Miss Digital Media – Terms and Conditions
It is not my favourite part of running a business, however, is totally necessary to have terms and conditions in place which protect the interests of Miss Digital Media and its clients.
Grab a cup of tea and a packet of biscuits, have a read through and please get in touch if you have any questions.
These Terms and Conditions apply to all Services provided by Miss Digital Media.
Please read these terms and conditions carefully as they are legally binding.
1. Definitions and Interpretation
1.1: In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
1.2: Unless the context otherwise requires, each reference in these Terms and Conditions to:
2. The Contract
2.1: We will provide you with a written Proposal for our Services. The acceptance of our Proposal, electronically or otherwise, creates a legally binding Contract between you and us, and includes the acceptance of these Terms and Conditions, which will apply between us.
2.2: You are responsible for the accuracy of any information you submit to us and for ensuring that our Proposal reflects your requirements. Our Proposal is based on the information provided to us at the time we prepare it. If any errors or discrepancies become evident, we reserve the right to make adjustments to it.
3.1: The Services shall either be on a one-off project or retained basis.
3.2: Where the Services are on a one-off project basis:
3.2.1: We shall agree a fixed fee based on your needs, these shall be an estimate of the works needed to be completed and may not be accurate. Should we require more time to complete the project, for example if the brief changes, we will seek your permission by sending a further Proposal, before proceeding with the additional works.
3.3: If the Services are on a retained basis:
3.3.1: The services will commence on the commencement date outlined in the Proposal. The Contract will continue for a minimum term of 30 days and thereafter will continue on a rolling monthly basis and will be automatically renewed at the end of each period for a further month, unless a written notice to terminate is given by either party in accordance with clause 8 below. We reserve the right to adjust our fees at the end of any minimum term and will notify you of this in writing.
3.3.2: Our Services will be calculated based upon your entitlement to a set number of hours per month, as detailed in the Proposal. If you do not use all the hours for which we are contracted each month, the hours will be carried over to the following month. Should you require additional hours in any month, then all additional hours will be charged in accordance with our current, applicable hourly rate in effect at the time of the performance or such other rate as may be agreed. Should you require fewer hours than was agreed, our Fees will be adjusted accordingly.
3.3.3: A minimum of 30 days’ notice is needed to decrease or increase your Retained Fee. The minimum fee is £100.
4. The Services
4.1: In order to maximise the benefit of our Services, you may be required to send us regular updates (including, but not limited to, details of special offers, new services you provide and services no longer provided by you).
4.2: All content we use is done so in good faith, based on information gathered in accordance with clause 4.1, as well as information already on your website and any other marketing materials.
4.3: In order to provide our Services, we may need access, approvals and logins to your social media sites and other marketing platforms as necessary. Please provide this to us on acceptance of our Proposal to avoid delays. Should you change your passwords we shall need notifying in order to ensure we can continue our Services.
4.4: You will be required to provide us with suitable and sufficient content in accordance with clauses 4.1 and 4.2. We cannot be held responsible for delays where this is not complied with.
4.5: Unless otherwise agreed, we are deemed to have your consent to use our experience and not to run any content by you in advance, unless specifically agreed otherwise. It is therefore your responsibility to ensure your website is kept up to date and we accept no liability for any incorrect information used by us where this clause is not complied with.
4.6: Where we send draft materials for approval, these will not be published until we have received your approval to do so in writing. It is your responsibility to check for mistakes, including spelling mistakes, and we accept no responsibility for the same.
4.7: Where providing services for design and publications, pdf proofs with a watermark will be sent, final artwork files will only be issued when final payment has been received.
5.1: We offer 1-2-1 online training via Skype where individuals and small groups can book 1-2 hour slots for online digital media training, either weekly or monthly. If this does not suit your needs, we will discuss your goals and design a programme tailored to you.
5.2: In-house training can also be used, where we use bespoke training courses which can be delivered at various venues and locations.
5.3: At the time you make your Booking, you will be required to pay a 25% deposit in order to secure the date. Bookings will not be deemed confirmed until the deposit is paid in full. The remainder will be due as agreed at the time of Booking.
5.4: The Booking includes for the agreed number of delegates over the agreed number of weeks and any additional support will be chargeable separate to the Booking.
