Terms & Conditions

 

1. INTERPRETATION

1.1. Definitions

In these Conditions, the following definitions apply:

Additional Retention Period: means a period of time to be agreed between the Client and the Company for which the Digital Assets will be kept on the Company’s archive servers, subject to the payment of the additional retention period fees.

Background IPRs: means all Intellectual Property Rights in any materials, documents or other items which are owned by the Company or licensed to the Company or any prototypes, working documents, or alternative versions of the Deliverables which are not selected by the Client as the final goods. Any Intellectual Property Rights created in the development or design of the Deliverables (but excluding any rights comprised entirely in the Deliverables) shall constitute Background IPRs.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Charges: the charges payable by the Client for the supply of the Services in accordance with condition 5.

Commencement Date: has the meaning set out in condition 2.2.

Company: 94 Digital

Conditions: these terms and conditions as amended from time to time in accordance with condition 14.8.

Contract: the contract between the Company and the Client for the supply of Services consisting of these Conditions, the Quotation, and the Order unless otherwise specified by the Company from time to time in writing.

Client: the person or firm who purchases Services from the Company.

Client Materials: all materials provided to the Company by the Client during the course of the Company’s provision of the Services including but not limited to all images, text and other materials utilised by the Company.

Data Retention Period: the period of 90 days for which the Digital Assets will be kept on the Company’s servers.

Deliverables: the deliverables as set out in the Specification and as produced by the Company for the Client which are expressly set out in the Specification but excluding any Background IPRs, Model Rights, materials belonging to the Company or any third parties, including in particular any such materials created prior to the date of the Order and any source code for any computer programme, whether or not expressly described as not forming part of the deliverables.

Delivery Date: the date that the final Deliverables are provided to the Client by the Company as stated in writing in the Quotation, or if earlier, the date the Deliverables are actually provided to the Client or as otherwise notified to the Client by the Company in writing.

Digital Assets: has the meaning as set out in condition 12.7 of these Conditions.

Handover Communication: an e-mail to the Client from the Company confirming the Deliverables and the Digital Assets have been transferred to the Client.

Image Rights: all Intellectual Property Rights in any photographs, images, video clips or other media containing Models and/or Locations.

Intellectual Property Rights: all vested, contingent and future intellectual property rights including but not limited to all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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.

Location(s): means those locations or premises detailed in the Quotation.

Models: means those models named in the Quotation or such other models used by the Company or any third party in respect of the provision of the Services from time to time.

Order: the Client’s order for Services pursuant to the Quotation as set out in the Client’s purchase order (or such other medium as is acceptable to the Company and notified to the Client in writing from time to time). Any such order for Services shall be deemed to incorporate the Quotation.

Quotation: means the quotation provided by the Company to the Client incorporating the Specification and setting out the fees payable in respect of the Services and any Special Terms

Services: the production services, including the Deliverables, supplied by the Company to the Client as set out in the Specification.

Special Terms: means any additional terms included in the Quotation.

Specification: the description or specification of the Services provided in writing by the Company to the Client as amended from time to time by the Company giving notice to the Client in writing.

1.2. Construction

In these Conditions, the following rules apply:

1.2.1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2. a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.3. 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;

1.2.4. any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5. a reference to writing or written includes e-mails.

2. BASIS OF CONTRACT

2.1. The Order constitutes an offer by the Client to purchase Services in accordance with the  Conditions. In the event of any conflict between these Conditions and any Special Terms, the Special Terms shall take precedence.

2.2. The Order shall be deemed to be accepted when the Company starts work on the Client’s instruction (howsoever given or implied), at which point and on which date the Contract shall come into existence (Commencement Date).

2.3. The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

2.4. 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 have any contractual force.

2.5. 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 trade, custom, practice or course of dealing.

2.6. Any Quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. SUPPLY OF SERVICES

3.1. The Company shall supply the Services to the Client in accordance with the Quotation in all material respects.

3.2. The Company shall use reasonable endeavours to meet any performance dates specified in the Quotation or 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. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.

3.4. The Company warrants to the Client that the Services will be provided using reasonable care and skill.

3.5. Where the Services include the creation of a brand name, or client materials for the Client, the Client shall be solely responsible for conducting any required clearance searches or other investigations to confirm the availability to use, or whether the Client can register, the suggested name or whether such name infringes any third party rights, and the Company shall not be liable to the Client in respect of any loss, claim or damage arising pursuant to the Client’s use of the name howsoever arising.

