1.1 In these Terms:
“Additional Fees” means additional Fees calculated in accordance with the provisions of the Schedule and payable by the Client to the Digital Impact in accordance with Clause [3.4];
Affiliate” means Digital Impact, or an individual that Controls, is Controlled by, or is under common Control with Digital Impact;
“Agreement” means these Terms and any amendments to it from time to time;
“Business Day” means any week day, other than a Saturday or Sunday or a bank or public holiday in Scotland;
“Business Hours” means between 09:00 and 17:00 on a Business Day;
“Digital Impact” means DI Agency Ltd, which has its principal place of business at 144 West Regent Street Glasgow G2 2RQ Scotland.
“Digital Impact Materials” means all works and materials (including text, images, video material, audio material, software, scripts, mark-ups, style sheets and databases) created by Digital Impact and incorporated by Digital Impact into the Website pursuant to these Terms;
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Client” means the Client for Services under these Terms.
“Effective Date” means the date of execution of these Terms as specified in the Service quote signed by the Client;
“Fees” means the Yearly Fees, any agreed Monthly Fees and Additional Fees;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, [failures of any third party internet service provider,] hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Support Desk” means the Services described in Clause [3.1];
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the Services described in Clause [3.2];
“Monthly Fees” means the amount specified as such in the Agreement, which will be paid by the Client to Digital Impact in respect of each calendar month of Services in accordance with Clause ;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedule” means the schedule attached to these Terms;
“Services” means the Support Desk, Maintenance Services, the Technical Support Services as detailed in Clause ;
“Services Limit” means the limit to the provision of [Maintenance Services] specified in the Schedule;
“Term” means the term of this Agreement;
“Contract Terms” means the agreed upon contract term of the support agreement;
“Website” means the Client website; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
This Agreement will come into force on the Effective Date and will continue in force for the agreed contract terms agreed between both parties, upon which it will automatically renew, unless terminated earlier in accordance with Clause .
3.1 Digital Impact will make available, during Business Hours, a telephone / email Support Desk facility to enable the Client to contact Digital Impact in relation to requests for Maintenance and Technical Support Services. Digital Impact will use reasonable endeavours to respond to requests for support made through the Support Desk.
3.2 Subject to Clause [3.3], upon the request of the Client through the Support Desk, Digital Impact will provide the following Support Services to the Client:
(a) answer technical queries relating to the Website;
(b) When a Client uses Digital Impact hosting, Digital Impact will restore backups of a Client Website that has been the victim of vandalism, for example, hacking and advise on ways to prevent this in the future.
(c) Digital Impact will offer support and advice to consult on requests from the Client, subject;
(d) Digital Impact will look into new changes requested by the client and offer a work plan, feedback and recommendations as and when required.
(e) Digital Impact will create a demo of the client’s website on a secure server to make updates and only push live after receiving confirmation from the Client. Once both parties are satisfied with the work and the support case is marked as completed, Digital Impact will then dissolve the demo website.
3.3 Digital Impact may refuse to provide Support Services to the Client during a calendar month in excess of our agreed upon services caps, as highlighted within clause  until the underlying service limitations are resolved between Digital Impact and the client.
3.4 If at any stage client demands approach or exceed the agreed upon services limit set out within our original support agreement as cited in clause  and in accordance with clause , then:
(a) Digital Impact will inform the Client as soon as reasonably practicable that the Services Limit will be or has been exceeded;
(b) Digital Impact will inform the Client as soon as reasonably practicable of the applicable Additional Fees to offer the requested support;
(c) should the Client agree to the applicable Additional Fees, Digital Impact will carry out the requested Support service and the Client will be invoiced for and pay to Digital Impact the applicable Additional Fees.
3.5 Clients must note that all work performed by Digital Impact is recorded on a timesheet, which will be sent through to the client on a monthly basis
3.6 All development, design, marketing, account management, project management and any other work associated to client new change and feature requests will be aggregated and billed as a block of time at set periods, as defined by Digital Impact.
