Terms of Business

In these Terms of Business:

Supplier

123DIGI, of Colchester, Essex, United Kingdom.

Client

The person, firm, company or other entity that engages the Supplier to provide Services under a Statement of Work.

Agreement

The contract between the Supplier and the Client incorporating these Terms of Business and the relevant Statement of Work.

Services

The professional design, development, SEO, social media, consultancy and related services described in a Statement of Work.

Statement of Work or SOW

A written proposal, quotation, scope document or order form signed or accepted in writing by both parties that describes the Services, Deliverables, Fees and timeline.

Deliverables

All outputs produced by the Supplier for the Client under a Statement of Work.

Pre-existing IP

Intellectual property owned by, or licensed to, a party before the date of the Agreement, or developed independently of the Agreement.

Fees

The fees payable for the Services, as set out in the relevant Statement of Work.

Working day

Monday to Friday inclusive, excluding bank holidays in England.

Headings are for convenience only and shall not affect interpretation. References to legislation include any amendment or re-enactment of it from time to time.

These Terms of Business apply to every Agreement between the Supplier and the Client and supersede any previous oral or written agreement between the parties on the same subject matter, unless expressly agreed otherwise in writing.

If there is any conflict between these Terms of Business and a Statement of Work, the Statement of Work shall prevail in respect of the specific matter in conflict, but only to the extent that the Statement of Work expressly states that it is varying these Terms.

The Client’s standard terms and conditions (if any) do not apply to the Agreement and the Client expressly waives any right it might otherwise have to rely on them.

The Supplier shall provide the Services in accordance with the relevant Statement of Work, exercising the standard of reasonable skill and care to be expected of a competent professional digital studio.

The Supplier may use its own branding, processes, methodology, templates, components and tools to deliver the Services. The Supplier reserves the right to refuse to deliver any work that, in its reasonable opinion, is unlawful, defamatory, obscene, misleading, infringes a third party’s rights or is otherwise objectionable.

Each engagement shall be governed by a Statement of Work that sets out (as a minimum) the scope of the Services, the Deliverables, the Fees, the payment schedule, the project timeline, any acceptance criteria and any specific assumptions or dependencies on the Client.

The Supplier’s quotations are valid for 30 days from their date of issue, unless otherwise stated, and are an invitation to treat. A Statement of Work becomes binding only upon written acceptance by both parties (which may be by email).

The Client shall:

• →Co-operate with the Supplier in all matters relating to the Services and respond to requests for information, materials, approvals and feedback within five (5) working days unless otherwise agreed;
• →Provide the Supplier with such access to its premises, systems, data, materials, brand assets, logins and personnel as the Supplier reasonably requires;
• →Provide accurate, complete and lawful information and content, and ensure that any material provided to the Supplier does not infringe the intellectual property rights or other rights of any third party;
• →Obtain and maintain all necessary licences, consents, permissions and regulatory approvals required for the Services, the use of any Client-supplied content and any subsequent operation of the Deliverables;
• →Be responsible for the back-up and resilience of any of its systems with which the Deliverables interact, except where back-up is expressly included in the Services.

If the Supplier’s ability to perform the Services is prevented or delayed by an act or omission of the Client (a “Client Default”), the Supplier shall (without limiting any other remedy) be entitled to suspend the Services and to recover any additional costs reasonably incurred as a result.

The Client shall pay the Fees as set out in the Statement of Work. Unless the Statement of Work specifies otherwise:

• →A non-refundable deposit of fifty per cent (50%) of the total Fees is payable on signature of the Statement of Work and is required before the Supplier commences work;
• →The remaining balance is payable on completion of the Services or in accordance with the milestone schedule set out in the Statement of Work;
• →Retainer Fees are payable monthly in advance;
• →All invoices are payable within 14 days of the date of invoice (the "Payment Period") in cleared funds to the bank account specified on the invoice;
• →Time for payment shall be of the essence of the Agreement.

The Client may not withhold payment of any sum or set-off any sum against any sum due from the Supplier under any contract between the parties, unless the deduction is required by law or expressly agreed in writing.

