TAG DIGITAL LTD – CONDITIONS
- Interpretation
The following definitions and rules of interpretation apply in
these Conditions.
1.1. Definitions:
Agreement Details: the document which, without limitation,
includes details on the Services, Specification, Charges and
timeline for the provision of the Services by the Supplier. - Business Day: a day other than a Saturday, Sunday or public
holiday in England, when banks in Glasgow are open for business. - Charges: the charges payable by the Customer for the supply of
the Services in accordance with clause 5 (Charges and payment). - Commencement Date: has the meaning given in the Agreement
Details. - Conditions: these terms and conditions as amended from time to
time in accordance with clause 11.5. - Contract: the contract between the Supplier and the Customer for
the supply of Services which comprises the Agreement Details and
these Conditions. - Control: has the meaning given in section 1124 of the Corporation
Tax Act 2010, and the expression change of control shall be
construed accordingly. - Customer: the person or firm to whom the Supplier provides
Services. - Customer Default: has the meaning set out in clause 4.2.
- Data Protection Legislation: Data Protection Legislation: all
legislation and regulatory requirements in force from time to time
relating to the use of personal data and the privacy of electronic
communications, including, without limitation (i) any data protection
legislation from time to time in force in the UK including the Data
Protection Act 2018 or any successor legislation, as well as (ii) the
General Data Protection Regulation ((EU) 2016/679) and any other
directly applicable European Union regulation relating to data
protection and privacy (for so long as and to the extent that the law
of the European Union has legal effect in the UK) - Deliverables: the deliverables set out in the Order produced by
the Supplier for the Customer. - Intellectual Property Rights: patents, rights to inventions,
copyright and related rights, moral rights, trade marks and all other
intellectual property rights, in each case whether registered or
Unregistered. - Services: any services supplied by the Supplier to the Customer
as set out in the Agreement Details. - Specification: the description or specification of the Services
agreed between the Supplier and the Customer within the
Agreement Details. - Supplier: Tag Digital Limited registered in Scotland with company
number SC399754. - Supplier Materials: has the meaning set out in clause 4.1(f).
1.2. Interpretation:
(a) A reference to a statute or statutory provision is a
reference to it as amended or re-enacted. A reference
to a statute or statutory provision includes all
subordinate legislation made under that statute or
statutory provision.
(b) 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.
(c) A reference to writing or written includes email. - Basis of contract
2.1. These Conditions shall apply in respect of the provision of any
Services from the Supplier to the Customer to the exclusion of any
other terms that the Customer seeks to impose or incorporate, or
which are implied by trade, custom, practice or course of dealing. - Supply of Services
3.1. The Supplier shall supply the Services to the Customer in
accordance with the Specification in all material respects.
3.2. The Supplier shall use all reasonable endeavours the Agreement
Details but any such dates shall be estimates only and time shall
not be of the essence for performance of the Services.
3.3. The Supplier reserves the right to amend the Specification if
necessary to comply with any applicable law or regulatory
requirement, or if the amendment will not materially affect the
nature or quality of the Services, and the Supplier shall notify the
Customer in any such event.
3.4. The Supplier warrants to the Customer that the Services will be
provided using reasonable care and skill. - 3.5 When ordering from Tag Shop, the customer is buying a black box product with no access to the core team at Tag Digital. This is a low cost, high volume offering and as such the level of service (no communication) will reflect that. Clients will be provided a dynamic dashboard to view campaign metrics.
- Customer’s obligations/Customer Acknowledgements
4.1. The Customer shall:
(a) ensure that the terms of the Agreement Details and
any information it provides in the Specification are
complete and accurate;
(b) co-operate with the Supplier in all matters relating to
the Services;
(c) provide the Supplier, its employees, agents,
consultants and subcontractors, with access to the
Customer’s premises, office accommodation and other
facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and
materials as the Supplier may reasonably require in
order to supply the Services, and ensure that such
information is complete and accurate in all material
respects;
(e) obtain and maintain all necessary licences,
permissions and consents which may be required for
the Services before the date on which the Services
are to start; and
(f) keep all materials, equipment, documents and other
property of the Supplier (Supplier Materials) at the
Customer’s premises in safe custody at its own risk,
maintain the Supplier Materials in good condition until
returned to the Supplier, and not dispose of or use the
Supplier Materials other than in accordance with the
Supplier’s written instructions or authorisation.
