Digital Agency Terms & Conditions
DEFINITIONS AND INTERPRETATION
In these terms and conditions, the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday, or public holiday) when banks in London are open for business.
‘Company’ means Hayward Zhu Ltd, trading as Pivotal Pathway - Digital Pathfinders, a company incorporated in England and Wales under company number 12231837, whose registered office is 14 Hollybank Estate, CV9 3ET.
‘Contract’ means the agreement between the Company and the Client for the supply of Services, governed by these Terms and the Order.
‘Client’ means the individual or business entity purchasing Services from the Company, as detailed in the Order.
‘Pathfinders’ refers to consultants appointed by the Company to guide and support Clients through the provision of Services, much like traditional Pathfinder who assist climbers on difficult mountain expeditions.
‘Sourced Consultant’ refers to any consultant or contractor sourced by the Company on behalf of the Client, either through direct employment by the Company or through a third-party arrangement.
‘Force Majeure Event’ refers to an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs, utility failures, natural disasters, war, or civil unrest.
‘Group Company’ refers to a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Intellectual Property Rights’ refers to all patents, copyrights, trademarks, domain names, and other intellectual property rights, whether registered or unregistered.
‘Order’ means the order placed by the Client through counter-signing the Company’s Order Confirmation form.
‘Order Confirmation Form’ refers to a form countersigned by the Client that, together with the relevant Quotation and Proposal documents, forms a binding contract.
‘Services’ refers to the services the Company will provide to the Client, as specified in the Order.
‘Specification’ refers to the description or specification of the Services in the Order.
‘Terms’ refers to these terms and conditions as updated by the Company from time to time.
‘VAT’ refers to value-added tax chargeable under English law for the time being.
Where these Terms use words in their singular form, they should also be read to include the plural form and vice versa. Where these Conditions use words denoting a specific gender, they should be read to include all genders and vice versa.
Headings in this document are for convenience only and do not affect the construction or interpretation of these Terms.
References to statutes or statutory provisions refer to those statutes or statutory provisions as amended or re-enacted. Such references also include any subordinate legislation made under that statute or statutory provision.
1. TERMS AND CONDITIONS
These Terms apply to all agreements concluded between the Company and the Client, excluding any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
These Terms and the Order may only be varied by express written agreement between the Company and the Client.
2. THE CONTRACT
The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client must ensure that the terms of the Order and any relevant Specification are complete and accurate.
The Order is deemed accepted when the Company issues written acceptance of the Order, or when the Company begins to provide the Services after receiving the Order—whichever happens first. At that point, the Contract comes into existence.
The Contract constitutes the entire agreement between the Company and the Client for the provision of the Services, in accordance with these Terms.
The Client acknowledges that it has not relied on any statement, promise, or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company, and any descriptions or illustrations in the Company’s catalogues or brochures, are issued for the sole purpose of giving an approximate idea of the Services described. They do not form part of the Contract or any other contract for the supply of Services.
A Quotation for the supply of Services given by the Company does not constitute an offer and is valid for 21 Business Days from its date of issue.
3. COMPANY OBLIGATIONS AND WARRANTIES
The Company warrants that it will provide the Services as stipulated in the Order, using reasonable care and skill, to conform in all material respects with the Specification.
The Company will use reasonable endeavours to meet performance dates specified in the Order. These dates are estimates only, and time shall not be of the essence for the provision of the Services. The Company is not liable for delays caused by a Force Majeure event or the Client’s failure to provide adequate delivery instructions or relevant materials.
The Company reserves the right to make changes to the Services as necessary to comply with applicable law.
The Company may subcontract or use a Group Company for the provision of Services, remaining liable for the performance of the Services as if carried out directly.
3.1 SOURCING CONSULTANTS
In cases where the Company sources third-party consultants for the Client’s project, the Client agrees that all payments for work done by these consultants will be made to the Company. The Company will include a sourcing fee for securing the consultant in the final billing. The Client further agrees that as long as the Company is trading, any future work they engage in with this consultant will be done through the Company, with relevant sourcing fees included.
The Client agrees not to directly engage with or employ any consultant sourced or recommended by the Company within two years of the last day of their contract or product delivery by the Company, without prior written agreement from the Company. If the Client hires such a consultant, they agree to pay the Company a recruitment fee of 30% of the annual salary offered to the consultant.
