1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Contract: the Client’s purchase ord14er and Digital Impact acceptance of it, or the Client’s acceptance of a quotation for Services by Digital Impact under condition 2.2.
Client: the person, firm or company who purchases Services from Digital Impact.
Client’s Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Client’s Manager: the Client’s manager for the Project, appointed in accordance with condition 6.1.
Deliverables: all Documents, products and materials developed by Digital Impact in relation to the Project Plan in any form, including computer programs, data, reports and specifications (including drafts).
Digital Impact: DI Agency Ltd
Basic Fee: means the fee payable in consideration of the Project in accordance with the Action Plan.
Additional Fee: means the fee payable in respect of the Additional Services as further detailed in Clause 8;
Digital Impact’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by Digital Impact or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
Digital Impact’s Manager: Digital Impact’s manager for the Project appointed under condition 5.3.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
In-put Material: all Documents, information and materials provided by the Client relating to the Services including, computer programs, data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by Digital Impact relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
Project: the project as described in the Project Plan.
Ongoing Contract: An ongoing contact is considered to be but not limited to a support contact, Adwords management, Aftercare, Hosting, SEO or marketing services.
Project Milestones: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan.
Project Plan: the detailed plan describing the Project and setting out the estimated timetable (including Project Milestones), Project Specification and responsibilities for the provision of the Services agreed in accordance with condition 4.
Services: the services to be provided by Digital Impact under the Contract as set out in the Project Plan, together with any other services which Digital Impact provides or agrees to provide to the Client.
Commencement Date: means the latter of the date upon which We receive a signed copy of the Conditions and/or the date upon which funds received from the Client for the deposit of the Basic Fee clears in Our bank account;
VAT: value added tax chargeable under Scottish law for the time being and any similar additional tax.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of the Contract and shall have effect as if set out in full in the body of these Conditions and any reference to the Contract includes the schedules.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to conditions and schedules are to the conditions and schedules of the Contract.
2.1 These Conditions shall:
2.2 The Client’s purchase order, or the Client’s acceptance of a quotation for Services by Digital Impact, constitutes an offer by the Client to purchase the Services specified in it on these Conditions. No offer placed by the Client shall be accepted by Digital Impact other than:
2.3 Quotations are given by Digital Impact on the basis that no agreement shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that Digital Impact has not previously withdrawn it.
3.1 The Services supplied under the Contract shall be provided by Digital Impact to the Client from the date of acceptance by Digital Impact of the Client’s offer in accordance with condition 2.2.
3.2 The Services supplied under the Contract shall continue to be supplied until the Project is completed in accordance with the Project Plan unless the Contract is terminated in accordance with condition 13.
4.1 The Project Plan(s) shall be agreed in the following manner:
4.2 Digital Impact may charge for the preparation of the Project Plan on a time and materials basis in accordance with condition 9.
4.3 Once the Project Plan has been agreed and signed in accordance with condition 4.1(c), no amendment shall be made to it except in accordance with condition 8 and condition 16.
5.1 Digital Impact shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to the Client, in accordance in all material respects with the Project Plan.
5.2 Digital Impact shall use reasonable endeavours to meet Project Milestones specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5.3 Digital Impact shall appoint a Project Manager in respect of each Project who shall have authority contractually to bind Digital Impact on all matters relating to the Project. Digital Impact shall use reasonable endeavours to ensure that the same person acts as Digital Impact’s Manager throughout the term of the Project, but may replace him or her from time to time where reasonably necessary in the interests of Digital Impact’s business.
5.4 Digital Impact shall use all reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises and that have been communicated to it under condition 6.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
6.1 The Client shall:
6.2 If Digital Impact’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, Digital Impact shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
6.3 The Client shall be liable to pay to Digital Impact, on demand, all reasonable costs, charges or losses sustained or incurred by Digital Impact (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Digital Impact confirming such costs, charges and losses to the Client in writing.
6.4 The Client shall not, without the prior written consent of Digital Impact, at any time from the date of the Contract to the expiry of six months after the completion of the Project on termination of the Contract, solicit or entice away from Digital Impact or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Digital Impact in the provision of the Services.
6.5 Any consent given by Digital Impact in accordance with condition 6.4 shall be subject to the Client paying to Digital Impact a sum equivalent to 20% of the then current annual remuneration of Digital Impact’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee or sub-contractor.
7.1 We shall commence building the Project as detailed in this Clause 6 on the Commencement Date.
7.2 Upon completion of the building of the Project by Us, We shall notify the Client in writing or by email, confirming receipt. Where the Project is for the design and build of the Website, the Client shall have a period of Fourteen days in which to test the Website. If during this period the Client identifies that the Website fails to comply in any material respect with the Specification and any Additional Specification agreed between the parties in the project plan, the Client shall specify such failures in writing to us.
