Terms & Conditions of Use

1. PARTIES

1.1 These Terms are between Ink Digital Ltd (company number 12272991) whose registered office is at 118 Kings Road, Brentwood, CM14 4AE (Ink Digital) and the Client (whose details appear on the Client Agreement), collectively, the Parties and each, a Party.1.2 Ink Digital is a provider of digital marketing services and the Client wishes to engage Ink Digital to provide the Services on these Terms.

2. EFFECT OF THESE TERMS

2.1 These Terms, together with the Client Agreement, form a binding contract between Ink Digital and the Client in respect of the Services.
2.2 These Terms will automatically come into effect upon each of the Parties executing the Client Agreement (in accordance with the requirements of the Client Agreement), at which point a contract shall come into force.
2.3 The Services shall commence on the Services Commencement Date. For the avoidance of doubt, the Parties agree that upon the execution of the Client Agreement, the Contract shall be effective and binding on them.
2.4 The Contract applies to all Services provided by Ink Digital to the Client and sets out the Parties’ respective rights and obligations in respect of the Services.
2.5 The Client acknowledges and agrees that Ink Digital is an online marketing agency and may rely on third parties to perform the Services.
2.6 Ink Digital is an independent contractor to the Client, and shall not be deemed to be a partner of, or otherwise associated with, the Client in any way.
2.7 The Services are provided for the sole benefit of the Client, unless expressly agreed otherwise by the Parties and set out in writing.

3. SERVICES

3.1 In consideration of the payment of the Fees, Ink Digital shall, from the Services Commencement Date, use reasonable endeavours to provide the Services specified in the Client Agreement in material accordance with these Terms.
3.2 Any samples, drawings, descriptive matter or advertising issued by Ink Digital, and any descriptions or illustrations contained in Ink Digital’s catalogues or brochures in relation to the Services, including in the Proposal (collectively, Marketing Materials), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. Such Marketing Materials do not form part of the Contract or have any contractual force.
3.3 Ink Digital shall:
3.3.1 perform the Services with reasonable care and skill;
3.3.2 use reasonable endeavours to ensure that the same person acts as the Ink Digital Contact throughout the Term, but may replace that person from time to time where reasonably necessary in the interests of Ink Digital’s business, or where such person leaves Ink Digital;
3.3.3 subject to the prior written consent of the Client (not to be unreasonably delayed or withheld), have the right to sub-contract, sub-license or otherwise transfer certain parts of the Services to specified third parties as it deems necessary or appropriate;
3.3.4 report on its performance of the Services and other information to the Client via email to the Main Client Contact (using the email address specified on the Client Agreement), or via such other method of communication as Ink Digital may agree with the Client from time to time during the Term;
3.3.5 implement any change to a Campaign reasonably requested by the Client and agreed by Ink Digital in accordance with the Contract as soon as reasonably practicable from the date that such change is agreed; and
3.3.6 comply with all applicable laws and regulations relating to performance of the Services.
3.4 Ink Digital may make changes to the Services which are necessary to achieve the objectives set out in the Client Agreement, provided it has given the Client written notice of its intention to make such change(s).
3.5 The Parties may propose changes to the Fees, and add, remove or make changes to the Services, from time to time during the Term. If Ink Digital agrees to any such changes:
3.5.1 the Authorised Sales Agent shall ask the Client to confirm its agreement to such changes by sending an email;
3.5.2 the Main Client Contact shall confirm their agreement to their same by return email; and
3.5.3 the changes will come into effect on the date specified in the email sent in accordance with Clause 3.5.1, unless otherwise agreed by both parties in writing.

