Please read these Terms and Conditions carefully. All contracts that Digital Clarity may enter into from time to time for the provision of Digital Clarity services shall be governed by these Terms and Conditions, and Digital Clarity will ask the Client for the Client’s express written acceptance of these Terms and Conditions before providing any Digital Clarity services to the Client.
1. Definitions
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
“Charges” means:
(a) the amounts specified in Section 7 of the Statement of Work and elsewhere in these Terms and Conditions;
(b) such other amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the standard time-based charging rates of Digital Clarity as notified by Digital Clarity to the Client before the date of the Contract, by the time spent by the personnel of Digital Clarity performing the Services.
“Agreement Form” is a Statement of Work that is agreed to by the Client for the provision of services. The signing of the Agreement Form is an acceptance of the Client of these terms and conditions. The Agreement Form is a Contract between the Client and Digital Clarity
“Client” means the person or entity identified as such in Section 1 of the Statement of Work;
“Client Materials” means all works and materials supplied by or on behalf of the Client to Digital Clarity for incorporation into the Deliverables or for some other use in connection with the Services;
“Consultant” also sometimes referred to as Account Manager, Strategist, Advisor, Senior Strategist, Digital Marketer, SEO Consultant, Paid Media Consultant, Social Media Account Manager, Director, Account Director, Strategy Director, or Chief Evangelist means an employee of Digital Clarity OR a 3rd party individual specialist OR freelancer OR self-employed agent OR a company used by Digital Clarity a company incorporated in OR a partnership established under the laws of England and Wales. OR a 3rd party individual specialist OR freelancer OR self-employed agent OR a company used by Digital Clarity a company incorporated worldwide;
“Contract” means a particular contract made under these Terms and Conditions between Digital Clarity and the Client;
“Deliverables” means those services specified in Section 4 of the Statement of Work that Digital Clarity has agreed to deliver to the Client under these Terms and Conditions OR any other deliverables as the parties may agree in writing from time to time;
“Effective Date” means the start date of execution of a Statement of Work incorporating these Terms and Conditions;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means, in respect of the Contract, the period of 3 months beginning on the Effective Date OR the period specified in Section 2 of the Statement of Work;
“Services” means the Digital Clarity services specified in Section 3 of the Statement of Work;
“Statement of Work” means a written statement of work agreed by or on behalf of each of the parties; as highlighted in the Agreement Form between the two parties.
“Term” means the term of the Contract, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation from time to time; and
“Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party and which are specified in Section 4 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables.
“Digital Clarity” means the company. Digital Clarity is the trading name of Stylar Limited. A company in England & Wales. Stylar Limited is a wholly owned company of Digital Brand Media and Marketing Group, Inc. OR DBMM OR DBMM Group. Digital Brand Media and Marketing Group is headquartered in New York at DBMM GROUP, INC. 845 Third Avenue, 6th Floor, New York, NY 10022. Digital Brand Media and Marketing Group is a publicly listed company that trades on the OTC Market, USA.
2. Credit
2.1 This document was created using a template from Docular (https://docular.net). Key people include Alasdair Taylor, a solicitor specialising in IT law who previously worked for Mayer Brown LLP and Penningtons Manches LLP, and Michael Townshend, an expert system developer and information architect. Docular have expertise in IT law, intellectual property law, media law and commercial law. Full credit is given to this company for use of this template.
3. Term
3.1 The Contract shall come into force upon the Effective Date.
3.2 The Contract shall continue in force indefinitely OR until:
(a) all the Services have been completed;
(b) all the Deliverables have been delivered; and
(c) all the Charges have been paid in cleared funds,
upon which it will terminate automatically, subject to termination in accordance with Clause 11.
3.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
4. Services
4.1 Digital Clarity shall provide the Services to the Client in accordance with these Terms and Conditions.
4.2 Digital Clarity shall provide the Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service provider in the industry.
5. Deliverables
5.1 Digital Clarity shall deliver the Deliverables to the Client.
5.2 The Client must promptly, following receipt of a written request from Digital Clarity to do so, provide written feedback to Digital Clarity concerning the Consultant’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
5.3 Digital Clarity shall ensure OR use its best endeavors to ensure OR use reasonable endeavors to ensure endeavor that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 5 of the Statement of Work or agreed by the parties in writing.
