Stay the Night Limited
TERMS AND CONDITIONS OF BUSINESS
The Client’s attention is drawn to the fact that these Terms are divided into parts. However, all parts of the Terms shall apply to all contracts.
Part GL – General
Part SC – Speculative Work and Concept Design
Part GD – Graphic Design & Print
Part AS – Advertising Services
Part EM – Email Marketing
Part SO – Search Engine Optimisation and Social Media
Part ES – Extra Services
Nothing in these Terms shall affect the statutory rights of a Client dealing with Stay the Night as a
consumer. Information on consumers’ rights is available from the Office of Fair Trading.
PART GL – GENERAL TERMS AND CONDITIONS
GL1. Interpretation
GL1.1 In the Terms, unless the context otherwise requires:
Client means the person named in the Order who is the purchaser of the Services in accordance with the Terms;
Documents includes, in addition to any document in writing, any map, plan, graph, drawing or photograph, film, negative, tape or other device embodying visual images whether or not such item is provided in paper or electronic format and any disc, tape or other device embodying any other data;
STN means Stay the Night Limited (CRN: 11268887), whose registered office is at Room 1.01 Sandyford Building, Northumbria University, Newcastle upon Tyne, NE1 8ST;
Input Material means any Documents or other materials and any data, specification or other information provided by the Client including any email sent by the Client to third parties using STN’s systems or the Output Material;
IPRs means all copyright, trade marks, trade names, patents, registered and unregistered design rights and all other intellectual property and proprietary rights, powers and benefits, including the right to register, transfer, licence and assign;
Order means STN’s standard quotation, proposal and order form;
Output Material means any Documents or other materials and any audio, video material, data, ideas, concepts, designs, images, machine code, manufacturing or other techniques or other information provided by STN to the Client;
Services means the services to be provided by STN for the Client in accordance with the Terms and which are specified in more detail in the Order; and
Terms means these terms and conditions and the additional terms and conditions contained in the Order.
GL1.2 The headings in the Terms are for convenience only and shall not affect their interpretation. Any reference to any enactment includes reference to that enactment as amended from time to time and to any subordinate legislation made under that enactment.
GL2. Application of these Terms
GL2.1 The Terms constitute the entire agreement between the parties, supersede any previous agreements, representations, statements or understandings, may not be varied except in writing between the parties (signed by a Director of STN) and set out the full extent of STN’s obligations and liabilities. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of STN which is not set out in the Terms. Nothing in the Terms shall be interpreted so as to exclude or limit STN’s liability for fraudulent misrepresentation.
GL2.2 The supply of all Services shall be on and in accordance with the Terms. All other terms, conditions, collateral contracts, undertakings and warranties, whether express or implied by statute or otherwise, in respect of the Services, are excluded to the fullest extent permitted by law (including any terms and conditions that the Client purports to apply under any purchase order or correspondence or otherwise).
GL3. Quotations and Orders
GL3.1 Quotations are not binding on STN and do not constitute an offer. STN reserves the right to withdraw or revise any quotations.
GL3.2 The Client shall be responsible to STN for ensuring the accuracy of the terms of any Order and for giving STN any necessary information relating to the Services within a sufficient time to enable STN to provide Services in accordance with the Terms.
GL3.3 STN may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
GL3.4 The Client may not cancel an Order or terminate the contract without the consent in writing of STN. If consent is given, the Client shall indemnify STN against all loss (including loss of profit), damage, claims, costs (including the cost of all labour and materials used), expenses and actions arising out of such cancellation or termination unless otherwise agreed in writing. Rolling contracts shall be renewed automatically unless written notice to the contrary is received from the Client no less than 1 calendar month prior to the renewal date in question.
GL3.5 Should the Client breach of any of these terms and conditions and the Client fail then to correct that breach within 14 days following written notice from STN specifying the said breach, STN may terminate this Agreement.
GL3.6 The Client’s acceptance of the Order may take the form of its counter-signature on the Order or may take the form of correspondence confirming the same or may be implied in the form of the fulfilment by the Client of any of its obligations under these Terms, such as, without limitation, the payment of a deposit or the provision of Input Material.