4. THE CLIENT’S OBLIGATIONS

4.1 The Client shall:
4.1.1 pay all Fees and additional charges in accordance with the Contract;
4.1.2 co-operate with Ink Digital in all matters relating to the Services;
4.1.3 ensure that Ink Digital has all such access to the Client’s information, electronic systems and materials as Ink Digital may reasonably require in order to supply the Services;
4.1.4 promptly provide Ink Digital with all assistance, directions, instructions or information, as reasonably required by Ink Digital to perform the Services;
4.1.5 provide prompt updates on any information relevant to the Services, including (without limitation) any changes to the Client’s website that would affect the Client’s Campaigns;
4.1.6 comply with all applicable laws and regulations in relation to its receipt of and use of the Services, and any guidelines or policies of Ink Digital issued to the Client from time to time during the Term;
4.1.7 notify Ink Digital promptly if it wishes to change the contact details for, or replace, the Main Client Contact, providing Ink Digital with all required information prescribed in the Client Agreement;
4.1.8 keep all Ink Digital Materials at the Client’s premises in safe custody and at its own risk, maintain the Ink Digital Materials in good condition until returned to Ink Digital, and not dispose of or use Ink Digital Materials other than in accordance with Ink Digital’s written instructions or authorisation;
4.1.9 take out and maintain insurance sufficient to cover all its liability arising out of the Contract; and
4.1.10 not create, develop, adapt or allow to be created, developed or adapted any product or service using any part of the Ink Digital Background IP.
4.2 The Client shall not use any trade mark, copyright, branding elements, or other Intellectual Property Rights of Ink Digital without Ink Digital’s prior written consent, except as expressly permitted under these Terms.
4.3 If Ink Digital’s performance of any of its obligations under the Contract is prevented or delayed by any act by or omission of the Client, or by any failure by the Client to perform any relevant obligation (Client Default):
4.3.1 without limiting or affecting any other right or remedy available to it, Ink Digital shall have the right to immediately suspend performance of the Services until the Client remedies such Client Default, and to rely on such Client Default to relieve it from the performance of any of its obligations, in each case to the extent that such Client Default prevents or delays Ink Digital’s performance of any of its obligations;
4.3.2 Ink Digital shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this Clause 4.3; and
4.3.3 the Client shall reimburse Ink Digital on written demand for any and all costs or losses sustained or incurred by Ink Digital arising directly or indirectly from any Client Default.
4.4 The Client may request the temporary suspension of a Campaign (a Campaign Pause) but such request is at all times subject to and conditional upon:
4.4.1 the Client giving Ink Digital a minimum of thirty (30) days’ advanced written notice of its request for a Campaign Pause (failing which Ink Digital shall have the sole and absolute right to reject such request);
4.4.2 such Campaign Pause being of a maximum duration of thirty (30) days;
4.4.3 Ink Digital being under no obligation to provide the Services or otherwise being required to perform its obligations under the Contract during the Campaign Pause; and
4.4.4 the Client only being entitled to request one Campaign Pause during the Term.
For the avoidance of doubt, during any Campaign Pause, the Client will continue to be liable to pay all Fees and other sums as they fall due under the Contract in respect of Services rendered prior to the date of the Campaign Pause coming into effect.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 The Client and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Client Background IP.
5.2 Ink Digital and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Ink Digital Background IP.
5.3 The Client grants to Ink Digital a non-exclusive, non-transferrable, revocable, limited licence during the Term to use the Client Background IP solely in relation to the performance of the Services.
5.4 Subject to clause 5.8, Ink Digital grants to the Client a non-exclusive, non-transferrable, revocable, limited licence during the Term to use the Ink Digital Background IP solely in relation to the receipt of the Services.
5.5 Subject to clause 5.8, Ink Digital assigns to the Client with full title guarantee, all Client Foreground IP (excluding any Customer Materials, Ink Digital Materials or Third Party Materials contained within them) upon completion of the relevant output to which the Client Foreground IP relates.
5.6 Ink Digital and its licensors own, and shall retain ownership of, all Intellectual Property Rights in the Ink Digital Foreground IP.
5.7 Each Party shall only use the Intellectual Property Rights licenced or granted to it under and in connection with the Contract for the performance or receipt of the Services.
5.8 The assignment and licence granted from Ink Digital to the Client under and in connection with this clause are at all times conditional upon:
5.8.1 the Client paying all Fees to Ink Digital as they fall due; and
5.8.2 the Client’s full compliance with the Contract. For the avoidance of doubt, the Client may not sub-license, assign or otherwise transfer the rights in the Ink Digital Background IP without Ink Digital’s prior written consent.
5.9 The Client warrants that the receipt and use of the Client Background IP in the performance of the Contract by Ink Digital, its agents, subcontractors or consultants does not, and shall not, infringe the rights, including any Intellectual Property Rights, of any third party. The Client shall indemnify Ink Digital Ltd, its agents, subcontractors or consultants (each an Indemnitee) against, all costs, expenses, damages and losses, awarded against or incurred by Ink Digital Ltd, a result of, or in connection with, any claim brought against any Indemnitee for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, an Indemnitee’s receipt or use of the Client Background IP in accordance with the Contract.
5.10 Subject to Clause 10.2, Ink Digital’s liability in relation to Third Party Materials is limited to the liability accepted by the third party under the relevant licence agreement.

