Logic+Magic Limited – Standard Terms and Conditions.
These terms and condition will not apply if there is a signed MSA in place. These terms and conditions shall override any conflicting term in a Proposal, unless the term in the Proposal explicitly refers to the provision in these terms and conditions that it is intended to override.
2. Commencement and term.
The Agreement shall commence on the earlier of the date when the Proposal has been signed by the Customer or the date the Customer requests in writing for the Agency to commence the Services set out in the Proposal. The Agreement shall continue until completion of the Services, unless otherwise terminated in accordance with clause 8.
3. Supply of services.
- 3.1 the Agency shall supply the Services to the Customer from the Services Start Date in accordance with these terms and conditions.
- 3.2 In supplying the Services the Agency shall:
- A. perform the Services in a professional manner and with all reasonable care and skill;
- B. perform the Services in accordance with the service description set out in the Proposal;
- C. create Deliverables that comply with any specification set out in the Proposal.
- D. comply with the Customer's brand guidelines and marketing policies provided to the Agency at the commencement of the Services.
- E. take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Agency may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Agreement.
- 3.3 Where the Services include search engine optimisation services or online marketing campaign, then the expected output and results of the Services contained in a Proposal are best estimates only and statements in the Proposal do not guarantee increases in page traffic or ranking or other target achievements.
- 3.4 the Agency is not responsible for any failure to provide the Services which arises out of any act or omission by a third party outside of the control of the Agency or where any assumptions or dependencies set out in a Proposal are not met.
4. Customer's obligations.
4.1 The Customer acknowledges that the Agency requires the Customer to collaborate with it and carry out certain obligations to enable the Agency to provide the Services on time and on budget. The Customer shall therefore:
- A. cooperate with the Agency in all matters relating to the Services;
- B. provide, and in a timely manner, the Customer Materials, and all feedback and instructions, as reasonably required by the Agency to enable it to perform the Services;
- C. provide, and in a timely manner, such information as the Agency may reasonably require, and ensure that it is accurate and complete in all material respects;
- D. not unreasonably withhold or delay any acceptance or approval;
- E. provide a the Agency with access to a representative from the Customer who can provide feedback, approvals and instructions during the performance of the Services (and not replace the representative unless required to do so for ill health or other unavoidable reason);
- F. provide the Agency at the commencement of the Services with any directions, brand guidelines, marketing policies relating to the Services, including details of any specific regulations or rules of the Customer's industry that the Services must comply with.
4.2 If the Agency's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, then the Agency shall:
- A. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
- B. be entitled to payment of the Price despite any such prevention or delay; and
- C. be entitled to invoice for any additional resources required or lost time that has been booked out and lost, as a result of the prevention or delay.
- 4.3 The Customer shall not remove the Agency's agreed credits from the final work product.
5. Price and expenses.
- 5.1 The Agency shall invoice and the Customer shall pay the Price and Expenses in accordance with the milestones set out in the Proposal, and if none are set out, then the Agency shall invoice the Customer at the start or end of each month for the Services provided in advance or arrears.
- 5.2 Where the Services are for Training, the Customer must pay the invoice in full prior to the training being delivered. If payment is not made Agency may suspend the Training until payment has been made in full
- 5.3 The Price is exclusive of value added tax (VAT), which the Customer shall additionally be liable to pay at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
- 5.4 If the Customer fails to make any payment due to the Agency under the Proposal by the due date for payment, then, without limiting the Agency' remedies the Agency may suspend all Services until payment has been made in full.
- 5.5 All amounts due under the Proposal from the Customer to the Agency shall be paid by in full without any set-off or deduction.
- 5.6 The Agency may invoice the Customer for an additional 15% of any paid media cost bought by the Agency on behalf of the Customer, and which amount shall cover the Agency’s administrative costs in purchasing the media.
6. Limitation of Liability.
- 6.1 The restrictions on liability in this clause 6 apply to every liability arising under or in connection with the Agreement including but not limited to liability in Agreement, tort (including negligence), misrepresentation, restitution or otherwise.