GL4. Charges and Payment
GL4.1 Save as provided for to the contrary under these Terms, the charge for the Services shall be as set out in the Order and shall be exclusive of VAT and other applicable taxes and duties (which shall be paid by the Client in the manner and rate described by law) and any disbursements including the costs of materials and external services (which may be charged to the Client in addition unless the Order provides otherwise).
GL4.2 The Client shall pay such additional sums which, in STN’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy or unfinished nature of, errors in or additions or amendments to any Input Material or any other cause or fault attributable to the Client.
GL4.3 All sums owed by the Client to STN shall be paid by the Client together with any applicable VAT, and without any set off or other deduction, within 14 days of STN’s invoice.
GL4.4 If the Client fails to make payment within 14 days STN shall charge the Client interest on the unpaid amount (before and after judgment) at a daily rate equal to 8 per cent per annum above the base lending rate from time to time of the Bank of England from the due date until payment is received. In the event that STN issues legal proceedings in respect of any breach of these Terms by the Client, the Client will reimburse all costs and expenses incurred by STN as a result of such action on demand and on an indemnity basis. Any termination by STN of any contract with the Client on these terms shall be without prejudice to any sums chargeable to and payable by the Client for Services provided to the Client up to and including the effective date of the said termination.
GL5. Rights in Input Material
GL5.1 The Client warrants that it is the sole beneficial owner of any and all IPRs in the Input Material or is otherwise entitled to make use of and licence the same to STN for the purposes of the provision by STN of the Services and/or Output Material.
GL5.2 STN acknowledges that any and all of the IPRs subsisting in the Input Material shall remain the sole property of the Client or its licensors and STN shall:
GL5.2.1 only use the Input Material for the purposes of providing the Services; and
GL5.2.2 upon completion of the Services return all original Input Material to the Client.
GL5.3 The Client shall indemnify STN fully against all liabilities, costs and expenses that STN may incur as a result of using the Input Material and/or preparing the Output Material in accordance with the Client’s instructions, arising out of the infringement of any IPRs belonging to third parties.
GL5.4 If any Input Material contains or uses any IPRs owned by the Client or under its control, STN shall have the right to use or allow use of any such IPRs for the purpose of fulfilling STN’s obligations under the Terms. STN shall not gain any rights over such IPRs by virtue of its use, but shall be entitled to use the IPRs both during and after the production and supply of the Input Material to promote and advertise its own work.
GL5.5 The Client warrants that the Input Material does not contain inappropriate material such as material that infringes any applicable laws, regulations or third party rights, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous and that the Client shall not use the Output Material nor any facilities provided by STN for the purpose of sending unsolicited bulk commercial email. The Client shall indemnify STN against all damages, losses and expenses arising as a result of any action or claim that the Input Material and/or the Output Material created consequently contains any such inappropriate material.
GL6. Liability
GL6.1 STN shall have no liability to the Client for any loss, damages, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or format, or arising from their late arrival or non-arrival, or due to any fault of the Client or any delay in transit not caused by the fault of STN.
GL6.2 Save as provided for in clause GL6.6 below or otherwise in the Terms, STN shall not be liable to the Client by reason of:
GL6.2.1 any misrepresentation (unless fraudulent);
GL6.2.2 the breach of any implied warranty, condition or other term;
GL6.2.3 the breach of any duty at common law; or
GL6.2.4 the breach of these Terms;
for any loss of profit, reputation, opportunity, goodwill, business or anticipated savings or any indirect, special or consequential loss, damages, costs, expenses or other claims (whether caused by the negligence of STN its servants or agents or otherwise) which arise out of or in connection with the provision or late provision of Services, or the failure to provide the Services or their use by the Client or any third party.
GL6.3 The entire liability of STN under or in connection with the Terms shall not exceed the amount of STN’s charges for the provision of the Services, except as expressly provided to the contrary in the Terms.
GL6.4 STN shall not be liable to the Client by reason of any defamation or breach of the British Codes of Advertising and Sales Promotion arising from the use of the Input Material by STN in the Output Material or otherwise in the provision of the Services and the Client shall indemnify STN against any loss, damages, costs, expenses or other claims arising from any such defamation or breach.