3.6. Without prejudice to condition 12.7 below, the Data Retention Period shall run from the Delivery Date. However, on or after the Delivery Date, the Company may issue a Handover Communication to the Client. Where a Handover Communication is issued, the Data Retention Period will run from the date of such Handover Communication.

3.7. The Client may request an Additional Retention Period, either prior to the Quotation being issued, or subsequently in writing. Where an Additional Retention Period is agreed, either in the Quotation or subsequently in writing between the Client and the Company (“Retention Agreement”), provided that the Client has paid the applicable fees (“Additional Retention Fees”) in accordance with the applicable payment terms, the Digital Assets will be held on the Company’s archive servers for such Additional Retention Period.

3.8. If the Client fails to pay the Additional Retention Fees within 30 days of the due date set out in the Quotation or Retention Agreement (as applicable), following this period the Company may erase the Digital Assets from its servers without further notice.

3.9. Any Additional Retention Period may be terminated by the Client on not less than 30 days’ prior written notice. Following the expiry of this notice period any copies of the Digital Assets will be deleted from the Company’s archive servers. If requested by the Client in the notice and agreed by the Company, copies the Digital Assets will be transferred to the Client prior to deletion.

4. CLIENT’S OBLIGATIONS

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 the Company in all matters relating to the Services;

4.1.3. provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Company;

4.1.4. provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

4.1.5. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start, and the Client should refer to the website www.dacs.org.uk for advice and guidance;

4.1.6. undertake a reasonable inspection of the Deliverables upon receipt and promptly notify the Company of any errors in the Deliverables prior to accepting them.

4.2. If the Company’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. the Company shall without limiting its other rights or remedies 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 to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;

4.2.2. the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this condition 4.2; and

4.2.3. the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.

5. CHARGES AND PAYMENT

5.1. The Charges for the Services shall be on a time and materials basis unless otherwise notified to the Client by the Company, and:

5.1.1. the Charges shall be calculated in accordance with the Company’s standard fee rates, and will be set out in the Quotation and/or any other medium through which the Company notifies the Client in writing; and

5.1.2. for the avoidance of doubt, the Company reserves the right to fix the prices for the provision of the Services; and

5.1.3. the Company shall be entitled to charge an overtime rate as a percentage of the standard fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside regular working hours; and

5.1.4. the Company shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials; and

5.1.5. all Charges are payable as per the Quotation and payment shall be made in full by the Client.

5.2. The Company reserves the right to increase its standard fee rates at any time. The Company will give the Client written notice of any such increase not less than 7 days before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Company in writing within 7 days of the date of the Company’s notice and the Company shall have the right without limiting its other rights or remedies to terminate the Contract immediately upon written notice to the Client and without limitation, the provisions of condition 11 shall apply. Where the Company does not elect to terminate the Contract in accordance with this condition 5.2, the Company shall provide the Services for the fee rates set out in the Quotation and no increase shall apply.

5.3. The Company may invoice the Client on completion of the Services or at intervals throughout the provision of the Services at its option provided that the Company gives notice to the Client as to the desired invoicing procedure in writing in the Quotation or otherwise.

5.4. All location shoots are subject to weather conditions which are outside the Company’s control. As such the Company reserves the right to charge the Client the contracted amount plus any expenses incurred due to weather conditions affecting the project schedule or cancellation. Please refer to our separate weather insurance policy for possible cover against these costs.

5.5. The Client shall pay each invoice submitted by the Company:

5.5.1. 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 the Company, and time for payment shall be of the essence of the Contract.

5.6. Where applicable and relevant, all amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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. Without limiting any other right or remedy of the Company, if the Client fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

5.8. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.

