Standard Terms and Conditions of Business

SECTION 1 − GENERAL TERMS

1.INTRODUCTION
1.1You, the client (“Client”, “you”, “your”), have engaged us, NB Communication LTD (“NB Communication”, “we”, “us”, “our”) to provide a range of digital services as a digital marketing agency to you.
1.2You agree that the Services shall be supplied in accordance with these Standard Terms and Conditions of Business (“T&C’s”). These are the main legal terms that will govern the relationship between us. The project specifics and deliverables and/or Services, along with the commercial terms of the engagement, shall be set out in one or more Statement of Work (“SOW”) which may be agreed between us from time to time. These T&C’s are incorporated into the SOW by reference and together, constitute the entire agreement (the “Agreement”). Where Support and Maintenance Services have been selected, the terms and conditions in Section 2 shall apply. Where Hosting Services have been selected, the terms and conditions in Section 3 shall apply.
2.DEFINITIONS
Where the context permits or requires the following terms shall be interpreted as follows:
Deliverablesthe specific project deliverables as set out in the SOW;
Client Materialsall content, materials, data, copy, images and information in any form created or generated by you and supplied by you to us or on your behalf;
Confidential InformationConfidential Information such information as either party may from time to time provide to the other party (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to the Agreement and the Deliverables, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by either party to the other whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever;
Force Majeureany event that is not reasonably insurable including but not limited to any act of government, war, industrial dispute, strikes (of its own or other employees), breakdown of machinery or equipment, accident, fire, inability to obtain supplies and raw materials, or by any other cause beyond the parties’ control;
IPRsintellectual property rights including copyright, design rights, trade mark rights, database rights, moral rights, patents, service marks, applications for any of the foregoing, trade or business names, topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, rights in confidential information and all other rights of a like nature worldwide (registered or not);
Servicesthe digital services under the Agreement, including the Deliverables; and
Statement of Workmeans any proposal document, to include email, where we have set out agreed Services to be provided.
3.SERVICES
3.1We shall supply the Services in accordance with the terms of the Agreement.
3.2You shall fully co-operate and act in good faith towards us at all times and shall provide us with prompt feedback where requested.
3.3We shall not be liable for any delay in the performance of the Services caused by you as a result of a failure to supply prompt feedback or approvals, or any delay caused by you failing to provide any material/content reasonably requested by us which is required by us in order to perform the Services.
3.4You shall be solely responsible for ensuring that all information, advice and recommendations given to us either directly or indirectly by you or by your employees, freelancers or agents are accurate, correct and suitable and acceptance of or use by us of such information, advice or recommendations shall in no way limit your responsibility hereunder, unless we specifically agree in writing to accept responsibility.
3.5We shall assign personnel whom we consider appropriate to perform the Services and we may at any time at our discretion, assign, re-assign, or substitute personnel or appoint sub-contractors to carry out all or any of our obligations under the Agreement.
4.DELIVERY AND ACCEPTANCE
4.1Delivery of the Deliverables and performance of the Services shall be in accordance with the SOW and we shall use all commercially reasonable efforts to deliver the Deliverables and perform the Services by and on a timely basis. All dates and/or times specified in a SOW for performance of the Services or delivery of the Deliverables are given in good faith but are not guaranteed by us.
4.2Where applicable, you shall inspect the Deliverables and shall notify us immediately if there is a material defect or non-conformity against the agreed specification as set out in the SOW and we shall remedy, correct and re-deliver the Deliverables to you as soon as reasonably practicable.
4.3In the event you do not notify us of any defect within five (5) working days then you shall be deemed to have accepted the Deliverables.
4.4You shall not unreasonably withhold, delay, or condition acceptance of the Deliverables at any time.
4.5You shall be deemed to have accepted the Deliverables where the Deliverables are used for example post launch or in a public environment.
5.FEES AND PAYMENT
5.1In consideration of the provision of the Services by us, unless otherwise agreed in an applicable SOW, you shall pay the fees set out in the SOW as follows:
5.1.150% payment due on project confirmation within seven (7) days from the date of invoice; and
5.1.250% after the date of delivery of the final Deliverables, within thirty (30) days from the date of invoice.