GL6.5 Unless otherwise stated in the Order, STN does not warrant that the Output Material are suitable for use by all or any persons with disabilities and shall not be deemed to be in breach of its obligations to the Client or liable by reason of any such non-suitability. The Client acknowledges that it is under an obligation to expressly specify that the Output Material should be suitable for use by persons with disabilities and to specify its requirements in full in writing in those respects, such requirements to be acknowledged and agreed by STN prior to work starting. The Client acknowledges that it is responsible for ensuring compliance under the Disability Discrimination Act 1995 and agrees to indemnify STN against any loss, damages, costs, expenses or other claims arising from any such breach.
GL6.6 Nothing in the Terms shall operate to exclude or limit STN’s liability:
GL6.6.1 under Section 2 of the Consumer Protection Act 1987;
GL6.6.2 for any matter in respect of which it would be illegal for STN to exclude or attempt to exclude its liability; and
GL6.6.3 for death or personal injury caused by STN’s negligence or breach of these Terms.
GL6.7 All indemnities given by STN under these Terms or any Order are provided on the basis that:
GL6.7.1 the Client gives notice to STN of any infringement upon becoming aware of the same;
GL6.7.2 the Client gives STN the sole conduct of the defence to any claim or action in respect of any infringement and does not at any time admit liability or otherwise attempt to settle or compromise the claim or action except upon the express instructions of STN;
GL6.7.3 the Client acts in accordance with the reasonable instructions of STN including providing to STN such assistance as it shall reasonably require in respect of the conduct of the defence of the claim including without prejudice to the generality of the foregoing filing of all pleadings and other court process and the provision of all relevant documents; and
GL6.7.4 the claim or action giving rise to the damages (including costs) awarded to or agreed with the third party in question does not arise from the Client’s breach of any part of clause GL5 above.
GL7. Confidentiality
GL7.1 Except as otherwise provided in the Terms and subject to clause GL7.3, STN shall treat all Input Material as strictly confidential and shall not disclose the same to any third party, other than third party sub-contractors who shall be bound by an obligation of confidentiality and to whom it is necessary to provide the information in order for STN to fulfil its obligations to the Client.
GL7.2 Except as otherwise provided in the Terms and subject to clause GL7.3, the Client shall treat all prices and terms quoted as strictly confidential and shall not display, use or disclose the same to any third party for any reason whatsoever.
GL7.3 Clauses GL7.1 and GL7.2 shall not apply to any information:
GL7.3.1 already known to the other party or in its possession before the disclosure and free from the obligation to keep it confidential;
GL7.3.2 that is or becomes public knowledge through no wrongful act or default of the relevant party;
GL7.3.3 received from a third party without similar obligations of confidence and without breach of the Terms;
GL7.3.4 independently developed;
GL7.3.5 disclosed to a third party without similar restrictions on that third party’s rights of disclosure; or
GL7.3.6 approved for release by written authorisation.
GL8. General
GL8.1 STN shall not be liable to the Client or deemed to be in breach of its obligations to the Client by reason of any delay in performing, or failure to perform, any of its obligations to the Client in accordance with the Terms, if the delay or failure was due to any cause beyond STN’s reasonable control, including without limitation:
GL8.1.1 act of God, explosion, flood, tempest, fire or accident;
GL8.1.2 war or threat of war, national emergency, acts of terrorism, sabotage, insurrection or civil disturbance;
GL8.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, regional or local authority;
GL8.1.4 strikes, lock-out or other industrial actions or trade disputes (whether involving employees of STN or of a third party);
GL8.1.5 unavailability or shortages of goods, materials, fuel, part-machinery, or transportation;
GL8.1.6 power failure or breakdown in machinery; or
GL8.1.7 default of third party suppliers or subcontractors.
GL8.2 No failure or delay by either party in exercising any of its rights under the Terms shall be deemed to be a waiver of that right and no waiver by either party of any breach of the Terms by the other shall be considered as a waiver of any other breach or default or any subsequent breach or default. If any provision of these Terms is or becomes invalid, illegal or void, that shall not affect the validity and legality of the other provisions.
GL8.3 STN will process all personal data provided to it by the Client or otherwise received in consequence of providing the Services, in accordance with the General Data Protection Regulation (“GDPR”) and any associated or subsequent legislation, codes of practice or statutory instruments. In particular STN will act only on the instruction of the Client and will take reasonable precautions to keep such personal data secure, to prevent unauthorised disclosure and to ensure that appropriate steps are taken against the accidental loss, destruction or damage, or any unlawful processing of the data. At all times the Client will remain the data controller (as defined in the GDPR) in respect of any personal data received by STN Creative in consequence of providing the Services.