7.3 In the event that failures are notified in terms of Clause 7.2 and are accepted by Us (acting reasonably) as being failures to comply in a material respect with the Project Specification and/or any additional Specification agreed upon as at an Additional Fee, 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 building of the Website in terms of Clause 7.2.
In the event that We are unable to rectify any failures in the Website referred to in Clause 7.3, then either party shall be entitled to terminate the Contract without liability to the other.
In the event that no failures are notified to Us within the time period specified in Clause 7.2, the Client will be deemed to have accepted the Website.
7.6 Upon completion of the building of the Project in accordance with this Clause 7, We shall work with the Client to agree a Launch Date and the final balance for the project will be due and paid in full and cleared funds by the client prior to going live.
7.7 All projects will have recognition of Digital Impact at the bottom of the site under this agreement. Usual wording “Designed and Developed by Digital Impact” which will also link to the home page of www.digitalimpact.co.uk
8.1 The Client’s Manager and Digital Impact’s Project Manager shall meet at least once every month to discuss matters relating to the Project. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
8.2 If either party requests a change to the scope or execution of the Services, Digital Impact shall, within a reasonable time, provide a written estimate to the Client of:
8.3 Digital Impact may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Additional Fee for the Services. The Digital Impact may, from time to time and subject to Client’s prior written consent, which shall not be unreasonably withheld or delayed change the Services, provided that where practicable, it will give the Client at least 1 month’s’ notice of any change.
8.4 If the Client wishes Digital Impact to proceed with the change, Digital Impact has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its Additional Fee, the Project Plan and any other relevant terms of the Contract to take account of the change.
8.5 Digital Impact may charge for its time spent in assessing a request for change from the Client on a time and materials basis in accordance with condition 9.
The Digital Impact tests sites and templates to ensure they comply with WAI accessibility standards to Level A conformance at time of sale. Should the Client request that the Digital Impact alter the site or templates to meet specific WAI accessibility guidelines, or if updated WAI accessibility guidelines were introduced after the site or templates were sold to the Client, the Digital Impact reserves the right to quote separately for any additional work needed. If the Client uses WordPress Themes or Modules, or other CMS systems that are not built by the Digital Impact, the overall page may not meet WAI accessibility standards to Level A conformance.
The Digital Impact tests sites and templates to ensure they comply with W3C CSS standards as they are at time of sale. Should updated W3C CSS guidelines be introduced after the site or templates were sold to the Client, the Digital Impact reserves the right to quote separately for any additional work needed. If the Client uses WordPress Themes or Modules, or other CMS systems that are not built by the Digital Impact, the overall page may not meet W3C CSS standards.
The Digital Impact tests sites and templates to ensure they comply with W3C HTML standards as they are at time of sale. Should updated W3C HTML guidelines be introduced after the site or templates were sold to the Client, the Digital Impact reserves the right to quote separately for any additional work needed. If the Client uses WordPress Themes or Modules, or other CMS systems that are not built by the Digital Impact, the overall page may not meet W3C HTML standards.
The Digital Impact shall make every effort to ensure sites are designed to be viewed by the majority of visitors. Sites are designed to work with the standard development platform, which includes recent versions of the main browsers, Internet Explorer and Mozilla Firefox. The Client agrees that the Digital Impact cannot guarantee correct functionality with all browser software across different operating systems.
The Client agrees that, following handover of files, any updated software versions of the browsers detailed in the standard development platform, including the browsers Internet Explorer and Mozilla Firefox, domain name set-up changes or hosting set-up changes thereafter may affect the functionality and display of their website. As such, the Digital Impact reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software, domain name or hosting changes.
10.1 Condition 10.2 shall apply if Digital Impact provides the Services on a time and materials basis. condition 10.3 shall apply if Digital Impact provides the Services for a fixed price. The remainder of this condition 10 shall apply in either case.
10.2 Where the Services are provided on a time and materials basis:
10.3 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Project Plan. The total price shall be paid to Digital Impact (without deduction or set-off) in instalments, as set out in the Project Plan on its achieving the corresponding Project Milestone. On achieving a Project Milestone in respect of which an instalment is due, Digital Impact shall invoice the Client for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 10.4.
10.4 Any fixed price and daily rate contained in the Project Plan excludes:
10.5 The Client shall pay each invoice submitted to it by Digital Impact, in full and in cleared funds, within 30 days of receipt.