6. FEES

6.1 Unless otherwise agreed in writing, the Fees payable by the Client for the Services shall be the amounts specified in the Client Agreement.
6.2 Ink Digital shall invoice the Client the Fees, monthly, in advance and the Client shall pay each invoice submitted to it by Ink Digital within 25 days of receipt of the invoice by the Client (unless otherwise agreed between the Parties in writing).
6.3 The Client acknowledges and agrees that the Fees exclude the following, which Ink Digital shall be entitled to charge the Client, and the Client shall pay monthly in arrears (unless otherwise agreed in writing), following submission of an appropriate invoice:
6.3.1 the reasonable cost of any agreed out-of-pocket expenses and ancillary expenses reasonably incurred by Ink Digital, its Personnel and/or its sub-contractors in connection with the Services (including without limitation, any travelling expenses, hotel costs, subsistence and any associated expenses) provided that Ink Digital obtains the Customer’s prior written approval before incurring any expenses over £150 in any calendar month;
6.3.2 the cost of providing the Services in languages other than English (as may be requested by the Client and agreed between the Parties); and
6.3.3 the cost to Ink Digital of any materials or services procured by Ink Digital from third parties for the provision of the Services, as such items and their cost are approved by the Client in advance in writing from time to time.
6.4 Without prejudice to any other right or remedy it might have, if the Client fails to pay Ink Digital any sum due under these Terms (including, without limitation, any third party costs that Ink Digital incurs on the Client’s behalf) on the due date for payment:
6.4.1 Ink Digital may charge the Client for any additional administration and legal costs that Ink Digital may incur as a consequence of such late payment;
6.4.2 Ink Digital may charge (and the Client will pay) interest on the overdue amount from the due date until payment of the overdue amount. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time but at 4% a year for any period when that base rate is below 0%; and
6.4.3 Ink Digital may, at its election, suspend the supply of all or part of the Services under the Contract (or any other contract between the Client and Ink Digital) until payment has been made or terminate the Contract on written notice to the Client.
6.5 Ink Digital shall be entitled to set off or withhold any amount owed to the Client under the Contract against any amount payable by the Client to Ink Digital.
6.6 All sums payable to Ink Digital under the Contract:
6.6.1 are exclusive of VAT;
6.6.2 exclude any surcharges for payment methods used by the Client to pay the Fees; and
6.6.3 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 If any payment pursuant to the Contract constitutes the whole or any part of the consideration for a taxable or deemed taxable supply to the Client, Ink Digital shall increase that payment by an amount equal to the VAT which is chargeable in respect of the taxable or deemed taxable supply, provided that the Client shall have delivered a valid VAT invoice in respect of such VAT.
6.8 Ink Digital may increase the Fees for any or all of the Services at its sole and absolute discretion, each Year with effect from each anniversary of the Effective Date. In the event that Ink Digital determines that it wishes to increase the Fees for any of the Services, Ink Digital shall notify the Client of such increase(s) in writing at least ninety (90) days prior to the date of such increase(s) coming into effect (Increase Date). If the Client does not wish to accept the increase(s) to the Fees for the Services, or any particular Service, it may give notice to terminate the Contract prior to the Increase Date in accordance with Clause 11.1, failing which the Client shall be deemed to have accepted the relevant increase on the Increase Date.

7. CONFIDENTIALITY

7.1 Each Party shall keep the other party’s Confidential Information secret and confidential and shall not:
7.1.1 use that Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (Permitted Purpose); or
7.1.2 disclose that Confidential Information in whole or in part to any person, except as permitted by clause 7.2.
7.2 Subject to clause 7.3, each party may disclose the other party’s Confidential Information:
7.2.1 to those of its employees, officers, representatives, independent contractors, subcontractors and advisers who need to know that information for the Permitted Purpose (Representatives). Each Party shall ensure that its Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this Clause 7, and each Party shall be liable for the act and omissions of its Representative; and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 The Client shall not disclose Ink Digital’s Confidential Information to any competitor of Ink Digital except with Ink Digital’s prior written consent. The Client shall ensure that any competitor receiving Ink Digital’s Confidential Information complies with confidentiality obligations which are substantially equivalent to those set out in this Clause 7.
7.4 The provisions of this Clause 7 shall continue to apply for a period of five years after termination or expiry of the Contract.

