ICONIC DIGITAL MARKETING CONSULTANTS LIMITED
TERMS AND CONDITIONS 2023
Iconic Digital Marketing Consultants Ltd (the “Service Provider”) provides mulit-award winning digital marketing services to a growing portfolio of businesses across the globe. The Service Provider has reasonable skill, knowledge and experience in providing outsourced marketing services including; Drupal website design, search engine optimisation, social media marketing, email marketing, paid advertising including remarketing, lead nurturing, marketing automation, and content marketing.
These Terms and Conditions shall apply to the provision of these services by the Service Provider to its clients in conjunction to any Agreement formed by both parties through a Booking Confirmation.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means the agreement entered into by the Service Provider and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) through the Booking Confirmation which shall govern provision of the Services;
means, any day weekend or public holidays on which the Bank of England is open for their full range of normal business for the United Kingdom;
means the party procuring the Services from the Service Provider who shall be identified in the Booking Confirmation;
means the date on which provision of the Services will commence, as defined in the Booking Confirmation;
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
means any and all sums due under the Agreement from the Client to the Service Provider, as specified in the Booking Confirmation;
means the services to be provided by the Service Provider to the Client in accordance with Clause 2 of these Terms and Conditions, as fully defined in the Booking Confirmation, and subject to the terms and conditions of the Agreement;
means the term of the Agreement as defined by the Booking Confirmation. If not finalised date is given for conclusion of this agreement, then it shall be clear that the Service is delivered on a rolling monthly basis through a retained contract.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means;
1.2.2 a “statute” or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a “Clause” or “paragraph” is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
1.2.5 a “Party” or the “Parties” refer to the parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2. Provision of the Services
2.1 With effect from the Commencement Date within the Booking Confirmation, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client.
2.2 The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the digital marketing industry as benchmarked by the Chartered Institute of Marketing and Direct Marketing Association.
2.3 The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Booking Confirmation.
2.4 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
2.5 The Service Provider may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time.
2.6 The Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes, giving 90 days written
notice of the change to that affect.
3. Client’s Obligations
3.1 The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services.
3.2 The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Booking Confirmation. If such instructions fall outside of the remit of the Agreement then they will deem to be chargeable at the standard hourly rate of £75 plus VAT.
3.3 In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
3.4 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities, licensing agents eg: Getty Images, Istock Photo or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
3.5 If the nature of the Services requires that the Service Provider has access to the Client’s home, office or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Service Provider has access to the same at the times to be agreed between the Service Provider and the Client as required.
3.6 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 3 of the Agreement shall not be the responsibility or fault of the Service Provider.
4. Fees, Payment and Records
4.1 The Client shall pay the Fees to the Service Provider in accordance with the provisions of the Booking Confirmation forming the Agreement.
4.2 The Service Provider shall invoice the Client for Fees due in accordance with the provisions of the Agreement on the 1st day of each calendar month.
4.3 All payments required to be made pursuant to the Agreement by the Client shall be made within 30 days of the date of the relevant invoice.
4.4 All payments required to be made pursuant to the Agreement by the Client shall be made in British Pounds in cleared funds to such bank as the Service Provider may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
4.5 Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
4.6 Without prejudice to sub-Clause 8.4 of these Terms and Conditions, any sums
which remain unpaid following the expiry of the period set out in sub-Clause 4.3 shall incur interest on a daily basis at 8% above the base rate of the Bank of England from time to time until payment is made in full of any such outstanding sums.
4.7 If full payment is not received with 60 days of the date of the relevant invoice, then the Service Provider reserves the right to hand over the debt to its appointed debt recovery agent, Town and County Legal Services LLP. In such cases, all fees incurred will be payable by the Client. In such cases, the Service Provider reserves the right to terminate activity on the Client’s account pending full recovery of the overdue funds. This does not affect the notice period of the Agreement which will continue to run until such time that either party serves notice to the other.
4.8 Each Party shall:
4.8.1 keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated;
4.8.2 at the reasonable request of the other Party, allow that Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them; and
4.8.3 within 60 days after the end of each month, submit at its own expense and supply to the other Party an auditors’ certificate as to the accuracy of the sums paid by that Party pursuant to the Agreement during that month, if appropriate.
4.9 The Client commits to make payment by direct debit or standing order on the 30th day of each calendar month.
5. Liability, Indemnity and Insurance
5.1 The Service Provider shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance, professional indemnity and employer’s liability insurance.