The Client shall reimburse the Supplier for any reasonable and documented out-of-pocket expenses pre-approved by the Client in writing, including travel beyond a 30-mile radius of Colchester, Essex, United Kingdom, third-party licences, fonts, photography, stock assets, plug-ins or hosting where these are necessary to deliver the Services.

All Fees and expenses are exclusive of VAT, which (where applicable) shall be added at the prevailing rate and paid by the Client against a valid VAT invoice.

If the Client fails to pay any sum due under the Agreement on its due date, then, without limiting any other right or remedy, the Supplier shall be entitled to:

• →Charge statutory interest and compensation on the overdue sum at the rate and amount set out in the Late Payment of Commercial Debts (Interest) Act 1998 (currently 8% above the Bank of England base rate, plus a fixed administrative charge of £40, £70 or £100 depending on the size of the unpaid invoice);
• →Suspend all or part of the Services and withhold delivery of any Deliverables, including any access credentials or source files, until all outstanding sums (including interest and compensation) are paid in full;
• →Treat any work in progress as not yet licensed to the Client until full payment is received in cleared funds;
• →Recover any reasonable costs of recovery, including legal fees and debt-collection charges.

Either party may request a change to the scope of the Services or to a Statement of Work at any time. No change shall take effect until it is recorded in writing and signed (which may be by email) by both parties (a “Change Order”).

Where a change requested by the Client affects the Fees or timeline, the Supplier shall provide a written estimate of the additional cost and time impact, and the Client shall confirm whether or not it wishes to proceed before any work on the change begins.

The Supplier shall notify the Client when each Deliverable is ready for review. The Client shall have 7 working days from receipt to either:

• →Sign off the Deliverable in writing (which may be by email); or
• →Provide written, consolidated and reasonable feedback identifying any specific failure to meet the agreed acceptance criteria.

If the Client fails to respond within 7 working days, the Deliverable shall be deemed accepted. Acceptance of one Deliverable does not require acceptance of any other Deliverable. After acceptance (or deemed acceptance), any further changes shall be subject to the Change Control process in section 10.

The Supplier’s engagement includes a maximum of two (2) rounds of revisions per Deliverable, unless otherwise agreed in the Statement of Work.

12.1 Pre-existing IP

Each party retains ownership of all of its Pre-existing IP. Nothing in the Agreement transfers ownership of either party’s Pre-existing IP to the other.

12.2 Supplier tools and methodology

The Supplier owns and retains all rights in its frameworks, methodologies, design systems, code libraries, components, templates, processes and know-how (the “Supplier Tools”), whether developed before or during the Services. The Supplier grants the Client a perpetual, non-exclusive, royalty-free, non-transferable licence to use the Supplier Tools solely to the extent that they are embedded in the Deliverables and only for the Client’s normal internal business use.

12.3 Assignment of Deliverables

Subject to receipt by the Supplier of the full Fees and any other sums payable under the Agreement (including interest and expenses), the Supplier hereby assigns to the Client, with full title guarantee, all of its right, title and interest in the Deliverables created specifically for the Client (excluding Supplier Tools, Pre-existing IP and any third-party material).

12.4 Pre-payment ownership

Until the Supplier has received the full Fees and any other sums payable under the Agreement, all intellectual property rights in the Deliverables remain the absolute property of the Supplier and the Client’s use of any draft or partially completed Deliverable is on a strictly revocable, non-licensed basis.

12.5 Moral rights

The Supplier asserts its moral rights to be identified as the author of the Deliverables under sections 77 and 80 of the Copyright, Designs and Patents Act 1988, but waives those rights to the extent strictly necessary for the Client’s normal commercial exploitation of the Deliverables.

12.6 Promotional rights

The Client grants the Supplier a non-exclusive, royalty-free, worldwide, perpetual licence to refer to the Client’s name, trade marks and the Deliverables in the Supplier’s portfolio (including this Site, case studies, social media, proposals and award submissions). The Client may withdraw this licence at any time on reasonable notice in writing.

The Deliverables may incorporate third-party software, open-source libraries, fonts, photography, plug-ins or APIs. The Client’s use of such third-party material is subject to the terms of the relevant licensor and the Client is responsible for paying any third-party licence fees beyond the project term, unless expressly included in the Statement of Work.