8. DATA PROTECTION

8.1 For the purposes of this Clause 8, the terms Commissioner, controller, data subject, personal data, personal data breach, processor and processing shall have the meaning given to them in Applicable Data Protection Laws.
8.2 Each party shall comply with all Applicable Data Protection Laws in its processing of personal data under or in connection with the Contract. This Clause 8 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.
8.3 Without prejudice to Clause 8.2, where one Party (Data Discloser) shares personal data with the other Party (Data Recipient) as controllers (Shared Personal Data), the Data Recipient will:
8.3.1 only process the Shared Personal Data for the purpose set out in the Client Agreement or otherwise agreed in writing by the Parties (Agreed Purpose); and
8.3.2 not retain or process the Shared Personal Data for longer than is necessary to carry out the Agreed Purpose.
8.4 The Parties have determined that for the purposes of Applicable Data Protection Laws Ink Digital shall process the personal data set out in paragraph 1 of Schedule 1 as processor on behalf of the Client.
8.5 Without prejudice to clause 8.2, the Client shall ensure that it has all necessary consents and notices in place to enable the Shared Personal Data and Client Personal Data to be lawfully transferred to or collected by Ink Digital in connection with the performance of the Contract.
8.6 In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by Ink Digital, the duration of the processing and the types of personal data and categories of data subject.
8.7 Without prejudice to clause 8.2, Ink Digital shall, in relation to Client Personal Data:
8.7.1 process that Client Personal Data only on the documented instructions of the Client, which are set out in Schedule 1 (Purpose), unless Ink Digital is required by Applicable Data Protection Laws to otherwise process that Client Personal Data. Where Ink Digital is relying on Applicable Data Protection Laws as the basis for processing Client Personal Data, Ink Digital shall notify the Client of this before performing the processing unless prohibited from doing so by those Applicable Data Protection Laws. Ink Digital shall inform the Client if, in the opinion of Ink Digital, the instructions of the Client infringe Applicable Data Protection Laws. Ink Digital may suspend the provision of the Services until the Parties have agreed revised instructions which are not infringing;
8.7.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data. The Client acknowledges that it has reviewed the technical and organisational measures set out in Schedule 1 and confirms they are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss or destruction of, or damage to, the Client Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Client Personal Data as well as the risks to individuals;
8.7.3 ensure that any Ink Digital Personnel authorised by Ink Digital to process Client Personal Data are obliged to keep that personal data confidential;
8.7.4 assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Ink Digital), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the Commissioner or other regulators;
8.7.5 notify the Client without undue delay on becoming aware of a personal data breach;
8.7.6 at the written direction of the Client, delete or return to the Client all Client Personal Data on termination or expiry of the Contract unless Ink Digital is required by Applicable Data Protection Laws to continue to process that Client Personal Data. For the purposes of this clause 8.7.6, Client Personal Data shall be considered deleted where it is put beyond further use by Ink Digital; and
8.7.7 maintain complete and accurate records and information to demonstrate its compliance with this Clause 8.7.7 and allow for audits by the Client (or its designated professional auditors) for this purpose. The Client will give Ink Digital at least 14 days’ notice before starting any audit. Ink Digital is not obliged to:
8.7.7.1 allow more than one audit in any Year;
8.7.7.2 grant access to any third party auditor until that auditor signs a confidentiality agreement with Ink Digital on terms reasonably satisfactory to Ink Digital; or
8.7.7.3 make available any information that concerns any other customer of Ink Digital or could compromise the security of Ink Digital’s systems or cause it to breach any legal obligation.
8.8 The Client provides its prior, general authorisation for the Ink Digital to:
8.8.1 appoint processors to process the Client Personal Data, provided that Ink Digital:
8.8.1.1 ensures that the terms on which it appoints any processor comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Ink Digital in this Clause 8;
8.8.1.2 remains responsible for the acts and omissions of any processor as if they were the acts and omissions of Ink Digital; and
8.8.1.3 informs the Client of any intended changes concerning the addition or replacement of processors during the Term, giving the Client the opportunity to object to changes provided that if the Client objects to a change and cannot demonstrate, to Ink Digital’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Client shall indemnify Ink Digital for any Losses incurred by Ink Digital in accommodating the objection.
8.8.2 transfer Client Personal Data outside of the UK as required for the Purpose, provided that Ink Digital shall ensure that all transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Ink Digital, including any request to enter into standard data protection clauses adopted by the Commissioner (where the UK GDPR applies to the transfer) or any other applicable data protection regulator.