5.2 In the event that the Service Provider fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.
5.3 The Service Provider’s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to the total contractual value.
5.4 The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.
5.5 Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude the Service Provider’s liability for death or personal injury.
5.6 Subject to sub-Clause 5.3 of the Agreement the Service Provider shall indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of the Service Provider’s breach of the Agreement.
5.7 The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any
equipment (including that belonging to any third parties appointed by the Service Provider) caused by the Client or its agents or employees.
5.8 Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
6.1 Each Party undertakes that, except as provided by sub-Clause 6.2 of the Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 1 year after its termination:
6.1.1 keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any other party;
6.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
6.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
6.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of this Agreement.
6.2 Either Party may:
6.2.1 disclose any Confidential Information to:
184.108.40.206 any sub-contractor or supplier of that Party;
220.127.116.11 any governmental or other authority or regulatory body; or
18.104.22.168 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of Clause 6 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
6.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
6.3 The provisions of Clause 6 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
7. Force Majeure
7.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations 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 that is beyond the control of the Party in question.
7.2 In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of more than 30 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
8. Term and Termination
8.1 The Agreement shall come into force on the agreed Commencement Date and shall continue on a continuous rolling monthly basis from that date, subject to the provisions of Clause 8 and 9 and the respective Booking Confirmation, and until written cancellation is received by either party.
8.2 Either Party shall have the right to cancel the Agreement, subject to the provisions of Clause 8 and 9 and the respective Booking Confirmation and exercisable by giving not less than 90 days written notice to the other at any time following the 3 month minimum term.
8.3 Either Party may terminate the Agreement by giving to the other not less than 90 days written notice, to expire on or at any time after the minimum 3 month term.
8.4 The Service Provider may immediately terminate the Agreement by giving written notice to the other Party if:
8.4.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 Business Days of the due date for payment;
8.4.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
8.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
8.4.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
8.4.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for
the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
8.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
8.4.7 the other Party ceases, or threatens to cease, to carry on business; or
8.4.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of Clause 8, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
8.5 For the purposes of sub-Clause 8.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
8.6 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
9. Effects of Termination
Upon the termination of the Agreement for any reason:
9.1 any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
9.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
9.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
9.4 subject as provided in Clause 9 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
9.5 each Party shall (except to the extent referred to in Clause 6 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
9.6 All data held by the Service Provider in respect to their role as a Data Processor under the General Data Protection Regulation, shall be removed from the Service Provider’s systems.
9.7 Clause 25.6 shall survive the termination of this Agreement and shall continue in full force and effect until all Data is returned to the Data Controller.
10. No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreementshall be deemed to be a waiver of that right, and no waiver by either Party of a breachof any provision of the Agreement shall be deemed to be a waiver of any subsequentbreach of the same or any other provision.
11. Further Assurance
Each Party shall execute and do all such further deeds, documents and things asmay be necessary to carry the provisions of the Agreement into full force and effect.
Subject to any provisions to the contrary each Party shall pay its own costs of andincidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Neither Party shall be entitled to set-off any sums in any manner from payments dueor sums received in respect of any claim under the Agreement or any otheragreement at any time.
14. Assignment and Sub-Contracting
14.1 The Service Provider shall be entitled to perform any of the obligationsundertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.
15.1 All times and dates referred to in the Booking Confirmation shall be of theessence of the Agreement.
16. Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership,joint venture, agency or other fiduciary relationship between the Parties other than thecontractual relationship expressly provided for in the Agreement.
17.1 Neither Party shall, for the Term of the Agreement or for 2 years followingtermination of the Agreement, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement, without the express written consent of that Party.
17.2 Neither Party shall, for the Term of the Agreement and for 2 years following or expiry, solicit or entice away from the other Party any customer or client where
any such solicitation or enticement would cause damage to the business of that Party, without the express written consent of that Party.
18. Third Party Rights
18.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
18.2 Subject to Clause 19 of the Agreement, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
19.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
19.2 Notices shall be deemed to have been duly given:
19.2.1 when delivered, if delivered by courier or other messenger (including Royal Mail) during normal business hours of the recipient; or
19.2.2 when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
In each case notices shall be addressed to the most recent address, e-mail address, notified to the other Party.