5.9. Where the Services include the provision of Models and/or use of Locations, the Company shall, upon acceptance of the Order (in accordance with condition 2.2 above), make such payments and/or pay any such fees required to provide such Models and/or Locations in respect of the Services. The Company shall issue an invoice to the Client in respect of such Models/Locations which shall be due and payable regardless of whether the Services are completed or the Contract is otherwise terminated. For the avoidance of doubt, the Company shall not be required to procure Models and/or Locations or liable for any additional fees incurred for further usage in respect of the Services other than as set out in the Quotation or otherwise agreed between the parties in writing. The Client shall indemnify the Company against all fees, expenses, cancellation charges and other costs incurred by the Company in respect of such Models and/or Locations. The Client will be responsible for managing any Rights restrictions and renewals relating to Models and/or Locations

6. INTELLECTUAL PROPERTY RIGHTS

6.1. Save as set out in condition 6.4 below, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company unless otherwise expressly stated in these Conditions.

6.2. The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client for the relevant licence fee.

6.3. Where the Specification confirms that the Company will present the Client with a number of options for the Deliverables and the Client selects an option, only the option selected shall form part of the Deliverables, and all Intellectual Property Rights in the other options belong to the Company absolutely and the Company may use these other options for any purpose whatsoever.

6.4. Pursuant to and for the consideration set out in the Order, the Company (in so far as it is able) hereby assigns to the Client all its rights, title and interest in and to the Deliverables to include (but not be limited to) the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the Deliverables whether occurring before, on, or after the Delivery Date. For the avoidance of doubt, any Background IPRs or Image Rights comprising part of the Deliverables shall be licensed to the Client pursuant to a non-exclusive, royalty-free, non-assignable licence for the sole purpose as set out in the Quotation.

6.5. Subject to the assignment set out in condition 6.4 above, the Client hereby grants to the Company a royalty-free, irrevocable and perpetual non-exclusive licence to use the Deliverables for business promotion and marketing activities, on any channel for Worldwide usage.

6.6. For the avoidance of doubt, the Client acknowledges that all trades marks and associated branding of the Company (including but not limited to logos) belong to the Company, and the Client has no rights (unless expressly authorised in writing by the Company) to use, apply or alter any such trade marks and associated branding of the Company.

6.7. All Intellectual Property Rights and all other rights in the Client Materials shall be owned by the Client. The Client hereby licenses all such rights to the Company free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Company to provide the Services as set out in the Quotation or otherwise agreed in writing between the parties.

6.8. All Models and Locations (and any Image Rights in respect of such Models or Locations) are supplied on a non-exclusive basis unless otherwise specified in the Quotation. Unless otherwise specified in the Quotation, the Client’s licence to use the Image Rights in respect of the Services shall be as agreed in the Model and/or Location agreement. Where the Client requires additional rights, additional fees shall be payable in respect of such rights, to be agreed in writing between the parties. Any variation in the terms (including the provisions of any licence for use of the Image Rights) upon which any Models and Locations are provided shall be notified to the Client by the Company in writing.

6.9. It is the responsibility of the Client to ensure that the rights provided in condition 6.8 above are sufficient for the purposes set out in the Quotation. The Company accepts no responsibility in respect of any additional Models and/or Locations required, unless otherwise agreed in writing in advance. If the client requires a variation to the rights It is the responsibility of the client to obtain third party clearance.

7. TITLE AND RISK

7.1. Risk in the Deliverables shall pass to the Client on the Delivery Date.

7.2. Title in the Deliverables shall not pass to the Client until the Company has received payment in full (in cash or cleared funds) for:

7.2.1. the Deliverables; and

7.2.2. all other sums which are or which become due to the Company from the Client in respect of the Company’s provision of the Services.

7.3. Until title in the Deliverables has passed to the Client, the Client shall:

7.3.1. hold such Deliverables on a fiduciary basis as the Company’s bailee; and

7.3.2. store such Deliverables separately from all other similar products held by the Client so that they remain readily identifiable as the Company’s property.

8. CONFIDENTIALITY

8.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. For the avoidance of doubt, this condition 8 shall not apply to any information which was:

8.1.1. in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or

8.1.2. obtained from a third party without obligation of confidentiality; or

8.1.3. already in the public domain at the time of disclosure otherwise than through a breach of this agreement; or

8.1.4. independently developed without access to the other party’s confidential information. This condition 8 shall survive termination of the Contract.

This condition 8 shall survive termination of the Contract.