9. WARRANTIES AND INDEMNITIES

9.1 Each Party warrants to the other that:
9.1.1 it has the full power, capacity and authority to enter into the Contract and to perform its obligations under the Contract; and
9.1.2 in performing its obligations under the Contract, it will comply with all Applicable Data Protection Laws. This Clause 9.1.2 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Applicable Data Protection Laws.
9.2 The Client hereby warrants and represents that:
9.2.1 the Client’s receipt and use of the Services shall be for legitimate business purposes and in compliance with all applicable laws and regulations;
9.2.2 the Client has obtained all necessary approvals, consents and permissions from any relevant authority or third party in connection with its receipt and use of the Services; and
9.2.3 the Client Materials are accurate, complete and up to date, and the Client accepts sole responsibility and liability for such Client Materials.
9.3 Save as expressly set out in these Terms, the Services and the Ink Digital Materials are provided to the Client ‘as is’, and ‘as available’, and to the maximum extent permitted by applicable law, no warranties (whether express or implied) are made by Ink Digital as to their suitability, fitness for purpose, accuracy or otherwise.
9.4 All warranties, conditions and other terms, express or implied (by statute or otherwise) are, unless expressly set out in these Terms, excluded from the Contract to the fullest extent permitted by applicable law.
9.5 The Client will indemnify Ink Digital from and against, any liability, losses, damages, costs (including legal fees) and expenses of any nature incurred by Ink Digital directly or indirectly from:
9.5.1 any breach of the Client’s confidentiality obligations under Clause 7 of these Terms; and
9.5.2 any breach by the Client of Clause 9.2 of the Contract.
The indemnities in this Clause 9.3 shall remain in full force and effect notwithstanding the termination or expiry of the Contract.

10. LIMITATIONS OF LIABILITY

10.1 Notwithstanding anything contained in the Contract, neither Party excludes or limits its liability for:
10.1.1 personal injury or death resulting from its negligence;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or any other liability which cannot be excluded or limited by law.
10.2 Subject to Clause 10.1, neither Party shall be liable to the other Party in any circumstances, whether in tort (including, without limitation, for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for respect of any:
10.2.1 loss of income, sales, business or revenue;
10.2.2 loss of profits;
10.2.3 loss or corruption of software, data or information;
10.2.4 loss of business opportunity, goodwill or reputation;
10.2.5 business interruption;
10.2.6 loss of anticipated savings; or
10.2.7 for any indirect or consequential loss or damage of any kind.
10.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
10.4 Subject to Clauses 10.1, 10.2 and10.3, Ink Digital’s total aggregate liability to the Client for any and all Losses arising out of, or in connection with, the Contract shall not exceed an amount which is equal to the lesser of:
10.4.1 the total Fees actually paid by the Client to Ink Digital; or,
10.4.2 the average annual Fees (calculated by reference to the Fees in successive twelve (12) month periods from the Effective Date) paid by the Client as at the date that the relevant liability accrued.
10.5 Nothing in this Clause 10 shall limit the Client’s payment obligations under the Contract.

11. DURATION AND TERMINATION

11.1 The Contract shall commence on the Effective Date and, subject to earlier termination in accordance with its terms, will continue in force for the duration of the Initial Services Term. Following expiry of the Initial Services Term, the Contract, subject to earlier termination in accordance with these Terms, will continue in force unless and until terminated by either Party giving not less than thirty (30) days’ written notice of termination to the other (Term).
11.2 Without affecting any other right or remedy available to it, either Party may terminate one or more of the Services by giving the other Party thirty (30) days’ prior written notice, such termination to take effect no earlier than expiry of the Initial Services Term. In the event of a Party terminating one or more of the Services in accordance with this Clause, the terms of the Contract will continue to apply to the remaining Service(s).
11.3 Either Party may terminate one or more of the Services or the Contract in accordance with Clause 13.2 (Force Majeure).
11.4 Either Party may terminate the Contract (or at the notifying Party’s option, a particular Service), including during the Initial Services Term, immediately by written notice if the other Party:
11.4.1 commits any material or persistent breach of any of its obligations under the Contract or any part of the Contract which relates to the Service in question (as appropriate) and, in the case of a breach which is capable of remedy, fails to remedy it within thirty (30) days of being required to do so by notice in writing from the other Party;
11.4.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if it has a receiver, administrator or administrative receiver appointed over it or over any part of its undertaking or assets, or if it passes a resolution for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or if it enters into any voluntary agreement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if it ceases or threatens to cease to carry on business.
11.5 Without affecting any other right or remedy available to it, Ink Digital may terminate the Contract (including during the Initial Services Term) with immediate effect by giving written notice to the Client if:
11.5.1 the Client fails to pay any amount due under the Contract on the due date for payment;
11.5.2 in Ink Digital’s reasonable (but sole and absolute) opinion, there is a material breakdown of trust between the Parties; or
11.5.3 there is a change of Control of the Client.
11.6 Without affecting any other right or remedy available to it, Ink Digital may suspend the supply of all or part of the Services under the Contract or any other contract between the Client and Ink Digital if the Client becomes subject to any of the events listed in Clause 11.4.2, or Ink Digital reasonably believes that the Client is about to become subject to any of them.

