General Terms and Conditions

1. TERMS AND CONDITIONS
1.1 These terms and conditions together with a Sales Order (specification) (Specification Document) will form a binding contract between the Client and Your Digital Heroes Ltd which shall constitute the entire agreement between Client and Your Digital Heroes Ltd and apply to any trading agreement or other contract or arrangement between Client and Your Digital Heroes Ltd.
1.2 These terms apply to the exclusion of all other terms or conditions of contract the Client may propose and shall not be varied unless agreed in writing, signed by Your Digital Heroes Ltd.
1.3 The Client signature on an agreement is not required in order for contracts to be legally binding. The use of services and/or receipt by Your Digital Heroes Ltd of any initial payment shall constitute agreement.

2. Your Digital Heroes Ltd
2.1 In consideration of the payment by Client to Your Digital Heroes Ltd of the fees as set out in the Sales Order (specification), Your Digital Heroes Ltd agrees to provide to Client the goods and services described in the Sales Order (specification) (“Works”) in accordance with the Proposal (where one exists) with reasonable and due care in accordance with and subject to these terms.
2.2 Your Digital Heroes Ltd undertakes that the Works shall be faithful to the basic conceptualisation of the underlying works, pitch or proposal (where one exists) and reflect the same standards of quality and integrity.
2.3 This Agreement shall not give rise to any exclusive relationship and nothing in this Agreement shall prevent Your Digital Heroes Ltd acting for or providing works the same or similar to the Works to any third party.

3. CLIENT
3.1 Client will co-operate with and act in good faith towards Your Digital Heroes Ltd and, on request, undertake such acts and provide such source materials (including those listed in the Sales Order (specification) (specification) or other communication) (“Materials”) as Your Digital Heroes Ltd are to incorporate into the Works, or as they may require to carry out its obligations hereunder.
3.2 In the event that the Client does not undertake those acts or provide those Materials required under clause 3.1 above within a reasonable time (and at least within 1 month) of being requested to do so, including without limitation carrying out any changes, modifications or optimisations to Client’s web site or other Materials as requested, recommended or required by Your Digital Heroes Ltd, Your Digital Heroes Ltd shall be entitled to invoice for the remaining Works as if Client had done so whether such are provided or not.

4. PAYMENT
4.1 Invoices shall be issued in accordance with the Payment Terms as specified on the Sales Order (specification) (specification). No Works will be commenced until initial payments have been received. The Client shall pay Your Digital Heroes Ltd the Fees without deduction or set-off (with VAT thereon). Your Digital Heroes Ltd shall be entitled to withhold or suspend the Works until such time as it receives the Fees or other payments due.
4.2 Your Digital Heroes Ltd shall be entitled to charge interest on any overdue payment at the rate of 3% over Barclays Bank’s base rate prevailing at the time and shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments.
4.3 Your Digital Heroes Ltd may charge additional Fees in accordance with its then prevailing rates:
4.3.1 in the event of delays or additional works caused or required by the Client including its failure to provide Your Digital Heroes Ltd with such information, Materials, instructions, media or approvals, as are reasonably required for the supply of the Works, properly and / or on time;
4.3.2 in the event of changes to the cost of labour, materials, services and other circumstances outside of Your Digital Heroes Ltd’s reasonable control.
4.3.3 in the event that Client requires the supply of Works, goods and services in addition to those described in the Order Form or any variations to the Works.
4.4 If Client requires any change or alteration to the Works (Change), Your Digital Heroes Ltd and Client shall, prior to such change being effective or implemented, agree:
4.4.1 the nature of the Change;
4.4.2 the procedures for implementation of such Change; and
4.4.3 the variation to the Fees.
4.5 Until any Change is formally agreed between the Client and Your Digital Heroes Ltd, Your Digital Heroes Ltd will continue to perform and be paid for the Works as if the Change had not been proposed, unless otherwise requested by the Client.
4.6 All and any Changes to the Works shall be reflected and accompanied by appropriate amendments to the Proposal and Fees.
4.7 In the event that the Works include pay-per-click or other search engine placement services which require the payments to third parties and are agreed with the Client prior to their implementation, the Client shall reimburse and indemnify Your Digital Heroes Ltd for any out of pocket expenses incurred by it in supplying the same.

5. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
5.1 All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature in material devised, created or commissioned by Your Digital Heroes Ltd, in supplying the Works and under this Agreement will vest in and belong to Your Digital Heroes Ltd unless otherwise agreed and specified in writing on the Sales Order (specification) or otherwise and signed by both Parties.
5.2 In consideration of and upon payment of the Fees in full, Client shall have the Rights of Use set out in the Sales Order (specification) (specification) which rights shall take effect on receipt by Your Digital Heroes Ltd of the Fees. Where no such rights are specified the Client is granted a non-exclusive licence to use the Works for the Purpose described in the Sales Order (specification), Proposal or other Works documentation. Rights of Use shall be extended only with the consent of Your Digital Heroes Ltd and payment of additional fees.
5.3 The Client grants Your Digital Heroes Ltd a nonexclusive royalty free licence to use the Materials for all purposes relating to this Agreement and warrants that it has obtained and is fully entitled to grant Your Digital Heroes Ltd these rights and that the Materials are free of racist, defamatory, obscene and other legally restricted material.
5.4 The Client undertakes that it will keep secret and confidential the terms of this Agreement and any information supplied by Your Digital Heroes Ltd in connection with this Agreement or the business of Your Digital Heroes Ltd (including the Proposal) and the Works and shall not disclose or make available such information or part thereof to any third party (except to its own employees and advisers and then only on a need to know basis) without the Your Digital Heroes Ltd’s prior written consent PROVIDED THAT this Clause shall not extend to information which was and can be shown to be rightfully in the possession of the Client prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this Clause);
5.5 The Client undertakes to Your Digital Heroes Ltd to indemnify and hold harmless Your Digital Heroes Ltd in full and defend at its own expense Your Digital Heroes Ltd against all costs, damages and losses incurred by Your Digital Heroes Ltd arising out of its use of the Materials or breach by Client of this clause
5.5.6 The Client shall not modify, adapt or translate the Works except with the prior written consent of Your Digital Heroes Ltd or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in Your Digital Heroes Ltd unless otherwise agreed and specified in writing on the Sales Order (specification) (specification).
5.7 Your Digital Heroes Ltd warrants that it will use reasonable efforts to ensure that the Works do not infringe the copyright of any third party.

6. INSPECTION AND ACCEPTANCE
6.1 The Client shall inspect the Works regularly and shall inform Your Digital Heroes Ltd immediately if it wishes to reject any part of the Works because such do not comply with the Proposal or are defective in material and workmanship.
6.2 If the Works do not comply with the Proposal or are defective in material and workmanship Your Digital Heroes Ltd’s liability shall be limited to correcting such defects within a reasonable time.
6.3 The Client shall only be entitled to reject the Works because such do not comply with the Proposal or are defective in material and workmanship and if they are not rejected within 48 hours of delivery then the Client shall be deemed to accept the Works. Rejection without good reason shall be deemed a breach of these terms.

7. LIABILITY AND WARRANTY
7.1 Subject to Clause 7.2 below, Your Digital Heroes Ltd’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by Your Digital Heroes Ltd to the Client hereunder.
7.2 Your Digital Heroes Ltd shall not be liable to the Client for any consequential loss or damage.
7.3 When instructions or advice are given or received orally by Your Digital Heroes Ltd, it shall have no liability to Client for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations.
7.4 Your Digital Heroes Ltd shall have no liability to the Client in respect of the Materials. On completion of the Works the Client agrees to collect the Materials within 2 months of completion of the works, failing which, Your Digital Heroes Ltd may dispose of them on giving the Client 14 days notice.
7.5 Your Digital Heroes Ltd’s liability shall be limited to using reasonable skill and care in the supply of the Works. In particular Your Digital Heroes Ltd shall not, except in the case of gross negligence and wilful or deliberate act, be liable for:
7.5.1 any loss or damage caused by it being given access to the Client’s computer systems (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of the Client.
7.5.2 any interference in or modification of the Works or the Client’s web site by the Client or any third party or the consequences thereof, remedy of which shall be as a Change.
7.6 Your Digital Heroes Ltd undertakes to provide the Works with reasonable skill and care, however Your Digital Heroes Ltd cannot give any warranty or representation as to positions within search engines due to the operation of such being out of its control.

