DIGTALTROPOLIS TERMS AND CONDITIONS OF SERVICE
The following definitions shall apply to these terms and conditions:
“Approval Items” means drafts, proofs, and other items to which Digitaltropolis seeks the Customer’s approval on an interim or final basis;
“Background” means all IPR, materials, software (including source code), hardware or associated infrastructure that Digitaltropolis owns or uses under licence in providing the Services and / or creating the Deliverables;
“Contract” means the contract to which these terms and conditions apply;
“Customer Materials” means all documents, materials, data and information within the control of the Customer and relevant to Digitaltropolis’s provision of the Services;
“Deliverables” means all documents, reports, other materials (including, without limitation, all audio, visual or physical materials and software), data or information created exclusively for the Customer by Digitaltropolis under the Contract and required to be delivered to the Customer;
“Disbursements” means costs reasonably incurred by Digitaltropolis, or persons employed or engaged by Digitaltropolis in connection with the Services for accommodation, food, travel and any other ancillary expense, and the cost of any materials and the cost of services reasonably and properly procured by Digitaltropolis from third parties in the provision of the Services;
“IPR” means Intellectual Property Rights and any and all trade marks, service marks, domain names, copyright, moral rights, rights in design, know-how, confidential information and, without limitation, all or any other intellectual property rights whether or not capable of registration, whether registered or unregistered and including all applications (and rights to apply) for such rights and all similar or equivalent rights or forms of protection whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating thereto;
“Price” means the price of the Services and the Deliverables provided under the Contract, excluding Disbursements;
“Printer” means a printer or similar contractor instructed by Digitaltropolis to provide services to the Customer;
“Print Services” means where, in the course of the Services, Digitaltropolis provides printing services and instructs a Printer in connection with the Services; and
“Services” means services to be provided by Digitaltropolis under the Contract.
1.1. These terms and conditions shall apply to every contract made by Digitaltropolis for the provision of services of any description by Digitaltropolis, whether or not they are expressly stated in the contract to apply to it or to be incorporated in it.
1.2. These terms and conditions may not be varied, excluded or overridden except by written agreement signed by an authorised signatory of Digitaltropolis.
1.3. Notwithstanding anything to the contrary in any terms and conditions or other communications, no terms and conditions shall apply to the Contract except:
1.3.1. these terms and conditions; and
1.3.2. such other provisions as may be signed by an authorised signatory of Digitaltropolis.
2. Supply of Services and Co-operation
2.1. Digitaltropolis shall perform the Services with reasonable skill and care, subject to the Customer’s compliance with the Contract.
2.2. The parties shall co-operate with each other in all matters relating to the Services.
2.3. The Customer shall nominate and notify Digitaltropolis of a primary and secondary technical contact at the Customer to liaise with Digitaltropolis within 14 days of the Contract being formed.
3. Customer Materials
3.1. The Customer shall at its own expense provide Digitaltropolis with all Customer Materials reasonably requested by Digitaltropolis for the purpose of providing the Services in a timely manner, and in sufficient quality to meet Digitaltropolis’s requirements (plus an allowance for reasonable spoilage), and grant Digitaltropolis a sufficient licence to use all Customer Materials for that purpose.
3.2. The Customer shall supply or provide access to Digitaltropolis to all Customer Materials in accordance with Digitaltropolis’s recommended specifications and formats and ensure any such information provided is accurate in all material respects.
3.3. Digitaltropolis may reject any Customer Materials which Digitaltropolis reasonably considers to be unsuitable. Digitaltropolis may charge for any additional time and costs incurred if materials supplied by the Customer are found to be unsuitable or unfit for their purpose.
4.1. The Customer shall, whenever reasonably requested to do so, review Approval Items and respond promptly to Digitaltropolis.
4.2. The Customer’s response shall be clear and unequivocal as to whether or not it approves any Approval Item and, where approval is declined, shall indicate what alterations are required. The Customer’s response shall be in writing or other permanent form. Where, in the course of the Services, Digitaltropolis provides printing services, the Customer’s response (including any corrections by the Customer) shall be made on Approval Items and marked either ‘OK’ or ‘Not OK’, and signed on behalf of the Customer.
