These terms and conditions govern your use of our website. Please read the terms in full before you use this Website. If you do not accept these terms, please do not use this Website.
Using the Website implies that you accept these terms. We do occasionally update these terms so please refer back to them in the future.
1.1 In this Agreement: “Agreement” means these terms and conditions together with any signed Proposal(s) or Price List (whichever is applicable); “the Client” means the person or organisation to whom Splash has agreed to provide the Services; “Deliverable(s)” means any document, data, software or other deliverable item that Splash has agreed to supply to the Client as part of the Services; “Fees” means the fees payable to Splash for the Services as agreed in the Proposal or Price List (whichever is applicable); “Intellectual Property Rights” includes the following whether registered or unregistered copyrights, database rights, trademarks, service marks, design rights (whether registered or unregistered) trade secrets, know how, patents, software and source code, model rights, contact lists and all other similar proprietary rights; “Materials” means those Deliverables created by Splash or commissioned by Splash from a third party; “Price List” means the price list as agreed by Splash with the Client from time to time; “Proposal” means any agreement by Splash to provide Services and the agreement by the Client to pay the Fees in accordance with this Agreement and any other terms recorded in any Proposal; “Service(s)” means the services Splash has agreed to provide to the Client, whether as described in the Proposal or otherwise; “Specification” means the functional or technical description of the Deliverables set out in any Proposal; “Splash” means SPLASH WORLDWIDE Limited, (Company Number 05132074) whose registered office is at Seebeck House, 1 Seebeck Place, Knowlhill, Milton Keynes. MK5 8FR and whose business address is at Paramount Building, 206-212 St John Street, London, EC1V 4JY; “Term” means the term of this Agreement; “Third Party Materials” means Deliverables which are owned by or are licensed by a third party.
2.1 Subject to these terms and conditions, Splash will from time to time during the Term perform the Services. Details of the Services to be performed shall be agreed with the Client and where applicable recorded in the Proposal. Any agreement by Splash to perform the Services shall be deemed to incorporate these terms and conditions and Splash will only perform the Services on acceptance of these terms and conditions by the Client.
2.2 Splash shall perform the Services. Splash shall be solely responsible for the selection and allocation of personnel to perform the Services and Splash may appoint third parties to perform any part or all of the Services.
3. ACCEPTANCE OF DELIVERABLES
3.1 Subject to Clause 3.2, acceptance of Deliverables by the Client shall occur five (5) business days from delivery to the Client. The Client agrees that it may only reject Deliverables if they fail to materially comply with the Specification and subject to Splash receiving a written notice of rejection within five (5) business days from delivery.
3.2 Notwithstanding any other provision of this Agreement, if the Client uses a Deliverable in productive use, or otherwise commercially exploits a Deliverable, such Deliverable shall be deemed irrevocably accepted by the Client.
4. THE CLIENT’S OBLIGATIONS
4.1 The Client shall be responsible for the Specification for the Services. The Client agrees to provide promptly or in accordance with any Proposal all information and other materials and carry out all such actions that Splash may reasonably require to facilitate the performance of the Services.
4.2 Splash’s ability to perform the Services may be dependent on the Client fulfilling its obligations. To the extent that the Client does not fulfil its obligations under this Agreement then (without prejudice to Splash’s rights and remedies) Splash will be relieved of its obligations to the Client to the extent that Splash is prevented from performing the Services in accordance with this Agreement and Splash shall not be liable for any costs, charges or losses (as defined in clause 8.4 of this Agreement) sustained by the Client arising directly or indirectly from any failure of the Client to fulfil its obligations under this Agreement.
4.3 Any claim by the Client which is based on any alleged defect, error or omission in the quality of the Services provided or their failure to correspond with the Specification shall be notified to Splash in writing within fourteen (14) business days from the date of delivery. If the Client fails to notify Splash within fourteen (14) business days, Splash will have no liability and the Client will be bound to pay all Fees that may be due as if the Services had been delivered to the Client.
4.4 Where a valid claim is notified to Splash under this Agreement, Splash will be entitled at its sole discretion: (a) to re-perform the Services to rectify any defect, error or omission (or the part in question); or (b) to refund to the Client the Fees for the Services or a proportion thereof provided that Splash shall then have no further liability to the Client.
5. FEES AND EXPENSES
5.1 The Client shall pay Splash the Fees calculated and payable in accordance with the Proposal or the Price List, which shall be payable without any right of set-off or abatement. Fees are exclusive of expenses (including travel, accommodation and subsistence expenses) incurred by Splash and incidental costs which shall be payable by the Client.