8. LEGISLATION, WARRANTY AND INDEMNITY
8.1 The Client shall comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Works, including without limitation its obligations under the Data Protection Act 1998; Regulation of Investigatory Powers Act 2000; Competition Act 1998 and E-commerce Directive and equivalent legislation;
8.2 The client warrants to Your Digital Heroes Ltd at all times that the material included in the Web Site without limitation: (a) is not in breach of the Intellectual Property rights of any third party; (b) is not obscene within the definition of the Obscene Publications Act 1959 or any other relevant provision, statute; (c )is not in breach of any code or provision of statute or common law or otherwise in force from time to time in relation to Advertising of Goods or Services; (d) contains no element of corporative advertising which is in breach of the Control of Misleading Advertisements (Amendment) Regulations 2000; (e) is not in breach of the Defamation Act 1996 or any other relevant provision; (f) does not contain any misleading price comparison in breach of Consumer Protection Act .

9. THIRD PARTY MATERIALS
9.1 Your Digital Heroes Ltd gives no warranty, representation or undertaking in relation to any third party materials or Works.
9.2 Prior to any selection, use or reproduction by the Client of Works, Your Digital Heroes Ltd shall use reasonable efforts to, on reasonable request, provide the Client with copies and evidence of such rights, clearances, permissions and licences as shall be necessary for the use of the Works by the Client.
9.3 Subject to the foregoing Your Digital Heroes Ltd shall have no liability to the Client whatsoever in relation to the Works and gives no warranty and makes no representation as to whether Works contain or are free from racist, defamatory, sexually explicit, inflamatory, obscene or other legally restricted material and explicitly excludes all and any liability in relation thereto.

10. RISK AND TITLE
10.1 Risk in any reports or information delivered to the Client will pass to the Client on dispatch and until payment in full has been received in cleared funds by Your Digital Heroes Ltd in respect of the Works, title in any physical products delivered to the Client shall remain with Your Digital Heroes Ltd.
10.2 The Client shall take out such insurance as shall be prudent against all risks usually incurred in respect of the Work whilst in its possession or control.

11. TERMINATION
11.1. Your Digital Heroes Ltd shall be entitled to immediately restrict, suspend or terminate the Works and the Client’s use of any Works and or terminate this Agreement upon the Client’s material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless the Client remedies such breach within 14 days of its occurrence.
11.2 Your Digital Heroes Ltd will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Your Digital Heroes Ltd including without limitation Internet outages, communications outages, fire, flood, war or act of God.
11.3 The Client may not unilaterally cancel its order of the Works or otherwise terminate this Agreement (except for material breach by Your Digital Heroes Ltd of a fundamental term of this Agreement) at any time without full payment of the Fees.
11.4 During the course of this Agreement and for a period of 12 months afterwards, the Client shall not solicit the staff of Your Digital Heroes Ltd or entice them to transfer their employment or services.
11.5 Either party may by written notice to the other terminate this agreement immediately if one of the following events occurs:
(a) either party goes into liquidation or makes any arrangement or composition with its creditors or is otherwise unable to pay its debts within the meaning of Section 123 Insolvency Act 1986;
(b) either party’s ability to carry out its obligations under this agreement is prevented or substantially interfered with for any reason for a period in excess of three months (whether or not within the control of such party) including without limitation by reason of any regular law decree or any act of state or any other action of a goveYour Digital Heroes Ltdent.

12. GENERAL
12.1 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
12.2 If any part of this Agreement is or becomes unenforceable, such part will at Your Digital Heroes Ltd’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
12.3 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
12.4 The Client shall not assign the benefit or burden of this Agreement without the prior written consent of Your Digital Heroes Ltd.
12.5 The UK shall be considered the place of first publication of any material on the internet.
12.6 No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
12.7 These Terms are made in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
12.8 Your Digital Heroes Ltd reserves the right to modify these terms and conditions at any time by posting revised terms and conditions on this web site.
12.9 Every effort is made by Your Digital Heroes Ltd to ensure that information presented by the service is accurate. Your Digital Heroes Ltd, its agents, representatives or employees cannot accept any liability arising as a result of incorrect information being provided by you.