12. CONSEQUENCES OF TERMINATION

12.1 Expiry or termination of one or more (but not all) of the Services shall not affect Ink Digital’s obligation to provide the remaining Services or the Client’s obligations to pay the Fees in respect of the remaining Services. When all Services have expired or terminated, the Contract shall terminate automatically and all outstanding Fees due to Ink Digital shall become immediately due and payable.
12.2 In the event of cancellation of the Services or termination of the Contract, Ink Digital may (at its sole and absolute, but reasonable discretion) refund any advance payment for Services (which shall exclude any costs that are not reimbursed by third parties).
12.3 The termination or expiry of the Contract (howsoever caused) will not affect any rights and/or liabilities of either Party which have accrued before termination or expiry.
12.4 Any provision of the Contract which expressly, or by implication, is intended to come into or continue in effect on or after termination or expiry (including, without limitation, Clauses 15, 4.3.2, 4.3.3, 5, 7, 8, 9, 10, 12 and 14) shall remain in full force and effect.
12.5 Upon either Party giving written notice to terminate the Contract for any reason, the Client shall within thirty (30) days of such notice pay any and all outstanding Fees to Ink Digital.
12.6 Upon termination or expiry of the Contract (for any reason):
12.6.1 the Client shall immediately pay to Ink Digital all of Ink Digital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Ink Digital shall submit an invoice, which shall be payable by the Client immediately on receipt;
12.6.2 each Party shall (at the other Party’s request and election) promptly return or render permanently inaccessible, all of the other Party’s Confidential Information, together with all other materials in its possession that were disclosed to it under the Contract; and
12.6.3 Ink Digital’s obligations to the Client under the Contract, and all licences granted under the Contract by a Party, shall immediately cease.

13. FORCE MAJEURE

13.1 Neither Party shall be liable to the other for any delay or non-performance of its obligations under the Contract (other than an obligation to pay the Fees) arising from any cause or causes beyond its reasonable control, including, but not limited to, any Services not being available due to mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems, outages from cloud providers, power shortage, network failure, server crashes, deletion, corruption, or loss or removal of data, where the Client ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act of God, fire, explosion, storm, flood, tempest, drought, earthquake, accident, epidemic or disease, war, hostilities, riots, acts of terrorism, legislative changes or any other changes by any government or authorised body in any relevant territory, failure or shortage of power supplies, failure of computer systems, non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause), labour dispute or any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency (Force Majeure Event). The Party subject to a Force Majeure Event shall promptly notify the other Party of that fact and will use its reasonable endeavours to minimise the impact of such Force Majeure Event.
13.2 If a Party is prevented from performing its obligations under the Contract in relation to any of the Services by a Force Majeure Event which continues for more than ninety (90) days then either Party will be entitled to terminate the Contract with immediate effect, in relation to that Service (or those Services) in question only, without liability to the other Party on giving written notice of termination to the other Party.

14. MISCELLANEOUS

14.1 The Client shall not during the Term, nor for a period of twelve (12) months following the termination or expiry of the Contract for any reason, on its own behalf or on behalf of any third party, directly induce, or attempt to induce, any person employed by Ink Digital who has been engaged in the provision of the Services to the Client to leave the employment of Ink Digital or employ or engage in any capacity any such employee, provided that this restriction shall not apply to any such person who makes an unsolicited reply to a bona fide public advertisement, including by the Client on its website, or solicitations conducted by an entity that is acquired by or merged with the Client, so long as such solicitations were conducted prior to the date of such acquisition or merger.
14.2 If a dispute arises out of, or in connection with, the Contract or the performance, validity or enforceability of it (Dispute) then except as expressly provided in the Contract, the Parties shall follow the procedure set out in this clause:
14.2.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Main Client Contact and Ink Digital Contact shall attempt in good faith to resolve the Dispute;
14.2.2 if the Main Client Contact and the Ink Digital Contact are for any reason unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute shall be referred to a senior management representative of the Client and an Authorised Management Representative of Ink Digital who shall attempt in good faith to resolve it; and
14.2.3 if the senior management representative of the Client and the Authorised Management Representative of Ink Digital are for any reason unable to resolve the Dispute within fourteen (14) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (ADR Notice) to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than thirty (30) days after the date of the ADR Notice.
14.3 The commencement of mediation under Clause 14.2.3 shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under Clause 1.1 which Clause shall apply at all times.
14.4 The Contract shall be governed by the laws of England and Wales whose courts shall have exclusive jurisdiction in the event of a failure to resolve any dispute (including non-contractual disputes) arising between the Parties.
14.5 The Contract constitutes the entire agreement between the Parties relating to the matters provided for herein and supersedes all previous agreements, understandings or arrangements between the Parties relating to these matters and each of the Parties acknowledges and agrees that in entering into the Contract it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether Party to the Contract or not) other than as expressly set out in the Contract. Nothing in this Clause shall limit or exclude any liability for fraud.
14.6 If Ink Digital wishes to vary the terms of the Contract in any respect other than the Fees and/or the Services as above, it will notify the Client of such variation(s), and require the Client to accept such variation(s) before continuing to use the Services. Ink Digital reserves the right to suspend or terminate the Contract (including the provision of the Services) with immediate effect if the Client does not accept any such variation(s).
14.7 The waiver by either of the Parties of any breach of any of the provisions of the Contract shall not prevent the subsequent enforcement of that provision and shall not be deemed a waiver of any subsequent breach. The rights of either of the Parties shall not be prejudiced or restricted by any time, indulgence or forbearance extended to the other.
14.8 Any notices to be given under the Contract shall, unless otherwise expressly stated, be in writing and shall be given by sending the same by email (if to the Client, to the Main Client Contact specified on the Client Agreement, or such other email address as the Client may notify to Ink Digital in writing from time to time during the Term; if to Ink Digital, to the Ink Digital Contact specified on the Client Agreement or such other email address as Ink Digital may notify to the Client in writing from time to time during the Term). Any notice by email shall be deemed to have been delivered on the same day (if sent before 17:00) and with a valid read receipt that is successfully returned to the sender. If a return read receipt is not received by the sender, the email shall not be deemed to be received. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.9 A person who is not a Party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
14.10 The invalidity or unenforceability of any provision, part-provision or any right arising under the Contract shall not affect the validity or enforceability of any other provisions or rights. If any provision or part provision is adjudged to be invalid or unenforceable, but would be adjudged valid or enforceable if any part(s) of their wording were deleted or modified, the relevant provisions shall apply with such deletions or modifications as may be necessary to make them valid and effective.