5.2 Unless otherwise stated all invoices shall be payable in full within 30 days of the invoice date.
5.3 All sums referred to in this Agreement exclude VAT (unless otherwise stated) which shall (if applicable) be payable by the Client at the rate prevailing from time to time.
5.4 If the Client is overdue with any payment hereunder then without prejudice to Splash’s other rights or remedies, Splash reserves the right at its sole discretion to: (a) suspend provision of the Services or part thereof, or (b) cancel the provision of the Services or part thereof.
5.5 Splash reserves the right to obtain credit insurance in respect of the Client and in the event Splash is unable to obtain such insurance, Splash reserves the right to revise its terms of payment and if necessary ask for payment in advance or suitable financial guarantees from the Client. Should the Client not agree to such alternative payment terms or other conditions within five (5) business days of such request, Splash shall be entitled forthwith to terminate this Agreement and any or all outstanding Services.
5.6 Where the Services include media planning and buying, the Client shall pay all media charges in advance and based on the current published rates for advertising in all relevant online media unless otherwise stated in any Proposal. Such Services supplied to the Client shall be subject to the terms and conditions of the agreement between Splash and the applicable third-party media space provider.
5.7 In relation to Services including media planning and buying, Splash shall submit to the Client for its specific approval media schedules for time, space and other facilities and the Client’s approval of such schedules will be Splash’s authority to make reservations and contracts for time, space and other facilities.
5.8 Splash shall add to the Fees any applicable levies payable in respect of the funding of any UK self-regulatory system in respect of advertising to all relevant invoices submitted to the Client and the parties agree that the Client shall be solely liable for the payment of such levy.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Whilst nothing herein shall interfere with or otherwise affect the Client’s Intellectual Property Rights, the Client acknowledges that all Intellectual Property Rights in the Materials shall (save where otherwise agreed by the parties in writing) be owned by and remain the property of and vested in Splash. Following payment in full of all invoices in relation to such Materials, Splash insofar as it is able to do so grants to the Client with effect from delivery a non-exclusive, non-assignable, and exploit the Materials in connection with the Deliverables.
6.2 The Client acknowledges that ownership of any Third-Party Materials shall remain vested in Splash’s licensors. Splash insofar as it is able to do so grants to the Client upon payment in full of all invoices in relation to such Third-Party Materials a non-exclusive, non-assignable tow1 use the Third-Party Materials in connection with the Deliverables.
7. DATA PROTECTION
7.1 In this clause, “data controller”, “data processor”, “data subject” and “personal data” shall have the meanings prescribed under the DPA.
7.2 The Client and Splash acknowledge that for the purposes of the DPA, the Client is the data controller and Splash is the data processor in respect of any personal data.
7.3 Where Splash processes personal data on behalf of the Client, then Splash shall process such data solely in accordance with the Client’s instructions from time to time and shall not process the personal data for any purpose other than those expressly authorised by the Client.
7.4 Splash shall take reasonable steps to ensure the reliability of all its employees who have access to the personal data.
7.5 Each party warrants to the other that it will process the personal data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.6 Splash warrants that, having regard to the state of technological development and the cost of implementing any measures, it will (a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected; and (b) take reasonable steps to ensure compliance with those measures.
7.7 The Client acknowledges that Splash is reliant on the Client for direction as to the extent to which Splash is entitled to use and process the personal data. Consequently, Splash will not be liable for any claim brought by a data subject arising from any action or omission by Splash, to the extent that such action or omission resulted directly from the Client’s instructions.
7.8 Splash may authorise a third party sub-contractor to process the personal data provided that the sub-contractor’s contract is on terms which are substantially the same as those set out in this Agreement and terminates automatically on termination of this Agreement for any reason.
8. WARRANTIES AND LIABILITY
8.1 The express terms of this Agreement are in lieu of any and all of Splash’s warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom or otherwise, all of which are excluded to the fullest extent permitted by law.
8.2 The Client warrants that all materials and information provided to Splash will be accurate and complete in all material respects and their use by Splash in accordance with this Agreement shall not infringe the Intellectual Property Rights of any third party and shall comply with all applicable laws and regulations.
8.3 Subject to Clauses 8.4 and 8.5 Splash’s maximum aggregate liability under or in connection with this Agreement shall not exceed the total fees payable to Splash in respect of the Services giving rise to the liability.