The Supplier shall use reasonable endeavours to identify in writing any material third-party licences that the Client will need to maintain after delivery.

The Supplier warrants that:

• →It shall provide the Services with the reasonable skill and care to be expected of a competent professional digital studio;
• →The Services and Deliverables shall be original to the Supplier (save for any third-party material clearly identified to the Client) and, to the best of the Supplier's knowledge, shall not infringe the intellectual property rights of any third party.

Except as expressly set out in the Agreement, all warranties, conditions and other terms implied by statute or common law (including section 13 of the Supply of Goods and Services Act 1982 and any equivalent provision in the Consumer Rights Act 2015) are, to the fullest extent permitted by law, excluded from the Agreement.

Without limiting the generality of the above, the Supplier does not warrant that the operation of any software, Deliverable or website will be uninterrupted or error-free, that the Services will meet the Client’s commercial, financial, ranking or sales objectives, or that any defects will be corrected outside the scope of an agreed maintenance arrangement.

Where the Services include search engine optimisation, social media, paid media, content or other performance-marketing activities, the Client acknowledges and accepts that:

• →The Supplier does not control, and cannot guarantee, the algorithms or results of any third-party platform (including Google, Bing, Meta, TikTok, LinkedIn or X);
• →Search rankings, impressions, click-through rates, conversions, leads, sales and revenue are influenced by many factors outside the Supplier's control, including market conditions, competitor activity, third-party platform changes, Client website performance, Client product or pricing decisions and macroeconomic factors;
• →Any forecasts, targets, KPIs or projections shared by the Supplier are estimates based on the information available at the time and are not guarantees of future performance;
• →The Supplier shall not be liable for any loss of rankings, traffic, revenue or business resulting from any algorithm change, manual action, account suspension or other act of any third-party platform.

Each party undertakes that it shall not at any time during the Agreement, and for a period of three (3) years after termination, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause.

Each party may disclose the other party’s confidential information:

• →To its employees, officers, contractors, sub-processors and professional advisers who need to know it for the purpose of carrying out their obligations under the Agreement, provided that they are bound by equivalent confidentiality obligations;
• →As required by law, by a court of competent jurisdiction or by any governmental or regulatory authority.

Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.

Both parties shall comply with their respective obligations under applicable UK data protection law, including the UK GDPR and the Data Protection Act 2018. To the extent that the Supplier processes personal data on behalf of the Client in the course of providing the Services, the parties acknowledge that the Client is the data controller and the Supplier is the data processor, and shall enter into a data processing addendum compliant with Article 28 UK GDPR if reasonably required by the nature of the personal data being processed.

Further details of how the Supplier handles personal data are set out in the Privacy Policy.

The Supplier may engage suitably qualified subcontractors, freelancers and sub-processors to assist with the Services. The Supplier remains responsible to the Client for the acts and omissions of those subcontractors as if they were its own.

Nothing in the Agreement limits or excludes either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (d) any other liability that cannot lawfully be limited or excluded.

Subject to that paragraph:

• →Excluded losses. Neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of business, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss or corruption of data, or any indirect, special or consequential loss or damage arising under or in connection with the Agreement.
• →Cap on liability. The total aggregate liability of the Supplier to the Client in respect of all claims arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed an amount equal to the total Fees paid (and not refunded) by the Client to the Supplier under the relevant Statement of Work in the 12 months immediately preceding the date the cause of action arose.

The Client acknowledges that the Fees have been calculated on the basis of the limitations and exclusions of liability contained in this section, which the parties agree are fair and reasonable in the circumstances.

The Client shall indemnify and hold the Supplier harmless from and against any and all losses, damages, claims, liabilities, costs and expenses (including reasonable legal fees) suffered or incurred by the Supplier arising out of or in connection with:

• →Any breach by the Client of the Agreement;
• →Any claim that any material, content, asset, data or instructions supplied by the Client to the Supplier infringes the intellectual property, privacy or other rights of any third party;
• →Any claim by a third party arising out of the Client's use, operation, distribution or marketing of the Deliverables (other than to the extent caused by the Supplier's breach of the Agreement);
• →The Client's breach of any applicable law or regulation in relation to the Services or the Deliverables.

