1. Interpretation

The definitions and rules of interpretation in this condition apply in these terms and conditions.

Definitions

  • Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors (Representatives) to the other party and that party’s Representatives in connection with this agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.
  • Contract: the Customer’s purchase order and Thirty Six Digital’s acceptance of it under condition 3.
  • Customer: the person, firm or company who purchases Services from Thirty Six Digital.
  • Customer’s Project Manager: the Customer’s manager for the Project appointed in accordance with condition 5.1(a).
  • Deliverables: all products and materials developed by Thirty Six Digital in relation to the Project in any media, including graphic design, photography, computer programs, data, diagrams, reports and specifications (including drafts).
  • Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, 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: materials which existed before the commencement of the Project.
  • Project: the project as described in the Project Plan.
  • Project Milestone: 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) and responsibilities of each of the parties for, or in connection with, the provision of the Services by Thirty Six Digital in accordance with the Contract.
  • Services: the services to be provided by Thirty Six Digital under the Contract.
  • Thirty Six Digital: Thirty Six Digital whose office address is 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ .
  • Thirty Six Digital’s Project Manager: Thirty Six Digital’s manager for the Project, appointed in accordance with condition 4.3.
  • VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Condition, Schedule and paragraph headings shall not affect the interpretation of this agreement

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

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

A reference to a statute or statutory provision is a reference to it as amended, extended or re- enacted from time to time.

A reference to writing or written includes faxes but not email.

References to conditions and Schedules are to the conditions and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2. Application of conditions

These conditions shall:

  • apply to and be incorporated in the Contract; and
  • prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Thirty Six Digital unless in writing and signed by a duly authorised representative of Thirty Six Digital.

 

3. Effect of purchase order

The Customer’s purchase order (if applicable) constitutes an offer by the Customer to purchase the Services specified in it on these conditions. Accordingly, the execution and return of the acknowledgement copy of the purchase order form by Thirty Six Digital, or Thirty Six Digital’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

 

4. Thirty Six Digital’s obligations

Thirty Six Digital shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Project Plan.

Thirty Six Digital shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

Thirty Six Digital shall appoint Thirty Six Digital’s Project Manager who shall have authority to contractually bind Thirty Six Digital on all matters relating to the Thirty Six Digital shall use reasonable endeavours to ensure that the same person acts as Thirty Six Digital’s Project Manager throughout the Project, but may replace him or her from time to time where reasonably necessary in the interests of Thirty Six Digital’s business.

 

5. Customer’s obligations

The Customer shall:

  • co-operate with Thirty Six Digital in all matters relating to the Project and appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project;
  • provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by Thirty Six Digital;
  • provide in a timely manner such information as Thirty Six Digital may request, and ensure that such information is accurate in all material respects; and
  • be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

If Thirty Six Digital’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to Thirty Six Digital on demand all reasonable costs, charges or losses sustained or incurred by it, subject to Thirty Six Digital confirming such costs, charges and losses to the Customer in Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.

The Customer shall not, without the prior written consent of Thirty Six Digital, at any time from the date of the Contract to the expiry of 12 months after the completion of the Services, solicit or entice away from Thirty Six Digital or employ or attempt to employ any person who is, or has been, engaged as a subcontractor of Thirty Six Digital.

 

6. Change control

The Customer’s Project Manager and Thirty Six Digital’s Project Manager shall meet at as often as required to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.

If either party requests a change to the scope or execution of the Services, Thirty Six Digital shall, within a reasonable time, provide a written estimate to the Customer of:

  • the likely time required to implement the change;
  • any variations to Thirty Six Digital’s charges arising from the change;
  • the likely effect of the change on the Project Plan; and
  • any other impact of the change on the terms of the Contract.

If Thirty Six Digital requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

If the Customer wishes Thirty Six Digital to proceed with the change, Thirty Six Digital has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.

 

7. Charges and payment

Condition 2 shall apply if the Services are to be provided on a time-and-materials basis. condition 7.3 and condition 7.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.

Where the Services are provided on a time-and-materials basis:

  • the charges payable for the Services shall be calculated in accordance with Thirty Six Digital’s fee rates as amended from time to time;
  • Thirty Six Digital’s fee rates are calculated on the basis of [an eight-hour day worked between 00 am and 5.00 pm on weekdays] (excluding weekends and public holidays);
  • Thirty Six Digital shall be entitled to charge at an overtime rate for part days and for time worked by members of the project team outside the hours referred to in condition 2(b) on a pro-rata basis;
  • Thirty Six Digital shall invoice the Customer in stages as agreed with the client for its charges for time, expenses and materials (together with VAT where appropriate), calculated as provided in this condition 7. Each invoice shall set out the fee rates and any additional overtime rates and provide a breakdown of any expenses and materials, accompanied by the relevant receipts.

Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Project The total price shall be paid to Thirty Six Digital in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone. On achieving a Project Milestone, Thirty Six Digital shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 7.4.

Any fixed price contained in the Project Plan excludes:

  • the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Thirty Six Digital for the supply of the Such expenses, materials and third party services shall be invoiced by Thirty Six Digital; and
  • VAT, which Thirty Six Digital shall add to its invoices at the appropriate rate.

