These Terms and Conditions set out the terms under which Fingo Marketing Limited (registered company number 04759894) (“Fingo”) provides services to its Clients.
These Terms and Conditions will apply to all instructions from Clients to Fingo (regardless of whether express acceptance of these Terms and Conditions has taken place). By instructing Fingo to proceed with Services, the Client is deemed to have made a contractual offer to procure Services from Fingo in accordance with, and on the basis, of these Terms and Conditions and agrees to be bound by them. Any other terms that the Client seeks to impose will be excluded from the Agreement between Fingo and the Client.
The entire legal agreement between Fingo and its clients is made up of (1) these Fingo Terms and Conditions (the “Terms and Conditions”); and (2) the details set out in our quote (the “Contract Details”), together the “Agreement”. If there is an inconsistency between any of the provisions of the Contract Details and the Terms and Conditions, the provisions of the Contract Details will prevail.
Any capitalised undefined terms used in these Terms and Conditions have the meaning given to them in the Contract Details.
1 TERM
1.1 This Agreement shall commence on the Commencement Date and will continue for an initial period of 12 months (the “Initial Period”).
1.2 Upon expiry of the Initial Period, this Agreement will automatically renew for successive 12 month periods unless (i) either party provides 3 months written notice, to the other party, to terminate; or (ii) the Agreement is terminated earlier in accordance with clause 14.
1.3 Notwithstanding anything to the contrary, the Client is unable to terminate the Agreement with Fingo for convenience during the Initial Period.
2 SERVICES & SERVICE LEVEL
2.1 For the purposes of this Agreement, the following term is defined as follows:
2.1.1 “Works” means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, developed, created, written, prepared, devised or discovered by Fingo in relation to the Services.
2.2 During the term of the Agreement, Fingo shall:
2.2.1 use reasonable endeavours to supply the Services, and deliver any Works, to the Client, in accordance with this Agreement in all material respects;
2.2.2 use reasonable endeavours to meet any milestones set out in the Contract Details, but any such dates shall be estimates only and time for meeting the relevant milestones by Fingo shall not be of the essence of this Agreement;
2.2.3 provide the Services with due care, skill and ability and ensure that the personnel providing the Services are appropriately qualified, competent and trained and have appropriate experience to carry out their respective obligations;
2.2.4 promptly give to the Client all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services;
2.2.5 attend meetings with the Client and/or their clients as appropriate in order to provide the Services; and
2.2.6 use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Client’s premises if representatives of Fingo perform the Services at such premises.
2.3 Service Levels: Fingo will respond to Client requests within standard working hours (Monday-Thursday 09.00-17.30 and Friday 09.00-17.00) and will take steps to escalate and resolve issues in an appropriate and timely manner. Exact response times by Fingo will depend on the priority and severity of the issue. The Contract Details will detail any additional service levels agreed between the parties and the associated fees to be paid by the Client.
3 CLIENT’S OBLIGATIONS
3.1 The Client shall:
3.1.1 co-operate with Fingo in all matters relating to the Services;
3.1.2 provide to Fingo in a timely manner all documents, information, items and materials in any form (whether owned by the Client or third party) reasonably required by Fingo in connection with the Services and ensure that they are accurate and complete;
3.1.3 inform Fingo of all health and safety and security requirements that apply at the Client’s premises if representatives of Fingo are to perform the Services at such premises;
3.1.4 if it wishes to make a material change to the Services, only do so via the change control procedure set out in clause 4; and
3.1.5 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Fingo to use all documents, information, items and materials supplied by the Client to Fingo for the performance of the Services.
3.2 If Fingo’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Default):
3.2.1 without limiting or affecting any other right or remedy available to it, Fingo shall have the right to suspend performance of the Services until the Client remedies the Default, and to rely on the Default to relieve it from the performance of any of its obligations in each case to the extent the Default prevents or delays Fingo’s performance of any of its obligations;
3.2.2 Fingo shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Fingo's failure or delay to perform any of its obligations as set out in this clause 3.2;
3.2.3 the Client shall reimburse Fingo on written demand for any fees, costs or losses sustained or incurred by Fingo arising directly or indirectly from the Default; and
3.2.4 the Client will pay Fingo in respect of the Services supplied and expenses incurred but for which no invoices have been submitted (including on a time and materials basis for any Services provided towards a milestone that has not yet been completed). Fingo may submit an invoice, which shall be payable immediately on receipt.
