MERCHANT TECHNOLOGY MARKETING LIMITED
STANDARD CONDITIONS FOR THE SUPPLY OF SERVICES AND RELATED PRODUCTS
These terms and conditions (these “Terms”) apply to all sales of Services and related Products (each as defined below) by Merchant Technology Marketing Limited (referred to herein as “The MTM Agency”) (registered with company number 06871124). By placing an order with, or signing a Statement of Work issued by, The MTM Agency for any Services or Products, you accept and are bound by these Terms.
DEFINITIONS AND INTERPRETATION
- In these Terms the following definitions apply:
- “Charges” means the charges payable by the Customer for the supply of the Products and/or Services in accordance with clause 7.
- “Contract” means the contract between The MTM Agency and the Customer for the supply of the Services and/or Products, comprising of (a) the applicable Statement of Work; and (b) these Terms.
- “Customer” or “you” means the person identified as the customer of the Products and Services in the applicable Statement of Work.
- “Customer Background IPR” means all Intellectual Property Rights in the Customer Content;
- “Customer Content” means any text, designs, graphics, logos, web pages, videos, photographs, bespoke software or other content supplied by the Customer to The MTM Agency for use in connection with the performance of the Services or supply of the Products;
- “Deliverable” means any work product to be delivered as part of the Services, including text, designs, graphics, logos, web pages, videos, photographs, bespoke software or other content produced by The MTM Agency as part of the Services;
- “Foreground IPR” means any Intellectual Property Rights in the Deliverables created by The MTM Agency in the course of providing the Services, excluding any The MTM Agency Background IPR and Intellectual Property Rights in Third Party Software and Third Party Content;
- “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
- “The MTM Agency” has the meaning given to it in clause 1 above.
- “The MTM Agency Background IPR” means all Intellectual Property Rights in the Deliverables and the Products or used to produce the Deliverables and the Products, other than the Customer Background IPR, the Foreground IPR and the Intellectual Property Rights in Third Party Software and Third Party Content;
- “Products” means any goods supplied or to be supplied by The MTM Agency to the Customer pursuant to the Contract, including merchandise and Third Party Software;
- “Statement of Work” means a statement of work (together with any associated specifications or schedules) setting out the scope of Services and/or Products to be provided, the term of the Contract, the Charges and any other terms specific to Services and/or Products to be provided;
- “Services” means any services provided or to be provided by The MTM Agency to the Customer pursuant to the Contract;
- “Third Party Content” means any photographs, designs, images or other content provided by The MTM Agency in connection with the Contract and in which the Intellectual Property Rights belong to a third party;
- “Third Party Software” means any third party software product not developed by The MTM Agency but provided by The MTM Agency to the Customer in connection with the Contract;
- In these Terms the following rules of interpretation apply:
- a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its successors or permitted assigns;
- 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;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision 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;
- the headings of the clauses of these Terms are provided for convenience only and shall not contribute to or affect the meaning or construction of the said clauses; and
- a reference to “writing” or “written” includes e-mail and faxes.
BASIS OF CONTRACT
- The applicable Statement of Work and these Terms 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.
- In the event of a conflict between the Statement of Work and these Terms, the Statement of Work shall prevail.
DESCRIPTION AND DELIVERY OF PRODUCTS OR SERVICES
- The Services and any related Products to be supplied pursuant to the Contract shall be as set out in the relevant Statement of Work.
- The MTM Agency shall have the right to make any changes to the Products or 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 The MTM Agency shall notify the Customer in any such event where it is appropriate to do so.
TERMS APPLICABLE TO THE SUPPLY OF SERVICES AND DELIVERABLES
- For Services provided on a retainer basis, The MTM Agency shall perform the Services in the quantity and for the duration set out in the Statement of Work.