5.5: Unless otherwise stated in writing, we shall charge to the Client our reasonable travelling time and travel expenses, accommodation, any incidental expenses for materials used and for third party goods and services supplied in connection with the Services.
5:6: The Client will pay the Company for any additional services (and additional expenses incurred as a result) provided by us that are not specified in the Proposal. These additional services shall be charged in accordance with our then current, applicable rate in effect at the time of the performance or such other rate as may be agreed.
5.7: You are entitled to substitute delegates without penalty, provided we are advised of this in advance.
5.8: Any increase in the number of delegates must be notified within 3 days from the training session and may result in additional costs being levied
5.9: You are responsible for the delegates at all times. Should the behaviour of a delegate prove disruptive at any stage, we will be entitled to request the immediate removal of said delegate from this and any future training session.
5.10: If any training session is to be cancelled for any reason, we require a minimum of 7 days’ notice. If we do not receive this notice, we will retain any payments made in advance and where no payment has been received, this will become immediately due.
5.11: Refunds will not be issued under any circumstances.
5.13: On occasion, we may have to cancel a training session and if so, we will book another session for you as soon as reasonably possible.
5.14: No further dates will be offered should the Client cancel or reschedule any training session without 7 days’ notice, and any payments shall be due and payable immediately.
5.15: If the Client is required to provide the facilities required for us to carry out the training services, our Proposal allows for the maximum number of delegates to be limited to 15, after which any further delegates requested shall be chargeable as extra. We must be notified of any additional delegate requests at the time of booking.
6.1: You agree to pay the fees in accordance with these terms for payment.
6.2: Our project services shall require a 50% deposit payment for the works upfront before any works shall begin, with the remainder due upon completion, unless otherwise agreed.
6.3: All retained Services such as monthly media support, provided under this Contract will be payable invoiced at the end of the month for the hours contracted in that month, throughout the term of the Contract.
6.4: All invoices are payable in full, without set off, withholding or deduction, within 7 days from the date of invoice. All fees are exclusive of VAT, unless otherwise specified.
6.5: You also agree to pay for any additional services requested by you and provided by us that are not specified in the Contract. These additional Services will be charged in accordance with our current, applicable hourly rate in effect at the time of the performance or such other rate as may be agreed.
6.6: One-off projects that require print work must be fully paid before the commencement of the Services.
6.7: We also reserve the right to charge you for our reasonable travelling time and travel expenses, including a fee for aborted visits, and for any materials, goods and services supplied by us in connection with the Services.
6.8: Any changes to works after printing and/or publication will be chargeable.
6.9: The time of payment is of the essence of the Contract. If you fail to make any payment to us by the due date then, without prejudice to any other right or remedy available to us, we will have the right to suspend the Services and charge you interest on a daily basis at the rate of 8% per annum above the Bank of England base rate from time to time in force, both before and after judgment, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
7. Variation and Amendments
7.1: If you wish to vary the Services to be provided, please notify us as soon as possible. We will use all reasonable efforts to make any required changes and will invoice you for any additional costs incurred as a result.
7.2: If, due to circumstances beyond our control, we have to make any change in the arrangements relating to the Services, we will notify you immediately. We will endeavour to keep such changes to a minimum and will seek to offer you arrangements as close to the original as is reasonably possible in the circumstances.
7.3: Any agreed variation or amendment will be carried out in accordance with these Terms and Conditions and any price increase necessitated as a result will be payable in accordance with our terms for payment.
8. Cancellation and Termination
8.1: All one-off project services cannot be terminated.
8.2: If the Client aborts a 1-2-1 Training visit or any meeting where we are required to be onsite, you will be required to pay for mileage and any other travel expenses.
8.3: Either Party has the right to terminate the Services by giving 1 months’ written notice to the other, whereby there will be no continuing liability by either Party. The fees will continue to be due and payable, and we will continue to provide the Services, throughout any period of notice.
8.4: Either Party has the right to terminate any Services immediately if the other:
8.4.1: has committed a material breach of this Contract, unless the breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or
8.4.2: goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
8.5: Upon termination, all payments required under this Contract shall become due and immediately payable.