5.2For the avoidance of doubt, project confirmation may include commencement of the project on the basis of your instruction by email.
5.3We shall have the right to amend any SOW in the event that additional costs are incurred, or are likely to be incurred, by reason of:
5.3.1material changes by you or any third party in your requirements for the Services or Deliverables;
5.3.2any Client Materials supplied to us for use in connection with the Agreement which, in our reasonable opinion are in any way defective, in an unsuitable quality or format or a different format to that which we are expecting to receive;
5.3.3any information supplied by you or any third party in connection with the Agreement and the Services or Deliverables being inaccurate or incomplete, or failure to give us a full and accurate indication of the work involved and/or time and resources required; or
5.3.4exceptional circumstances outside of our control, including changes in third party costs and currency fluctuations.
5.4You shall pay the fees due under the Agreement without deduction or set-off together with any VAT invoiced and payable thereon. You shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by you to us pursuant to the Agreement.
5.5In the event payment is delayed, we may charge you interest on any overdue payment at the rate of 4% over base rate of the Bank of England.
5.6Without prejudice to any of our other rights under the Agreement or otherwise, we may suspend provision of the Deliverables and/or Services and our obligations under the Agreement where you are overdue in paying the fees or other costs set out in the Agreement and we have provided written notice to you of such overdue fees and you have not remedied such non-payment within 7 days of receipt of such notice. We shall not be liable for any delay caused to the Deliverables and/or Services as a result of such suspension.
6.IPRS
6.1All copyright, design right, registered designs, trademarks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature worldwide whether registered or not of whatever nature in material devised, created or commissioned by us, in supplying the Deliverables and Services under the Agreement will vest in and belong to us unless otherwise agreed in writing on the SOW and signed by both parties.
6.2You shall have the usage rights set out in the SOW which rights shall take effect and be conditional upon receipt by us of the fees. Such usage rights shall apply only to those ideas, concepts, proposals and parts of the Deliverables which we are specifically requested to proceed with and not to any original ideas, concepts or proposals pitched or suggested to you but not further explored by us for you hereunder, all of which shall be retained by us. Where no such rights are specified you are granted a non-exclusive licence to use the Deliverables for the purpose specifically described in the SOW. Further uses shall be subject to additional fees to be agreed in writing.
6.3All IPRs in the Client Materials shall belong to you and you hereby grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Client Materials to the extent necessary for us and/or our suppliers to provide the Services and the Deliverables.
6.4You acknowledge and agree that we (or our third party licensors) shall retain ownership of all rights, including IPRs, in and to our proprietary software, development tools and utilities (in source code and object code), libraries, engines, subroutines and technology that predate the Agreement or are of general applicability in digital and interactive production and any modification, adaptation or improvement of the foregoing, including as described in the SOW (together “NB Communication IPRs”), and we shall not at any time be required to deliver to you any NB Communication IPRs whatsoever as part of the Deliverables.
6.5You agree that if in the course of performing the Services we discover or devise any techniques or know-how, all rights to such techniques and know-how shall belong to and vest in us and shall be deemed to be NB Communication IPRs for the purposes of the Agreement.
6.6You agree that we may use third party IPRs in and as part of the Deliverables. Such third party IPRs will remain vested in the third party proprietor and to the extent you are granted the right and ability to make use of the same, you may use it only on the licence terms applicable to such third party materials. You further acknowledge that we give no other warranties or undertakings in relation to the third party materials.
7.CONFIDENTIALITY
7.1All information or materials provided to one party by the other party (or by a third party on their behalf) and all information that a party and those working for it or on its behalf may hear, see, or derive in connection with the Services hereunder, which are not the subject of general public knowledge, shall be deemed to be Confidential Information. Each party shall not, during or after this engagement, disclose or use any such Confidential Information without first obtaining the other party’s written authorisation. Each party shall, at the other party’s request, require those engaged by a party to sign agreements, in which such persons agree not to use or disclose the Confidential Information.