4.3. Notwithstanding clause 4.2, Digitaltropolis shall always be entitled to rely on oral or other modes of communicating a response.
4.4. Digitaltropolis shall be entitled to regard any person purporting to respond to it on the Customer’s behalf as being duly authorised.
4.5. The Customer shall pay for all Approval Items. Only the price for the first Approval Items shall be included in any estimate or quotation unless otherwise expressly agreed.
5.1. Any alterations requested by the Customer shall be subject to an additional charge. Where composition, layout, style and typeface are left to the judgement of Digitaltropolis or any appropriate third party, the Customer shall pay an additional charge for any alterations made by the Customer.
5.2. Whenever the Customer requests an alteration, it shall give Digitaltropolis the opportunity to have the altered Approval Items approved by the Customer. Digitaltropolis shall have no responsibility for alterations requested by telephone by the Customer or in any other situation where the Customer insists on Digitaltropolis proceeding without such specific approval.
6.1. If any correction is required (either due to a mistake by Digitaltropolis or otherwise), the Customer shall return Approval Items to Digitaltropolis for Digitaltropolis to make the necessary corrections.
6.2. If the Customer undertakes corrections itself, it shall do so at its own risk and cost.
7. Preliminary Work
Unless otherwise agreed, the Customer shall pay for all work produced by Digitaltropolis, whether experimentally or otherwise, at the Customer’s request.
8. Third Party Services
Where, in the course of the Services, Digitaltropolis instructs a third party at the request or with the approval of the Customer to provide goods or services directly or indirectly for the Customer’s benefit, it does so as agent for the Customer. Digitaltropolis shall not be responsible for the goods or services provided by that third party, including without limitation the delivery, timing of delivery, quality or accuracy of the same.
9. Price and Payment
9.1. The Price and any charges for any preliminary work under clause 7 shall be calculated and paid by the Customer in accordance with Digitaltropolis’s standard rates, as amended from time to time by Digitaltropolis.
9.2. The Customer shall pay 70% (Seventy per cent) of the Price in advance, if required by Digitaltropolis. Digitaltropolis shall also be entitled to advance payment on account of Disbursements on request. The Customer shall make other payments required under the Contract in accordance with invoices from Digitaltropolis, which may be rendered on a monthly or other periodic basis and may be rendered in advance or arrears, at Digitaltropolis’s discretion.
9.3. All estimates and other price or cost indications are given on the basis of Digitaltropolis’s charges and Disbursements as at the date of the Contract and are subject to change. Estimates and cost indications, wherever given, are Digitaltropolis’s best good faith estimates, and are not a guarantee to provide the Services for the estimate unless otherwise expressly stated.
9.4. Even if Digitaltropolis agrees to a fixed price, it shall be entitled to charge additional sums in the circumstances described in clause 3 to 7 above (inclusive), if there is delay or any change in instructions on the part of the Customer, or if third party Disbursements are higher than anticipated.
9.5. The Price is stated exclusive of Disbursements and any applicable value added or sales tax, which shall be paid by the Customer in addition.
9.6. The Price and all Disbursements shall be paid in GB pounds (GBP) sterling or foreign equivalent currency if applicable.
9.7. The Customer shall pay all amounts invoiced to it within 30 days of the date of issue of the invoice.
9.8. The Customer shall keep all pricing details confidential.
9.9. If Digitaltropolis agrees to vary the Services or to provide additional services, the Customer shall pay for the varied or additional work at Digitaltropolis’s standard rates at the time of provision of the services in question, unless otherwise agreed at the time.
10. Rights and Deliverables
10.1. Digitaltropolis reserves all rights, title and interest in the Background. No licence is given in relation to it except as may be necessary for the Customer to obtain the intended benefit of the Services and such licence is contingent on payment in full.
10.2. The Customer Materials shall remain the property of the Customer.
10.3. Digitaltropolis shall have exclusive possession of Deliverables for so long as it requires them in order to provide Services and so long thereafter as any amount remains unpaid under the Contract.
10.4. Property in Deliverables as physical items shall be transferred to the Customer upon delivery, provided that all amounts have been paid under the Contract.
