Terms And Conditions
THIS AGREEMENT shall commence on a date as described in clause 2.2 below
AND IS MADE BETWEEN:
Big5 Network (“the Company”) whose registered office is at Rz-24A, Street No.9, Madanpuri, West Sagarpur, New Delhi, 110046. Our other client meet up address is RDB Boulevard, GP Block, Sector V, Bidhannagar, Kolkata, West Bengal 700091; and
You (“the Client”)
NOW IT IS HEREBY AGREED as follows:
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 7.
Business Day: a day other than a Saturday, Sunday, or public holiday in India when banks are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between Big5 Network and the Client for the supply of Services in accordance with these Conditions.
Client: the person or firm who purchases Services from Big5 Network.
Client Default: has the meaning set out in clause 4.2.
Deliverables: the specific product or services set out in the order confirmed in the email produced by Big5 Network for the Client.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights in any jurisdiction.
Order: the Client’s order for Services as set out in the Client’s purchase order form, the Client’s written acceptance of a quotation by Big5 Network, or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by Big5 Network to the Client as set out in the Specification.
Specification: the description or specification of the Services provided in writing by Big5 Network to the Client.
Data Protection Legislation: Data Protection Authority of India (DPA) relating to personal data and all other legislation and regulatory requirements in force from time to time that apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. Basis Of Contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Big5 Network and the Client issue written acceptance of the Order at which point and on this date, the Contract shall come into existence.
2.3 Any samples, drawings, descriptive matter, or advertising issued by Big5 Network, and any descriptions or illustrations contained in Big5 Network’s catalogs or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.5 Any quotation given shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.
3. Supply Of Services
Big5 Network agrees:
- To undertake and provide the Services in accordance with any brief and deadline agreed with the Client and detailed in clause 11.13 regarding the additional specifications for certain services.
- To manage and carry out the Services in an expert and diligent manner to provide his/her services to the best of his/her technical and creative skill and to be responsible for how the services are provided;
- To the best of his/her ability, promptly and faithfully meet the deliverables and deadlines agreed with the Client;
- Big5 Network is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between Big5 Network and the Client during his or her appointment;
- To use such suitably qualified and experienced personnel as he or she may from time to time deem appropriate;
- Big5 Network has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Client will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.
- To keep the Client informed of progress on the Services in which they are engaged and shall produce written reports on the same from time to time when so requested by the Client. While Big5 Network’s method of working is entirely their own and they are not subject to the control of the Client, they shall nevertheless comply with this and any other reasonable requests of the Client (or its clients) which do not impact upon Big5 Network’s method of working
- Big5 Network shall supply the Services to the Client in accordance with the Specification in all material respects.
- Big5 Network shall use all reasonable endeavors to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- Big5 Network shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and shall notify the Client in any such event.
- Big5 Network warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client’s Obligations
4.1 The Client shall:
(a) Ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) Co-operate with Big5 Network in all matters relating to the Services;
(c) Provide Big5 Network with such information and materials as Big5 Network may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(d) Obtain and maintain all necessary licenses, permissions, and consents which may be required before the date on which the Services are to start; and
(e) Comply with any additional obligations as set out in the terms and conditions specific to your service;
4.2 If Big5 Network’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation will result in Client Default, which means:
(a) Big5 Network shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Big5 Network’s performance of any of its obligations;
(b) Big5 Network shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Big5 Network’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse Big5 Network on written demand for any costs or losses sustained or incurred by Big5 Network arising directly or indirectly from the Client Default.
5. Charges And Payment
5.1 Condition 5.2 shall apply if the Services are to be provided on a time-and-materials basis. Condition 5.3 and condition 5.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 5 shall apply in either case.
