Hillsgreen Marketing Ltd, First Floor, The Old Barn, Holly House Estate, Middlewich Road, Cranage, Cheshire, CW10 9LT firstname.lastname@example.org 01260 541 400 www.hillsgreen.co.uk
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6 (Charges and payment).
Commencement Date: has the meaning given in the Key Terms.
Conditions: these terms and conditions, incorporating the Key Terms as amended from time to time in accordance with clause 13.5.
Contract: the contract between Hillsgreen and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from Hillsgreen.
Customer Default: has the meaning set out in clause 5.2.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: the deliverables set out in the Key Terms produced by Hillsgreen for the Customer.
GDPR: General Data Protection Regulation (EU 2016/679)
Hillsgreen Materials: has the meaning set out in clause 5.1(g).
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and r/elated rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
Key Terms: the key terms of this agreement which are set out in the first page of the Digital Marketing Agreement which comprises the Customer’s order for Services.
Personal Data: shall have the meaning given in the Data Protection Legislation from time to time.
Services: the services, including the Deliverables, supplied by Hillsgreen to the Customer.
1.3 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.
1.4 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.
1.5 A reference to writing or written includes email but not fax.
2. Our contract with you
2.1 The Key Terms constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Key Terms shall be deemed to have been accepted when they have been signed and dated on behalf of both parties.
2.2 Any samples, drawings, descriptive matter or advertising issued by Hillsgreen, and any descriptions or illustrations contained in Hillsgreen’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the order by the Customer and the supply of Services by Hillsgreen 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.
2.4 Any quotation given by Hillsgreen shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
3. Our Services
3.1 Hillsgreen shall supply the Services to the Customer in accordance with the Key Terms in all material respects.
3.2 Hillsgreen shall use all reasonable endeavours to meet any performance dates specified in the Key Terms, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Hillsgreen reserves the right to amend the Key Terms 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 Hillsgreen shall notify the Customer in any such event.
3.4 Hillsgreen warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Hillsgreen may engage agents, consultants and subcontractors in order to assist in the delivery of the Services.
4. Duration of this Contract
4.1 This Contract will continue in force for an initial fixed period from the date stated on the order form
4.2 If either party wishes to terminate the Contract at the end of the period referred to in clause 4.1 it may do so by serving [one month’s written] notice on the other.
4.3 Unless notice is received by either party in accordance with clause 4.1, this Contract will automatically renew on each anniversary of the date specified on the order form for a further period of twelve months.
5. Your obligations
5.1 The Customer shall:
(a) ensure that the terms of the Key Terms and any information it provides in connection with the Services are complete and accurate;
(b) co-operate with Hillsgreen in all matters relating to the Services;
(c) provide Hillsgreen, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Hillsgreen;
(d) provide Hillsgreen with such information and materials as Hillsgreen 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;
(f) comply with all applicable laws;
(g) keep all materials, equipment, documents and other property of Hillsgreen (Hillsgreen Materials) at the Customer’s premises in safe custody at its own risk, maintain Hillsgreen Materials in good condition until returned to Hillsgreen, and not dispose of or use Hillsgreen Materials other than in accordance with Hillsgreen’s written instructions or authorisation.
5.2 If Hillsgreen’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, Hillsgreen 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 Hillsgreen’s performance of any of its obligations;
(b) Hillsgreen shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Hillsgreen’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse Hillsgreen on written demand for any costs or losses sustained or incurred by Hillsgreen arising directly or indirectly from the Customer Default.
6. Charges and payment
6.1 The Charges for the Services shall be calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with Hillsgreen’s daily fee rate, which at the date of the Contract is £800.00 (exclusive of VAT) per day;
(b) Hillsgreen’s daily fee rates are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) Hillsgreen shall be entitled to charge an overtime rate of 25% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.1(b); and
(d) Hillsgreen shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Hillsgreen 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 required by Hillsgreen for the performance of the Services, and for the cost of any materials.
6.2 If the Customer wishes to change the scope of the Services after Hillsgreen has accepted the order, and Hillsgreen agrees to such change, Hillsgreen will modify the Charges accordingly.
6.3 Hillsgreen reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
6.4 Hillsgreen shall invoice the Customer on a monthly basis in advance.
6.5 The Customer shall pay each invoice submitted by Hillsgreen:
(a) within 28 days of the date of the invoice; and
(b) by direct debit or BACS in full and in cleared funds to a bank account nominated in writing by Hillsgreen
6.6 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 Hillsgreen to the Customer, the Customer shall, on receipt of a valid VAT invoice from Hillsgreen, pay to Hillsgreen 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.
6.7 If the Customer fails to make a payment due to Hillsgreen under the Contract by the due date, then, without limiting Hillsgreen’s remedies under clause 11, 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 6.7 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%.
6.8 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).
7. Intellectual property rights
7.1 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 Hillsgreen.
7.2 Hillsgreen grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
7.4 The Customer grants Hillsgreen a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Hillsgreen for the term of the Contract for the purpose of providing the Services to the Customer.
8. How we may use your personal information
8.1 Hillsgreen will use any personal information that the Customer provides to it to:
(a) provide the Services;
(b) process the Customer’s payment for the Services; and
(c) inform the Customer about similar products or services that we provide but the Customer may opt out of receiving such communications at any time by notifying Hillsgreen.
9. Data protection and data processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The Customer and Hillsgreen acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Hillsgreen is the data processor (where such terms have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data to Hillsgreen for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of clause 9.1, Hillsgreen shall in relation to any Personal Data processed in connection with the performance by Hillsgreen of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). 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 Data Processing Laws unless those Applicable Data Processing 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;
(d) not transfer any Personal Data outside of the European Economic Area;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data.
9.5 The Customer consents to the Supplier appointing external marketing consultants when applicable as a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered into or (as the case may be) will enter with the third-party processor into a written agreement substantially on that party’s standard terms of business. As between the Customer and Hillsgreen, Hillsgreen shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 8
10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Nothing in the Contract shall limit or exclude Hillsgreen’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, Hillsgreen shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1, Hillsgreen’s total liability to the Customer shall not exceed £100 000. Hillsgreen’s total liability includes liability in contract, tort (including negligence) breach of statutory duty, or otherwise, arising under or in connection with the Contract.
10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 This clause 10 shall survive termination of the Contract.
11.1 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 five 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.
11.2 Without affecting any other right or remedy available to it, Hillsgreen 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.
11.3 Without affecting any other right or remedy available to it, Hillsgreen may suspend the supply of Services under the Contract or any other contract between the Customer and Hillsgreen 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 11.1(b) to clause 11.1(d), or Hillsgreen reasonably believes that the Customer is about to become subject to any of them.
12. Consequences of termination
12.1 On termination of the Contract:
(a) the Customer shall immediately pay to Hillsgreen all of Hillsgreen’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Hillsgreen shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Hillsgreen Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Hillsgreen 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.
12.2 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.
12.3 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.
13.1 Events outside our control. 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.
13.2 Assignment and other dealings.
(a) Hillsgreen 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, 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 Hillsgreen.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients of Hillsgreen or the other party, except as permitted by clause 13.3(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 its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; 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.
13.4 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.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.5 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).
13.6 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 breach or default. 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.
13.7 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.
13.8 Communications between the parties
(a) Any notice or other communication 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); or sent by email to the address specified in the Parties clause on the first page of this Contract.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or 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 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9.00 am on the next Business Day after transmission.
(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.
13.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
13.10 Governing law and Jurisdiction. 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 the law of England and Wales and each party irrevocably agrees that the courts of England and Wales 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.