- 6.2 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
- A. death or personal injury caused by negligence;
- B. fraud or fraudulent misrepresentation; and
- C. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- 6.3 Subject to clause 6.2, the Agency's total liability to the Customer shall not exceed 120% of the Price set out in the Proposal.
- 6.4 Subject to clause 6.2, the following types of loss are wholly excluded by the parties:
- A. loss of profits;
- B. loss of sales or business;
- C. loss of agreements or Agreements;
- D. loss of anticipated savings;
- E. loss of or damage to goodwill; and
- F. indirect or consequential loss.
- 6.5 the Agency has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
7. Intellectual Property.
- 7.1 The Agency shall retain ownership of all creative ideas and pitches presented to the Client which do not form the final work product approved by the Client.
7.2 The Agency shall grant the Client a license to use the final work product on the terms set out in a Proposal. Where the final work product is a website or software app, then the following provisions shall apply instead:
- A. the Agency retains ownership of any pre-existing intellectual property rights owned by it, or which are developed separately from the Proposal after the parties enter into this Agreement, and any Technology Background.
B. On payment of the total Price under the Proposal:
- i. the Agency assigns to the Customer the Intellectual Property Rights in the Front End Visuals of the website or software app; and
- ii. the Agency grants the Customer, and on a non-exclusive, worldwide, royalty free, perpetual and irrevocable basis (with the right to grant sublicences) the right to use the Technology Background with the Front End Visuals (and including any further updated version).
- 7.3 Where the Agency uses third party content in the work product created for the Client, then the Client shall only use that content in accordance with the license acquired by the Agency for the Client.
- 7.4 The Agency warrant that the final work product created for the Client shall not infringe third party intellectual property rights, save that this warranty does not cover infringements arising out of Client Material which the Client asks the Agency to use in the work product, or arising out of designs provided by the Client.
8.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it 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 Agreement and fails to remedy that breach within a period of 14 days after being notified to do so;
- B. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
- 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.
- D. there is no option to terminate for convenience.
- 8.2 Without affecting any other right or remedy available to it, the Agency may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment
8.3 On termination of the Agreement for whatever reason:
- A. the Customer shall immediately pay to the Agency all of the Agency's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agency may submit an invoice, which shall be payable immediately on receipt;
- B. the Customer shall return or delete all documents provided by the Agency and the Agency shall return or delete all Customer Materials;
- C. any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
- D. termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
9. Assignment and other dealings.
The Customer shall not assign, transfer or subcontract any or all of its rights and obligations under the Agreement without the Agency's prior written consent. The Agency may utilise the services of any member of its Group Companies to perform the Services.
- 10.1 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.
10.2 Each party may disclose the other party's confidential information:
- A. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Agreement. 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 8.2; and
- B. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- 10.3 Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Agreement.
- 10.4 Unless the Customer notifies the Agency otherwise and in writing, the Agency may refer to the Customer as being a customer of the Agency in its marketing material, and to use the Services as a marketing case study.
11. Entire agreement.
- 11.1 The Agreement 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, and shall supersede any terms or conditions put forward by the Customer which shall have no effect between the parties.
- 11.2 Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
12. Non solicitation of staff.
During the performance of the Services and for a period of 12 months after, the Customer shall not solicit, engage or employ, whether directly or indirectly, any employee or consultant of the Agency who was involved in providing the Services. In the event that the Customer breaches this clause and employs or engages the employee or consultant of the Agency, then the Customer shall pay the Agency an amount equal to 125% of that person’s annual financial remuneration. The parties agree that such an amount is a genuine pre-estimate of The Agency’s losses arising out of the Customer’s breach.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision or part-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 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 Agreement.
15. Third party rights.
The Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
16. Dispute Resolution.
In the event of any dispute over the quality or performance of the Services by the Agency, then the parties shall discuss the dispute in good faith and the Customer shall provide written details of the grounds of its dispute. The parties shall use good faith efforts to resolve the dispute, and only after 45 days after notice of a dispute from the Customer, may a party resort to legal action via the courts or arbitration.
17. Governing law.
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 law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.