Advertising terms.

Smart Numbers Ltd (trading as Digital Five) provides a variety of sponsored advertising including paid media solutions such as pay per click, advertising services, website design, website marketing, telephony, sales lead generation and advertising services.

These terms and conditions set out the terms for Digital Five providing sponsored advertising services including Google Adwords, Bing Ads and Meta Ads to you (Services). The Services can be provided together with other services we provide. If you are interested in hearing about other services we provide, please contact us at [email protected].

It is important you read these terms and conditions carefully. Your attention is particularly drawn to: (i) what we expect from you (clause 5 and clause 6); (ii) How to pay us (clause 7); (iii) how long the Contract is for and how to terminate the Contract (clause 11); (iv) what you may be liable for and how we limit our liability to you under the Contract (clause 10).

1.

DEFINITIONS AND INTERPRETATION

The following definitions and rules of interpretation apply in these Terms.

1.1Definitions:

Budget: the monthly budget you agree for us to spend on your advertising campaigns with the SP Providers, as set out in the Order.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by you for the supply of the SP Services including the Budget as set out in the Order.

Commencement Date: the date on which the SP Services start as set out in the Order Form.

Contract: the contract between Digital Five and the Customer for the supply of SP Services in accordance with these Terms.

Customer (also referred to as "you” or “your"): the person or business who purchases SP Services from Digital Five as set out in the Order.

Customer Default: has the meaning set out in clause 6.2.

Deliverables: any outputs of the SP Services and any other documents and materials provided by us to you.

Effective Date: has the meaning given in clause 2.2

Initial Term: 12 months from the Commencement Date, or such other period as set out in the Order.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: your order for SP Services as set out in Digital Five’s proposal or order form.

Digital Five (also referred to as "we”, “us” or “our"): the supplier of the SP Services, Smart Numbers Ltd, registered in England and Wales with company number 05457989 whose registered office address is Stoneham Gate, Stoneham Lane, Eastleigh, England, SO50 9NW.

Sponsored Advertising or SP: means paid media solutions, such as pay per click, engagement advertising, remarketing across platforms such as Google & Meta.

SP Provider: means the providers we use for providing you with internet advertising services including pay-per-click advertising.

SP Services: means the Sponsored Advertising services provided to you from time to time as set out in the Order.

Terms: these terms and conditions as amended from time to time in accordance with clause 11.5.

1.1.1A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time; and shall include all subordinate legislation made from time to time.

1.1.2Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.1.3Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

2.

BASIS OF CONTRACT

2.1Any proposal given by Digital Five shall not constitute an offer.

2.2Each Order shall be deemed to be a separate offer by us to provide the Services on these Terms.

2.3An Order shall be accepted upon your successful completion of the order acceptance process on our website, at which point and on which date the Contract shall come into existence (Effective Date).

2.4Any descriptive matter or advertising issued by us or that is available on Digital Five's website https://www.digital-five.com/ is published for the sole purpose of giving an approximate idea of the SP Services described in them. They shall not form part of the Contract or have any contractual force.

2.5These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.6If there is an inconsistency between any of the provisions in these Terms and the Order, the provisions in the Order shall prevail.

3.

WHEN THE SP SERVICES START

3.1We shall start to provide the SP Services on the Commencement Date.

3.2We shall not be liable for any delay in the start of the SP Services where you have not made payment in accordance with clause 7.3.

4.

SUPPLY OF SP SERVICES

4.1We shall supply the SP Services to you using reasonable care and skill in all material respects.

4.2We shall use reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for performance of the SP Services.

4.3We reserve the right to amend the SP Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the SP Services, and we shall notify you in any such event.

4.4We warrant that:

4.4.1we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations; and

4.4.2we will comply with all applicable laws and regulations with respect of our obligations under these Terms.

4.5We do not warrant that:

4.5.1your use of the SP Services will be uninterrupted or error-free; and

4.5.2the SP Services will meet your requirements.

4.6We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the SP Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.

SP SERVICES

5.1The SP Services will be provided within your proposed Budget, which shall form part of the Charges.

5.2Once the Budget is used up for a particular month, the SP Services shall be paused until the next month, unless an increase in the Budget is agreed with you in writing. We shall notify you in writing within a reasonable time if we believe the Budget will expire before the end of any month.

5.3We do not warrant or guarantee that the SP Services will lead to any particular result or outcome.

5.4We may, in our absolute discretion, choose not to place any specific phase or words with a SP Provider including where we consider that the specific phase or word may be unlawful or infringe a third party’s Intellectual Property Rights or be unacceptable to the SP Provider.

6.

YOUR OBLIGATIONS

6.1You shall:

6.1.1ensure that the terms of the Order and any information that is provided to us is complete and accurate;

6.1.2co-operate with us in all matters relating to the SP Services;

6.1.3comply with our reasonable instructions in relation to the intended use of the SP Services;

6.1.4use the SP Services for your own business purposes only;

6.1.5not use the SP Services for any improper or unlawful purpose;

6.1.6provide us with such information and materials as we may reasonably require in order to supply the SP Services, and ensure that such information is complete and accurate;

6.1.7obtain and maintain all necessary licences, permissions and consents which may be required for the use of the SP Services before the date on which the SP Services are to start;

6.1.8comply with all applicable laws, codes and regulations which apply from time to time to your use of the SP Services.

6.2If the performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or your failure to perform any relevant obligation (Customer Default):

6.2.1without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the SP Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays the performance of any of our obligations;

6.2.2we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 6.2; and

6.2.3you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.

7.