9. LIMITATION OF LIABILITY

9.1. Nothing in these Conditions shall limit or exclude the Company’s liability for:

9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

9.1.2. fraud or fraudulent misrepresentation; or

9.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

9.2. Subject to condition 9.1:

9.2.1. to the maximum extent permitted by the law, the Company shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of revenue, loss of reputation or any indirect or consequential loss of any nature arising under or in connection with the Contract;

9.2.2. the Company shall not be liable to the Client in respect of any items purchased by the Client from any third party and the Client accepts that it has not relied upon any recommendation made by the Company and has satisfied itself as to the quality and/or fitness for purpose of such items purchased;

9.2.3. the Company shall not be liable to the Client in respect of any of the obligations upon the Client to meet any regulatory requirements, and shall not be responsible for ensuring that any Deliverables comply with any applicable regulatory standards, including guidance of regulatory bodies, requirements, regulations or applicable laws as regards marketing:

9.2.3.1. to children;

9.2.3.2. of alcohol or tobacco; and/or

9.2.3.3. any product regulated by the FCA or subject to regulation as a medical or pharmaceutical product, and the Client acknowledges that it shall be responsible for ensuring that any use of the Deliverables complies with all applicable regulatory standards, including guidance of regulatory bodies, requirements, regulations or laws in any jurisdiction in which the Deliverables are used, communicated or shown.

9.2.4. subject to condition 9.2.1, to the maximum extent permitted by law the Company’s total aggregate liability to the Client in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Charges for the relevant Order with regard to which the Client is claiming loss.

9.3. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.4. This condition 9 shall survive termination of the Contract.

10. TERMINATION

10.1. The Company may terminate the Contract if it reasonably believes that any Client Materials supplied to it infringe the Intellectual Property Rights of a third party, or the performance by the Company of an Order would be reasonably likely to result in such an infringement.

10.2. 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:

10.2.1. the other party commits a material breach 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 of the breach;

10.2.2. the other party breaches the terms of any policy notified to them in writing, including data storage policies, security policies and health and safety policies.

10.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

10.2.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

10.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

10.2.6. the other party (being an individual) is the subject of a bankruptcy petition or order;

10.2.7. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

10.2.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

10.2.9. a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

10.2.10. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

10.2.11. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.2.b to condition 10.2.i (inclusive);

10.2.12. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

10.2.13. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

10.3. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.

10.4. The Company may terminate this Contract by written notice without payment of any amount or penalty if there is a change of control of the Client to which the Company reasonably objects, provided that the Company serves its notice within one month of the date on which the Client informs the Company (by written notice) of the change of control or on which the Company otherwise becomes aware of the change of control.

10.5. Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Company if the Client becomes subject to any of the events listed in condition 10.2.b to condition 10.2.l, or the Company reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

11. CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

11.1. the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;

11.2. the Client shall return any Deliverables which have not been fully paid for. If the Client fails to do so, then the Company 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 this Contract;

11.3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and

11.4. conditions which expressly or by implication have effect after termination shall continue in full force and effect.

12. DATA PROTECTION AND DATA USE

12.1. Within this condition, “Data Protection Act” means the Data Protection Act 2018 and “Data Controller”, “Data Processor” and “Personal Data” have the same meanings as in that Act.

12.2. With respect to the parties’ rights and obligations under these Conditions, each party shall be the Data Controller for information that it obtains in the course of carrying out its business as permitted under these Conditions. To the extent that the Client needs access to Personal Data relating to its receipt of the Services, then the Company shall be the Data Controller and the Client shall be the Data Processor in respect of such Personal Data.

12.3. The Client shall (and shall ensure that its sub-contractors (if any) shall):

12.3.1. only process Personal Data relating to its receipt of the Services in accordance with instructions from the Company (which may be specific instructions or instructions of a general nature as set out in these Conditions or as otherwise notified by the Company to the Client during the term of the Contract) and comply with any request from the Company to amend, transfer or delete such Personal Data;

12.3.2. only process Personal Data to the extent, and in such manner, as is necessary for the provision of the Services and/or its obligations under these Conditions or as is required by law or any regulatory body;

12.3.3. upon receipt of any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Act and the data protection principles set out therein, it shall immediately notify the Company and it shall provide the Company with full co-operation and assistance in relation to any such complaint, notice or communication;

12.3.4. implement appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from unauthorised or unlawful processing or accidental loss, destruction or damage to Personal Data and to the nature of the Personal Data which is to be protected; and

12.3.5. not perform its obligations under the Contract in such a way as to cause the Company to breach any of its applicable obligations under the Data Protection Act. The Client shall not transfer or process any Personal Data outside the European Economic Area without the prior written consent of the Company.

