Terms & Conditions - General Terms for Digia Ltd’s Services
Digia Ltd is a company incorporated in England & Wales and listed on Companies House. Incorporation number: 12431394
Registered office address: 24 Worthington Crescent, Cheadle, SK8 2GJ.
The following outlines the General Terms for Digia Ltd’s Services. There are also service specific Terms for our main Services that are supplementary to and subject to these Terms. Before agreeing to any Services, you are required to read, understand, and agree to these General Terms and the relevant service Terms. Note: The column on the right provides short explanations of the adjacent Terms but are not legally binding.
General Terms Put simply…
Description Of Service
Digia Ltd provide a range of online marketing Services to businesses (“Clients” or “You”), including, though not limited to, Pay Per Click advertising (PPC), Facebook advertising, Search Engine Optimisation (SEO) and Website Development. Additional Services may be offered by us from time to time. The following are the General Terms of Service (“Terms”) for using our Services. We provide online marketing Services and these Terms apply to all of them.
Here are the definitions of the terminology used throughout these Terms:
• Agreement: All the elements of our legal contract: offer, acceptance, and consideration (payment or performance), based on our General and service specific terms.
• Charges: The amount to be paid by the Client, in Great British Pounds Sterling (or other agreed currency), to Digia Ltd. as set out in the Contract.
• Contract: The Client’s Contract and Digia Ltd’s acceptance of it.
• Client: The person, firm or Company who purchases Services from Digia Ltd.
• Client Data: the data provided by the Client for the purpose of the provision of the Services by Digia.
• Client Personal Data: the Personal Data set out in Part 2 of the Schedule, which is comprised in the Client Data.
• Company: Digia Ltd
• Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
• Intellectual Property Rights: All copyright, design rights (registered and unregistered), patents, trademarks, service marks, database rights, together with any and all other intellectual property rights of any nature, whether registered or unregistered and arising in any jurisdiction.
• Personal Data: is defined in the Data Protection Legislation.
• Processing: is defined in the Data Protection Legislation and the term Process(es) and Processed shall be construed accordingly.
• Services: The work to be carried out by Digia Ltd Ltd. under the Contract. These are useful definitions to the wording seen in our Terms.
Acceptance of Terms
These Terms shall apply to and be incorporated in the Contract. Any variation of the Contract shall be in writing and signed by or on behalf of the Client and Digia Ltd.
The Terms will apply on the date of the written acknowledgement provided by Digia Ltd and the Services will commence within the agreed time thereafter. The Terms will continue to apply until the completion of those Services and for the minimum contract length, unless terminated earlier in accordance with these Terms These Terms apply as soon as we acknowledge receipt of the signed Contract and our Services will begin within an agreed time afterwards.
Modifications of Terms
Digia reserves the right, at its sole discretion, to modify or replace the Terms at any time. If the alterations constitute a substantial change to the Terms, we will notify you in writing (including via email) 14 days prior to the changes. What constitutes a substantial change will be determined at Digia Ltd’s sole discretion. You shall be responsible for reviewing and becoming familiar with any such modifications.
In addition, our Services may be interrupted from time to time as a result of equipment malfunction, as well as updates, maintenance and repairs of our systems that are outside the control of Digia Ltd. Digia Ltd reserves the right to suspend or discontinue the availability of any Service at any time and without prior notice. If our Terms change, we will notify you. Also, in the unlikely event that things go wrong, our Services may be interrupted.
As part of our service, we are responsible for taking reasonable endeavours to provide the agreed Services in accordance with the signed Contract and to deliver them by any agreed dates. Although, the Client accepts that such timescales are estimates only. Accordingly, Digia Ltd shall not be liable for any delays in the provision of the Services. We are responsible for providing the agreed Services in the Contract and aim to achieve them in the estimated timescales provided.
In addition to paying the Charges, you must ensure one point of contact is available during business hours, providing any information or content upon request so we can carry out our Services effectively You are also fully responsible for any technical changes that you or a third party make to your website and any related platforms, including the incorrect installation of tracking code.