5.2 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with Big5 Network’s standard daily fee rates as amended from time to time;
(b) Big5 Network’s standard daily fee rates (as published from time to time) are calculated on the basis of an eight-hour day worked between 10:00 AM and 6:00 PM on weekdays (excluding weekends and public holidays);
(c) Big5 Network shall be entitled to charge its standard daily fee rate (as published from time to time) plus 20% for each hour worked outside the hours referred to in condition 5.2 (b) on a pro-rata basis;
(d) Big5 Network shall invoice the Client monthly in arrear for its charges for time, expenses, and materials (together with GST where appropriate) for the month concerned, calculated as provided in this agreement. Each invoice shall set out the time spent and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
5.3 Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Specification. The total price shall be paid to Big5 Network in installments as set out in the Specification. All amounts due under this agreement shall be paid by the Client to Big5 Network in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law). Big5 Network shall invoice the Client for the charges at each relevant stage, together with expenses and the costs of materials (and GST, where appropriate), calculated as provided in condition 5.4.
5.4 Any fixed price contained in the Specification excludes:
(a) the cost of hotel, subsistence, traveling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by Big5 Network for the supply of the Services. Such expenses, materials, and third party services shall be invoiced by Big5 Network at cost; and
(b) GST, which Big5 Network shall add to its invoices at the appropriate rate.
5.5 The Client shall pay each invoice submitted to it by Big5 Network in full, and in cleared funds, within 7 days of receipt..
5.6 Without prejudice to any other right or remedy that Big5 Network may have, if the Client fails to pay on the due date Big5 Network may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b) suspend all Services until payment has been made in full.
5.7 Time for payment shall be of the essence of the Contract.
5.8 Big5 Network may, without prejudice to any other rights it may have, set off any liability of the Client to Big5 Network against any liability of Big5 Network to the Client.
6. Intellectual Property Rights
All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Big5 Network.
6.1 The Supplier grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free license during the term of the Contract to copy and modify the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables [in its business.
6.2 The Client shall not sub-license, assign or otherwise transfer the rights granted in this clause 6.
6.3 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.
7. Limitation Of Liability
The Client’s Attention Is Particularly Drawn To This Clause
7.1 Nothing in the Contract shall limit or exclude Big5 Network’s liability for:
(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;
(b) Fraud or fraudulent misrepresentation; or
(c) Any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, Big5 Network shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data, or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
7.3 Subject to clause 7.1, Big5 Network’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.
7.4 This clause 7 shall survive termination of the Contract.
8. DATA PROTECTION
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 8 is in addition to and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Supplier is the processor.
8.3 Without prejudice to the generality of Clause 8.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
8.4 Without prejudice to the generality of Clause 8.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) The process that personal data only on the documented written instructions of the Client unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
(b) Ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Client, to protect against unauthorized 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 unauthorized 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 (those measures may include, where appropriate, pseudonymizing and encrypting personal data, ensuring confidentiality, integrity, availability, and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
(e) 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;
(f) notify the Client without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 8 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
8.5 Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
9.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 1 months’ written notice.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) The 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 15 days of that party being notified in writing to do so;
(b) The 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), 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 ceases to carry on business or, if the step or action is taken in another jurisdiction, in connection with an analogous procedure in the relevant jurisdiction;
(c) The 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
(d) The other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfill its obligations under the Contract has been placed in jeopardy.
9.3 Without limiting its other rights or remedies, Big5 Network may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than  days after being notified to make such payment.
10. Consequences Of Termination
On termination of the Contract for any reason:
(a) The Client shall immediately pay to Big5 Network all of its outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Big5 Network shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) The Client shall return all of any Deliverables which have not been fully paid for.
(c) The accrued rights, remedies, obligations, and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) Clauses which expressly or by implication survive termination shall continue in full force and effect.
11.1 Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances, or causes beyond its reasonable control.
11.2 Assignment and other dealings
(a) Big5 Network may at any time assign, transfer, mortgage, charge, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of Big5 Network, assign, transfer, mortgage, charge, subcontract, declare a trust over, or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, 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, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement
11.5 This agreement 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.
Big5 Network may revise these terms and conditions at any time and shall notify the Client in any such event.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable.