12.4. By entering into this Contract, the Client is hereby providing express consent to sharing any data or personal data for the purposes of undertaking searches and enquiries and obtaining references or other information the Company considers necessary, including carrying out searches with credit reference agencies and fraud-prevention agencies. If false or inaccurate information is provided and fraud is identified, details will be passed to fraud prevention agencies.

12.5. From time to time, the Company may provide the Client with access to its computer systems (“System”) for the sole purpose of the Company providing the Services. Where the Client is provided with access to the Company’s systems, without prejudice to the other terms in these Conditions, the Client shall, and shall ensure that its employees, agents and representatives:

12.5.1. keep all passwords and access codes safe, and shall not share any user names, pass codes or passwords with any person other than those authorised by the Company to access the System;

12.5.2. comply with all policies notified to the Client including any security policy, access policy or terms of use;

12.5.3. do not use any content made available on the systems by the Company for any purpose other than as set out in this Contract;

12.5.4. do not misuse such access, whether intentionally or accidentally introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful; and

12.5.5. do not attempt to gain unauthorised access to the Company’s systems, including the servers, computers or any database. The Company will report any such breach to the relevant law enforcement authorities and the Company will co-operate with those authorities by disclosing such information as is required, including any Personal Data of the Client, its employees, agents or other parties.

12.6. The Company may withdraw the Client’s access to the System at any time without notice. Access to the Company’s systems is at the Client’s sole risk and subject to all applicable national and international laws and regulations. The Company will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect the Client’s computer equipment, computer programs, data or other proprietary material due to the Client’s access to or use of the Company’s system or uploading or downloading any content. In no event will the Company be liable for any loss of profits, sales, business or revenue, business interruption, loss of anticipated savings, loss of business opportunity, goodwill or reputation; or any indirect or consequential loss or damage (including, without limitation, loss of data) resulting from the Client’s use of the Systems or any content stored.

12.7. The Company shall keep photographs, video, edited and unedited, artwork files and associated production data relating to the Services (“Digital Assets”) available on the System for the Data Retention Period. Following this Data Retention Period, the data shall be automatically deleted without further notice, unless the Company and the Client agree an Additional Data Retention Period in accordance with condition 3.7 above.

13. TUPE

13.1. If the Transfer of Undertakings (Protection of Employment) Regulations 2006 Regulations apply by reason of the Client ceasing itself to undertake services similar to the Services (or reducing its own provision of such services) and, as a result, any employees of the Client are transferred from the Client to the Company, then the Client shall indemnify the Company against all costs, claims, demands, awards, damages, liabilities and expenses arising against the Company by reason of such transfer (including, without limitation, any such costs, claims, demands, awards, damages, liabilities and expenses arising on the termination by the Company of the employment of any employee transferring to it in such circumstances).

14. GENERAL

14.1. Force majeure:

14.1.1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), 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 Company’s or subcontractors.

14.1.2. The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

14.1.3. If the Force Majeure Event prevents the Company from providing any of the Services for more than 3 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

14.2. Assignment and subcontracting:

14.2.1. The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

14.2.2. The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.3. Notices:

14.3.1. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

14.3.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

14.3.3. This condition 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this condition, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

14.4. Waiver:

14.4.1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

14.4.2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude any rights or remedies provided by law.

14.5. Severance:

14.5.1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part- provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

14.5.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

14.6. No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

14.7. Third parties: A person who is not a party to the Contract shall not have any rights to enforce any of its terms.

14.8. Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding either: (i) when agreed in writing and signed by the Company or (ii) by the Company publishing new Conditions at https://94digital.co.uk, terms and conditions page.

14.9. Non-Solicitation: The Client shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 12 months after the Delivery Date, 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. Where the Client breaches the provisions of this condition 14.9, it shall make a payment to the Company within seven days of any breach of a sum equivalent to 33% of the employees’ final annual salary.

14.10. Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.