- For project type Services, The MTM Agency shall use all reasonable endeavours to meet any delivery or performance dates specified in the Statement of Work, but any such dates shall be estimates only and The MTM Agency shall not be liable in damages for failure to meet such estimated delivery or performance dates. In most cases, detailed time plans for Services comprised of project work will not be prepared until after signature of the relevant Statement of Work.
- Where The MTM Agency considers that a Deliverable is substantially complete it will notify the Customer and, unless the Statement of Work specifies that testing is required, it shall deliver the Deliverable to the Customer.
- If testing is required by the Statement of Work:
- until completion of the acceptance testing, the Customer will not use and will not allow any other person to use the Deliverable for any purpose other than testing;
- the parties will test the Deliverable to ensure that it operates in all material respects in accordance with the requirements set out in the Statement of Work;
- each party will use all reasonable efforts to complete acceptance testing as soon as reasonably practicable and within any period specified in the Statement of Work;
- The MTM Agency will use all reasonable efforts to rectify any failure of the Deliverable to operate in all material respects in accordance with the requirements specified in the Statement of Work; and
- on successful completion of testing, The MTM Agency will make the Deliverable available to the Customer for use.
TERMS APPLICABLE TO THE SUPPLY OF PRODUCTS
- Orders for Products not stocked by The MTM Agency are subject to availability and may be cancelled by The MTM Agency if they cease to be available.
- The MTM Agency shall deliver the Products to the location set out in the applicable Statement of Work or such other location as the parties may agree at any time.
- Risk in the Products shall pass to the Customer on delivery.
- Title to the Products (other than title to the Intellectual Property Rights comprised in Third Party Software and Third Party Content which shall remain with the applicable licensor) shall pass to Customer upon receipt of payment in full by The MTM Agency for the relevant Products or Services.
- Until title to the Products has passed to the Customer, the Customer shall:
- hold the Products on a fiduciary basis as The MTM Agency’s bailee;
- store the Products separately from all other Products held by the Customer so that they remain readily identifiable as The MTM Agency’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
- maintain the Products in satisfactory condition and keep them insured against all risks for their full price on The MTM Agency’s behalf from the date of delivery;
- notify The MTM Agency immediately if it becomes subject to any of the events listed in clauses 2.2 to clause 12.2.5; and
- give The MTM Agency such information relating to the Products as the Supplier may require from time to time.
- If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clauses 2.2 to clause 12.2.5, or The MTM Agency reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy The MTM Agency may have, The MTM Agency may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
CHARGES, EXPENSES AND VAT
- Charges for the Services or Products to be provided shall be set out in the Statement of Work, and may be quoted as an overall price for a project, a regularly monthly fee, or a daily rate, depending on the nature of the Services or Products being provided.
- Any work requests not expressly detailed in the applicable Statement of Work that arise during the term of the Contract, including any areas of work specifically listed as exclusions in the Statement of Work, shall be subject to an additional charge and The MTM Agency will provide separate estimates or quotations for such work.
- Charges set out in draft Statements of Work issued by The MTM Agency shall be valid for a period of 30 days from the date of issue. The MTM Agency reserves the right to re-quote for Statements of Work not accepted within this time frame.
- Where Services are to be provided at a daily rate, the Charges payable for the Services shall be calculated in accordance with the daily rates set out in the Statement of Work or, failing that, at The MTM Agency’s standard daily rates applicable to the relevant members of its personnel as amended from time to time.
- The MTM Agency reserves the right to increase its daily rates from time to time, provided that such Charges cannot be increased more than once in any 12 month period and will not apply in respect of any work that The MTM Agency has already agreed to perform. The MTM Agency will give the Customer written notice of any such increase four months before the proposed date of the increase.
- The MTM Agency shall be entitled to charge the Customer for the following costs and expenses:
- any expenses reasonably incurred by the individuals whom The MTM Agency engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses,
- any shipment costs for Products not expressly indicated as included in the price of the sale.
