mat-ters for example as the colours to be used, size, position, folding etc),
shall be the responsibility of the Client and not the Supplier. The Supplier shall be entitled to use the approved proof as the basis for carrying out the remainder of the Services.
4.2 The Client acknowledges and accepts that:
4.2.1 the colours used in a proof will not necessarily match those in the Printed Material; and
4.2.2 such differences are caused by the use of different equipment, inks, paper and factors in the proofing process compared to those used in producing the Printed Material.
5.1 The Supplier shall use reasonable endeavours to print the number of copies of the Printed Material set out in a estimate or an order made by the Client or otherwise agreed by the Parties, subject to the following:
5.1.1 the Supplier shall be entitled to print and deliver +/-5% of the agreed number of copies where the Printed Material is being printed in one colour only;
5.1.2 the Supplier shall be entitled to print +/-10% of the agreed number of copies where the Printed Material is being printed otherwise than in one colour only;
5.1.3 where the agreed number of copies of Printed Material exceeds 50,000 then the percent-age for clause 5.1.1 shall be 4% and the percentage in clause 5.1.2 shall be 8%.
5.2 Where the number of copies of the Printed Material is within the parameters set out in clause 5.1 then the Client agrees to accept delivery of the Printed Material because of the number of copies is greater or less than the number of copies set out in the estimate, order or as otherwise agreed by the Parties.
5.3 The Supplier shall be entitled to charge for the actual number of copies of the Printed Material de-livered to the Client rather than the amount set out in an estimate, order or as otherwise agreed by the Parties.
6 Risk and property
6.1 The risk in the Printed Material shall pass to the Client on the date the Printed Material is delivered to the Client.
6.2 The property in the Printed Material shall not pass to the Client until the Supplier has received the payment of all sums owing concerning the Printed Material in full (and any other sums that are due or owing to the Supplier), whether or not delivery has been made. For the purposes of this clause 6.2, 'received' means cleared funds in a bank account of the Supplier.
7 Acknowledgment of examination – Printed Materials
The Client acknowledges and agrees that:
7.1 the Supplier has given the Client a reasonable opportunity to inspect the Printed Material;
7.2 the Client has inspected the Printed Material;
7.3 the Client has satisfied itself as to the condition of the Printed Material;
7.4 the Supplier has not given any warranty or condition as to the quality or fitness for any purpose of the Printed Material;
7.5 all conditions or warranties, express or implied (whether by statute or otherwise), (or any infor-mation contained in the Materials) are expressly excluded;
7.6 delivery of the Printed Material to the Client shall be conclusive evidence that the Client has exam-ined the Printed Material and that the Printed Material is in conformity with the contract description, in good order and condition, of satisfactory quality and fit for any purpose for which it may be re-quired.
8 Website Design - Testing and acceptance; and Intellectual Property
8.1 In respct of Web Design projects, upon a date agreed between the parties, the Client shall com-mence the preparation of the Acceptance Tests. The Supplier shall advise the Client in relation to the Acceptance Tests. Selection of the Acceptance Tests shall be at the discretion of the Client but is subject to the approval of the Supplier not to be unreasonably withheld. The Supplier shall only be entitled to reject the Acceptance Tests suggested by the Client upon the basis that they require the Website to operate in a manner not provided for as set out at Schedule 1. The Supplier shall be deemed to have accepted the Acceptance Tests if he neither approves nor rejects them within 7 days of their disclosure by the Client.
8.2 Following delivery and installation of the Website, the Client shall carry out the Acceptance Tests or procure the carrying out of them at the time fixed. If the Project Co-ordinator in his sole discretion considers that the Website has materially failed to pass the Acceptance Tests, he shall promptly give written notice to the Supplier specifying why he considers that the Website has failed. On re-ceipt of this notice the Supplier shall, subject to clause 7.3, free of charge to the Client determine the causes for the failure and advise the Client of them, and make the changes to the Website (in-cluding corrections or enhancements to the software used) necessary to ensure that it will pass the Acceptance Tests and perform in accordance with the agreed Project Plan (achievement of such passing and performance being referred to as 'successful completion'). Following the making of any such changes the Client shall repeat or procure the repetition of such of the Acceptance Tests as are necessary on the same terms as set out above.
8.3 If the Website fails the Acceptance Tests and on investigation pursuant to clause 7.2 this proves to be as a result of an error by the Client, the Supplier shall be entitled to charge for the costs of in-vestigation and of making the changes that are necessary and agreed at the Supplier Scale.
8.4 The Supplier shall ensure that successful completion occurs on or before the date set out in the Development Programme for completion to occur. The date of successful completion shall be the date upon which the Client accepts that it has occurred. If any delay in achieving successful com-pletion is due to delay or error beyond the control of the Supplier, the relevant dates set out in the Development Programme shall be deemed deferred as agreed between the parties or determined by an expert's decision.
8.5 Notwithstanding any provisional acceptance or use of the Website by the Client, final acceptance of it shall not occur until successful completion and shall be without prejudice to any of the Client's rights set out in this agreement.
