THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7.
1.DEFINITIONS AND INTERPRETATION
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 5 and as set out in the ‘Order Form’.
Commencement Date: the date set out in the Order Form, if the Order Form does not specify a date, the date on which Plan Digital commences the Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.
Contract: the contract between Plan Digital and the Customer for the supply of Services in accordance with these Conditions and the Order Form.
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, firm or organisation who purchases Services from Plan Digital.
Customer Default: any act or omission by the Customer or failure by the Customer to perform any relevant obligation.
Deliverables: the deliverables set out in the Order Form produced by Plan Digital for the Customer.
Deposit: the deposit payable by the Customer in advance of supply of the Services as specified in the Order Form or as otherwise agreed in writing between the parties.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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.
Payment Plan: a payment plan as set in the Order Form (if any) by Plan Digital to allow the Customer to pay for the Services over a specific period of time;
Performance Dates: dates for the provision of the Services as agreed between Plan Digital and the Customer, as set out in the Order Form or otherwise in writing.
Order Form: the form signed by the Customer and agreed between the parties detailing the Customer’s order for Services or, in the absence of a formal order form, an email or other written document generated or approved by Plan Digital outlining the scope of Services being procured and other variable information including without limitation the Charges, the contents of which precedes these Conditions in accordance with clause 2.4;
Services: the services, including the Deliverables, supplied by Plan Digital to the Customer as set out in the Order Form.
Plan Digital: Paul Lancaster trading as Plan Digital UK;
Plan Digital Materials: all materials, equipment, documents and other property of Plan Digital.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Contract will commence on the Commencement Date, these Conditions apply to the Contract 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.
2.2 Any samples, drawings, descriptive matter or advertising issued by Plan Digital, and any descriptions or illustrations contained in Plan Digital’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 Any quotation given by Plan Digital shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.4 If there is a conflict or inconsistency between any provision contained in these Conditions or the Order Form, the Order Form takes precedence over the Conditions to the extent of the conflict or inconsistency.
3. SUPPLY OF SERVICES
3.1 Plan Digital shall supply the Services to the Customer in accordance with the Order Form in all material respects.
3.2 Plan Digital shall use all reasonable endeavours to meet any Performance Dates. Any such dates shall be estimates only, will not form part of the Contract and time shall not be of the essence for performance of the Services.
3.3 Plan Digital shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Plan Digital shall notify the Customer in any such event.
3.4 Plan Digital warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order Form and any information it provides are complete and accurate;
(b) co-operate with Plan Digital in all matters relating to the Services;
(c) where relevant provide Plan Digital, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Plan Digital;
(d) provide Plan Digital with any login details, passwords or otherwise allowing access to the Customer’s online social media, intranet, assets or anything that is deemed relevant to performance of the Services and as reasonably required by Plan Digital to perform those Services;
(e) provide Plan Digital with such information and materials as Plan Digital may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) prepare the Customer’s premises for the supply of the Services;
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(h) keep and maintain all materials, equipment, documents and other property of Plan Digital (Plan Digital Materials) at the Customer’s premises in safe custody at its own risk, maintain Plan Digital Materials in good condition until returned to Plan Digital, and not dispose of or use Plan Digital Materials other than in accordance with Plan Digital’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Order Form.
4.2 If Plan Digital’s performance of any of its obligations under the Contract is prevented due to an act of Customer Default:
(a) Plan Digital shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays Plan Digital’s performance of any of its obligations;
(b) Plan Digital shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Plan Digital’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Plan Digital on written demand for any costs or losses sustained or incurred by Plan Digital arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be either on a retainer, fixed fee, commission or time and materials basis.
5.2 Where the Customer engages Plan Digital on a retainer basis:
(a) the Charges shall be agreed in advance between the Customer and Plan Digital in writing and shall be a fixed fee payable on a monthly basis in return for the Services; and
(b) Plan Digital shall be entitled to charge the Customer for any expenses reasonably incurred in accordance with conditions 5.3(d) for Customers on a retainer basis.
5.3 Where the Customer engages Plan Digital on a fixed fee basis:
(a) the Charges shall be agreed in writing in advance between the Customer and Plan Digital and invoiced at such times as set out in the Order Form; and
(b) Plan Digital shall be entitled to charge the Customer for any expenses reasonably incurred in accordance with conditions 5.3(d) for Customers on a fixed fee basis.
5.4 Where the Charges are payable on a time and materials basis:
(a) the Charges shall be calculated in accordance with Plan Digital’s standard daily fee rates, as set out in the Order Form;
(b) Plan Digital’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
(c) if the Customer requires the Services to be provided outside the hours referred to in 5.3(b), Plan Digital reserves the right to charge an increased rate for overtime as agreed in the Order Form (if applicable); and
(d) Plan Digital shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Plan Digital engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Plan Digital for the performance of the Services, and for the cost of any materials.
5.5 Where the Customer engages Plan Digital on a commission based fee, that fee shall be 10% of the total fee received by the Customer for the particular project or as otherwise agreed in the Order Form.
5.6 Plan Digital reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. Plan Digital will give the Customer written notice of any such increase three months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Plan Digital in writing within four weeks of the date of Plan Digital’s notice and Plan Digital shall have the right without limiting its other rights or remedies to terminate the Contract by giving six weeks’ written notice to the Customer.
5.7 Plan Digital shall invoice the Customer:
(a) partially in advance and partially in arrears for any engagements on a retainer basis;
(b) on completion of the Services for work that is time and material based or fixed fee work; and
(c) on completion of the Services for commission-based work.
5.8 The Customer shall pay each invoice submitted by Plan Digital:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Plan Digital, and
time for payment shall be of the essence of the Contract.
5.9 Plan Digital, at its ultimate discretion, may agree a Payment Plan with the Customer.
5.10 Irrespective of the basis of the Charges, Plan Digital reserves the right to request a Deposit from the Customer prior to the commencement of Services, as detailed in the Order Form.
5.11 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Plan Digital to the Customer, the Customer shall, on receipt of a valid VAT invoice from Plan Digital, pay to Plan Digital such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.12 If the Customer fails to make any payment due to Plan Digital under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per cent per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.13 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Plan Digital may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Plan Digital to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Plan Digital.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Plan Digital obtaining a written licence from the relevant licensor on such terms as will entitle Plan Digital to license such rights to the Customer.
6.3 All Plan Digital Materials are the exclusive property of Plan Digital.
7. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in the Contract shall limit or exclude Plan Digital’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.
7.2 Subject to clause 7.1, Plan Digital 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 (whether direct or indirect);
(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 damage to goodwill; and
(g) any indirect or consequential loss.
7.3 Subject to clause 7.1, Plan Digital’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid for the Service, under the Contract, in the 12 calendar months immediately preceding the date on which the claim arose.
7.4 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.
7.5 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party three months’ written notice.
8.2 Without limiting its other rights or remedies, 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 14 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;
(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.
8.3 Without limiting its other rights or remedies, Plan Digital 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 and remains in default not less than 5 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Customer.
8.4 Without limiting its other rights or remedies, Plan Digital may suspend provision of the Services under the Contract or any other contract between the Customer and Plan Digital if the Customer becomes subject to any of the events listed in clause 8.2(b) to clause 8.2(d) or Plan Digital reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Plan Digital all of Plan Digital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Plan Digital shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Plan Digital Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Plan Digital 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 this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
10.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
(a) Plan Digital may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of Plan Digital, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(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 10.3; 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.
10.4 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.7 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.8(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email at the time of receipt of a successful transmission report.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of England.
10.11 Jurisdiction. Each party irrevocably agrees that the courts of England 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.