- Unless expressly indicated at the time of sale VAT is not included in the prices for the Products or Services. Where applicable, the Customer shall, subject to the receipt of a valid VAT invoice, pay to The MTM Agency (in addition to and at the same time as the Charges) a sum equal to the amount of VAT payable on all supplies made by The MTM Agency to the Customer under this Agreement.
- The Customer shall pay the Charges in accordance with the payment schedule set out in the Statement of Work.
- Unless otherwise stated in the Statement of Work:
- if the Contract requires The MTM Agency to provide Services, or a combination of Products and associated Services, The MTM Agency shall be entitled to invoice the Customer on completion of the relevant Services; and
- if the Contract requires The MTM Agency to provide Products without any associated Services, The MTM Agency shall be entitled to invoice the Customer for the Products on delivery of the Products.
- If the performance of the Services or delivery of Products or their approval is delayed as a result of any act or omission of the Customer, The MTM Agency reserves the right to invoice the Customer for the relevant Products and/or Services on the date when it would have been entitled to invoice for those Products or Services if the delay had not occurred.
- The Customer shall pay each invoice submitted by The MTM Agency in full and in cleared funds to a bank account nominated in writing by The MTM Agency within the time period noted on the invoice or, if not so noted, then within 30 days of the date of the invoice. All invoices shall be payable in the currency in which the invoice is issued which, unless otherwise agreed, shall be in pounds sterling. If any invoice is paid by the Customer in a different currency any shortfall in the amount received by The MTM Agency after it has been converted into the currency of the invoice (net of any currency exchange fees) shall b payable by the Customer in addition.
- Without limiting any other right or remedy of The MTM Agency, if the Customer fails to make any payment due to The MTM Agency under the Contract by the due date for payment, The MTM Agency shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current base rate of Barclays Bank Plc accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement, and compounding monthly.
- The MTM Agency, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all Services or Product deliveries until all overdue amounts under the Contract or any other Contract between The MTM Agency and the Customer have been paid.
- The Customer shall pay all amounts due under the Contract in full without any set-off, deduction or withholding except as required by law.
INTELLECTUAL PROPERTY RIGHTS AND LICENCE TERMS
- The MTM Agency grants the Customer a royalty free non-exclusive licence to use the The MTM Agency Background IPR to the extent required to use the Deliverables in the manner contemplated by the Contract, but save as aforesaid, nothing in the Contract shall confer any right or interest of the Customer in the The MTM Agency Background IPR which shall remain the property of The MTM Agency or its licensors (as applicable).
- The Customer grants The MTM Agency a royalty free non-exclusive licence to use the Customer Background IPR for the purpose of performing the Services and supplying the Deliverables and any associated Products to the Customer.
- Unless otherwise agreed in the Statement of Work, ownership of the Foreground IPR shall vest automatically in the Customer upon payment for the relevant Deliverable.
- The Customer grants The MTM Agency a non-exclusive, royalty free, perpetual licence to re-use any software code comprised in the Deliverables.
- The Customer warrants that The MTM Agency’s use of the Customer Background IPR in accordance with the Contract shall not cause The MTM Agency to infringe the Intellectual Property Rights of any third party. The Customer shall fully indemnify The MTM Agency against any loss, liability or cost (including legal costs) incurred by The MTM Agency arising by reason of any infringement or alleged infringement of the Intellectual Property Rights of a third party arising from The MTM Agency’s use of the Customer Background IPR in accordance with the Contract.
- If the Contract requires The MTM Agency to supply Third Party Software, the Customer acknowledges that its use of rights in such Third Party Software is conditional on the Customer agreeing to the applicable end user licence agreement with the relevant Third Party Software licensor. It shall be the responsibility of the Customer to ensure compliance with the terms of such licence and, unless otherwise specified in the Contract, to pay any renewal fees.
- If The MTM Agency supplies any Third Party Content pursuant to the Contract, the Customer agrees to comply with any licence terms applicable to such Third Party Content imposed by the relevant third party and shall indemnify The MTM Agency against any loss, liability or cost suffered by The MTM Agency arising from its failure to comply with such licence terms.