3.7 We shall provide the Services in good faith, however, due to the nature of the Services, We do not warrant that the Services shall be uninterrupted or error free and no warranty, either express or implied, is given in relation to the Services.
3.8 Upon completion of the building of the support case by Us, We shall notify the Client in writing. The Client shall have a period of 30 days in which to test the changes. If during this period the Client identifies that the Website fails to comply in any material respect with the Basic Specification and any Additional Specification agreed between the parties, the Client shall specify such failures in writing to us.
3.9 In the event that failures are notified and are accepted by Us (acting reasonably) as being failures to comply in a material respect with the Basic Specification and/or Additional Specification, We shall use reasonable endeavours to rectify any such failures. We shall then retest the Website and upon satisfactory completion of such retesting, We shall issue notification of completion of the support case.
3.10 In the event that no failures are notified to Us within the time period specified in Clause 3.8, the Client will be deemed to have accepted the Website. In the instance whereby a client exceeds this test period, all additional work will be billable and form part of an additional support case.
4.1 The Client will provide to Digital Impact:
(a) the ability to access and make changes to the Website; and
(b) all other co-operation, information and documentation reasonably required by Digital Impact to enable or facilitate the provision of the Services.
4.2 The Client will be responsible for procuring any third party cooperation reasonably required for the provision of any other Services.
Digital Impact hereby assigns to the Client all Intellectual Property Rights in Digital Impact Materials. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions and renewals.
6.1 In accordance with payment preference set out within the agreed upon services agreement, Digital Impact will issue invoices to the client for the provided services in the following manner:
Clients who use our support credits package will be required to set up direct debit or an advanced bill, paying 30 days ahead of the agreed date of invoice. In the event that – at any stage – the client exceeds their allowance, clause [3.3] will apply.
Clients who use our timesheets package will be invoiced at the end of the month with the timesheet attached, and will be expected to pay the outstanding fees within 14 days of receiving the invoice. In the event – that at any stage – the client nears or exceeds their allowance, clause [3.3] will apply.
Clients who use our fixed quote package will be invoiced once the initial agreement is signed, and will be expected to pay 50% of the fees as an upfront payment. The outstanding fees must be payable within 14 days of receiving the invoice.
6.2 Any additional fees incurred from excess support will be applied to the clients outstanding balance and invoiced following the actions cited within clause [3.3](c).
6.3 The Client will pay the Fees to Digital Impact of an invoice issued in accordance with Clause [6.1]
6.4 VAT is applicable to all Fees stated in or in relation to this Agreement.
6.5 Fees must be paid by direct debit, bank transfer, online payment or by cheque (using such payment details as are notified by Digital Impact to the Client from time to time).
6.6 If the Client does not pay any amount properly due to Digital Impact under or in connection with this Agreement, Digital Impact may:
(a) charge the Client interest on the overdue amount at the rate of 4% per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.7 Any Monthly Fees and/or Additional Hourly Fees charged by Digital Impact may vary — subject to service caps agreed upon between Digital Impact and the client, as cited within clause .
6.8 If any work is outstanding from the previous month, Digital Impact will reserve the right to dismiss any new support work until this balance is cleared.
7.1 The Client warrants to Digital Impact that it has the legal right and authority to enter into and perform its obligations under this Agreement.
7.2 Digital Impact warrants to the Client:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that it will perform its obligations under this Agreement with reasonable care and skill.
7.3 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
8.1 Nothing in this Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
8.2 Subject to Clause [8.1], Digital Impact’s liability to the Client under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Digital Impact will not be liable for any: (i) loss of profits, income or anticipated savings, (ii) loss or corruption of any data, database or software, (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity, or (v) indirect, special or consequential loss or damage;
(b) neither party will be liable for any losses arising out of a Force Majeure Event; and
(c) Digital Impact’s liability in relation to any event or series of related events will in no circumstances exceed the greater of the total amount paid by the Client to Digital Impact under the Agreement during the 3 month period immediately preceding the event or series of events.