8.6 Risk of loss or damage of any kind to the Website, the software used, the Content or the documen-tation related to it shall pass to the Client only upon successful completion.
8.7 The Client grants to the Supplier a royalty-free, worldwide, non-exclusive licence to use the Client Content for the purposes of the Project. The Supplier assigns all right, title and interest (including all intellectual property rights) in the Website Design, the Tool Kit and the Web Pages to the Client with full title guarantee.
8.8 The Supplier assigns all right, title and interest (including all intellectual property rights) in the parts of the Content designed by the Supplier in the course of the Project to the Client with full title guar-antee.
8.9 The Supplier shall at the request of the Client from time to time do all things and execute all docu-ments the Customer may reasonably require to give effect to the assignments in clauses 8.7 and 8.8.
8.10 Except as expressly set out above, this agreement does not transfer or grant to the Supplier any right, title or interest in any intellectual property rights in or to the Client Content.
9 Illegal material
9.1 If in the reasonable opinion of the Supplier, the Supplier considers that any Materials provided to the Supplier by or on behalf of the Client:
9.1.1 are defamatory;
9.1.2 contain, express or indicate illegal racist or otherwise discriminatory opinions;
9.1.3 contain any designs, images, graphics or photographs which are illegally racist or other-wise discriminatory;
9.1.4 are illegal or contain illegal content;
9.1.5 infringe or breach the intellectual property rights of a third party; or
9.1.6 are used outside the provisions of any licence that the Client or the Supplier may have to use those Materials,
then the Supplier shall not be required to supply any Services in relation to such Materials or any Printed Ma-terial based on them.
9.2 The right not provide any Services shall also apply where carrying them out would involve the crea-tion, design, layout, production or reproduction of copy, designs, artwork or images (in any format) which fall into one of the categories set out in clauses 8.1.1 to 8.1.5.
10 Materials provided electronically
10.1 If the Client provides Materials to the Supplier by electronic means ('Electronic Files'), the Supplier shall not be responsible for checking:
10.1.1 (where the Materials consist of copy) the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or formatted in accordance with any specification, layout or design or in accordance with any estimate or order;
10.1.2 (where the Materials consist of artwork or layouts) whether the artwork or layouts are po-sitioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or
10.1.3 (where Materials are supplied as a file ready for reproduction (and then for the production of Printed Material)) any of the contents, layout or commands, markings, formatting or other matters.
10.2 For Materials submitted as Electronic Files:
10.2.1 The Client acknowledges and agrees that:
10.2.1.1 the devices on which Electronic Files are stored (or on which they are submitted by the Client); and/or
10.2.1.2 the communication methods used by the Client to transmit the Electronic Files to the Supplier,
may be subject to corruption or alteration which is not within the reasonable control or reasonable knowledge of the Supplier.
10.2.2 The Client shall keep one or more copies as backup.
10.2.3 The Client shall make available copies of the Electronic Files at dates and times that the Supplier reasonably requires.
10.2.4 The Client shall submit Electronic Files in the software programme, version and format the Supplier specifies ('the Supported Format').
10.3 Where the Client wishes to provide copy, artwork, layouts or files ready for reproduction without further intervention by the Supplier other than preparation to produce the Printed Material, the Sup-plier shall be entitled to assumed that the Materials are in the Supported Format.
Unless the Parties agree, or the estimate or order requires otherwise, the Supplier shall provide the Services in such places and locations as the Supplier considers appropriate to the type and nature of the requirement of the Client. For the avoidance of doubt, the performance of the Services shall not require attendance at the Client's premises or face-to-face meetings with the Client.
12 Charges rates based on time spent
Where the Supplier's fees are calculated on the amount of time spent by the Supplier the following applies:
12.1 'Day' shall mean a period of 7 hours. Where the work carried out in performing the Services ex-ceeds the period of 7 hours, then that period shall be charged at the pro-rated rate for a day.
12.2 Where the Supplier's fees are based on an hourly rate, any time spent which is less than an hour shall be charged on a pro-rated basis.
12.3 For any e-commerce Services and Project Plans where the Supplier is to receive sales based commission, the Client will be responsible for the cost of third party arranged advertising in the event that the Client website becomes inaccessible thus debarring the Supplier from the opportuni-ty of earning any saled-related commission for the period the website was unable to generate sales.
13.1 The Client shall pay for the Services within 14 days of the date of the Supplier's invoice in respect of Services specified in the invoice, which will be submitted once the Client has formally engaged the Supplier to provide Services.
13.2 All amounts stated are exclusive of VAT, which shall be charged in addition at the rate in force at the time the Client is required to make payment.
13.3 The Charges may be varied by the Supplier from time to time upon reasonable notice being given to the Client.
13.4 If the Client does not make a payment by any due date or the date stated in an invoice or as other-wise provided for in this Agreement then the Supplier shall be entitled to:
13.4.1 charge interest on the outstanding amount at the rate of 5% a year above the base lend-ing rate of Natwest Bank plc, accruing daily;
13.4.2 require the Client to pay in advance for any Services (or any part of them) which have not yet been performed; and
13.4.3 not perform any further Services (or any part of them).
