Conversion Digital Limited (Company No. 11242277) (‘Conversion Digital Ltd’) with its registered address at Staverton Court, Staverton, Cheltenham, Gloucestershire GL510UX offers marketing services to meet the Client’s (defined below) needs.
These terms and conditions apply exclusively to the Promotion and Marketing of Website Services (defined below) performed by Conversion Digital Ltd. If the Client requires other products and/or services of Conversion Digital Ltd other than Promotion and Marketing of Website Services, please note that other terms and conditions would apply.
1. DEFINITION AND APPLICATION
1.1 In these terms and conditions:
‘Additional Term’ means an additional period of 12 months commencing the day after expiry of the Initial Term or such Additional Term (as the case may be).
‘Background Material’ means any pre-existing material, information and/or Document which are in the
possession of Conversion Digital Ltd prior to the Parties entering into the Contract;
‘Charges’ means the charges set out in the Order payable by the Client for the Promotion and Marketing Services. ‘Client’ means you, the corporate entity or individual who has entered or in entering into a Contract with Conversion Digital Ltd.
‘Client Content’ means any information, content, text, graphics, logos, photographs, images, moving images, sound, illustrations and other material featured or displayed which are not owned by Conversion Digital Ltd or its licensors which is provided by the Client.
‘Contract’ means any contract made between Conversion Digital Ltd and the Client for the Promotion and Marketing Services via an Order.
‘Document’ means any instructions, specifications, requirements, diagram, drawing, document, design, transparency, photograph, image, graphic and/or records of any information in any form whatsoever.
‘Effective Date’ means the commencement date of the Contract as set out in the Order.
‘Initial Term’ means a period of 12 months commencing from the Effective Date. ‘Intellectual Property’ means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how,
confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
‘Conversion Digital Ltd’ Content’ means all Document, text, graphics, logos, photographs, images, moving images, sound, illustrations and other material features including Background Material which belong to Conversion Digital Ltd and/or which is licensed by Conversion Digital Ltd or Conversion Digital Ltd licensor to the Client (including those created under the Contract and/or in the course
of providing the Promotional and Marketing Services).
‘Order’ means such order by the Client for Conversion Digital Ltd to provide the Client with Promotion and Marketing Services as specified in Conversion Digital Ltd standard order form.
‘Parties’ means Conversion Digital Ltd and the Client.
‘Promotion and Marketing Services’ means the promotion and marketing services set out in the Order.
‘Termination Date’ the date on which either party terminates the contract and brings into play any relevant termination clauses.
1.2 In these terms and conditions, references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these terms and conditions reference to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these terms and conditions, headings will not affect the construction of these terms and conditions.
1.5 The Client where it is a natural person confirms that he is at least 18 years of age and possesses legal capacity to contract under English Law.
2.1 The parties will discuss and mutually agree the Order to which will include the services required by the Client to meet is organisational needs.
2.2 The Client shall provide such information and assistance including the Client Content as may be required by Conversion Digital Ltd. As the success of the Promotion and Marketing Services to be performed by Conversion Digital Ltd are heavily dependant on the Client
providing timely, correct and accurate information and content, Conversion Digital Ltd will not be liable and/or be responsible for any delays, errors and/or losses suffered by the Client as a result of the Client not providing Conversion Digital Ltd with timely, correct and accurate information and content.
3. TERMS OF ACCEPTANCE
3.1 A Contract is formed between the Client and Conversion Digital Ltd when (and not before) Conversion Digital Ltd signs the Order and notifies the Client by e-mail, fax, letter and/or electronically that the Client’s Order has been accepted and/or commences performance of the Promotion and Marketing Services (whichever the earlier).
3.2 Subject to any relevant laws and regulation, the Client agrees that these terms and conditions shall be the exclusive basis on which Conversion Digital Ltd offers its Promotion and Marketing Services to the Client unless otherwise agreed in writing by a manager of Conversion Digital Ltd.
4. PROMOTION AND MARKETING SERVICES
4.1 Conversion Digital Ltd undertakes to provide the Promotion and Marketing Services for the Client in accordance with Order using reasonable skill and care.
4.2 The Client warrants that it owns and/or is duly licensed to use any Intellectual Property in the trade marks, trade names and any descriptions and/or information of its product and/or services which it provides its customers and/or Conversion Digital Ltd and agrees to indemnify Conversion Digital Ltd for any losses and/or damages suffered by Conversion Digital Ltd if the use of the aforesaid by Conversion Digital Ltd as part of the Promotion and Marketing Services infringe the Intellectual Property rights of any third parties.