9.1 The Client warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Digital Impact under this Agreement, and that the processing of that Personal Data by Digital Impact for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws (including the Data Protection Act 1998).
9.2 Digital Impact warrants that:
(a) it will act only on instructions from the Client in relation to the processing of any Personal Data performed by Digital Impact on behalf of the Client; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by Digital Impact on behalf of the Client.
10.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause .
10.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
10.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
10.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
11.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
12.1 Either party may terminate this Agreement at any time by giving at least 30 days’ written notice to the other party.
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of this Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement.
12.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent Digital Impact reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
12.4 If the Client goes beyond the Fair Usage Policy detailed in [15.1], Digital Impact may reserve the right to delay or cease support tickets by written notice to the client.
13.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 5, 6.5, 8, 10, 13, 14.3 to 14.12 and 15].
13.2 Termination of this Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
13.3 If this Agreement is terminated by the Client under Clause [12.2] but not in any other case, the Client will be entitled to a refund of any Fees paid by the Client to Digital Impact in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Fees to Digital Impact (such amount to be calculated by Digital Impact using any reasonable methodology).
13.4 Upon termination, Digital Impact will work with the Client and any third party associated with the Client to assist in transitioning any relevant support work assets or resources to the new party. Any support of this kind will be billed at Digital Impact’s hourly rate.
13.5 Save as provided in Clause [13.3], the Client will not be entitled to any refund of fees on termination, and will not be released from any obligation to pay Fees to Digital Impact.
14.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by registered post, or sent by email, for the attention of the relevant person (or as notified by one party to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by registered post, 72 hours after posting; and
(c) where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
14.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in this Agreement will constitute a partnership or contract of employment between the parties.
14.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
14.7 Digital Impact may freely assign its rights and obligations under this Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
14.8 Digital Impact may wish to subcontract any of its obligations under this Agreement to any third party. In doing so, Digital Impact will require written permission from the Client.
14.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
14.10 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
14.11 Subject to Clause [8.1]:
(a) this Agreement will constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement; and
(c) neither party will have any liability other than pursuant to the express terms of this Agreement.
14.12 The agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, Scots Law, Scottish Law and Law in Scotland.
15.1 Our fair usage policy is in place to ensure that all Digital Impact client projects are handled in a professional, fair and honest manner. Fair usage within the context of support cases is as follows:
(a) Individual support cases must not exceed 8.00 hours of ‘time spent’ provided by Digital Impact Employees. Cases that exceed this 8.00 hour limitation will be quoted for by way of a new feature request form as a standalone support project.
(b) Clients who execute support work as part of our credit support package must not exceed the equivalent of three months ‘time spent’ support allowance in one calendar month. In exceptional circumstances whereby the client must execute residual hours in a short space of time, a support project case may be raised, in accordance with clause [15.1(a)].
(c) Clients are allowed to accrue a maximum of six months worth of support hours at any given time. Digital Impact will make reasonable endeavours to ensure that clients do not approach or exceed this upper support limit. In exceptional cases where this does occur, Digital Impact will either aim to implement a scheduled support work plan or alternatively, suspend inbound payments into the clients support account.
(d) For clients who raise support cases in alignment with our timesheet arrangements, Digital Impact will raise work, invoices and payments in accordance with our set support agreement service caps – as cited within clause  – on an ongoing monthly basis.
15.2 If the Client goes beyond the Fair Usage Policy detailed in [15.1], Digital Impact may reserve the right to terminate this Agreement immediately by giving written or verbal notice to the Client.
16.1 Our service cap procedures are in place to ensure that both Digital Impact and our clients can effectively manage workflows and expenditure associated with any ongoing support and/or project cases.
16.2 Clients will be asked to set a maximum monthly ‘spent hours’ limit for any support work conducted by Digital Impact on any given account, which is defined as the maximum authorized ‘time spent’ on support work conducted by Digital Impact within any given month. If the client approaches or exceeds this agreed upon maximum monthly limit, Digital Impact will execute the steps cited within clause [3.4]