We are not responsible for any issues or damages as a result of failures to meet any of the Client responsibilities. For us to carry out our Services properly, you need to have a point of contact available and provide us with all necessary information. Any technical changes that you make are entirely your responsibility.
Charges and Payment
In exchange for the Services provided by Digia Ltd, the Client shall pay Digia Ltd. the exact Charges agreed in the signed Contract on or before the specified payment dates, and these charges should be made without set-off or withholding. In addition to the Charges, the Client shall pay Digia Ltd. Value Added Tax (VAT) and/or any other applicable sales taxes at their respective rates. Unless and to the extent otherwise agreed, the Client shall pay each invoice submitted to it by Digia Ltd. in full, and in cleared funds by Direct Debit. In the event that the Client’s business is acquired or receives new ownership, the Charges must still be paid by the Client.
These charges stand independently from agreements you make with any third parties, such as advertising platforms. Therefore, the charges must be paid regardless of the advertising spend being paid to those platforms.
Without prejudice to any other right or remedy that Digia Ltd may have, if the Client fails to pay Digia Ltd. on the due date, we may suspend all Services until payment has been made in full. Digia Ltd also reserve the right to charge interest on late payment at a rate of 4% above the base rate.
All payments payable to Digia Ltd. under the Contract shall be due immediately upon termination of the Contract, despite any other provision. This term is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
Direct Debit Guarantee: visit Direct Debit for information on your Direct Debit rights. You must pay the agreed monthly costs via Direct Debit unless agreed otherwise. If we do not receive the agreed payments, this will affect the delivery of our Services and we may also charge interest on late payments.
The agreed costs are separate to the amounts that you pay to the third parties, including advertising platforms and must be paid as per the contract, regardless of the advertising spend amounts.
Also, if you cancel your Contract early, you will be required to pay out your remaining payments in full.
Either the Client or Digia Ltd may terminate this Agreement by giving notice of 1 complete billing month unless the agreed Contract states otherwise. This is subject to the completion of the minimum term as set out in the Contract.
Without prejudice to the agreed Contract, the generality of this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
• there is a material breach of the Terms and obligations of this Agreement from either party and such failure, if capable of remedy, is not remedied within 30 days of written notice of such failure from the other party;
• 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); or
• the other party, being an individual or firm, has a bankruptcy order made against it or, being a Company, is unable to pay its debts as they fall due, ceases to trade or threatens to cease to trade, goes into liquidation (except for the purposes of bona fide amalgamation or reconstruction and in such a manner that the Company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other party under this Agreement).
In addition, Digia Ltd reserve the right to terminate the contract in the event of a change of control of the client.
The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
Should any dispute or difference arise between Digia Ltd and the Client in relation to this Agreement, we will aim to resolve the matter internally as part of our complaints procedure. If no resolution Agreement is reached, the matter may be referred to a single arbitrator to be agreed upon by the Parties or, failing such Agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales. The Parties hereby agree that the decision of the Arbitrator shall not be final and binding on both Parties and Digia Ltd reserve the right to issue court proceedings in such cases where a dispute is not resolved through arbitration. To cancel, you must be outside of your minimum Contract term and provide a notice period of 1 complete billing month. If there is a dispute, we will aim to resolve this through our internal complaints procedure.
All information or materials supplied to Digia Ltd. by the Client in connection with the Contract, together with all associated Intellectual Property Rights, will remain the property of the Client. The Client hereby grants Digia Ltd a free licence to use all such information and materials for all purposes connected with the provision of the Services. The Client warrants that it has the right to disclose such information and materials and grants Digia Ltd this licence. The Client also agrees to defend, indemnify and hold Digia Ltd harmless from any and all demands, liabilities, losses, costs and claims. This includes legal fees incurred by (or asserted against) Digia Ltd and its third party suppliers, that may arise from or in connection with any allegation of infringement of Intellectual Property Rights of a third party arising due to Digia Ltd’s possession or use of such information or materials.