CHARGES AND PAYMENT

7.1We may increase the Charges to reflect any increase in the cost of the provision of the SP Services that is due to any delay caused by your instructions or failure to give us adequate or accurate information or instructions.

7.2We may increase the Charges at the end of the Initial Term and thereafter not providing you with less than 14 days' prior written notice to you.

7.3Unless otherwise stated in the Order, we shall invoice you for the Charges in advance of the Commencement Date and every monthly thereafter.

7.4You shall pay each invoice submitted by us:

7.4.1in pound sterling or other currency as set out in the Order;

7.4.2within 14 days of the date of the invoice or as otherwise set out in the Order; and

7.4.3in full and in cleared funds to a bank account nominated in writing by us.

7.5All amounts payable by you under the Contract 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 under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the SP Services at the same time as payment is due for the supply of the SP Services.

7.6If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 11:

7.6.1we may suspend performance of the SP Services or and any other services you receive from us and we shall be under no obligation to provide any or all of the SP Services while the invoice(s) concerned remain unpaid;

7.6.2interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.7All amounts due under the Contract 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).

8.

INTELLECTUAL PROPERTY RIGHTS

8.1You acknowledge and agree that we or our licensors own all Intellectual Property Rights in the SP Services. Except as expressly stated in the Contract, the Contract does not grant you any rights to, under, or in the SP Services.

8.2The Intellectual Property Rights in any material supplied by you to us to enable us to provide the SP Services shall be owned by you. You grant us a non-exclusive licence to use the material concerned solely for the purpose of providing the SP Services.

8.3The Intellectual Property Rights in any pre-existing material or generic material used or created by us in providing the SP Services will (except to the extent it falls within clause 8.2) be owned by us.

8.4The Intellectual Property Rights:

8.4.1in the content you provide to us or any campaigns created independently of the SP Services shall be owned by you;

8.4.2arising in connection to the SP Services, including contents of campaigns and strategies produced by us, shall be owned by us. We grant you a non-exclusive, revocable licence of such Intellectual Property Rights for the purpose of receiving the SP Services for the Term.

8.5You warrant that your instructions for the SP Services will not infringe the Intellectual Property Rights of third parties.

9.

DATA PROTECTION

We shall use any personal data you provide to us in accordance with our Privacy Notice: https://www.digital-five.com/terms/privacy-policy/.

10.

LIMITATION OF LIABILITY

10.1References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.2Nothing in this clause 10 shall limit any liability under clause 7.

10.3Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

10.3.1death or personal injury caused by negligence;

10.3.2fraud or fraudulent misrepresentation; and

10.3.3breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

10.4Subject to clause 10.3, our total aggregate liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, in respect of all claims arising under this Contract will be limited to 100% of the Charges payable by you under the Contract.

10.5Subject to clause 10.2 and clause 10.3 we shall have no liability for:

10.5.1loss of profits;

10.5.2loss of sales or business;

10.5.3loss of agreements or contracts;

10.5.4loss of anticipated savings;

10.5.5loss of use or corruption of software, data or information.

10.5.6loss of or damage to goodwill; and

10.5.7indirect or consequential loss.

10.6We have given commitments as to compliance of the SP Services in clause 4. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.7This clause 10 shall survive termination of the Contract.

11.

SUSPENSION OF SP SERVICES AND TERMINATION OF CONTRACT

11.1The Contract shall continue for the Initial Term and, thereafter, shall automatically renew for further periods of one year (each a “Renewal Term”) unless either we or you give the other not less than 30 days’ written notice of non-renewal. If you attempt to terminate the Contract prior to the end of the Initial Term or Renewal Term, such termination shall take effect at the end of the Initial Term or the then Renewal Term and you will remain liable for the Charges for the balance of the Initial Term or Renewal Term.

11.2Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

11.2.1the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

11.2.2the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

11.2.3the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

11.2.4the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

11.2.5you become subject to any of the events listed in clause 11.2.3 or clause 11.2.4, or we reasonably believe that you are about to become subject to any of them.

11.3Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving you written notice if you fail to pay any amount due under the Contract on the due date for payment.

11.4Without affecting any other right or remedy available to it, we may suspend the supply of SP Services under the Contract or any other contract between you and us if:

11.4.1you fail to pay any amount due under the Contract on the due date for payment;

11.4.2you commit a Customer Default.

12.

CONSEQUENCES OF TERMINATION

12.1This clause 12 shall apply on termination of this contract or termination of the SP Services.

12.2On termination of the Contract:

12.2.1all rights and licences granted to you shall terminate;

12.2.2you shall immediately pay to us all our outstanding unpaid invoices and interest and, in respect of the SP Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;

12.2.3you shall return all of our materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may take such steps as is necessary to take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

12.3Termination of the Contract 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 Contract which existed at or before the date of termination.

12.4Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

13.

GENERAL

13.1Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

13.2Assignment and other dealings.

13.2.1We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

13.2.2You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without our prior written consent.

13.3Confidentiality.

13.3.1Each party undertakes that it shall not at any time during the Contract, and for a period of six months after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.3.2.

13.3.2Each party may disclose the other party's confidential information:

• to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13.3; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3.3Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

13.4Entire agreement.

13.4.1The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.4.2Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

13.5Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.6Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

13.7Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 13.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.8Notices.

13.8.1Any notice given to a party under or in connection with the Contract shall be in writing and sent by email to the address specified in the Order.

13.8.2Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.8.2, business hours means 9.00am to 5.00pm on a Business Day.

13.8.3This clause 13.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

13.9Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

13.10Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

13.11Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.