4 CHANGE CONTROL
4.1 If the Client wishes to make a change or addition to the Services, it should make a request to Fingo in writing.
4.2 Fingo will as soon as reasonably practicable inform the Client if the change is possible. If it is possible, Fingo will as soon as reasonably practicable issue a proposed revision of or addition to the Contract Details, setting out the revised or additional Services, any changes to the Fees or additional Fees, any additional payments that are required, any changes to any milestones and anything else which would be necessary as a result of the requested change.
4.3 The revision of or addition to the Contract Details will not be effective except in accordance with clause 16.5.
5 FEES
5.1 The Client will pay Fingo the fees set out in the Contract Details, contained within the relevant quote (the “Fees”) for the provision of the Services.
5.2 The Client agrees to pay the Fees in accordance with the payment terms below:
| Type of Fee: | Payment Terms: |
| Advance payments, set ups and deposits | Fingo will invoice the Client on the Commencement Date. The Client will pay within 7 days of the invoice date. |
| Fees for specific stage dates Fees for milestone completion dates Final payment fees | Fingo will invoice the Client as set out in the Contract Details. The Client will pay within 7 days of the invoice date. |
| ‘Retainer’ fees | Fingo will invoice the Client in advance as per the intervals and details set out in the Contract Details. The Client will pay within 30 days of the invoice date. |
| Hosting services | Fingo will invoice the Client in advance as per the intervals and details set out in the Contract Details. The Client will pay within 7 days of the invoice date. |
| Any expenses or admin fees Any recharges Media spend expenses including recharges of click spend or other charges incurred with Google, Meta, LinkedIn or any other platform or search engine | Fingo will invoice the Client from time to time for these fees. The Client will pay within 7 days of the invoice date. |
5.3 Fingo reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
5.4 All amounts payable by the Client are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made by Fingo to the Client, the Client shall, on receipt of a valid VAT invoice from Fingo, pay to Fingo such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law), and in cleared funds on the due date for payment.
5.6 Without prejudice to any other right or remedy that Fingo may have, if the Client fails to pay Fingo any sum on its due date:
5.6.1 the Client shall pay interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 on the overdue amount at the rate of 8% per annum above the Bank of England base rate. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
5.6.2 the Client shall pay any fixed sum and Fingo’s reasonable costs of recovery in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and
5.6.3 Fingo may suspend all Services until payment has been made in full.
6 EXPENSES
6.1 The Client will reimburse Fingo for all reasonable expenses (including re-charge of all third-party costs and media spend) properly and necessarily incurred by Fingo in the course of the provision of Services and all pre-agreed expenses.
6.2 Where Fingo pays third-party costs and media spend directly on behalf of the Client, Fingo reserves the right to charge an administration fee. The amount of this fee will be advised to the Client in advance.
6.3 The Client will pay each invoice submitted by Fingo in respect of expenses incurred and any related administration fees in accordance with clause 5.2.
6.4 The Client shall be entitled within three months of the relevant invoice to request that Fingo provides records or other appropriate evidence of payment of such expenses.
7 DEFECTIVE SERVICES
7.1 Fingo shall promptly notify the Client of:
7.1.1 any delays or problems from time to time in the provision of the Services of which Fingo becomes aware;
7.1.2 any circumstances from time to time which may prevent Fingo from providing the Services in accordance with this Agreement together with (where practicable) recommendations as to how such circumstances can be avoided; and
7.1.3 any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Client or which may result in any adverse publicity for the Client.
7.2 The Client shall, without limiting any right or remedy of the Client, promptly report to Fingo any defects in Fingo's performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Client.
7.3 Where any defect in the provision of the Services is reported to Fingo by the Client or otherwise comes to the attention of Fingo, Fingo shall, without limiting any other right or remedy of the Client, use its reasonable endeavours to provide such further services as are necessary in order to rectify the default as soon as is reasonably practicable.