GL8.4 The Client gives consent to the holding, processing and accessing of personal data provided to STN for the purposes relating to the performance of the Services including (but not limited to) transferring such personal data to a sub-contractor or an agent for the purposes of debt collection. For the purposes of the GDPR all data processed under these Terms shall be processed on the legal basis of the performance of a contract between STN and the Client.
GL8.6 Our Privacy Notice outlines how we handle and process your data in accordance with the GDPR. You should view our Privacy Notice on our website as upon your acceptance this will form part of the contract between us and you.
GL8.7 Nothing in the Terms shall confer on any third party any benefit whatsoever or the right to enforce any term of any contract to which the Terms relate and the Contract (Rights of Third Parties) Act 1999 shall not apply.
GL8.8 The Terms shall in all respects be determined and governed by English law. The parties submit to the exclusive jurisdiction of the English courts.
GL8.9 Without prejudice to any other right or remedy available to it, STN may terminate the Contract or, notwithstanding any previous agreement or arrangement to the contrary, suspend any further deliveries without liability to the Client if either the Client makes any voluntary arrangement with its creditors, (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order (whether out of court or otherwise), goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or an encumbrancer takes possession of or a receiver or administrator is appointed over any of the property or assets of the Client or the Client ceases to trade.
GL8.8 The Client agrees to refrain from directly or indirectly recruiting any person employed or engaged by STN for the purpose of providing the Services (including any sub-contractor) for a period of six months following completion of the Services.
PART SC – SPECULATIVE WORK and CONCEPT DESIGN
SC1. Services
SC1.1 STN will use reasonable skill and care to create the Output Material.
SC1.2 In the case of speculative work, designs, tenders, ideas, or pitches being provided by STN:
SC1.2.1 the Client will be bound by Clause SC2; and
SC1.2.2 STN makes no warranties in relation to such speculative Output Material that has not been paid for, and accordingly clause SC3 does not apply to such Output Material.
SC2. Rights in the Output Material
SC2.1 All IPRs in the Output Material shall belong to STN until full payment for the Services is received by STN, at which time STN grants to the Client an exclusive licence to use and publish the Output Material solely for the limited purposes specified in the Order, or as otherwise specified in the Order.
SC2.2 The Client will treat all Output Material and all other ideas, concepts and information provided by STN, whether provided in relation to the supply of the Services, speculatively or otherwise, as strictly confidential until full payment is received by STN and shall not display, make use of or disclose the same to any third party.
SC2.3 STN will retain the right to use any such Output Material in its own marketing.
SC2.4 STN retains all IPRs and other proprietary rights in all speculative Output Material.
SC3. Warranties
SC3.1 STN warrants that:
SC3.1.1 all Output Material and its use by the Client and any ideas used in developing the Output Material are original and will not infringe the IPRs of any third party;
SC3.1.2 it has not granted, assigned or otherwise disposed of any rights of any nature in the Output Material to any third party; and
SC3.1.3 the Output Material does not contain anything that is libellous, defamatory or indecent and does not infringe the statutory or common law rights of any third party.
SC4. Liability
SC4.1 The liability of STN to the Client shall not exceed the charges paid or payable in accordance with the Terms for the provision of the Services relating only to the design or concept material giving rise to the liability in question.
SC4.2 STN will not be required to provide assistance to the Client with any proceedings which may be brought by the Client against any third party in relation to the IPRs in the Output Material. If, at STN’s discretion, assistance is provided, the Client will indemnify STN in respect of any and all costs and expenses (including legal costs) incurred by STN.
PART GD – PRINT & GRAPHIC DESIGN
GD1. Services
GD1.1 The Client accepts all responsibility for checking each and every proof of the Output Material provided by STN.
GD1.2 STN accepts no responsibility for any errors in the text, colours, images, layout and other elements of the Output Material that have not been notified to STN during the proofing process.
GD1.3 STN will clearly mark the final proof as such. On approval by the Client of the final proof no further changes shall be made to the Output Material.
GD1.4 Where it is required to supply print and related services, STN may use a sub-contracted printer and finisher of its choice unless the Client otherwise instructs STN in writing.