The Customer shall pay each invoice submitted to it by Thirty Six Digital in full, and in cleared funds, within 7 days of receipt.

Without prejudice to any other right or remedy that Thirty Six Digital may have, if the Customer fails to pay Thirty Six Digital on the due date Thirty Six Digital may:

  • charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
  • suspend all Services until payment has been made in full.

Time for payment shall be of the essence of the Contract.

All payments payable to Thirty Six Digital under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract

All amounts due under this agreement shall be paid by the Customer to Thirty Six Digital in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Thirty Six Digital may, without prejudice to any other rights it may have, set off any liability of the Customer to Thirty Six Digital against any liability of Thirty Six Digital to the Customer.

 

8. Intellectual Property Rights

All Intellectual Property Rights and all other rights in the Deliverables shall be owned by Thirty Six Thirty Six Digital licenses all such rights to the Customer free of charge and on a non- exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If Thirty Six Digital terminates the Contract under condition 11.1, this licence will automatically terminate.

The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on Thirty Six Digital obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Thirty Six Digital to license such rights to the Customer. In the event the Customer wishes Thirty Six Digital to use Pre-existing Materials already in the Customer’s possession then the Customer shall ensure that they have the relevant rights, licence (or sub-licence of such rights from the relevant licensor or licensors on such terms as will entitle Thirty Six Digital to use such Pre-existing Materials for the purposes of the Project.

 

9. Confidentiality and Thirty Six Digital’s property

 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

  • is or becomes publicly known other than through any act or omission of the receiving party;
  • was in the other party’s lawful possession before the disclosure;
  • is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  • is independently developed by the receiving party, which independent development can be shown by written evidence.

Each party shall hold the other’s Confidential Information in strict confidence, not use the other’s Confidential Information for any purpose other than the implementation of this agreement and, subject to condition 4 and condition 9.4, not make the other’s Confidential Information available to any third party.

Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its Representatives in violation of the terms of this agreement.

A party may disclose the Confidential Information of the other party to such of the disclosing party’s Representatives as need to know it for the purpose of discharging the disclosing party’s obligations under this agreement, provided that such Representatives are subject to obligations of confidentiality corresponding to those which bind the disclosing party.

A party may disclose Confidential Information of the other party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction. To the extent it is legally permitted to do so, the disclosing party shall give the other party as much notice of such disclosure as Where notice of disclosure is not prohibited and is given in accordance with this condition 9.4, the disclosing party shall take into account the reasonable requests of the other party in relation to the content of such disclosure.

All materials, equipment and tools, drawings, specifications and data supplied by Thirty Six Digital to the Customer shall at all times be and remain the exclusive property of Thirty Six Digital, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Thirty Six Digital, and shall not be disposed of or used other than in accordance with Thirty Six Digital’s written instructions or authorisation.

The above provision of this condition 9 shall survive termination of the Contract, however arising.

 

10. Limitation of liability

WARNING: you are strongly advised to read the drafting note on this condition.

The following provisions set out the entire financial liability of Thirty Six Digital (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:

  • any breach of the Contract however arising;
  • any use made by the Customer of the Services, the Deliverables or any part of them; and
  • any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.

Nothing in these conditions excludes the liability of Thirty Six Digital:

  • for death or personal injury caused by Thirty Six Digital’s negligence; or
  • for fraud or fraudulent misrepresentation

Subject to condition 2 and condition 10.3:

  • Thirty Six Digital shall not in any circumstances be liable, whether in tort (including for [negligence or] breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
    • loss of profits; or
    • loss of business; or
    • depletion of goodwill or similar losses; or
    • loss of anticipated savings; or
    • loss of goods; or
    • loss of contract; or
    • loss of use; or
    • loss or corruption of data or information; or
    • any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
  • Thirty Six Digital’s total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.

 

11. Termination

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:

  • the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
  • the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  • the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
  • the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
  • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
  • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 1(d) to condition 11.1(k) (inclusive);
  • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
  • there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

 

12. Force majeure

Thirty Six Digital shall not in any circumstances have any liability to the Customer 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, without limitation:

  • strikes, lock-outs or other industrial disputes (whether involving the workforce of Thirty Six Digital or any other party);
  • failure of a utility service or transport network;
  • act of God, war, riot or civil commotion;
  • malicious damage;
  • compliance with any law or governmental order, rule, regulation or direction; and
  • accident, breakdown of plant, equipment or machinery, fire, flood, storm or default of suppliers or subcontractors.

 

13. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

14. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

15. Severance

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement

If any provision or part-provision of this agreement is deemed deleted under condition 1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

 

16. Entire agreement

This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

 

17. Assignment

The Customer shall not, without the prior written consent of Thirty Six Digital, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

Thirty Six Digital may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

 

 

18. No partnership or agency

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).

 

19. Third party rights

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

 

20. Notices

Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:

  • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
  • sent by fax to its main fax number.

Any notice or communication shall be deemed to have been received:

  • if delivered by hand, at the time the notice is left at the proper address;
  • if sent by pre-paid first-class post or other next working day delivery service, at 00 am on the second business day after posting; and
  • if sent by fax, at 00 am on the next business day after transmission.

This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

21. Governing law

The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

 

22. Jurisdiction

Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

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