4. CLIENT’S OBLIGATIONS AND INDEMNITIES
The Client must provide assistance and technical information to the Company, as reasonably required, to facilitate the execution of an Order in line with estimated delivery dates or milestones. The Client bears sole responsibility for the accuracy of all information provided and warrants that its employees assisting in the execution of the Order have the necessary skills and authority.
The Client must approve materials provided under the Services (e.g., advertising copy, search terms, graphic material) promptly. Additionally, the Client must implement any required changes to websites, IT systems, or other infrastructures within agreed deadlines.
The Client must inform the Company immediately of changes to domain names, websites, or technical setups that may affect the Services.
If the Client fails to provide the required materials or actions within 15 Business Days of the Company’s request, the Company reserves the right to invoice for Services supplied and any remaining Services, even if undelivered.
The Client indemnifies the Company against all liabilities, costs, and expenses resulting from claims or proceedings arising from the Client’s advertising, website content, or provision of Services that infringe on third-party rights or breach confidentiality, contracts, or defamation laws.
The Client agrees to comply with all relevant rules, regulations, and laws relating to its use of the Services, including data protection laws, and indemnifies the Company for any third-party claims related to non-compliance.
5. PRICES
All prices are quoted in Pounds Sterling and exclude VAT and other duties unless stated otherwise. If new duties are introduced or existing duties changed after the conclusion of the Order, the Company may adjust prices accordingly.
The Client acknowledges that some Services may require the licensing of third-party Intellectual Property Rights. The Client may be required to enter into a licence agreement with such third parties.
While the Company endeavours to provide accurate cost estimates, it reserves the right to amend estimates in the event of errors or omissions.
6. PAYMENT
For one-off pre-agreed payments, the Client will accept a written Quotation document before works commence. The Company will raise an invoice for the agreed amount upon completion of the work.
For larger scale projects, a non-refundable deposit may be required before work begins. Should the Client abandon the project after work commences, the deposit will not be refunded. This clause protects the Company for time and resources already invested in the project.
Invoices issued by the Company must be paid within 14 Business Days of the invoice date. The invoice number must be referenced on all payments, and payments may be made by BACS, CHAPS, Cheque, or Bank Transfer.
The Client agrees to pay all amounts in full without any deductions or withholding, except as required by law. The Company may set off any amount owed to it by the Client against any amount payable by the Company to the Client.
In cases of late payment, interest will accrue on the unpaid invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at 2% above the base rate of Lloyds Bank Plc, whichever is higher.
A £10 administration fee will be charged per reminder for overdue payments, issued on a weekly basis once fees become overdue.
Late payment will be considered a material breach of the Contract, entitling the Company to cancel or affirm the Contract and assert the usual remedies for breach.
If the Client delays in assisting with the execution of the Order, the Company shall be entitled to charge for Services already rendered and any additional work required due to the delay.
If the Client subsequently requires the Company to complete the work within a shorter timeframe than specified in the Order, the Company reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
7. DELAYS AND COMPLAINTS
In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. If, after reasonable attempts, the Services still do not conform to the Contract, the Client shall be entitled to cancel the Order as per clause 13.2, provided the breach is material.
Complaints concerning delays or breaches of Contract shall be submitted immediately after the Client became or should have become aware of the issue. If the Client fails to notify the Company within 48 hours (unless the defect is inherently impossible to identify in that timeframe), the Client is deemed to have accepted the Services and is no longer entitled to assert remedies based on delays or breaches.
The Client acknowledges that certain Services rely on third-party goods and services (‘Third Party Services’). The Client agrees that the Company cannot provide any warranties regarding Third Party Services and is not liable for any delays or issues arising from them. The Third Party Services will be governed by their own terms and conditions, and any warranties from these providers must be assessed by the Client.
The Company’s responsibility for Third Party Services is limited to selecting providers with reasonable care and skill.
The Client’s exclusive remedies for late delivery or non-conforming Services are outlined in this clause. If the remedies are exhausted, the Client’s final remedy is limited to cancelling the Contract, and the Company’s sole liability will be to refund payments for non-conforming Services, subject to the limitations in clause 9.
8. LIABILITY
Except as expressly stated in this clause, the Company shall have no liability to the Client for any loss or damage arising from or in connection with the provision of the Services.