10.5. Digitaltropolis shall license the Customer to exploit the Deliverables, to the extent and for the purpose and scope of use contemplated by the Contract, upon their delivery, provided that all amounts have been paid under the Contract.
10.6. The Customer shall:
10.6.1. bear sole responsibility for all content broadcast, published (either in hard copy form or online) or distributed in any form whatsoever using the Background in relation to the Services;
10.6.2. notify Digitaltropolis in writing at least 30 days prior to any proposed change to production / publishing schedules;
10.6.3. obtain all necessary and appropriate permissions from any contributors or other third parties to broadcast or publish the content; and
10.6.4. ensure that nothing in the Customer’s Materials infringes the copyright or any other IPR of any third party.
11.1. Any date provided by Digitaltropolis for the supply of Services or the delivery of the Deliverables is merely Digitaltropolis’s best good faith estimate of the supply or delivery date.
11.2. Time shall not be of the essence for the provision of the Services or delivery of the Deliverables.
11.3. Should expedited delivery be agreed and necessitate overtime or other additional cost, Digitaltropolis may make an extra charge.
11.4. Delivery of work shall be accepted when tendered to the Customer or on notification that the work has been completed. Digitaltropolis may make delivery contingent on prior payment.
12.1. Each party shall have the right to terminate the Contract if the other:
12.1.1. goes into liquidation, becomes insolvent or has an administrator, receiver, administrative receiver or similar officer appointed in respect of all or part of its undertaking (or is the subject of a filing with any court for the appointment of any such officer); or
12.1.2. commits a material breach of the Contract which is not remedied within 30 days of receipt of a notice from the other party specifying the breach and putting the defaulting party on notice of the non-defaulting party’s intention to terminate the Contract if such breach is not remedied.
12.2. Digitaltropolis shall have the right to suspend its performance under the Contract if the Customer fails to make any payment in accordance with clause 9, and shall have a lien on all Customer Materials until such time as all payments are discharged in full. Digitaltropolis shall be entitled on the expiration of 14 days’ notice to dispose of such Customer Materials and of Deliverables as it sees fit and to apply any proceeds towards such debts.
13.1. This clause 13 sets out Digitaltropolis’s entire aggregate financial liability for loss and damage suffered by the Customer resulting from any breach of the Contract or other legal wrong (including contractual and tortuous liability for negligence) by Digitaltropolis connected in any way with the Services or the Deliverables.
13.2. The total amount payable by Digitaltropolis in respect of loss or damage suffered by the Customer arising as a result of any breach of the Contract or other legal wrong (including, without limitation, negligence) by Digitaltropolis in connection with Print Services in any period of 12 months commencing on the date of Contract or any anniversary of it shall be the aggregate of the total amount paid plus unpaid sums agreed to be paid to Digitaltropolis by the Customer in respect of Print Services provided or to be provided during that 12 month period. The total amount payable by Digitaltropolis in respect of loss or damage suffered by the Customer arising as a result of any breach of the Contract or other legal wrong (including, without limitation, negligence) by Digitaltropolis in connection with any services other than Print Services in any period of 12 months commencing on the date of Contract or any anniversary of it shall be the aggregate of the total amount paid plus unpaid sums agreed to be paid to Digitaltropolis by the Customer in respect of those Services provided or to be provided during that 12 month period.
13.3. Digitaltropolis shall in any event have no liability for indirect or consequential loss or damage, loss of income or revenue, loss of business, loss of profits or contracts, depletion of reputation or goodwill, or waste of management or office time however arising, and even if Digitaltropolis could have foreseen the loss or the possibility of it was brought to Digitaltropolis’s attention.
13.4. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, except where repeated as express term in the Contract.
13.5. This does not limit Digitaltropolis’s liability for death or personal injury resulting from negligence, for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Digitaltropolis or for any liability incurred by the Customer as a result of any breach by Digitaltropolis of the condition as to title or the warranty as to quiet possession implied by section 2 of the UK Supply of Goods and Services Act 1982.