4.3 While Conversion Digital Ltd will use reasonable care and skill in providing the Promotion and Marketing Services, Conversion Digital Ltd does not warrant that any descriptions, meta tags or content used by Conversion Digital Ltd (‘Conversion Digital Ltd Content’) in order to optimise the Client’s website do not infringe the Intellectual Property rights of third parties. In this regard, the Client is solely responsible to verify that Conversion Digital Ltd Content does not infringe the Intellectual Property rights of any third parties and where appropriate, obtain legal advice on the same. Where Conversion Digital Ltd Content infringes the Intellectual Property rights of any
third parties, the Client shall inform Conversion Digital Ltd of such infringement forthwith and Conversion Digital Ltd will remove such Conversion Digital Ltd Content as soon as possible. The Client agrees that this will be the Client’s sole remedy in respect of
Intellectual Property rights infringement with regard to Conversion Digital Ltd Content.
4.4 With regard to search engine optimisation, the Client acknowledges that the effectiveness of such search engine optimisation is dependant on various factors which are outside of Conversion Digital Ltd control such as the state of the Client’s competitors’ website, the specifications of the Client’s website and the marketing strategy of the Client and choice of meta tags and descriptions used and the Client’s budget in respect of search engine fees e.g. adword fees charged by Google. As such, the Client acknowledges that the due performance of the Promotion and Marketing Services which relate to search engine optimisation do not guarantee that the Client’s website will enjoy a better position when searches are carried out on website search engines.
4.5 Conversion Digital Ltd may at any time make any changes to the Promotion and Marketing Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Promotion and Marketing Services.
4.6 Conversion Digital Ltd shall not be liable to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Client Content or instructions supplied by the Client which are incomplete, inaccurate, incorrect, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
5. CLIENT’S OBLIGATIONS
5.1 The Client shall:
5.1.1 co-operate with Conversion Digital Ltd and provide Conversion Digital Ltd with such assistance required by Conversion Digital Ltd in all matters relating to the performance of the Promotion and Marketing Services;
5.1.2 provide Conversion Digital Ltd, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Client’s premises, office accommodation, data and other facilities as reasonably required by Conversion Digital Ltd;
5.1.3 (to the extent applicable) inform Conversion Digital Ltd of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises; and/or
5.1.4 obtain and maintain all necessary licences and consents for Conversion Digital Ltd to use of Client Content for the purposes set out under these Conditions
5.1.5 The Client shall at its own expense, retain duplicate copies of all Client Content where applicable. Conversion Digital Ltd shall have no liability for any such loss or damage, however caused to the Client Content.
5.2 The Client shall be liable to pay to Conversion Digital Ltd, on demand, all reasonable costs, charges or losses sustained or incurred by Conversion Digital Ltd (including, without limitation, 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 Conversion Digital Ltd confirming such costs, charges and losses to the Client in writing.
5.3 To the extent applicable, the Client warrants that any personal data included in the Client Content complies fully with the Data Protection Act 1998 and associated legislation and the Client hereby indemnifies Conversion Digital Ltd against any infringement of such legislation (except insofar as Conversion Digital Ltd is responsible for the security of the system and the
materials) and in particular acknowledges that Conversion Digital Ltd does not operate or exercise any control over, and accepts no responsibility for where or in what jurisdiction the materials may be received.
6.1 The Parties acknowledge that the Client may require changes or variations to the Promotion and Marketing Services as set out in the Order.
6.2 Where the Client requires changes to be made, the Client shall notify Conversion Digital Ltd of such change in writing and set out the changes and reasons for such changes. Conversion Digital Ltd will review the changes and prepare a proposal on such steps required and cost implications on the changes requested by the Client. For the avoidance of doubt, unless otherwise agreed in writing by the Parties, Conversion Digital Ltd shall be entitled to charge the Client to prepare such proposal and such charges shall be based on Conversion Digital Ltd then applicable charge out rates.
6.3 The Client will have the opportunity to review and approve such proposal by Conversion Digital Ltd and where the Client accepts Conversion Digital Ltd proposal, the Client shall confirm such acceptance in writing and the proposal by Conversion Digital Ltd will form part of the Order.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Client and Conversion Digital Ltd, the Intellectual Property in any Client Content shall belong to the Client and/or its licensors.
7.2 Subject to Clause 7.1, as between the Client and Conversion Digital Ltd, the Intellectual Property in any information, reports and/or any Intellectual Property created in the course of Conversion Digital Ltd performing the Promotion and Marketing Services unless otherwise agreed in writing between the Client and Conversion Digital Ltd will belong to Conversion Digital Ltd and/or
7.3 As between Conversion Digital Ltd and the Client, the Client acknowledges that Intellectual Property in any Conversion Digital Ltd Content is owned by Conversion Digital Ltd and/or licensors.