7.2Exclusions. This Agreement imposes no obligations with respect to information which: (a) was in either party’s possession before receipt; (b) is or becomes a matter of public knowledge through no fault of either party; (c) was rightfully disclosed to either party by a third party without restriction on disclosure; or (d) is developed by either party without use of the Confidential Information as can be shown by documentary evidence. Either party may make disclosures to the extent required by law or court order provided either party makes commercially reasonable efforts to provide the other party with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order and has allowed the other party to participate in the proceeding.
8.CANCELLATION
8.1Without prejudice to any other rights or claims, each party may fully or partially cancel this Agreement by a written notice, in case of:
8.1.1Material breach. In the event that the other party materially breaches any term (including non-payment of any sum due) and fails to remedy the same within 28 days of receiving written notice of the same. In addition the event that you fail to make any payment due hereunder by the due date therefore we shall be entitled to suspend the provision of all or part of the Deliverables until such time as such payment is received in full;
8.1.2Permanent failure to comply. Compliance with an enforceable obligation under the Agreement by the other party becomes permanently impossible;
8.1.3Bankruptcy. The other party is declared bankrupt or has been granted suspension of payment, whether or not temporary; or
8.1.4Termination for legal cause. Either party may immediately suspend performance if an applicable law or an applicable government or court order prohibits such performance.
8.2Unless otherwise agreed in a SOW, notwithstanding clause 8.1 and 8.3 and without prejudice to any other rights or remedies available to you, you may give us written notice of cancellation of this Agreement (and any Services to be provided in respect of a SOW thereunder), provided that 50% of the project fee shall be due and non-refundable and where more than 50% of the work has been completed, you shall pay the remaining 50% of the project fee pro rata up to and including the date of cancellation.
8.3Where you have engaged us to provide you with domain name registration services or and/or hosting services, 100% of the domain name fees and/or hosting fees shall be non-refundable.
8.4We may terminate this Agreement in an event of Force Majeure, as per clause 10.
9.LIABILITY AND INDEMNITY
9.1We warrant to you that we shall:
9.1.1perform the Services in a professional and workmanlike manner and using no less than reasonable care and skill; and
9.1.2deliver the Deliverables in accordance with the SOW in all material respects.
9.2Except as expressly stated, we give no warranty or representation and all warranties, whether express or implied, are excluded to the fullest extent permitted by law.
9.3Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of law.
9.4Subject to clause 9.3 and without prejudice to any other provision of the Agreement, you agree that:
9.4.1the Agreement states the full extent of our obligations and liabilities in respect of the Deliverables and performance of the Services;
9.4.2under no circumstances shall we be liable for any indirect, special or consequential loss or damage whatsoever, or for any loss of business profits, business interruption, depletion of goodwill, loss of use or corruption of data or software, whether on a direct or indirect basis; and
9.4.3our entire liability for any direct loss suffered by you under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the actual sums paid by you under the relevant SOW in which the loss was suffered.
9.5You shall indemnify and hold us harmless from and against all claims or proceedings and all loss and damage of any kind, including costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, us as a result of or in connection with:
9.5.1any defamatory or libellous matter or any infringement or alleged infringement of a third party’s IPRs or other rights arising out of the supply or use of the Client Materials in relation to the Deliverables and/or in the course of carrying out the Services; and
9.5.2any breach by you, including your officers, employees, freelancers and agents of any of the terms in this Agreement.
9.6Clause 9.5 above shall apply whether you, or your officers, employees, freelancers or agents, have been negligent or otherwise.
9.7Any recommendations or suggestions by us relating to the use of the Deliverables are given in good faith but it is for you to satisfy yourself of the suitability of the Deliverables for their own particular purpose. We shall not be responsible for ensuring that the Deliverables comply with any legal or regulatory requirements relating to content in any territory where Services are being exploited.
10.FORCE MAJEURE
Neither party shall be liable to the other for any failure, delay or interruption in the performance of any term under the Agreement due to causes beyond the control of that party that make performance of the Agreement either illegal, impossible or commercially impracticable, such as, but not limited to, acts of God, war, government regulation, disaster or other casualty, strikes or threat of strikes, acts and/or threats of terrorism, curtailment of transportation services, disruption to cloud services or other events beyond the control of either party.