13.5 When making a payment the Client shall quote any relevant reference numbers and the invoice number.
14 Use of sub-contractors
14.1 The Supplier is permitted to use other persons to provide some or all of the Services.
14.2 The Supplier shall be responsible for the work of a sub-contractor to the same standard as stated in this Agreement or as agreed by the Parties. However, the Parties acknowledge and agree that the some sub-contractors have their own terms and conditions on which the sub-contractor trades and which are more restrictive than those in this Agreement. For example, without limiting the gen-erality of the foregoing, a sub-contractor may have more restrictive wording as to the standard they will reach in work they perform (as to timing or quality), what is to happen if that standard is not reached or met, issues concerning the restriction and exclusion of liability, and so on). Where the terms and conditions of a sub-contractor or more restrictive or exclusory then the provisions of this Agreement, the Parties agree that for work provided by a sub-contractor will be governed by the terms and conditions of the sub-contractor rather than the provisions of this Agreement.
14.3 The Client will remain responsible for any charges owed or owing from time to time to the Sub-contractor.
15 Warranties, liability and indemnities
15.1 The Supplier warrants that it will use reasonable care and skill in performing the Services.
15.2 If the Supplier performs the Services (or any part of the Services) negligently or materially in breach of this Agreement then if requested by the Client, the Supplier will re-perform the relevant part of the Services. The Client's request must be made within 48 hours of the date the Supplier complet-ed performing the Services.
15.3 The Supplier provides no warranty that any result or objective can be or will be achieve or attained at all or by a given date for the completion of the performance of the Services or any other date, whether stated in this Agreement or the Estimate or elsewhere.
15.4 Except in the case of death or personal injury caused by the Supplier's negligence, the liability of the Supplier under or in connection with this Agreement whether arising in contract, tort, negli-gence, breach of statutory duty or otherwise howsoever shall not exceed the Fee(s) paid by the Client to the Supplier under this Agreement. The provisions of this clause 14.4 shall not apply to clause 14.6.
15.5 Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suf-fered by that other Party of an indirect or consequential nature including without limitation any eco-nomic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 14.5 shall not apply to clause 14.6.
15.6 The Client shall indemnify and hold harmless the Supplier from and against all Claims and Losses arising from loss, damage, liability, injury to the Supplier, its employees and third parties, infringe-ment of third party intellectual property, or third party losses or liability by reason of the provision Services or supply of Printed Material which falls into one or more of the categories in clauses 8.1.1 to 8.1.4 or arising out of any information supplied to the Client by the Supplier, its employees or Suppliers, or supplied to the Supplier by the Client within or without the scope of this Agreement. 'Claims' shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and 'Losses' shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
15.7 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
16.1 The Client may terminate any contract for Services by giving written notice to the Supplier at any time, but any amounts paid by the Client to the Supplier shall not be refundable.
16.2 Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice to the other Party ('Other Party'):
16.2.1 if the Other Party is in breach of its obligations under this Agreement and, if the breach is capable of remedy within 7 days, the breach is not remedied within 7 days of the Other Party receiving notice which specifies the breach and requiring the breach to be reme-died; or
16.2.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amal-gamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party's assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
The notice shall take effect as specified in the notice.
16.3 On termination of this Agreement the Client shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from com-mitments reasonably and necessarily incurred by the Supplier for the performance of the Services prior to the date of termination.
17.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circum-stances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
17.4 Entire agreement
This Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall im-pair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and rem-edies provided by law.
17.6 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforce-able, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
In this Agreement unless the context otherwise requires:
17.8.1 words importing any gender include every gender;
17.8.2 words importing the singular number include the plural number and vice versa;
17.8.3 words importing persons include firms, companies and corporations and vice versa;
17.8.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
17.8.5 reference in any schedule to this Agreement to numbered paragraphs relate to the num-bered paragraphs of that schedule;
17.8.6 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
17.8.7 the headings to the clauses, schedules and paragraphs of this Agreement are not to af-fect the interpretation;
17.8.8 any reference to an enactment includes reference to that enactment as amended or re-placed from time to time and to any subordinate legislation or byelaw made under that enactment;
17.8.9 where the word 'including' is used in this Agreement, it shall be understood as meaning 'including without limitation'; and
17.8.10 where the phrase is to a 'private limited company' it shall be understood as including a limited liability partnership.
17.9.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail, email or fax.
17.9.2 Notices sent as above shall be deemed to have been received 2 working days after the day of posting (in the case of inland first class mail), or on the next working day after transmission (in the case of fax messages, but only if a transmission report is generated by the sender's fax machine recording a message from the recipient's fax machine, con-firming that the fax was sent to the number indicated above and confirming that all pages were successfully transmitted), or next working day after sending (in the case of e-mail).
17.9.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
17.10 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the jurisdiction of the English courts to which the Parties submit.
17.11 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
Our standard hourly rate is £70 per hour on billable projects