7.4 The Client hereby grants to Conversion Digital Ltd a royalty-free, worldwide, irrevocable, perpetual non- exclusive licence to use the Client Content and the Intellectual Property thereto for Conversion Digital Ltd business purposes.
7.5 The Client warrants that the use by Conversion Digital Ltd of any Client Content and the Client’s Intellectual Property thereto the purposes set out in these Conditions will not infringe the Intellectual Property rights of any third party and the Client shall indemnify Conversion Digital Ltd against any loss, damage, costs, expenses or other claims arising from any such infringement.
8. CHARGES AND PAYMENT
8.1 The Client shall pay to Conversion Digital Ltd the Charges as set out in the Order and pursuant to the provisions set out in the Order.
8.2 All payments made by the Client shall be in Pound Sterling.
8.3 Without prejudice to any other rights which Conversion Digital Ltd may have, if the Client fails to pay any Charges under these terms and conditions, Conversion Digital Ltd shall be entitled, but not obliged, to:
8.3.1 charge interest on the outstanding amount (both before and after any judgment) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 with such interest to accrue on a daily basis from the due date until the outstanding amount is paid in full; and
8.3.2 suspend the Promotion and Marketing Services.
8.4 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Conversion Digital Ltd to the Client.
8.5 No payment shall be deemed to have been received until Conversion Digital Ltd has received cleared funds. Time for payment by the Client shall be of the essence.
9.1 Each of the parties represents and warrants that it has the full power and authority to enter into Contracts.
9.2 Except for the Client Content, Conversion Digital Ltd warrants that to the best of its knowledge that the Conversion Digital Ltd Content and/or the use of the Conversion Digital Ltd Content for the purpose contemplated under the relevant Contract(s) would not infringe the
Intellectual Property of third parties and if the Client is aware of any infringement and/or potential infringement, the Client shall forthwith notify Conversion Digital Ltd in writing. Without prejudice to Clauses 12.1 to 12.7, Conversion Digital Ltd shall have the conduct of all
proceedings relating to the Conversion Digital Ltd Content and shall in its sole discretion decide what action to take in respect of any infringement or alleged infringement of the same or any other claim or counter-claim brought or threatened in respect of the use of the Conversion Digital Ltd Content. For the avoidance of doubt, Conversion Digital Ltd shall not be obliged to take any action if it is of the view that it is not commercially viable to do so. However, if it does not take any ction as described in this clause which it ought reasonably to take, Conversion Digital Ltd shall refund to the Client the Charges (minus such sum to reflect the benefits accrued to the Client).
10. TERM OF THE CONTRACT
10.1 The Contract for the Promotion and Marketing Services shall commence on the Effective Date and subject to earlier termination pursuant to these terms and conditions, remain in full force and effect during the Initial Term.
10.2 Subject to Clause 13, upon expiry of the Initial Term, the Contract will automatically be renewed for Additional Term(s).
10.3 In the event the Contract is terminated prior to the expiry of the Initial Term for any other reason other than breach of contract by Conversion Digital Ltd under Clause 13.1, the Client will not be entitled to any refund of the Charges.
11.1 Both Parties shall keep in strict confidence all information which is of a confidential nature and have been disclosed by one Party to the other Party and shall procure that the receiving Party’s employees, agents, consultants or subcontractors keep in strict confidence all such information other than for the purposes of performing its obligations under the Contract.
11.2 The obligations set out in Clause 11.1 of these terms and conditions shall not apply to confidential information that the receiving Party can demonstrate is or has become publicly known other than through breach of this Clause 14, was in the possession of the receiving party prior to disclosure by the disclosing Party, was received by the receiving Party from an independent third party who has full right of disclosure, or was independently developed by the receiving Party or was required to be disclosed by a governmental authority, provided that the Party subject to such requirement to disclose gives the other Party prompt written notice of the requirement.
11.3 The Parties agree that Conversion Digital Ltd shall be entitled to use the Client’s name and trade mark for marketing and promotional purposes.
12.1 Nothing in these terms and conditions excludes or limits the liability of Conversion Digital Ltd for death or personal injury caused by Conversion Digital Ltd negligence or for fraudulent misrepresentation.
12.2 Save for the express warranties set out in these terms and conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these terms and conditions and the Contract.
12.3 Subject to Clauses 12.1 and 12.5, Conversion Digital Ltd shall not be liable to the Client in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution by reason of any representation, breach of third party intellectual property rights, implied warranty, condition or other term or any duty at common law, or under the express terms of these terms and conditions for all and any loss or damage arising out of or in connection with any act or omission of Conversion Digital Ltd, its employees, directors, agents and/or sub-contractors.