11.INSURANCE
11.1You shall take out, maintain and keep effective at all times such insurance policies with reputable insurers as are sufficient to protect yourself against any and all risks as is necessary or usual for loss or liability which you may incur or suffer arising out of the Agreement.
11.2You acknowledge that it is not possible for us to obtain insurance against any costs arising from loss or damage to Client Materials or any other materials of any kind supplied by you to us (whether in our possession or otherwise) and it is your responsibility to ensure that you have appropriate back-up copies of all Client Materials and you shall insure all Client Materials to their full value against all risks. You agree that we shall be under no liability whatsoever in respect of any loss or damage to or destruction of the Client Materials and for the avoidance of doubt, this includes the costs of any re-creation requested as a result of loss or damage to Client Materials.
12.PUBLICITY RIGHTS
We may publicise, advertise and market the Deliverables on our website(s), in pitches to third parties, on social media site(s), blog(s) or in any other manner, as we may decide in our sole discretion, without your prior written consent.
13.DATA PROTECTION
It is not intended that we process any personal data as part of the Services. However, if the Services do comprise the request to process any personal data then the parties will enter into a separate data processing agreement.
14.GENERAL
14.1No variation of the Agreement (including any of the Services or Deliverables to be provided hereunder) shall be valid unless in writing and signed by, or on behalf of, a representative of the parties. No employee, freelancer or agent of ours has the power to vary this Agreement orally or in writing, or to make any statement or representation about the Services offered, their fitness for any purpose or any other matter.
14.2In the event of any conflict between the T&C’s and the SOW, then the terms in the SOW shall apply.
14.3Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by first class pre-paid post to NB Communication LTD, Stewart Building, Esplanade, Lerwick, Shetland, ZE1 0LL for the attention of the Director. Any notice sent by first class post shall be deemed received two working days after the date of posting.
14.4A waiver of any right or remedy under the Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
14.5No partnership or joint venture is intended or created by the Agreement and neither party shall have authority to act as agent for, to bind, the other party.
14.6If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
14.7A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
14.8The Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of Scotland and the parties hereby submit to the exclusive jurisdiction of the Courts of Scotland.

SECTION 2 − SUPPORT AND MAINTENANCE SERVICES

1.SCOPE
1.1Where you have engaged us for paid for support and maintenance services (“Support and Maintenance Services”), in addition to the T&C’s, the following terms and conditions in this Section 2 shall apply.
1.2Subject to the provision of these T&C’s, we shall provide the Support and Maintenance Services in accordance with each applicable SOW.
2.TECHNICAL SUPPORT SERVICES
We shall provide you with technical support services. Our technical support shall accept telephone calls and e-mails to support@nbcommunication.com to log a support ticket in our system. For the avoidance of doubt, our telephone support normal business hours are 9am – 5pm. We shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to you during this time.
3.MAINTENANCE EVENTS
3.1We may carry out maintenance of the site or other aspects of the Hosting Services that may require interruption of the Hosting Services (“Maintenance Events”). We may interrupt the availability of the site to perform emergency maintenance at any time (“Unscheduled Maintenance”). In addition, we may interrupt the Hosting Services for maintenance (“Scheduled Maintenance”). Scheduled Maintenance and Unscheduled Maintenance shall not be considered downtime for the purpose of service availability measurement. However, we shall at all times endeavour to keep any service interruptions to a minimum.
3.2We may determine, at our sole discretion, that providing appropriate service levels requires additional server instances and/or bandwidth and may suggest the installation of equipment and/or bandwidth. In such an instance, the parties shall negotiate the additional costs (at our then prevailing rates unless otherwise agreed) and expenses to be incurred by us in connection with the installation of additional equipment, which shall be payable by you.
4.SUPPORTED PLATFORMS
A list of the supplied platforms and/or browser types and version numbers we support is available on request.
5.SUPPORT FEES
5.1The Support and Maintenance Services fees shall be payable in accordance with the SOW.