20. Entire Agreement
20.1 The Booking Confirmation together with these Terms and Conditions containsthe entire agreement between the Parties with respect to its subject matter and may not be modified.20.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall bean original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of theseTerms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/ those provision(s) shall be deemed severed from the remainder of the Agreement
and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
23. Dispute Resolution
23.1 The Parties shall attempt to resolve any dispute arising out of or relating to theAgreement through negotiations between their appointed representatives who have the authority to settle such disputes.
23.2 Disputes arising following cancellation or termination of the Agreement shall not be dealt with through the Alternative Dispute Resolution. If full and final payment has not been made, then this will be interpreted as non-payment and the Service Provider reserves the right to implement recovery proceedings as outlined in these terms and conditions.
23.3 If negotiations under sub-Clause 23.1 of the Agreement do not resolve the matter within 30 days, a written invitation to negotiate will be sent by the Service Provider to invite both parties to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
23.4 If the ADR procedure under sub-Clause 23.2 of the Agreement does not resolve the matter within 30 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
23.5 The seat of the arbitration under sub-Clause 23.3 of the Agreement shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties and managed through an independent solicitor or arbitration agency. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
23.6 Nothing in Clause 23 or Clause 24 of the Agreement shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
23.7 The decision and outcome of the final method of dispute resolution under Clause 23 of the Agreement shall be final and binding on both Parties, save for any application to a higher court for application.
23.8 The decision of any court of law in England and Wales shall be final and binding on both parties.
24. Law and Jurisdiction
24.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with the laws of England and Wales.
24.2 Subject to the provisions of Clause 24 of the Agreement, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
25. Data Protection
25.1 The General Data Protection Regulation 2018 places certain obligations upona Data Controller to ensure that any Data Processor it engages provides sufficient guarantees to ensure that the processing of the data carried out on its behalf is secure.
25.2 Clause 25 exists to ensure that there are sufficient security guarantees in place and that the processing complies with obligations equivalent to those of the 7th Data Protection Principle.
Any personal information pertaining to the individual that may be transferred by the data controller, including, but not limited to first name, last name, email address, address, telephone number, and IP address.
25.3.2 “Processing” shall mean any operation or set of operations which is/are performed upon personal data, (whether or not by automatic means) including collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Such processing may be wholly or partly by automatic means or processing otherwise than by automatic means of personal data which form part of a filing system or one intended to form part of a filing system. A filing system shall mean any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographic basis.”
25.4.1 Subject to clause 5(b) this Agreement shall apply to all Data sent from the date of this Agreement by the Data Controller to the Data Processor until either party gives ninety day’s written notice of termination.
25.5 Purpose of Processing
25.5.1 The Data Processor shall process the Data it receives from the Data Controller solely for the purpose of sending email marketing communications and for lead tracking on the Client’s website and for no other purpose except with the express written consent of the Data Controller.
25.6 Security and Confidentiality of Data
25.6.1 The Data Processor shall use its best endeavours to safeguard the Data from unauthorised or unlawful processing or accidental loss, destruction or damage and acknowledges that it has implemented the technical and organisational measures specified in Schedule A to prevent unauthorised or unlawful processing or accidental loss or destruction of the Data.
25.6.2 The Data Processor shall ensure that each of its employees, agents or subcontractors are made aware of its obligations with regard to the security and protection of the Data and shall require that they enter into binding obligations with the Data Processor in order to maintain the levels of security and protection provided for in this Agreement.
25.6.3 The Data Processor shall not divulge the Data whether directly or indirectly to any person, firm or company without the express consent of the Data Controller except to those of its employees, agents and subcontractors who are engaged in the processing of the Data and are subject to the binding obligations referred to in 3(b).
25.6.4 The Data Processor shall ensure by written contract that any agent or subcontractor employed by the Data Processor to process Data to which this Agreement relates also provides the Data Processor with a plan of the technical and organisational means it has adopted to prevent unauthorised or unlawful processing or accidental loss or destruction of the Data and confirms to the Data Processor the implementation of those means.
25.7.1 The Data Processor’s liability to the Data Controller for any loss or damage of whatsoever nature suffered or incurred by the data controller or for any liability of the Data Controller to any other person for any loss or damage of whatsoever nature suffered or incurred by that person shall to the extent permitted by law not exceed the value of £350.
26. Confirmation of Terms
The Board of Directors approve these Terms and Conditions for use with all Booking Confirmations and Agreements forthwith
The Client agrees to proceed with the Agreement as set out in these terms and in conjunction with the Booking Confirmation by responding to the Booking Confirmation via email.