- The MTM Agency warrants to the Customer that it will perform the Services using reasonable care and skill and in accordance with applicable law.
- The MTM Agency warrants that the software comprised in any Deliverable will conform in all material respects to the Statement of Work for a period of 90 days from the date of completion of acceptance testing (of if not acceptance testing takes place, from delivery of the Deliverable to the Customer). The MTM Agency will use all reasonable endeavours to rectify any defects arising within this period free of charge. The MTM Agency does not warrant that the Software will be error free following the initial warranty period specified in this clause. The MTM Agency may provide patches, updates, or other ongoing support and maintenance for a charge if so specified in the relevant Statement of Work.
- The Customer acknowledges that The MTM Agency is not a product manufacturer and all Products are sourced to order from third party suppliers. Accordingly, The MTM Agency makes no warranty in relation to the Products, other than in the terms of any warranty offered to The MTM Agency from the relevant third party from whom The MTM Agency sources the Products on behalf of the Customer (substituting the name of such third party with The MTM Agency and substituting The MTM Agency with the Customer). The MTM Agency warrants to the Customer that it will source Products deliverable pursuant to this Contract using reasonable skill and care and shall notify the Customer of the terms of any warranty in relation to such Products resulting from the application of this clause 1 upon the Customer’s request.
- The MTM Agency makes no warranty in relation to any Third Party Software for which the Customer requires a licence from a third party licensor in accordance with clause 6. Such Third Party Third Party Software shall be subject to any warranty or other licence terms that the third party licensor may provide in the end user licence agreement. The MTM Agency may provide patches, updates, or other ongoing support and maintenance for a charge if so specified in the relevant Statement of Work.
- Nothing in the Contract shall limit or exclude The MTM Agency’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 1:
- The MTM Agency shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss of data or any indirect or consequential loss arising under or in connection with the Contract; and
- The MTM Agency’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total value of the Charges paid or payable under the Contract.
- Except as set out in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 11 shall survive termination of the Contract.
TERM AND TERMINATION
- The Contract commences on the date specified in the applicable Statement of Work, or, where no commencement date is specified, on the date when The MTM Agency commences supply of the relevant Services or Products. Subject to earlier termination under this clause 12, the Contract shall terminate
- at the expiry of any fixed term specified in the applicable Statement of Work;
- if no fixed term is specified, when the supply of Products and/or Services required to be supplied under the Contract is complete.
- Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of the Contract and either such breach is not capable of remedy or, if such breach is remediable, it fails to remedy that breach within 30 days of being notified in writing of the breach and being requested to remedy it;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
- an administrator is appointed over the other party or a receiver is appointed over the assets of the other party; or
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days.
- Without limiting its other rights or remedies, The MTM Agency may suspend provision of the Services or the supply of Products under the Contract or any other contract between The MTM Agency and the Customer if the Customer becomes subject to any of the events listed above in clauses 2.1 to 12.2.5, or The MTM Agency 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 the Contract on the due date for payment.
CANCELLATIONS AND DELAYS
- If the Customer cancels a confirmed order under the Contract for any Products or Services the Customer shall not be entitled to a refund of any amounts paid or payable in respect of the cancelled order save that if, as a result of such cancellation, The MTM Agency is able to avoid incurring any out-of-pocket expenses or disbursements that it would otherwise have incurred, the amount of such savings shall be refunded to the Customer. The MTM Agency shall be entitled to submit an invoice in respect of all amounts due upon receipt of the Customer notice of cancellation and the Customer shall return all information and material supplied to it by The MTM Agency.
- If the Customer delays any agreed dates for performance of any of the Services by more than 6 months, The MTM Agency shall, at its discretion, be entitled to cancel the relevant order by notice in writing to the Customer.