15. DEFINITIONS AND INTERPRETATION

15.1 In these Terms the following definitions apply:
ADR Notice: has the meaning given in Clause 14.2.3.
Applicable Data Protection Laws: all Applicable Laws relating to the protection of personal data and the privacy of individuals, including the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Authorised Management Representative: the person named on the Client Agreement to these Terms or such other senior, management level representative of Ink Digital that Ink Digital may nominate from time to time.
Authorised Sales Agent: the person named on the Client Agreement to these Terms or other sales agent of Ink Digital that Ink Digital may nominate from time to time to act on its behalf in relation to these Terms.
Campaign: a digital marketing campaign carried out by Ink Digital on the Client’s behalf pursuant to these Terms (and Campaigns shall be construed accordingly).
Campaign Pause: has the meaning given in Clause 4.4.
Client Agreement: the agreement executed between the Client and Ink Digital, which is subject to these Terms.
Client Background IP: any Intellectual Property Rights, other than the Client Materials and the Client Foreground IP, that are created, developed or arose before the Services Commencement Date by the Client, and used in the course of or in connection with the provisions of the Services.
Client Confidential Information: has the meaning given in Clause 7.1.
Client Default: has the meaning given in Clause 4.3.
Client Foreground IP: any Intellectual Property Rights in the Deliverables.
Client Materials: the materials provided by the Client to Ink Digital pursuant to these Terms which are expressly identified as the Client’s property or are notified as such by the Client to Ink Digital.
Client Personal Data: any personal data which Ink Digital processes under or in connection with these Terms on behalf of the Client.
Contract: these Terms together with the Client Agreement.
Creative Inker: the customised suite of creative solutions provided by Ink Digital to raise brand profile and identity of the Client.
Data Inker: the services provided by Ink Digital that use software for the collection, analysis and visualisation of data.
Data Controller: has the meaning given in the Data Protection Act 1998 (or, if appropriate, its successor legislation).
Data Processor: has the meaning given in the Data Protection Act 1998 (as may be amended or replaced by successor legislation).
Data Protection Legislation: the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all other applicable data protection legislation and regulations as amended, introduced or replaced from time to time throughout the world (including, when in force, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation).
Deliverables: all documents, products and other materials or items to be provided by Ink Digital to the Client as specified in the Client Agreement.
Dispute: has the meaning given in Clause 14.2.
Dispute Notice: has the meaning given in Clause 14.2.1.
Effective Date: the date from which these Terms are effective, being the Client Agreement is executed by both Parties.
Fees: the fees set out in the Client Agreement (or as otherwise agreed by the Parties in accordance with the terms of the Contract).
Force Majeure Event: has the meaning given in Clause 13.1 below.
Increase Date: has the meaning given in Clause 6.9.
Ink Digital Background IP: any Intellectual Property Rights, other than the Ink Digital Materials, the Ink Digital Foreground IP and the Third Party Materials, that are created, developed or arose before the Services Commencement Date by Ink Digital, and used in the course of or in connection with the provisions of the Services.
Ink Digital Contact: the person identified in the Client Agreement (as may be replaced by Ink Digital from time to time in accordance with Clause 3.3.2) who will be responsible for the day-to-day provision of the Services.
Ink Digital Foreground IP: any Intellectual Property Rights that are not Background IP and Client Foreground IP.
Ink Digital Materials: all data (including, without limitation, all data, and the format of such data, provided to the Client through the Media Platforms), reports, guides, content, project management tools and other information and materials derived from the Services and/or provided to the Client by Ink Digital pursuant to the Contract.