10.6 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Digital Impact on the due date, Digital Impact may:
10.7 Time for payment shall be of the essence of the Contract.
10.8 All sums payable to Digital Impact under the Contract shall become due immediately on its termination, despite any other provision. This condition 10.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
10.9 The Digital Impact may, without prejudice to any other rights it may have, set off any liability of the Client to Digital Impact against any liability of Digital Impact to the Client.
11.1 As between the Client and Digital Impact, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by Digital Impact and will be transferred to the client once all project deliverables have been delivered. Any Pre-existing Materials created by Digital Impact shall be owned by Digital Impact. Subject to condition 11.2, Digital Impact licenses all Pre-existing Materials rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services.
11.2 The Client acknowledges that, where Digital Impact does not own any Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on Digital Impact obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Digital Impact to license such rights to the Client.
12.1 The Client 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 Client by Digital Impact, its employees, agents or subcontractors and any other confidential information concerning Digital Impact’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging the Client’s obligations to Digital Impact, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Client.
12.2 All materials, equipment and tools, drawings, specifications and data supplied by Digital Impact to the Client (including Pre-existing Materials and Digital Impact’s Equipment) shall, at all times, be and remain as between Digital Impact and the Client the exclusive property of Digital Impact, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Digital Impact, and shall not be disposed of or used other than in accordance with Digital Impact’s written instructions or authorisation.
12.3 The Client warrants and undertakes not to copy, reproduce, imitate or adapt any Deliverables, Documents, In-put Materials or Pre-existing Materials until payment in fill in accordance with clause 8 is made and agrees to indemnify Digital Impact in full including any costs of enforcing this provision for any breach hereof.
12.4 This condition shall survive termination of the Contract, however arising.
13.1 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.
13.2 Upon completion of the building of the project case by Us, We shall notify the Client in writing. The Client shall have a period of three months 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, which will then be resolved by our team.
13.3 The Client acknowledges that We have no control over the information transmitted by the Client via the Service and that We do not examine the use to which the Client puts the Service or the nature of the information the Client sends or receives. We hereby excludes all liability of any kind for the transmission or reception of information of whatever nature.
13.4 We do not accept any liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
13.5 With respect to the Hosting Services, We do not accept any liability for any third party acts or omissions or any delay or failure to meet obligations under the Contract that result from delay or failure on the part of a third party supplier. In the event that We are unable to supply the Hosting Services to the Client due to any failure on the part of any third party supplier, then We shall be entitled to a period of 14 days in which to find an alternative third party supplier. Where We are unable to find an alternative third party supplier, either party shall be entitled to terminate the Contract without liability on giving written notice to the other.
13.6 Our liability shall not in any event include loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or total consequential loss whatsoever.
13.7 We make no warranty as regards to Our Services or Server and will not be responsible for any damage allegedly suffered or claimed by the Client for any reason including but not limited to loss of data, wrong or non deliveries and service interruptions.
13.8 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded.
13.9 Nothing in these Conditions shall exclude our liability for death or personal injury resulting from our negligence.
13.10 Our total aggregate liability to the Client for any claim in contract, delict, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the Charges paid by the Client in respect of the Services which are the subject of any such claim.
13.11 In any event no claim shall be brought unless the Client has notified Us of the claim within three months of it arising.
The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Digital Impact in connection with the Services.
15.1 The Contract shall terminate automatically on completion of the Project in accordance with the Project Plan.
15.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than three months written notice or immediately on giving notice to the other if:
15.3 On termination of the Contract for any reason:
15.4 Without prejudice to any other rights or remedies which the parties may have, either party may terminate an Ongoing Contract, including but not limited to ongoing hosting, support and aftercare, without liability to the other on giving the other not less than 30 days written notice.
For services such as search engine optimisation, AdWords management, social management, or any other marketing service please review Digital Impacts marketing terms and conditions.
15.5 On termination of an Ongoing Contract for any reason:
The Digital Impact shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Digital Impact 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 suppliers or sub-contractors.
Subject to condition 4 and condition 8, no variation of the Contract or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
18.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
18.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
19.3 The parties agree, in the circumstances referred to in condition 19.1 and if condition 19.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the parties under any invalid or unenforceable provision of the Contract shall be suspended while an attempt at such substitution is made.
Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
21.1 The Client shall not, without the prior written consent of Digital Impact, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21.2 The Digital Impact may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 24 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
25.1 The Contract 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.
25.2 The parties irrevocably agree that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
This agreement has been entered into on the date stated at the beginning of it.
These Terms and Conditions shall be governed by and construed in accordance with the law of Scotland and you hereby submit to the exclusive jurisdiction of the Scottish courts.