5.1.1Support and Maintenance Service fees shall be payable monthly and are a separate obligation to any other fees due under the Agreement.
5.1.2In the event of non-payment of Support and Maintenance Services fees within five (5) days, we shall have the right to take down the hosted site down.

SECTION 3 − HOSTING SERVICES

1.SCOPE
1.1Where you have engaged us for paid for hosting and hosting related services (“Hosting Services”), in addition to the T&C’s, the following terms and conditions in this Section 3 shall apply.
1.2Subject to the provisions of these T&C’s, we shall provide the Hosting Services in accordance with each applicable SOW.
2.HOSTING SET-UP
2.1We shall perform our obligations in accordance with the SOW and shall:
2.1.1set up the site for acceptance testing on the date agreed between us in the SOW; and
2.1.2as soon as reasonably practicable after acceptance, provide the Hosting Services in accordance with these terms.
2.2The set-up phase of the Hosting Services includes those services provided by us or our contracted third parties to design, install, configure and test the Hosting Services, as well as the hosting facility and internet connectivity.
3.HOSTING SERVICE
3.1We will use the service provider to deliver the Hosting Services as set out in the applicable SOW. We will deploy a set of tests sufficient to meet the needs of the hosting capacity requirements of the Hosting Service in our sole judgement for each event as agreed with you from time to time.
3.2Where requested by you and agreed in an applicable SOW, we shall provide hosting in accordance with the usage limits set out in the SOW. Where no such limits are set out in an applicable SOW, the following shall apply:
3.2.11GB of file size for static hosted sites, 10GB of file size for dynamically hosted sites;
3.2.2100GB of monthly bandwidth.
4.ADDITIONAL HOSTING SERVICE
4.1Where requested by you and agreed in an applicable SOW that any of the following additional Hosting Services are to be provided, subject to contract and payment, the following relevant terms and conditions will apply to the applicable additional Hosting Services:
4.1.1CONTINUING HOSTING SERVICES
The Continuing Hosting Services provided by us or our contracted third parties which allow for availability of the site, include load distribution management, security services, monitoring, back-up, release management and change control, and administration services (“Continuing Hosting Services”).
4.1.2LOAD DISTRIBUTION MANAGEMENT
For the avoidance of doubt, we do not provide load balancing services. Where there are load distribution issues, we shall use reasonable efforts to mitigate the issues by using techniques including but not limited to server-side caching, CDN’s, static sites and use of Virtual Waiting Room.
4.1.3SECURITY SERVICES
For Hosting services, we shall provide security through Node4 and for static site hosting, we shall provide security through Netlify as our third party service providers. Please refer to Node4 and Netlify security services and procedures for specific details.
4.1.4MONITORING SERVICES
Unless agreed otherwise in an applicable SOW, we shall provide, during normal working hours, monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, load-balancing monitoring, web server and database monitoring, firewall monitoring, and intrusion detection to the extent possible within the environment.
4.1.5BACK-UP, ARCHIVING AND RECOVERY SERVICES
We shall develop a back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. In the event of data loss, we shall provide recovery services to try to restore the most recent back-up.
4.1.6RELEASE MANAGEMENT AND CHANGE CONTROL
Where relevant, we shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by us to maintain the Hosting Services.
4.1.7ADMINISTRATION SERVICES
These services include the installation and administration of additional server instances, operating system and other software, and other resources as necessary to maintain the Hosting Services.
5.QUOTA AND LIMITS
We shall set out the soft and hard quotas and limits relating to including but not limited to bandwidth, storage and size relevant to the Hosting Service in the applicable SOW.
6.FEES AND CHARGES
6.1Hosting Service fees are as set out in the applicable SOW as per the agreed load and/or capacity. Any increase in load and/or capacity will be charged at cost. We shall invoice you in respect of said increase and provide you with reasonable information to verify the increase in fees payable.
6.2Unless otherwise agreed the applicable SOW, Hosting Service fees shall be payable monthly and are a separate obligation to any other fees due under the Agreement.
6.3In the event of non-payment of Hosting Service fees within five (5) days, we shall have the right to take down the hosted site down.
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