Without prejudice to the generality of clause 8.1, the Company shall not be liable for losses or damages in the following categories:
Any indirect or consequential loss, even if the Company was aware of the circumstances leading to such a loss.
Loss of profits, anticipated savings, business opportunities, or goodwill.
Loss of data.
Fraudulent clicks on the Client’s accounts managed by the Company.
The Company’s total liability under or in connection with the Contract, regardless of the cause of action, will not exceed the total sum invoiced for the Services.
9. OTHER LIMITATIONS OF LIABILITY
The Company shall not be liable for downtimes, interference in the form of hacking, viruses, disruptions, interruptions, faulty third-party software, search engines, or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
The Company shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of search engines.
The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
10. INTELLECTUAL PROPERTY RIGHTS
The copyright of proposals and related correspondence belongs to the Company. The Client agrees not to disclose the proposal and related correspondence to any third party without written permission from the Company.
The copyright of any document, or report, produced as part of the Services shall belong to the Company. The Client is granted a perpetual licence to use these documents for its own purposes. This licence is granted on condition that the Client shall not disclose the findings of such documents to any third party (other than associated companies, professional advisors or other authorised parties) without the prior written consent of the Company. If the Company gives such consent, then the Client must acknowledge the Company as the source of the information.
It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image, or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.
The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Order.
The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
The Intellectual Property Rights as mentioned in Clause 11.3 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
If the Company makes software, scripts, ASP services etc. available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.
The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Contract terminates. The Client agrees to send the Company it’s most recent logo or figure as and when it is amended from time to time.
11. CONFIDENTIALITY AND PERSONAL DATA
Each party agrees to keep the other party’s confidential information confidential and only disclose it to employees, agents, or subcontractors who need to know it for the purpose of the Contract.
The Client agrees to comply with its obligations under the Data Protection Act 1998 and indemnifies the Company against any losses arising from breaches of data protection laws by the Client.
During the term of the Contract and for a period ending 5 years from the date of its conclusion, the Company shall take the same care as the Company uses with it own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
The obligation in Clause 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
During the term of the Contract and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
Each party agrees to comply with its respective obligations under the Data Protection Act 1998.
The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 1998 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
12. TERM, TERMINATION AND ASSIGNMENT
Either party may terminate this agreement at any time by giving not less than 30 days' notice in writing to the other party.
Where the Contract provides for a retained fixed term monthly commitment for work (e.g. the first three months) it shall renew automatically for a further term of one month at the end of each month unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the next full month by giving the other party at least 30 days’ written notice to expire at the end of that Contract term.
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
Commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
Becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
The Company shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc, from websites without undue delay. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.
The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of the Company.
The Company shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
13. FORCE MAJEURE
Neither party shall be held liable for a Force Majeure Event.
If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
14. MISCELLANEOUS
The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
All notices must be in writing to Hayward Zhu Ltd, 14 Hollybank Estate, CV9 3ET, or such address as is advised by the Company.
15. ENTIRE AGREEMENT
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitutes the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
16. LAW AND JURISDICTION
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
GDPR STATEMENT
At Hayward Zhu Ltd, trading as Pivotal Pathway - Digital Pathfinders, we are committed to ensuring that your privacy is protected. Any personal data you provide to us will be handled in compliance with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
How We Use Your Data:
We collect and process personal data only for the purposes of providing our services, improving our offerings, and communicating with you regarding your project or contract.
Your data may be shared with third-party subcontractors and consultants, as required for project execution, but only on the condition that these parties are compliant with GDPR and agree to handle your data in a secure and responsible manner.
We will not sell, lease, or distribute your personal data to any third party without your explicit consent, unless required by law.
Your Rights:
You have the right to request access to the personal data we hold about you. You may also request corrections, deletions, or restrictions on how your data is used. Should you wish to exercise any of these rights or raise a concern about the way we handle your data, please contact us at Pathfinders+GDPR@pivotalpath.co.uk
Data Retention:
We will retain your personal data only for as long as necessary to fulfill the purposes we collected it for, including the satisfaction of legal, accounting, or reporting requirements.
For further details on how we handle personal data, please refer to our full Privacy Policy, or contact our Data Protection Officer at pathfinders+GDPR@pivotalpath.co.uk