The Supplier maintains, at its own cost, professional indemnity insurance and public liability insurance with reputable insurers, in amounts appropriate to the size of its business. The Supplier shall provide a summary certificate of cover on reasonable written request.

The Agreement shall commence on the date the Statement of Work is signed (or otherwise accepted in writing) and shall continue until the Services have been completed and any applicable retainer term has expired, unless terminated earlier in accordance with this section.

Either party may terminate the Agreement immediately by written notice if the other party:

• →Commits a material breach of the Agreement and (if remediable) fails to remedy that breach within 14 days after being notified in writing to do so;
• →Becomes insolvent, enters administration or makes an arrangement with its creditors;
• →Ceases or threatens to cease to carry on business.

The Supplier may also terminate the Agreement immediately by written notice if the Client fails to pay any sum due under the Agreement on the due date and such failure continues for more than 14 days after a written reminder.

Either party may terminate any retainer-based Services for convenience by giving the other not less than 30 days’ written notice, provided that all Fees due up to and including the end of the notice period shall remain payable in full.

On termination of the Agreement for any reason:

• →The Client shall immediately pay all sums due to the Supplier up to the date of termination, including for any work in progress and any non-cancellable third-party commitments;
• →The Supplier shall, subject to receipt of full payment, deliver to the Client all completed Deliverables and any work in progress for which the Client has paid;
• →Each party shall return or, at the other party's option, destroy any confidential information of the other in its possession, save to the extent retention is required by law or for the establishment, exercise or defence of legal claims;
• →All licences granted by the Supplier under the Agreement shall, unless expressly stated to be perpetual, immediately terminate;
• →Any provision that expressly or by implication is intended to survive termination (including clauses on intellectual property, confidentiality, liability, indemnities and dispute resolution) shall continue in full force and effect.

The Client shall not, during the term of the Agreement and for a period of twelve (12) months after its termination, directly or indirectly solicit, employ or otherwise engage (whether as employee, consultant, contractor or otherwise) any employee, contractor or freelancer of the Supplier who has been involved in providing the Services, without the Supplier’s prior written consent. This restriction shall not apply to any solicitation made through a public advertisement not specifically targeted at the Supplier’s personnel.

Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement (other than payment obligations) if such delay or failure results from events, circumstances or causes beyond its reasonable control, including (without limitation) acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, accident, breakdown of plant or machinery, fire, flood, storm, epidemic, pandemic, government lockdown, internet or telecommunications failure or industrial action.

Each party shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption (including the Bribery Act 2010), modern slavery (including the Modern Slavery Act 2015) and equality (including the Equality Act 2010). Each party shall have and maintain its own appropriate policies and procedures to ensure such compliance.

Any notice given to a party under or in connection with the Agreement shall be in writing and shall be sent by email to the email address most recently used by that party for communications about the Services. Notices to the Supplier shall additionally be copied to hello@123digi.co.uk. A notice shall be deemed received at the time of transmission, provided no bounce or error message is received.

28.1 Entire agreement

The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that, in entering into the Agreement, it has not relied on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.

28.2 Variation

No variation of the Agreement shall be effective unless it is in writing and signed (which may be by email) by or on behalf of each of the parties.

28.3 Severance

If any provision (or part of any provision) of the Agreement 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 shall be deemed deleted, and the remaining provisions shall continue in full force and effect.

28.4 Assignment

The Client shall not assign, transfer, sub-contract or otherwise deal with any of its rights or obligations under the Agreement without the Supplier’s prior written consent. The Supplier may assign or sub-contract its rights or obligations under the Agreement at any time without the Client’s consent.

28.5 No partnership or agency

Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, or authorise any party to make or enter into any commitments for or on behalf of the other.

28.6 Third-party rights

A person who is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

28.7 Counterparts

The Statement of Work and any Change Order may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

If a dispute arises out of or in connection with the Agreement, the parties shall first attempt to resolve it through good-faith negotiation between senior representatives within thirty (30) days of one party serving written notice of the dispute on the other.

If the dispute is not resolved through negotiation, the parties shall consider attempting to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure.

The Agreement 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 and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.