5.4 Digital Clarity warrants to the Client that:
(a) the Deliverables will conform with the requirements of Section 4 of the Statement of Work as at the date of delivery of the Deliverables;
(b) the Deliverables will be free from material defects; and
(c) the Deliverables OR the Deliverables when used by the Client in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6. Charges
6.1 The Client shall pay the Charges to Digital Clarity in accordance with these Terms and Conditions.
6.2 All amounts stated in or in relation to these Terms and Conditions are unless the context requires otherwise stated inclusive of any applicable value-added taxes OR exclusive of any applicable value-added taxes, which will be added to those amounts and payable by the Client to Digital Clarity.
7. Payments
7.1 Digital Clarity shall issue invoices for the Charges to the Client from time to time during the Term OR on or after the invoicing dates set out in Section 7 of the Statement of Work OR at any time after the relevant Services have been delivered to the Client OR in advance of the delivery of the relevant Services to the Client.
7.2 The Client must pay the Charges to Digital Clarity within the period of 14 days following the issue of an invoice in accordance with Clause 8 OR the receipt of an invoice issued in accordance with this Clause 8.
7.3 The Client must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Digital Clarity to the Client from time to time).
7.4 If the Client does not pay any amount properly due to Digital Clarity under these Terms and Conditions, Digital Clarity may:
(a) charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8. Warranties
8.1 The Digital Clarity warrants to the Client that:
(a) Digital Clarity has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
(b) Digital Clarity will comply with all applicable legal and regulatory requirements applying to the exercise of the Consultant’s rights and the fulfilment of the Consultant’s obligations under these Terms and Conditions; and
(c) Digital Clarity has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
8.2 The Client warrants to Digital Clarity that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
8.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions and the applicable Statement of Work. Subject to Clause 10.1, no other warranties or representations will be implied into the Contract and no other warranties or representations relating to the subject matter of the Contract will be implied into any other contract.
9. Limitations and exclusions of liability
9.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
9.3 Neither party shall be liable to the other party and Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any loss of profits or anticipated savings.
9.4 Neither party shall be liable to the other party OR Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any loss of revenue or income.
9.5 Neither party shall be liable to the other party OR Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any loss of use or production.
9.6 Neither party shall be liable to the other party OR Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any loss of business, contracts or opportunities.
9.7 Neither party shall be liable to the other party OR Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any loss or corruption of any data, database or software.
9.8 Neither party shall be liable to the other party OR Digital Clarity shall not be liable to the Client OR The Client shall not be liable to the Consultant OR Digital Clarity in respect of any special, indirect or consequential loss or damage.
10. Termination
10.1 Either party may terminate the Contract by giving to the other party not less than 30 days’ written notice of termination, expiring at the end of any calendar month OR after the end of the Minimum Term.
10.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach OR material breach of the Contract, and the breach is not remediable;
(b) the other party commits a breach OR material breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).
10.3 Subject to applicable law, either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under the Contract); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
10.4 Digital Clarity may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Digital Clarity under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) Digital Clarity has given to the Client at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 11.4.
11. Effects of termination
11.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6, 8.2, 8.4, 10, 12, 13.2 and 15.
11.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Contract shall not affect the accrued rights of either party.
12. Status of Consultant and Digital Clarity
12.1 Digital Clarity or the Consultant is not an employee of the Client, but an independent contractor.
12.2 The termination of the Contract will not constitute unfair dismissal; nor will Digital Clarity be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
13. Subcontracting
13.1 Subject to any express restrictions elsewhere in these Terms and Conditions, Digital Clarity may subcontract any of its obligations under the Contract.
13.2 Digital Clarity shall remain responsible to the Client for the performance of any subcontracted obligations unless specifically discussed with the client.
14. General
14.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
14.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
14.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
14.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.
14.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
14.6 Subject to Clause 10.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
14.7 The Contract shall be governed by and construed in accordance with English law.
14.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.