8.4 Subject to Clause 8.5, Splash shall not be liable for loss of actual or anticipated income or profits, loss of goodwill or reputation, loss of anticipated savings, loss of benefit, loss of data or for any indirect or consequential losses or damage howsoever arising whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
8.5 Nothing in this Agreement excludes or in any way limits Splash’s liability for fraud, death or personal injury caused by negligence or any other liability to the extent the same may not be excluded or limited by law.
8.6 Splash shall not be liable for any delay in performing or failure to perform the Services to the extent that such delay or failure results from any cause or circumstance beyond Splash’s reasonable control (“event of force majeure”). If any event of force majeure occurs the date for performance of the Services will be postponed for as long as is made necessary by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days either party may terminate this Agreement or cancel the affected Services immediately on written notice to the other party.
9.1 The Client acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it shall receive or otherwise become aware of information relating to Splash, its customers, businesses, business plans or affairs, which information is proprietary and confidential to Splash (“Confidential Information”).
9.2 Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt.
9.3 The Client undertakes to maintain the confidentiality of the Confidential Information at all times and to keep the Confidential Information secure and protected against theft, damage, loss or unauthorised access. The Client shall not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of Splash, use, disclose, exploit, copy or modify any of the Confidential Information, or authorise or permit any third party to do the same.
9.4 The Client shall not be in breach of this Clause 9 if it discloses the Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority.
10. TERM AND TERMINATION
10.1 This Agreement shall be effective from either the approval of any Proposal by the Client or an order for Services by the Client and subject to Clause 10 shall continue for an initial period of twelve months or such other period as may be agreed by the parties in writing or in any Proposal (“Initial Period”) and shall continue thereafter unless or until terminated by either party giving no less than 3 months’ notice (or such other notice period agreed by the parties in writing or in any Proposal), such notice to expire on or after the end of the Initial Period.
10.2 Each Service(s) shall commence on the date set out in any Proposal or the receipt of an order for Services and shall, subject to earlier termination in accordance with this Agreement, continue for the duration agreed by the parties in writing or in any Proposal.
10.3 Termination of a or any Proposal in accordance with its terms shall not serve to terminate this Agreement which shall continue in full force and effect. Subject to Clause 10.4, this Agreement shall remain in effect for so long as a Proposal shall remain in effect.
10.4 Either party may terminate this Agreement or a Proposal immediately on giving written notice to the other party in the event of: (a) any material breach by the other party, which breach is not remedied (if remediable) within 30 days after receipt by the party in default of a written notice specifying the nature of the breach and requiring the same to be remedied; or (b) the other party becoming insolvent, entering into liquidation, having an administrator appointed, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of debt.
10.5 Upon termination of this Agreement for any reason: (a) the Client shall immediately pay Splash all Fees for Services effected up to and including the effective date of termination; and (b) provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
11.1 The Client, may not during the term of this Agreement (or for 12 months’ thereafter), solicit or induce or cause others to solicit or induce any employee, agent or sub-contractor of Splash who during the terms of this Agreement or prior to termination had been directly involved in the provision or receipt of the Services, to terminate their employment or engagement with Splash.
12.1 This Agreement together with any Proposal(s) or Price List (whichever is applicable) constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. The Client acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) made by or on behalf of Splash other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
12.2 The parties are independent contractors dealing at arm’s length. Nothing in this Agreement shall create any relationship as partners, joint venturers’, agents, employees or representatives of the other. Subject to Splash’s express obligations in respect of the Services, neither party has authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the other party without that party’s express prior approval in writing, or hold itself out as having authority to do the same.
12.3 Splash shall be entitled to assign, transfer, charge or otherwise dispose of any of its rights or obligations under this Agreement.
12.4 The Client shall not be entitled to assign, transfer, charge or otherwise dispose of any of its rights or obligations under this Agreement.
12.5 Any valid alteration to or variation of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer.
12.6 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable laws, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
12.7 No failure or delay by Splash in exercising any right, power or remedy with respect of any of its rights hereunder shall operate as a waiver thereof.
12.8 All notices, which are required to be given hereunder, shall be in writing, which shall include email, and shall be sent to the address of the recipient set out in the Proposal. Any such notice may be delivered by hand, by first class pre-paid letter, by facsimile or by email and shall be deemed to have been served by hand when delivered if by first class post 48 hours after posting if by facsimile when delivery confirmation is received and if by email on the next working day.
12.9 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
12.10 This Agreement shall be governed by the Laws of England and the parties submit to the exclusive jurisdiction of the English Courts to deal with any dispute arising out of or in connection with this Agreement.