4.2. If the Supplier’s performance of any of its obligations under the
Contract is prevented or delayed by any act or omission by the
Customer or failure by the Customer to perform any relevant
obligation (Customer Default):
(a) without limiting or affecting any other right or remedy
available to it, the Supplier shall have the right to
suspend performance of the Services until the
Customer remedies the Customer Default, and to rely
on the Customer Default to relieve it from the
performance of any of its obligations in each case to
the extent the Customer Default prevents or delays
the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses
sustained or incurred by the Customer arising directly
or indirectly from the Supplier’s failure or delay to
perform any of its obligations as set out in this clause
4.2; and
(c) the Customer shall reimburse the Supplier on written
demand for any costs or losses sustained or incurred
by the Supplier arising directly or indirectly from the
Customer Default.
4.3. The Customer hereby acknowledges and agrees that all media
spend under a media plan relating to Services must be completed
with 30 days of campaign completion. - Charges and payment
5.1. The Charges for the Services shall be as set out in the Agreement
Details and/or media plan issued by the Supplier to the Customer.
5.2. The Supplier shall be entitled to charge the Customer for any
expenses reasonably incurred by the individuals whom the
Supplier engages in connection with the Services including
travelling expenses, hotel costs, subsistence and any associated
expenses, and for the cost of services provided by third parties and
TAG DIGITAL LTD – CONDITIONS
required by the Supplier for the performance of the Services, and
for the cost of any materials.
5.3. Unless otherwise agreed in writing between the Parties, the
Supplier shall invoice the Customer as specified within Agreement
Details.
5.4. The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account
nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.5. All amounts payable by the Customer under the Contract are
exclusive of amounts in respect of value added tax chargeable
from time to time (VAT). Where any taxable supply for VAT
purposes is made under the Contract by the Supplier to the
Customer, the Customer shall, on receipt of a valid VAT invoice
from the Supplier, pay to the Supplier such additional amounts in
respect of VAT as are chargeable on the supply of the Services at
the same time as payment is due for the supply of the Services.
5.6. If the Customer fails to make a payment due to the Supplier under
the Contract by the due date, then, without limiting the Supplier’s
remedies under clause 9, the Customer shall pay interest on the
overdue sum from the due date until payment of the overdue sum,
whether before or after judgment. Interest under this clause 5.6 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%.
5.7. All amounts due under the Contract 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).
5.8. Where the Services are due to be provided for more than one year,
or where the Contract has been in place for excess of one year,
the Supplier reserves the right to review and adjust the Charges
once each year (on or around the anniversary of the
Commencement Date).
5.9. The Customer will be notified of any proposed adjustment in the
Charges as a result of Clause 5.8 as soon as reasonably
practicable following the Supplier’s review, and the revised
Charges will automatically apply from the following month. If a
proposed increase in the Charges is not acceptable to the
Customer, the Customer shall be entitled terminate the Contract
within 10 days of receiving the notification of the proposed
increase in the Charges (with such termination to take place 60
days later), following the adjustment in the Charges will be deemed
accepted by the Customer. - Intellectual property rights
6.1. Unless agreed otherwise within the Agreement Details, all
Intellectual Property Rights in or arising out of or in connection with
the Services (other than Intellectual Property Rights in any
materials provided by the Customer) shall be owned by the
Supplier.
6.2. The Supplier grants to the Customer, or shall procure the direct
grant to the Customer of, a fully paid-up, worldwide, non-exclusive,
royalty-free licence to copy the Deliverables (excluding materials
provided by the Customer) for the purpose of receiving and using
the Services and the Deliverables.
6.3. The Customer shall not sub-license, assign or otherwise transfer
the rights granted in clause 6.2.
6.4. The Customer grants the Supplier a fully paid-up, non-exclusive,
royalty-free, non-transferable licence to copy and modify any
materials provided by the Customer to the Supplier for the term of
the Contract for the purpose of providing the Services to the
Customer. - Data protection
7.1. Both parties will comply with all applicable requirements of the
Data Protection Legislation. This clause 7 is in addition to, and
does not relieve, remove or replace, a party’s obligations or rights
under the Data Protection Legislation. In this clause 7, Applicable
Laws means (for so long as and to the extent that they apply to the
Supplier) the law of the European Union, the law of any member
state of the European Union and/or Domestic UK Law; and
Domestic UK Law means the Data Protection Legislation from
time to time in force in the UK and any other law that applies in the
UK.
7.2. The parties acknowledge that for the purposes of the Data
Protection Legislation, the Customer is the controller and the
Supplier is the processor.
7.3. Without prejudice to the generality of clause 7.1, the Customer will
ensure that it has all necessary appropriate consents and notices
in place to enable lawful transfer of the Personal Data (as defined
in the Data Protection Legislation) to the Supplier for the duration
and purposes of the Contract.