8.6: Any and all obligations of the Parties, which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract, shall survive termination under this clause 8 on a pro-rata basis.
9.1: Each Party undertakes that throughout the duration of the Contract, the Parties may disclose certain Confidential Information to each other. Both Parties agree that they will not use the Confidential Information provided by the other, other than to perform their obligations under this Contract. Each Party will maintain the Confidential Information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other Party in writing.
10. Intellectual Property
10.1: The copyright in any Services provided by us is and will become your property. Subject to a written agreement to the contrary, the Contract will give you ownership rights in the Services provided by us provided all payments due under the Contract have been received by us in full.
10.2: The ownership will apply only to final versions provided by us and will not apply to any draft versions. Watermarks may be used on draft proofs, and will only be removed once full payment has been received.
10.3: We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of our intellectual property rights.
10.4: We reserve the right to use any materials, copy, or any other Services provided by us, together with your company name, for our own advertising or promotional purposes.
10.5: You warrant that any logo, design, image, document or instruction supplied or given by you will not cause us to infringe any intellectual property rights of any third party (including, but not limited to, any letter patent, registered design or trade mark) in the execution of our Services. You will indemnify us against all loss, damages, costs and expenses awarded against us or incurred by us in settlement of any claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of your information.
11. No employment
11.1: Nothing in this Contract will render or be deemed to render us an employee or agent of yours or you an employee or agent of ours.
12. Assignment and Sub-Contracting
12.1: You may not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under this Contract.
12.2: We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under this Contract, without your prior consent.
12.3: Where we subcontract the performance of any of our obligations under the Contract, we will be responsible for every act or omission of the subcontractor as if it were an act or omission of our own.
13. Literature and Representations
13.1: Any marketing literature we may provide is presented in good faith as a guide to represent the Services offered and does not form a part of the Contract. None of our employees or agents are authorised to make any representation concerning the Services unless confirmed by us in writing. In entering into the Contract, you acknowledge that you do not rely on and waive any claim for breach of any such representations, which are not so confirmed.
14. Liability and Indemnity
14.1: Except in respect of death or personal injury caused by our negligence, we will not, by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our servants or agents or otherwise) in connection with the performance of our obligations under the Contract.
14.2: Except as stated in clause 14.1, in the event of a breach by us of our express obligations under these Terms and Conditions, your remedies will be limited to damages, which in any event, shall not exceed the fees and expenses paid by you for the Services under the Contract.
14.3: All warranties or conditions whether express or implied by law are expressly excluded to the fullest extent permissible by law.
14.4: We cannot be held responsible for any failure or delay in providing our Services or for any costs or losses sustained or incurred by you as a result, where our failure or delay was caused by incorrect information, a lack of information or communications from you, or your failure to comply with any of your obligations detailed in these Terms and Conditions.
14.5: We may provide professional advice and recommendations in relation to the Services but we cannot accept responsibility for any actions taken as a result of such advice or recommendations, nor can we guarantee the success or outcomes of any marketing campaign or any of the other Services provided. Any recommendations will be treated as a separate contract to this one. Further, we will not be liable for any consequences should our professional advice not be taken. We may from time to time provide introductions or referrals to other companies, however, under no circumstances will we be liable for the actions or lack of actions of said other companies.
15. Force Majeure
15.1: Neither Party shall be liable for any failure or delay in performing their obligations under the Contract where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event beyond the control of the Party in question.
16.1: No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
17.1: The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these Terms and Conditions and the Contract shall be valid and enforceable.
18. Data Protection
18.1: Both parties agree to comply with all applicable data protection legislation, including, but not limited to the General Data Protection Regulations 2016 and any subsequent amendments thereto.
19. Third Party Rights
19.1: No part of the Contract is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
20.1: Notices shall be deemed to have been duly received and properly served 24 hours after an email is sent, or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that it was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that it was sent to the specified email address of the addressee.
21. Law and Jurisdiction
21.1: These Terms and Conditions and the Contract will in all respects be subject to and construed in accordance with the laws of England and Wales.
21.2: Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Contract will be referred to the exclusive jurisdiction of the courts of England and Wales.
Please get in touch if you have any questions.
Miss Digital Media