Initial Services Term: the minimum period of time for which the Services will be provided by Ink Digital (as specified on the Client Agreement), which will commence on the Services Commencement Date.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer products, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Lead Inker: the action or process of identifying and cultivating potential clients for a business’s products or services provided by Ink Digital.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, awards, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Main Client Contact: the authorised representative of the Client whose details appear on the Client Agreement who shall be the Client’s contact for any queries in relation to this Agreement and for agreeing any variations to the Contract in accordance with its terms.
Media Platforms: the third party digital marketing account platforms used by Ink Digital to provide the Services.
Organic Inker: the search engine optimisation services provided by Ink Digital.
Organic Social Inker: the monitoring and management of social media profiles provided by Ink Digital.
Paid Inker: the paid search advertising services provided by Ink Digital across sponsored listings of search engines and partner websites of such search engines.
Personal Data: has the meaning given in the Data Protection Act 1998 (as may be amended or replaced by successor legislation) and relates only to personal data, or any part of such personal data, provided by the Client to Ink Digital under or in connection with the Contract.
Personnel: in relation to either Party, its officers, directors and/or employees.
Proposal: The strategy proposal sent to the Client prior to the Client Agreement.
Processing: and Process have the meaning set out in section 1(1) of the Data Protection Act 1998 (as may be amended by successor legislation).
Services: those services to be provided by Ink Digital to the Client as specified on the Client Agreement and pursuant to the terms of the Contract (including, but not limited to, the Creative Inker, the Data Inker, the Lead Inker, the Organic Social Inker, the Social Inker, and/or the Website Inker) together with any other Services that the Client engages Ink Digital to provide from time to time during the Term, and each a Service.
Services Commencement Date: the date on which Ink Digital confirms to the Client by email that Ink Digital has received the first payment of the Fees and that Ink Digital is ready to commence the performance of the Services.
Shared Personal Data: has the meaning given in Clause 8.3.
Social Inker: the sponsored listing services provided by Ink Digital across social media platforms and partner websites of such search engines.
Term: the term of these Terms, as defined in Clause 11.1.
Terms: these terms and conditions.
Third Party Materials: all documents, information, software, items and other materials in any form belonging to a third party which Ink Digital uses or wants to use in connection with the Services and which are only made commercially available on standard terms that are not typically negotiated.
VAT: Value Added Tax, as defined by the Value Added Tax Act 1994.
Website Inker: the services provided by Ink Digital in relation to the planning, design, content and development of a website for hosting via intranet or internet.

Working Hours: Mondays to Fridays inclusive from 9.00 to 17.00, excluding English public and bank holidays and Working Day(s) shall be construed accordingly.

Year: each successive twelve (12) month period from the Effective Date (or part of such twelve (12) month period, as the context may require).

15.2 Unless the context otherwise provides or requires, or as expressly stated, references to Clause(s) are to clauses of these Terms and Conditions.
15.3 Any references to a statute, directive, regulation, code or guideline (legislation) are references to such legislation as amended, modified or re-enacted from time to time.
15.4 The headings in these Terms are for convenience only and shall not affect its construction or interpretation.
15.5 In the event of a conflict in the interpretation of the provisions of these Terms and the Client Agreement, the Client Agreement shall prevail and take priority.

 
Schedule 1 : Personal Data

1. Particulars of processing
1.1 The following sets out the details of the Supplier’s processing as a processor:
(a) Scope. The provision of the Services.
(b) Nature. Data Collection and storage.
(c) Purpose of processing. To make contact with you in relation to the Services.
(d) Duration of processing. The duration of the Services.
(e) Types of personal data. Names and Contact Details.
(f) Categories of data subject. Employees of the Client.
2. Independent controllers
2.1 The following sets out details of Shared Personal Data, being personal data processed by the Parties as independent controllers in connection with the performance of these Terms:
(a) Names and contact details of staff involved in managing the services.