7.4. Without prejudice to the generality of clause 7.1, the Supplier shall,
in relation to any personal data processed in connection with the
performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented
written instructions of the Customer unless the
Supplier is required by Applicable Laws to otherwise
process that personal data. Where the Supplier is
relying on laws of a member of the European Union or
European Union law as the basis for processing
Personal Data, the Supplier shall promptly notify the
Customer of this before performing the processing
required by the Applicable Laws unless those
Applicable Laws prohibit the Supplier from so notifying
the Customer;
(b) ensure that it has in place appropriate technical and
organisational measures, reviewed and approved by
the Customer, to protect against unauthorised or
unlawful processing of personal data and against
accidental loss or destruction of, or damage to,
personal data, appropriate to the harm that might
result from the unauthorised or unlawful processing or
accidental loss, destruction or damage and the nature
of the data to be protected, having regard to the state
of technological development and the cost of
implementing any measures (those measures may
include, where appropriate, pseudonymising and
encrypting Personal Data, ensuring confidentiality,
integrity, availability and resilience of its systems and
services, ensuring that availability of and access to
personal data can be restored in a timely manner after
an incident, and regularly assessing and evaluating
the effectiveness of the technical and organisational
measures adopted by it);
(c) ensure that all personnel who have access to and/or
process personal data are obliged to keep the
personal data confidential; and
(d) not transfer any personal data outside of the
European Economic Area unless the prior written
consent of the Customer has been obtained and the
following conditions are fulfilled:
(i) the Customer or the Supplier has provided
appropriate safeguards in relation to the
transfer;
(ii) the data subject has enforceable rights and
effective legal remedies;
(iii) the Supplier complies with its obligations
under the Data Protection Legislation by
providing an adequate level of protection to
any personal data that is transferred; and
(iv) the Supplier complies with reasonable
instructions notified to it in advance by the
Customer with respect to the processing of
Personal Date. - Limitation of liability:
8.1. Nothing in the Contract limits any liability which cannot legally be
limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
TAG DIGITAL LTD – CONDITIONS
(c) breach of the terms implied by section 2 of the Supply
of Goods and Services Act 1982 (title and quiet
possession).
8.2. Subject to clause 8.1, the Supplier’s total liability to the Customer
in respect of all breaches of duty occurring within any contract year
shall not exceed the cap.
8.3. In clause 8.2:
(a) cap. The Total Charges in the contract year in which
the breaches occurred;
(b) contract year. A contract year means a 12-month
period commencing with the Commencement Date or
any anniversary of it;
(c) total charges. The Total Charges means all sums
paid by the Customer and all sums payable under the
Contract in respect of goods actually supplied by the
Supplier, whether or not invoiced to the Customer; and
(d) total liability. The Supplier’s total liability includes
liability in contract, tort (including negligence), breach
of statutory duty, or otherwise, arising under or in
connection with the Contract.
8.4. This clause 8.4 sets out specific heads of excluded loss:
(a) Subject to clause 8.1, the types of loss listed in clause
8.4(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or
information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
8.5. This clause 8 shall survive termination of the Contract. - Termination
9.1. Without affecting any other right or remedy available to it, either
party may terminate the Contract with immediate effect by giving
written notice to the other party if:
(a) the other party commits a material breach of any term
of the Contract and (if such a breach is remediable)
fails to remedy that breach within 10 days of that party
being notified in writing to do so;
(b) the other party takes any step or action in connection
with its entering administration, provisional liquidation
or any composition or arrangement with its creditors
(other than in relation to a solvent restructuring), being
wound up (whether voluntarily or by order of the court,
unless for the purpose of a solvent restructuring),
having a receiver appointed to any of its assets or
ceasing to carry on business or, if the step or action is
taken in another jurisdiction, in connection with any
analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or
ceases or threatens to cease to carry on all or a
substantial part of its business; or
(d) the other party’s financial position deteriorates to such
an extent that in the terminating party’s opinion the
other party’s capability to adequately fulfil its
obligations under the Contract has been placed in
jeopardy.
9.2. Without affecting any other right or remedy available to it, the
Supplier may terminate the Contract with immediate effect by
giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the
Contract on the due date for payment; or
(b) there is a change of control of the Customer.
9.3. Without affecting any other right or remedy available to it, the
Supplier may suspend the supply of Services under the Contract or
any other contract between the Customer and the Supplier if the
Customer fails to pay any amount due under the Contract on the
due date for payment, the Customer becomes subject to any of the
events listed in clause 9.2(b) to clause 9.2(d), or the Supplier
reasonably believes that the Customer is about to become subject
to any of them.