We are the sole owners of, or we otherwise have a legal right to use, all Intellectual Property Rights in the Services (including all Intellectual Property Rights in our software, our content and in any other products or materials created by or for us in connection with the Services). You agree that we may collect information about your use of the Services and your customers’ interaction with the Services. Where we combine this information (in a way that ensures that you cannot be identified) with similar information collected from other users of our Services, we will be the sole owner of this information. Data and content supplied to us belong to you, the Client. However, by signing the Contract, you are allowing us full use of this data and content in relation to our Services.
We have the legal right to use Intellectual Property, such as content and software, that we produce as part of our Services.
Except as expressly provided in this Agreement, Digia Ltd shall not be liable, to the maximum extent permitted by applicable law, to the Client or any third party, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the provision of the Services and/or these Terms for:
• any amount in excess of 125% of the total amount paid by the Client to Digia Ltd in charges for the Services during the Agreement;
• any loss of revenue, loss of actual or anticipated profits (including for loss of profits on contracts), loss of anticipated savings or profits, loss of business, loss of opportunity, loss of reputation, loss of (or damage to) data, loss of goodwill, loss of (or damage to) software, wasted expenditure, or any loss of use of facilities; or
• any special, indirect or consequential loss or damage howsoever arising.
Here, “anticipated savings” means any expense which either party expects to avoid incurring or to incur in a lesser amount than would otherwise have been the case by reason of the use of the Services and facilities provided by Digia Ltd under this Agreement.
Nothing in these Terms limits any liability which cannot be legally limited, including (but not limited to) death or personal injury caused by negligence, fraud or fraudulent misrepresentation and breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982. We cannot be held accountable for any losses outside the agreed costs. This includes costs such as media spend and third party licenses.
The provisions set out in the Schedule shall apply as if set out in full in these Terms.
Please review the Schedule which contains the data protection provisions.
• Force Majeure: Digia Ltd shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this Agreement, and could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.
• Assignment: the Client may not assign this Agreement to any other person without the express prior written consent of the other party or its successor in interest, as applicable, except as expressly provided otherwise in this Agreement. A putative assignment made without such required consent will have no effect. Nor may the Client assign any right or interest arising out of this Agreement, in whole or in part, without such consent.
• Governing Law: The Contract is made and shall be subject to the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
• Severance: If any provision or part-provision of this 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 this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
• Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
• Entire Agreement: The Contract constitutes the entire Agreement between you and us with respect to the subject matter hereof, and supersedes all prior discussions, Agreement or understanding between you and us.
• Third Party Rights: A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
• Data Protection: You agree that your use of data will be in full compliance of all applicable laws and regulations, including without limitation the Data Protection Act 1998.
• Confidentiality: Each party agrees to treat the following information as confidential and not to divulge, use or exploit the same except as expressly permitted under this Agreement: (a) the existence and Terms of this Agreement and (b) all information received from the other party under or in connection with this Agreement. The foregoing restrictions shall not apply to the extent the information: (a) ceases to be confidential and enters into the public domain other than due to a breach of this Agreement by the receiving party; (b) is acquired by the receiving party from a third party free of any obligation of confidence, or (c) is required by law to be disclosed. These are standard provisions that clarify legal elements or our agreement, such as Third Party Rights and Data Protection.
We hold specific Terms for our main Services that outline the requirements and responsibilities of those Services. The Service-specific Terms are agreed to alongside these General Terms.
• PPC Service Terms
• New Websites & Hosting Service Terms
• Digital Marketing Service (DMS) Terms
• Privacy Notice
Make sure you read and understand the specific Terms relating to the relevant Services listed here.
Data Protection Provisions
1. Client data and auditing
1. 1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
1. 2 Both parties shall, in the course of performing their obligations under these Terms and otherwise in connection with the supply of the Services, comply with their respective obligations under the Data Protection
1. 3 If Digia processes any personal data on the Client’s behalf when performing the Services, Digia Ltd and the Client record their intention that Client shall be the data controller and Digia Ltd shall be a data processor (where data controller/controller and data processor/processor have the meanings as defined in the Data Protection Legislation).