GD1.5 Where the Client chooses not to use STN’s preferred printer or finisher and instructs STN to provide the Output Material in electronic format to a printer of its choice, STN shall have no liability for:
GD1.5.1 the quality of the printing or finishing of the Output Material; or
GD1.5.2 any delay caused by the printer or finisher or any non-compatibility of technology between STN and the printer.
GD1.6 STN does not warrant that the Output Material will be of a particular weight for an individual finished item, nor that the Output Material will be packaged in bundles of a certain weight. STN will use reasonable endeavours to supply the Output Material in the form and packaging requested by the Client but shall not be liable in the event that such weight or packaging is not achieved.
GD2. Rights in Output Material
GD2.1 All IPRs in the Output Material shall belong to STN, unless otherwise agreed in writing.
GD2.2 STN grants to the Client an exclusive licence to use and distribute the Output Material, to make further copies of the Output Material and to use and distribute those copies. STN does not grant to the Client any licence (whether exclusive or otherwise) to modify, adapt, re-use or otherwise copy or incorporate all or part of the Output Material (including the layout and design thereof) for use in other materials or publications.
GD3. Warranties
GD3.1 STN warrants to the Client that the Services will be provided using reasonable skill and care and, as far as reasonably practicable, in accordance with the Order and within the times referred to in the Order. For the avoidance of doubt, time shall not be of the essence.
GD3.2 Save for any infringement arising from the Client’s breach of its obligations under any part of clause GL5 above and subject to clause GL6, STN warrants that the Output Material and its use by the Client will not infringe the IPRs of any third party and, subject to clause GL6.7, STN shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
GD4. Liability
GD4.1 STN shall use and shall assume the Client has quoted “pantone process colours” unless otherwise stated. STN shall not be liable to the Client where an exact colour match has not been achieved. The Client accepts that slight variances in colour, not apparent to the target audience, are acceptable.
GD4.2 STN shall not be liable to the Client for loss of quality to or damage caused to or by the Output Material where the Output Material is collected by the Client prior to the recommended delivery time.
GD4.3 STN shall not be liable for errors in printing or finishing where a sufficient number of extra error-free items have been supplied so as to ensure that the total number of error-free items matches the number specified in the Order.
PART AS – ADVERTISING SERVICES
AS1. Services
AS1.1 The Client appoints STN as its sole provider of advertising services in respect of the Services.
AS1.2 The Client acknowledges that its signature of the Order constitutes its agreement to the specification of the Services contained in the Order. If the Client requests changes to the Services following signature of the Order, such additional services or modifications shall be dealt with in accordance with STN’s normal hourly or daily rates as revised from time to time. Alternatively, STN may at its discretion, or on request from the Client, submit a quotation for the cost of the revised and/or additional services requested and an indication of the additional time required and/or an indication of any anticipated delay to the Services.
AS1.3 STN may sub-contract elements of the Services as it sees fit but shall monitor each sub-contractor to ensure that:
AS1.3.1 as far as reasonably practicable, deadlines and timescales agreed with the Client are achieved;
AS1.3.2 all budgets agreed with the Client concerning the production of the campaign are not exceeded;
AS1.3.3 any applicable consents, clearances, permissions and licences are obtained;
AS1.3.4 all performing talent appearing in the campaign are appropriately contracted for the purposes of their appearances and any repetition of the campaign, further campaigns in respect of the products and brands in respect of which the Services are to be carried out and that any appropriate buy-outs are undertaken.
AS1.4 The Services shall commence and finish on the dates specified in the Order unless terminated beforehand in accordance with these Terms.
AS1.5 The Client agrees to cooperate with STN and to provide promptly any support, information and facilities to STN for the purpose of the provision of the Services. The Client acknowledges and accepts that its failure to provide such support in a timely fashion may affect adversely the ability of STN to meet any timescales or deadlines specified in the Order.
AS1.6 The Client shall nominate a named individual to whom all requests for approval should be sent by STN. The Client’s written approval of copy, layouts or artwork will be authority for STN to buy production materials and prepare proofs. The Client’s written approval of television, cinema and radio scripts and/or storyboards will be authority for STN to enter into production agreements and to engage performers.