The MTM Agency shall not be liable to the Customer for any delay or non-performance of its obligations under the Contract or for any loss or damage caused by delay where the same is occasioned by any cause whatsoever that is beyond The MTM Agency’s control. Should such event occur The MTM Agency may suspend the Contract without incurring liability for any loss or damage thereby occasioned. The MTM Agency shall be entitled to such extension of time as is required by The MTM Agency to fulfil its obligations under the Contract. Examples include (but are not limited to) acts of God, governmental act, war, fire, flood, explosion or civil commotion.
A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall not use the confidential information for any purpose other than discharging its obligations under the Contract (or fulfilling any other purpose for which it was disclosed) and shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know if for the purposes of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 15 shall survive termination of the Contract.
- If The MTM Agency is required to process personal data as data processor on behalf of the Customer for the purposes of the Contract, it shall:
- do so only for the purpose of the Contract;
- comply with all relevant instructions that the Customer may give from time to time;
- take appropriate technical and organisational security measures to safeguard such data against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to that data;
- not cause or allow such data to be transferred out of or otherwise processed outside of the European Economic Area;
- not pass such data on to any third party save its employees and members of its group, except where the processor has entered into a written contract with that third party under which that third party agrees to obligations that are materially equivalent to those set out in this clause 15;
- notify the Customer (and in any event within 2 days) of receiving any complaint or subject access request, and comply with all reasonable instructions the Customer may give.
- Where the Customer transfers personal data to The MTM Agency for processing in accordance with the Customer’s instructions, the Customer warrants that such processing will be in accordance with the Data Protection Act 1998 and that it shall be responsible for obtaining the necessary data subject consent (where required) and providing data subjects with the necessary fair processing information.
- For the purpose of this clause 15, the phrases “personal data”, “data controller”, “data processor”, “process” “data subject” and “fair processing information” bear the meanings given in the Data Protection Act 1998.
The failure of either party at any time to enforce any provisions of the Contract shall in no way affect that party’s rights thereafter to require complete performance by the other party hereto, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or to be or held to be a waiver of the provision itself. Any waiver to be effective must be in writing.
The Contract constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all previous communications, representations and agreements, whether written or oral and the Customer hereby acknowledges that no reliance is placed on any representation or warranty made (verbally or otherwise) but not embodied in the Contract. Nothing in this Agreement shall exclude either party’s liability for fraud.
ASSIGNMENT AND SUBCONTRACTING
- The Contract is personal to the Customer and the Customer shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract, without the prior written consent of The MTM Agency.
- The MTM Agency may at any time assign, transfer, 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 of all of its obligations under the Contract to any third party or agent.
If any term, part or provision of the Contract is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable as being contrary to applicable law or public policy, such provision shall to the extent reasonably possible be construed in a manner so as to be enforceable and the remaining provisions thereof shall remain in full force and effect and in no way be affected, impaired or invalidated, except when by reason thereof the fundamental nature of the Contract is thereby frustrated.
The Contract may only be amended by written agreement between the parties hereto signed by the duly authorised representatives of both parties hereto.
THIRD PARTY CONTRACTS
No person who is not a party to the Contract has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any part of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from such Act. Any rescission variation amendment or waiver to or of the Contract shall not require the consent or approval of any person who is not a party to the Contract.
Any notice required to be given by either party to the other shall be in writing and shall be served by sending the same by pre-paid first class post or facsimile transmission or by delivering the same by hand to the registered office for the time being of the relevant party or to such other address as may be specified for the purpose by that party and any notice so served shall be deemed to have been served:
- if delivered by hand at the time of such delivery;
- if sent through the post 48 hours after the time of despatch and in proving service it shall be sufficient to prove in the case of a letter that such letter was properly delivered or stamped addressed and placed in the post (as the case may be); and
- if sent by facsimile transmission at the time of transmission and in proving service it shall be sufficient to prove that such facsimile was duly despatched to a current facsimile number of the addressee for the said addressee.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties submit to the exclusive jurisdiction of the courts of England and Wales.