9.4. Subject to the above provisions, the Customer may only terminate
a Contract for the reasons set out in Clause 9.1(b). - Consequences of termination
10.1. On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all
of the Supplier’s outstanding unpaid invoices and
interest and, in respect of Services supplied but for
which no invoice has been submitted, the Supplier
shall submit an invoice, which shall be payable by the
Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials
and any Deliverables which have not been fully paid
for. If the Customer fails to do so, then the Supplier
may enter the Customer’s premises and take
possession of them. Until they have been returned,
the Customer shall be solely responsible for their safe
keeping and will not use them for any purpose not
connected with the Contract.
10.2. Termination or expiry of the Contract shall not affect any rights,
remedies, obligations or liabilities of the parties that have accrued
up to the date of termination or expiry, including the right to claim
damages in respect of any breach of the Contract which existed at
or before the date of termination or expiry.
10.3. Any provision of the Contract that expressly or by implication is
intended to come into or continue in force on or after termination or
expiry of the Contract shall remain in full force and effect. - General
11.1. Force majeure.
(a) Neither party shall be in breach of the Contract nor
liable for delay in performing, or failure to perform, any
of its obligations under the Contract if such delay or
failure result from events, circumstances or causes
beyond its reasonable control.
(b) Where an event, for which the Services are being
provided, is cancelled because of circumstances or
causes beyond the Customer’s reasonable control,
the Customer shall be entitled to terminate a Contract
by providing written notice and evidence to the
Supplier. Where this Clause is invoked by the
Customer and accepted by the Supplier, the Customer
shall be liable to pay such proportion of the Charges
as determined by the Supplier (acting reasonably and
in good faith) subject to a minimum of 50% of the
Charges.
11.2. Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage,
charge, subcontract, delegate, declare a trust over or
deal in any other manner with any or all of its rights
and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage,
charge, subcontract, delegate, declare a trust over or
deal in any other manner with any of its rights and
obligations under the Contract without the prior written
consent of the Supplier.
11.3. Confidentiality.
(a) Each party undertakes that it shall not at any time
during the Contract, and for a period of five years after
termination of the Contract, disclose to any person
any confidential information concerning the business,
affairs, customers, clients or suppliers of the other
party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential
information:
(i) to its employees, officers, representatives,
subcontractors or advisers who need to
know such information for the purposes of
carrying out the party’s obligations under
the Contract. Each party shall ensure that
TAG DIGITAL LTD – CONDITIONS
its employees, officers, representatives,
subcontractors or advisers to whom it
discloses the other party’s confidential
information comply with this clause 11.3;
and
(ii) as may be required by law, a court of
competent jurisdiction or any governmental
or regulatory authority.
(c) Neither party shall use the other party’s confidential
information for any purpose other than to perform its
obligations under the Contract.
11.4. Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the
Contract 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 the Contract. Each
party agrees that it shall have no claim for innocent or
negligent misrepresentation or negligent misstatement
based on any statement in the Contract.
11.5. Variation. Except as set out in these Conditions, no variation of
the Contract shall be effective unless it is in writing and signed by
the parties (or their authorised representatives).
11.6. Waiver. A waiver of any right or remedy under the Contract or by
law is only effective if given in writing and shall not be deemed a
waiver of any subsequent right or remedy. A failure or delay by a
party to exercise any right or remedy provided under the Contract
or by law shall not constitute a waiver of that or any other right or
remedy, nor shall it prevent or restrict any further exercise of that
or any other right or remedy. No single or partial exercise of any
right or remedy provided under the Contract or by law shall prevent
or restrict the further exercise of that or any other right or remedy.
11.7. Severance. If any provision or part-provision of the Contract is or
becomes invalid, illegal or unenforceable, it shall be deemed
modified to the minimum extent necessary to make it valid, legal
and enforceable. If such modification is not possible, the relevant
provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under
this clause shall not affect the validity and enforceability of the rest
of the Contract.
11.8. Notices.
(a) Any notice given to a party under or in connection with
the 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 (if
a company) or its principal place of business (in any
other case
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a
delivery receipt; and
(ii) if sent by pre-paid first-class post or other
next working day delivery service, at 9.00
am on the second Business Day after
posting or at the time recorded by the
delivery service.
(c) 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.
11.9. Third party rights.
Unless it expressly states otherwise, the Contract does not give
rise to any rights under the Contract (Third Party Rights)
(Scotland) Act 2017 to enforce any term of the Contract.
11.10. Governing law. The Contract, and any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection
with it or its subject matter or formation shall be governed by, and
construed in accordance with Scots law.
11.11. Jurisdiction. Each party irrevocably agrees that the courts of
Scotland shall have exclusive jurisdiction to settle any dispute or
claim (including non-contractual disputes or claims) arising out of
or in connection with the Contract or its subject matter or
formation.