AS1.7 The Client shall inform STN immediately should it become aware of any reason why any claim, statement or representation in any Output Material is, or is likely to:
AS1.7.1 be defamatory,
AS1.7.2 infringe the rights of any third party,
AS1.7.3 breach the terms of any legislation or is in any other way unlawful.
AS1.8 The Client shall inform STN immediately should it consider any claim or description in any Output Material to be misleading.
AS2. Rights in Output Material
AS2.1 All IPRs in the Output Material shall belong to STN, unless otherwise agreed in writing.
AS2.2 STN grants to the Client an exclusive licence to use and distribute the Output Material, to make further copies of the Output Material and to use and distribute those copies. STN does not grant to the Client any licence (whether exclusive or otherwise) to modify, adapt, re-use or otherwise copy or incorporate all or part of the Output Material (including the layout and design thereof) for use in other materials or publications.
AS2.3 STN will use reasonable endeavours to obtain a waiver of moral rights and an assignment of all IPRs in respect of work sub-contracted to or acquired from third parties but it cannot undertake that in all cases it will be able to do so. In the event that STN is unable to obtain copyright or a waiver of moral rights in respect of such work STN shall inform the Client before any appropriate agreement is entered into.
AS2.4 The Client agrees that on termination of this agreement STN shall be entitled to use the advertising products created by the Services solely for its own internal and external promotional purposes.
AS3. Warranties
AS3.1 STN shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
AS3.2 STN does not warrant that the Output Material shall comply with advertising codes of practice for any media for which it has been produced. It is for the Client to seek independent advice on such compliance issues, if any.
AS3.3 Save for any infringement arising from the Client’s breach of its obligations under any part of clause GL5 and subject to clause GL6, STN warrants that the Output Material and its use by the Client will not infringe the IPRs of any third party and, subject to clause GL6.7, STN shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
AS4. Liability
AS4.1 The liability of STN to the Client shall not exceed the charges paid or payable in accordance with the Terms for the provision of the Services in the 12 months preceding the event giving rise to the said liability.
AS4.2 Except in relation to Clause GL7, STN’s liability to the Client shall cease two months after the completion or termination of the Services noted in the Order.
AS5. General
AS5.1 Where STN enters into contracts with third parties concerning the purchase and placement of advertisement, advertising material or other material, STN shall:
AS5.1.1 obtain the prior written consent of the Client to the contract; and
AS5.1.2 will endeavour to procure that on termination of the provision of the Services, the benefit and burden of such contracts is assigned or transferred to the Client.
AS5.2 Payment for media costs incurred by STN during the provision of the Services shall be made by the Client within 14 days of receipt of STN’s invoice accounting for the same, or such earlier date as reasonably requested by STN from time to time.
PART EM – EMAIL MARKETING
EM1. Services and Performance
EM1.1 STN will exercise reasonable skill and care in providing the Services in accordance with the Order.
EM1.2 STN shall set up and prepare an email account for the Client to deliver such emails as they choose to their recipients. The Client understands and accepts that STN will not;
EM1.2.1 deliver any emails on the Client’s behalf;
EM1.2.2 advise, seek to advise or offer any opinion to the Client on their email marketing strategy;
EM1.2.3 advise, seek to advise or offer any opinion on the recipients chosen to receive such emails, or the content of such emails;
EM1.2.4 manage that email account on the Client’s behalf.
EM1.3 The Client acknowledges that its signature of the Order constitutes its agreement to the specification of the Services contained in the Order. If the Client requests changes to the Services following signature of the Order, such additional services or modifications shall be dealt with in accordance with STN’s normal hourly or daily rates as revised from time to time. Alternatively, STN may at its sole discretion, or on request from the Client, submit a quotation for the cost of the modifications or additional services requested and an indication of the additional time required and/or an indication of any anticipated delay to the Services.
EM1.4 The Client shall observe the procedures that STN may from time to time prescribe in regard to accessing and using the Services and shall not send any emails that contain inappropriate material such as material that infringes any applicable laws, regulations or third-party rights, or material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous. The Client shall indemnify STN against all damages, losses and expenses arising as a result of any action or claim that the emails created consequently contain any such inappropriate material.