8 FORCE MAJEURE
Fingo shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, the Services if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
9 CONFIDENTIAL INFORMATION
9.1 Each party undertakes that it shall not at any time disclose to any person the terms of this Agreement, any confidential information concerning the business, affairs, customers, clients, suppliers, operations, processes, product and service information, know-how, designs, trade secrets or software of the other party or of any member of the group of companies to which the other party belongs, except as permitted by 9.2.
9.2 Each party may disclose the other party's confidential information:
9.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9;
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;
9.2.3 where authorised by the other party;
9.2.4 where such information was lawfully obtained free of any duty of confidentiality;
9.2.5 where such information was already in the party’s possession and it can show from written records was known to it on a non-confidential basis before being disclosed under this Agreement; or
9.2.6 where such information was already in, or comes into, the public domain otherwise than through the party’s unauthorised disclosure.
9.3 No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
10 DATA PROCESSING
10.1 If performance of the Services requires Fingo to process any Personal Data in relation to which the Client is the Data Controller, the provisions of this clause 10 shall apply.
10.2 For the purposes of this Agreement, the following terms are defined as follows:
10.2.1 “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures” each have the meaning as defined in the Data Protection Legislation;
10.2.2 “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and the guidance and codes of practice issued by the Commissioner and which are applicable to a party; and
10.2.3 “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
10.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
10.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Fingo is the Processor. Where applicable, the scope, nature and purpose of processing by Fingo, the duration of the processing and the types of Personal Data and categories of Data Subject will be as follows:
10.4.1 Scope: The personal data being collected may relate to the Client’s end-customers/clients as contained on the Client’s website or other individuals that may be contained in any instructions from the Client to Fingo, and as is necessary for Fingo to view/process in order to provide its services to the Client.
10.4.2 Nature: The processing by Fingo will typically involve viewing and analysing the personal data for the purpose of providing its services to the Client.
10.4.3 Purpose: The processing by Fingo is required to provide the Services to the Client under this Agreement.
10.4.4 Types of Personal Data: From time to time, the personal data processed may include name, contact details, website browsing details of the Client’s end-customers/clients.
10.4.5 Categories of Data Subject: the Client’s end-customers/clients.
10.5 Without prejudice to the generality of clause 10.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Fingo and/or lawful collection of the Personal Data by Fingo on behalf of the Client for the duration and purposes of this Agreement.
10.6 Without prejudice to the generality of clause 10.3, Fingo shall, in relation to any Personal Data processed in connection with the performance by Fingo of its obligations under this Agreement:
10.6.1 process that Personal Data only on the instructions of the Client unless Fingo is required by the Data Protection Legislation to otherwise process that Personal Data. Where Fingo is relying on the Data Protection Legislation as the basis for processing Personal Data, Fingo shall promptly notify the Client of this before performing the processing required by the Data Protection Legislation unless the Data Protection Legislation prohibits Fingo from so notifying the Client;
10.6.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
10.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
10.6.4 not transfer any Personal Data outside of the United Kingdom and European Economic Area unless the prior written consent of the Client has been obtained or the following conditions are fulfilled:
10.6.4.1 the Client or Fingo has provided appropriate safeguards in relation to the transfer;
10.6.4.2 the data subject has enforceable rights and effective legal remedies;
10.6.4.3 Fingo complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
10.6.4.4 Fingo complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
10.6.5 assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.6.6 notify the Client without undue delay on becoming aware of a Personal Data Breach;
10.6.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on Termination unless required by Applicable Law to store the Personal Data; and
10.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 10.
10.7 The Client consents to Fingo appointing third-party processors of Personal Data and promptly notifying the Client of the appointment under this Agreement subject to Fingo entering into a written agreement incorporating terms which are substantially similar to those set out in this clause 10.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 For the purposes of this Agreement, the following terms are defined as follows:
11.1.1 “Client Materials” means all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Fingo in connection with the Services, including the items provided pursuant to clause 3.1.2; and
11.1.2 “Intellectual Property Rights” or “IPRs” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
11.2 In relation to the Works:
11.2.1 Fingo and its licensors shall retain ownership of all IPRs in the Works, excluding the Client Materials;
11.2.2 subject to full payment of the Fees, Fingo grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Works (excluding the Client Materials) for the purpose of receiving and using the Works in its business;
11.2.3 Fingo warrants that the use of the Works (excluding the Client Materials) by the Client and any member in its group of companies shall not infringe the rights, including any IPRs, of any third party; and
11.2.4 the Client shall not sub-license, assign or otherwise transfer the rights granted in clause 11.2.2 other than to a member in its group of companies.