12.4 Subject to Clauses 12.1, 12.3 and 12.5, Conversion Digital Ltd, its employees, directors, agents and/or sub- contractors shall not be liable to the Client for any indirect or consequential loss or damage (including without limitation, for loss of profit, wasted or lost management time, loss of goodwill, loss of savings loss of business, and/or other economic losses), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these terms and conditions and/or the Contract.
12.5 Subject always to Clause 12.1, Conversion Digital Ltd shall not be liable for any losses and/or damages suffered by the Client if Conversion Digital Ltd is unable to perform its obligations on time due to delays caused by the Client, its customer, third parties and/or
circumstances beyond the control of Conversion Digital Ltd for which Conversion Digital Ltd is not at fault.
12.6 Subject to Clauses 12.1, 12.3, 12.4 and 12.5, Conversion Digital Ltd total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms and conditions and the Contract shall be limited to:
12.6.1 in respect of matters for which Conversion Digital Ltd does not carry insurance, the amount of monies paid by the Client to Conversion Digital Ltd during the Initial Term or relevant Additional Term (as the case may be); and
12.6.2 in respect of matters for which Conversion Digital Ltd carries insurance, the insured value.
12.7 The provisions of this Clause 12 shall survive the termination of these terms and conditions and/or the Contract.
13. TERMINATION AND POST TERMINATION
13.1 Without prejudice to any other rights to which it may be entitled, either party may give written notice to the other party (‘Party in Breach’) terminating such Contract with immediate effect if:
13.1.1 the Party in Breach commits a material breach of any of the terms of such Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
13.1.2 an order is made or a resolution is passed for the winding up of the Party in Breach or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Party in Breach;
13.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the Party in Breach or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Party in Breach or notice of intention to appoint an administrator is given by the Party in Breach or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
13.1.4 a receiver is appointed of any of the Party in Breach’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Party in Breach or if any other person takes possession of or sells the Party in Breach’s assets;
13.1.5 the Party in Breach makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
13.1.6 the Party in Breach takes or suffers any similar or analogous action in any jurisdiction in consequence of debt; or
13.1.7 the Party in Breach ceases to trade.
13.2 Without prejudice to any other rights to which it may be entitled, Conversion Digital Ltd shall be entitled to terminate such Contract if the Client fails to make payment of any amount payable. Upon termination under this Clause, any unpaid Charges shall be due immediately.
13.3 The Client shall be entitled to terminate the Contract at any time after the Initial Term by giving Conversion Digital Ltd 90 days notice in writing and paying the any outstanding charges. However, in such an event, the Client shall not be entitled to any refund of the Charges paid by the Client to Conversion Digital Ltd and unpaid amount of the Charges shall be due immediately.
14. DISPUTE RESOLUTION
If any disagreement and/or dispute arise in connection with these terms and conditions or Contract,
the Parties will use utmost good faith to settle such disagreement and/or dispute amicably.
15.1 A notice required or permitted to be given by either party to the other under these terms and conditions shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or by electronic mail:
15.1.1 (in case of communications to Conversion Digital Ltd) to its registered office or such changed address as shall be notified to the Client by Conversion Digital Ltd; or
15.1.2 (in the case of the communications to the Client) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to Conversion Digital Ltd by the Client.
15.2 Notices shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
15.2.2 if delivered by hand, on the day of delivery; or
15.2.3 if sent by fax or by electronic mail on a working day prior to 4.00pm, at the time of transmission and otherwise on the next Working Day.
16.1 These terms and conditions together with the Order constitute the entire agreement between the Parties and supersede any previous agreement or understanding between the Parties.
16.2 Each right or remedy of Conversion Digital Ltd under the Contract is without prejudice to any other right or remedy of Conversion Digital Ltd whether under the Contract or not.
16.3 Failure or delay by Conversion Digital Ltd in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by Conversion Digital Ltd of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability,
unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.6 Both Parties shall be released from their respective obligations in the event of national emergency, war, floods, fire disaster, civil riots, prohibitive governmental regulation or for any other cause beyond the reasonable control of the Parties except for the payment of any charges or fees by the Client to Conversion Digital Ltd.
16.7 The Parties agree to ensure that they will at all times comply with the provisions and obligations imposed by the Data Protection Act 1998 and any other laws or regulations from time to time applicable in connection with the handling of Personal Data (as defined by the Data Protection Act 1998) in connection with these Conditions.
16.8 The Parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.9 The formation, existence, construction, performance, validity and all aspects of the Contract and these terms and conditions shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.