EM2. Charges and Payment
EM2.1 Save where payment by identified milestones has been specified in the Order or otherwise agreed in writing, the Client shall pay the charges for the Services in full after the Order has been accepted and before work begins.
EM2.2 STN shall issue invoices in respect of any charges relating to the Services as set out in the Order. The Client shall then pay STN within 14 days of the date of STN’s invoice, save for manifest error on the part of STN or genuine dispute in relation to the provision of the Services.
EM2.3 The charges relating to the Services, as set out in the Order, are to be subject to review every 6 months by STN each year with increases to be notified promptly to the Client.
EM2.4 Where payment is not made in accordance with the Terms (and without prejudice to STN’s other rights and remedies) STN may suspend its performance of its obligations.
EM3. Warranties
EM3.1 STN shall perform the Services with reasonable skill and care.
EM3.2 The Client understands and accepts that STN cannot make any warranties in respect of the email software owned by a third party, and that such owners may indefinitely suspend or terminate any of their email accounts, or the email software as whole, at any time (possibly, without providing any advance notice). Should that circumstance arise, STN can create another email account for the Client as soon as practicable, but upon additional charges set at STN’s normal hourly or daily rates as revised from time to time.
EM4. Liability
EM4.1 Subject to clauses GL6, the entire liability of STN under or in connection with the provision or the Services shall not exceed the total charges and fees paid or payable to STN by the client during the 12 months prior to the event giving rise to such liability.
Part SO – SEARCH ENGINGE OPTIMISATION & SOCIAL MEDIA
SO1. Services
SO1.1 STN will use reasonable care and skill in providing the Services with the objective of improving the Clients online visibility as described in the Order.
SO1.2 Although STN will provide the Services to the standard that may be expected from a competent online marketing services agency, the Client acknowledges that the nature of SEO is such that STN cannot guarantee any definitive levels of success or specific outcomes. In particular, the Client acknowledges that if it chooses to make changes to a website in respect of which STN are providing Services, this may affect the results achieved.
SO1.3 Since it takes at least 3 months to see a return on SEO Services in terms of greater visibility and a more marketable status, the Client agrees to retain STN for a minimum ‘Initial Period’ of 3 months. During the Initial Period, the specification of the Services that STN are to deliver may not be reduced or downgraded.
SO1.4 After the Initial Period, the Client may specify a further fixed term for the continued delivery of the Services, which will be agreed in writing with STN. If the Client does not, the contract between STN and the Client will continue on a rolling monthly basis. The Client may terminate at any time by giving 28 days’ notice, where termination will take effect on the final day of the month in question. No refunds will be given.
SO1.5 In delivering the Services, STN will be required to manage your online advertising activity through social media or other online platforms. STN will obtain the Client’s written consent prior to going live with any campaign or commencing any contract on your behalf. Where STN are required to contract on the Clients behalf but in its own name, STN will endeavour to transfer that contract to the Client when the Services come to an end.
SO1.6 Where the Services include copywriting or the creation of graphical content, STN warrant that the Output Material produced will be of its own authorship or that it is otherwise entitled to licence that Output Material to the Client under these Terms. When STN complete the Output Material in question, it will provide it to the Client so that the Client may check it and request any corrections. If the Client does not respond with any changes that it would like to make to the drafts within 7 days, it will be deemed to have accepted the Output Material in its current form. The Client may not make use of any such Output Material unless it has accepted it expressly or it has been deemed to have accepted it under this clause SO1.6.
SO2. Charges and Payment
SO2.1 The Client will be charged an initial set up cost, as outlined in the Order, before STN commence the delivery of the Services. For each month that the Client has access to the Services, including those months within the Initial Period, it will be charged a ‘Monthly Fee’ which is also outlined in the Order. Each Monthly Fee shall be invoiced monthly in advance and be payable on the terms of that invoice.
SO2.2 Following the expiry of the Initial Period, STN may review the Monthly Fee at its discretion and will notify the Client in advance of any increases, which will take effect at the end of the calendar month following the month in which it gives the Client notification.
SO2.3 If the Client wishes to increase the specification of the Services that STN are to supply an increased Monthly Fee may apply, which STN will confirm in writing before commencing the revised Services. Where the change in specification is to take effect during a period for which an invoice has already been raised, a pro rata charge will be invoiced immediately with payment due in accordance with these Terms.