(a) Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service.
(b) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include email.
11.10 Third parties
No one other than a party to the Contract shall have any right to enforce any of its terms.
12.1 Fees for the Services will be given in writing in the initial quote of the service(s) to be provided by Big5 Network.
12.2 Any further requirements not highlighted in the initial fee will be discussed with the Client and an additional/amended invoice will be created for the additional requirements.
12.3 Where necessary, GST will be added at the appropriate rate.
13. Invoices And Payment
13.1 Unless specifically agreed otherwise, invoices will be submitted MONTHLY by Big5 Network and payment is to be made within 7 days of the invoice. In the event that there are periods when there are no Services for Big5 Network to perform, Big5 Network shall still be paid on a retainer for these periods.
13.2 Direct Debit – We will contact you to set up your payments and will be set up on a monthly direct debit/card payment.
You will be charged on the 15th of each month (unless otherwise agreed).
13.3 We issue invoices electronically. Monthly invoices will be sent out in line with your payment date. All proposals are quoted in pound sterling and payments will be made at the equivalent conversion rate at the date the transfer is made.
13.4 You agree to pay all charges associated with international transfers of funds. The appropriate bank account details will be printed on our electronic invoice.
13.5 At any time while not in default under this contract, the Client may pay the outstanding balance then owing under this contract to us without further bonus or penalty.
13.6 If you do not make any payment to us by the due date we maintain the right to charge interest to you on the overdue amount at the rate of 5% a year. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
13.7 If you think an invoice is wrong please contact us promptly to let us know.
14. Late Or Missed Payments
We understand that sometimes things go wrong and payments may be missed or delayed which is why we have a payment resolution pathway. Please note clause 14 is also subject to interest and rates set out in clause 13.6.
Payment Resolution Pathway
14.1 We will allow up to two weeks for you to contact us with your difficulties to complete payment. We are understanding and will help as best we can to resolve the issue with you.
14.2 If we are unable to contact you or you fail to contact us before 15 days and where no resolution has been agreed or no payment made then your account will be suspended. We reserve the right to make a late payment charge of $25.00 + GST. If your account is suspended due to late payment then your account will not resume until the late payment(s) and also the late payment charge has been received.
14.3 If, after 30 days after the initial missed payment, you make no contact or we are unable to contact you and where no resolution has been agreed or payment made then:-
- During the agreed length of the contract– the payment plan and monthly contract will discontinue and full payment of the service and remaining payments due within the contract will be requested including any other charges and interest incurred. You will be sent your files on receipt of full payment.
- After the agreed length of the contract – Your account shall be permanently terminated with the final missed payment due immediately including any other charges and interest incurred. You will be sent your files on receipt of the missed payment(s).
14.4 If, after 45 days after the initial missed payment, you make no contact or we are unable to contact you and where no resolution has been agreed or no payment has been received then we will have no other solution but to move forward and ask our debt recovery agency for assistance. If they are unable to recover the full amount, your account will be closed and the files will remain with our company. All other digital marketing services that have not been paid for will also remain with our company (e.g. domain name, social media business page). If payment collection is successful then your files and other resources will be sent to you on receipt of payment(s). You may also be subject to a compensation charge.
Big5 Network shall be entitled to be reimbursed by the Client for all out of pocket expenses entirely, exclusively, and properly incurred in the performance of the Services subject to Big5 Network providing the Client with an invoice, vouchers, receipts, or other evidence of actual payment of such expenses and subject to the arrangement being specifically agreed in advance by the Client to Big5 Network.
16. Force Majeure
16.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused from the performance for so long as such cause of prevention or delay shall continue;
16.2 For the purpose of this Agreement ‘force majeure shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions, or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:
16.2.1 Strikes, lockouts, or other industrial action;
16.2.2 Terrorism, civil commotion, riot, invasion, war threat, or preparation for war;
16.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather, or other natural physical disasters;
16.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
16.2.5 Political interference with normal operations.