11.3 In relation to the Client Materials, the Client:
11.3.1 and its licensors shall retain ownership of all IPRs in the Client Materials;
11.3.2 grants to Fingo, its agents, subcontractors or consultants a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Client Materials for the term of this Agreement for the purpose of providing the Services to the Client; and
11.3.3 warrants that the use, copying and modification of the Client Materials by Fingo, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any IPRs, of any third party.
12 LIMITATION OF LIABILITY
12.1 Nothing in this Agreement shall limit or exclude Fingo’s liability for:
12.1.1 death or personal injury caused by its negligence; or
12.1.2 fraud or fraudulent misrepresentation.
12.2 Subject to clause 12.1:
12.2.1 under no circumstances whatsoever shall Fingo be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of turnover, loss of profits, loss of sales or business, loss of or damage to goodwill, loss of contracts, loss of use or corruption of software, data or information, or any indirect or consequential loss; and
12.2.2 Fingo’s total liability to the Client for any loss in respect of any one claim or series of connected claims, shall in no circumstances exceed the lower of (i) £250,000; or (ii) the total amount of Fees (excluding any fees in relation to recharged costs) paid by the Client to Fingo in the preceding 12 month period immediately before a claim is made.
12.3 This clause 12 shall survive termination of the Agreement.
13 NON-SOLICITION
The Client shall not, without the prior written consent of Fingo, at any time from the date of this Agreement to the expiry of 6 months after the last date of supply of the Services or Termination (whichever is the latest), solicit or entice away from Fingo or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of Fingo in the provision of the Services.
14 TERMINATION
14.1 Either party can terminate this Agreement immediately on written notice to the other party where the other party:
14.1.1 commits a material breach of any term of this Agreement and such breach cannot be remedied within a period of 14 days after being notified in writing to do so; or
14.1.2 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
14.1.3 the other party becomes subject to bankruptcy, insolvency, receivership or similar event.
15 OBLIGATIONS ON TERMINATION
15.1 On termination of this Agreement:
15.1.1 the Client shall immediately pay to Fingo all of Fingo’s outstanding unpaid invoices and interest and, in respect of the Services supplied and expenses incurred but for which no invoices have been submitted (including on a time and materials basis for any Services provided towards a Milestone that has not yet been completed), Fingo may submit an invoice, which shall be payable immediately on receipt; and
15.1.2 Fingo shall, within a reasonable time, deliver to the Client (or if the Client so requests, destroy) all Client Materials in its possession or under its control.
15.2 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15.3 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
16 GENERAL
16.1 Status: The relationship of Fingo to the Client will be that of independent consultant and client and nothing in this Agreement is intended to create a partnership between the parties and neither party has authority to bind the other in any way.
16.2 Notices: Any notice or communication (other than in legal proceedings) given under this Agreement shall be in writing and signed by or on behalf of the party giving it. It shall be served by delivering it personally, or by sending it by pre-paid first class post or registered post to the relevant party at its registered office or place of business, or by sending it by email to the other party’s chosen business email address as notified to the sending party.
16.3 Entire Agreement: This Agreement is the entire agreement between the parties. Anything outside of this Agreement, such as discussions or other agreements, is superseded by this Agreement.
16.4 Assignment: The Client shall not assign, transfer or subcontract its rights and obligations under this Agreement.
16.5 Variations: Any variations to this Agreement must be in writing and signed by or on behalf of each of the parties.
16.6 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, the rest of the Agreement will remain valid and enforceable.
16.7 Third Party Rights: A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
16.8 Governing Law and Jurisdiction: This Agreement will be governed by the laws of England and Wales and the courts of England and Wales have exclusive jurisdiction to settle any disputes in relation to it.