SO2.4 STN may ask the Client to provide funds to hold on account of expenses that STN is to incur in managing the Clients online advertising activity. When this happens, STN will hold those funds on trust for the Client in a separate account and draw down on them as and when the expenses are incurred, issuing the Client with a receipted invoice documenting the transactions at such intervals as STN feel to be appropriate.
SO2.5 Alternatively, if STN are not holding funds on account of any Client expenses, it may invoice for those expenses immediately before the expenses concerned are due.
SO3. Warranties
SO3.1 The Client warrants that all information that it supplies to STN (including keywords and social media account log-in details) are accurate and current in all respects. The Client also warrants that STN are entitled to make use of the keywords that the Client wishes to be used in the delivery of the Services and that STN’s use of social media accounts on its behalf and any advertising materials that it is to manage on its behalf will not infringe the IPRs of any third party.
SO3.2 The Client agrees to indemnify STN (including its officers and employees) against all damage, claims, expenses, loss and costs (including legal fees) that it suffers as a result of the Client’s breach of the warranties given at clause SO3.1.
SO3.3 Should STN so request, the Client will produce evidence to STN’s reasonable satisfaction that it is entitled to make use of the keywords, social media accounts and advertising materials that STN is to use in delivering the Services and that these things will not infringe any third party IPRs or breach any laws or regulations in any applicable jurisdiction.
SO3.4 Should STN reach the reasonable conclusion that any advertising materials, social media accounts or keywords the Client asks it to manage contains content that is illegal, unlawful or generally objectionable in any way, STN may suspend or terminate delivery of the Services immediately and without notice. Should STN suspend or terminate delivery in this way, the Client will not be entitled to any refund.
SO3.5 STN do not warrant that the Output Material or its provision of the Services will comply with advertising codes of practice for any media for which that Output Material has been produced or with the Data Protection Act 1998, the General Data Protection Regulations or any associated regulations or codes of practice. In the event that the Client provide Input Material for STN to implement in the course of managing its online advertising activities, just because STN proceed to publish that material does not mean that it confirms that its use conforms with any such codes of practice or other regulations or laws. It is for the Client to seek independent advice on these compliance issues, should they arise.
Part ES – Extra Services
ES1. Services
ES1.1 From time to time STN may deliver Services which are not specifically listed in the Terms above. These additional Services will be outlined in the Order and the Services shall be delivered in accordance with this clause ES.
ES1.2 In the case of any Output Material being prepared by STN:
ES1.2.1 the Client will be bound by Clause ES2; and
ES1.2.2 STN makes no warranties in relation to such speculative Output Material that has not been paid for, and accordingly clause ES3 does not apply to such Output Material.
ES2. Rights in the Output Material
ES2.1 All IPRs in the Output Material shall belong to STN until full payment for the Services is received by STN, at which time STN grants to the Client an exclusive licence to use and publish the Output Material solely for the limited purposes specified in the Order, or as otherwise specified in the Order.
ES2.2 The Client will treat all Output Material and all other ideas, concepts and information provided by STN, whether provided in relation to the supply of the Services, speculatively or otherwise, as strictly confidential until full payment is received by STN and shall not display, make use of or disclose the same to any third party.
ES2.3 STN will retain the right to use any such Output Material in its own marketing.
ES2.4 STN retains all IPRs and other proprietary rights in all speculative Output Material.
ES3. Warranties
ES3.1 STN warrants that:
ES3.1.1 all Output Material and its use by the Client and any ideas used in developing the Output Material are original and will not infringe the IPRs of any third party;
ES3.1.2 it has not granted, assigned or otherwise disposed of any rights of any nature in the Output Material to any third party; and
ES3.1.3 the Output Material does not contain anything that is libellous, defamatory or indecent and does not infringe the statutory or common law rights of any third party.
SC4. Liability
ES4.1 The liability of STN to the Client shall not exceed the charges paid or payable in accordance with the Terms for the provision of the Services relating only to the design or concept material giving rise to the liability in question.
ES4.2 STN will not be required to provide assistance to the Client with any proceedings which may be brought by the Client against any third party in relation to the IPRs in the Output Material. If, at STN’s discretion, assistance is provided, the Client will indemnify STN in respect of any and all costs and expenses (including legal costs) incurred by STN.