13.6. The Customer shall indemnify Digitaltropolis without limitation against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by Digitaltropolis as a result of or in connection with any claim for libel, trade libel or similar wrong, infringement of any copyright, trade mark right or other IPRs or breach of any relevant press, public relations, marketing, sales promotion, market research, advertising or other applicable code or law anywhere in the world arising from or relating to any Customer Materials or its content or any other material which the Customer requests Digitaltropolis to use or commission for the purposes of the Contract.
Digitaltropolis may at the request of the Customer agree to retain an online or offline electronic archive of Customer Materials to which the Customer may be given access, for which Digitaltropolis shall be entitled to charge a fee in accordance with its standard rates from time to time or as may otherwise be agreed. If Digitaltropolis agrees to do so, this shall be regarded as part of the Services and the Contract, and (without limitation) clause 13 above shall apply. Digitaltropolis’s obligation to maintain any such archive under any such agreement shall never exceed twelve (12) months from the date of the agreement unless a different period is expressly stated in the agreement. At the end of that period Digitaltropolis may destroy the archive unless the Customer arranges promptly to collect it and pays both parties’ costs in effecting this. The Customer agrees that it will at all times retain its own master copy of any materials archived by Digitaltropolis to ensure that it can readily replace any material held on Digitaltropolis’s archive.
Where Digitaltropolis provides Print Services, the Customer acknowledges that:
15.1. Digitaltropolis is not responsible for the resulting printed material;
15.2. there is a degree of tolerance regarding the quality of colour and quantity of printed material produced. This degree of tolerance is typically five (5) per cent for work in one colour only and ten (10) per cent for other work, being allowed for overs or shortage, the same to be charged or deducted; and
15.3. any layouts and dummies submitted by a Printer remain the Printer’s property. The Customer shall not use them or take ideas from them, except by way of a separate agreement with the Printer.
16.1. Performance. Digitaltropolis may perform any of its obligations or exercise any of its rights under the Contract itself or through any other person.
16.2. Confidentiality. The Customer shall keep confidential, and use only for the purposes of exercising its rights and fulfilling its responsibilities under the Contract, all information concerning the Background provided to it by Digitaltropolis. This shall not include information that is in or enters the public domain, unless it enters the public domain through the act or default of the Customer.
16.3. Notices. Any notice required or permitted to be given by either party to the other under the contract shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
16.4. No Partnership. Nothing in the Contract shall constitute or create or be deemed to constitute or create a partnership or employer / employee relationship between the Customer and Digitaltropolis.
16.5. Severance. In the event that any provision (including any distinct sub-condition) of the Contract is held to be illegal, invalid, void or unenforceable, it shall be severed from the remaining provisions of the Contract which shall continue in full force and effect.
16.6. Waiver. Failure or neglect by either party to enforce any provision of the Contract shall not be construed as or deemed to be a waiver of that party’s rights under the Contract and shall not prejudice that party’s rights to take subsequent action.
16.7. Entire agreement. The Contract contains the entire agreement between the parties in relation to the purchase by the Customer of the Services. It supersedes any prior agreements, representations, arrangements or undertakings in relation to such subject matter, provided that nothing in this clause 16.7 shall exclude or limit liability for fraudulent misrepresentation.
16.8. Force Majeure. Performance of the Contract is subject to such variation as Digitaltropolis may find necessary as a result of inability to secure labour, materials or supplies or as a result of any act of God, war, strike, lockout or other labour dispute, fire flood, drought, legislation or other cause (whether of the foregoing classes or not) beyond Digitaltropolis’s reasonable control.
16.9. Third Parties. The Contract is made for the benefit of Digitaltropolis and the Customer and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
16.10 Assignment. Except as follows, neither party may assign the benefit of this Contract. Digitaltropolis may assign the benefit of the Contract as part of a sale of its business or a substantial part of it. In these circumstances the Customer shall, at the request and cost of Digitaltropolis, enter into a novation agreement concerning the Contract with Digitaltropolis and the assignee.
16.11 Law. The Contract shall be governed by and interpreted in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts. We reserve the right to bring proceedings in the courts of the country of your residence.
16.12 Headings. The headings of these terms and conditions are used for convenience only and shall not affect interpretation.