1. 4 A general description of the scope, nature and purpose of Processing by Digia, the duration of the Processing and the types of Personal Data is set out in Part 2 of this Schedule.
1. 5 Without prejudice to the generality of paragraph 2 of this Schedule, the Client shall ensure that it has all necessary appropriate consents and notices in place to:
o (a) enable lawful transfer of the Client Personal Data to Digia Ltd;
o (b) Process the Client Personal Data; and
o (c)permit Digia to Process the Client Personal Data in accordance with and for the purposes of the provision of the Services and performance of its obligations under these Terms.
1. 6 Digia shall, in relation to the Client Personal Data Processed in connection with the provision of the Services and the performance of its obligations under these Terms:
o 1.6.1 only process the Personal Data for the purpose set out in Part 2 of this Schedule and not for any other purpose unless Digia Ltd is acting on the written instructions of the Client or is otherwise required to do so by the laws of any member of the European Union or by the laws of the European Union applicable to Digia Ltd (Applicable Law). Where Digia is relying on Applicable Law as the basis for Processing Client Personal Data, Digia Ltd shall promptly notify the Client of this before performing the processing required by the Applicable Law unless prohibited by such Applicable Law;
o 1.6.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Client Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Client Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
o 1.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Client Personal Data confidential; and
o 1.6.4 not transfer any Client Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
§ (a) the Client or Digia Ltd has provided appropriate safeguards in relation to the transfer;
§ (b) the data subject has enforceable rights and effective legal remedies;
§ (c) Digia Ltd complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
§ (d) Digia Ltd complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
o 1.6.5 assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
o 1.6.6 notify the Client without undue delay on becoming aware of a Personal Data breach;
o 1.6.7 at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of these Terms and the provision of the Services unless required by Applicable Law to store the Client Personal Data; and
o 1.6.8 maintain complete and accurate records and information to demonstrate its compliance with this paragraph 1.
1. 7 The Client acknowledges that for the provision of certain Services, Digia Ltd may be required to appoint a sub-processor, including where:
1. 1.7.1 the Client requires Digia Ltd to share Client Personal Data with third party companies for the purpose of such third-party companies hosting its advertisements or utilising the Client Personal Data for other marketing purposes; and
o 1.7.2 where Digia Ltd uses a third-party hosting and data storage provider (for example, if the Client has appointed Digia Ltd to provide website hosting solutions).
o The Client agrees and consents to Digia Ltd appointing such sub-processors as are necessary for the provision of the Services. Digia Ltd confirms that it has entered or (as the case may be) will enter into a written agreement with such third-party processors which incorporates terms that are substantially similar to those set out in this Schedule. As between the Client and Digia Ltd, Digia Ltd shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this paragraph 1.7.
1. 8 Without prejudice to the generality of the “Modification of Terms” section of the Terms, Digia Ltd may revise this Schedule by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).
Details of Processing undertaking by Digia Ltd
Subject matter and duration of the Processing
The provision of the Services by Digia Ltd which include Digia Ltd using Client Personal Data for the purpose of providing marketing solutions and website development services.
The Client Personal Data will be Processed for as long as is required to provide the Services and for Digia Ltd to comply with its obligations under the Terms. Certain Client Personal Data may also be retained for a reasonable period to offer certain related services in the future (where the Client has requested this, or where Digia Ltd has legal grounds to offer such services).
Nature and purpose of the Processing
Processing of Client Personal Data in order to provide Services to the Client as described above and operation of Digia Ltd’s business.
Type of Client Personal Data
The Client Personal Data may include personal identification data (including names, addresses, dates of birth, places of birth, billing and bank account details and other personal identifiers) and such other Personal Data as may be supplied by the Client (as part of the provision of its Services to the Client).
Categories of Data Subjects Individuals within the Client’s business (including employees, officers, workers and contractors).