Terms and Conditions



1.1 Terms defined in this agreement shall have the meaning ascribed to them in clause 18.
1.2 The contract between the Client and TS is comprised of:
(a) these terms and conditions; and
(b) any Order Form,
together the “Agreement”.


Subject to these terms and conditions, TS will, during the Term, perform the Services described in the Order Form by applying such resources and reasonable skill as may be reasonably necessary for its performance of the Services, and TS shall be solely responsible for the selection and allocation of personnel to perform the Services.


3.1 The Client shall:
(a) be responsible for specifying fully and clearly its requirements in respect of the Services;
(b) promptly provide all information and other materials and carry out all such actions that TS may reasonably require to enable TS to perform the Services;
(c) promptly advise TS if any of their details as described on any Order Form change; and
(d) obtain and maintain all necessary licences, permissions and consents which may be required to enable TS to provide the Services.
3.2 TS’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. Therefore, to the extent that the Client does not fulfil its obligations under this Agreement, TS shall (without prejudice to TS’s rights and remedies) be relieved of its obligations to the Client to the extent that TS is prevented from performing the Services in accordance with this Agreement.


During the Term, TS shall be the Client’s exclusive provider of the Services (or services substantially similar to the Services) and the Client agrees not to engage any other person to provide any services that are the same as or substantially similar to the Services.


5.1 If an Order Form does not set out an alternative acceptance process, the acceptance by the Client of any document, data, software, or other deliverable items that TS has agreed to supply to the Client as part of the supply of the Services (each a Deliverable) shall, subject to clause 5.2, be deemed to occur on the earliest of the following dates (being the Acceptance Date):
(a) for a non-software-related Deliverable, the 5 Business Days after the date of delivery of that Deliverable to the Client; or
(b) for a software-related Deliverable, 10 Business Days after delivery of that Deliverable to the Client; or
(c) the date on which the client exploits a Deliverable commercially, which includes using the Deliverable for a productive or live use;
5.2 Acceptance shall not be deemed to have occurred if, before the Acceptance Date, TS receives a valid written notice from the Client that the Deliverable does not materially comply with its functional or technical description as set out in the Order Form or as otherwise subsequently agreed between TS and the Client (the Spec).


6.1 Payments: The Client shall pay to TS, without any right of abatement, withholding or set-off:
(a) the fees for the Services, as set out in the Order Form (the Fees); and
(b) all expenses (including travel, accommodation, subsistence expenses and incidental costs) incurred by TS staff in their performance of the Services.
6.2 Payment time: All invoices shall be payable in full in accordance with either the payment term stated on the Order Form, or if no such term is stated on the Order Form, within 30 days of the date of the invoice.
6.3 Currency: all payments to be made to TS under this agreement shall be in pounds sterling.
6.4 Delivery of invoices: Invoices shall be sent to the client by email, unless the Client otherwise requests in writing.
6.5 VAT: 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.
6.6 Levies: TS shall charge the Client, and the Client shall pay for any applicable levies payable in respect of the funding of any UK self-regulatory system in respect of advertising.
6.7 Credit Insurance: TS reserves the right to obtain credit insurance in respect of the Client and in the event, TS is unable to obtain such insurance, TS may revise its terms of payment and may (for example) ask for payment in advance or for suitable guarantees from the Client before being obliged to provide Services. Should the Client not agree to such alternative payment terms within 14 days of such request, TS shall be entitled, by serving written notice on the Client, to:
(a) terminate this Agreement with immediate effect; and
(b) Immediately cease performance of any Services which it may have began performing.
6.8 Late Payment: If the Client fails to pay any invoice by its due date, then without prejudice to TS’s other rights or remedies, TS may (and reserves the right to):
(a) suspend the provision of the Services or part thereof until the outstanding sums (and any accrued interest) are paid in full;
(b) charge the Client interest on the overdue sum from the due date to the date that the overdue sum is paid, at an annual rate of 4% a year above the Bank of England’s base rate from time to time (or at 4% if at any time the base rate is below 0%), and such interest shall accrue daily based on a year of 365 days;
(c) terminate the Agreement in accordance with clause 13.
6.9 Media Planning & Buying: If the Services to be performed include Media Planning and Buying:
(a) the Client shall pay the charges incurred by TS in carrying out the Media Planning and Buying, which shall, unless otherwise stated on the Order Form, be the third-party media space owner’s current published rates for advertising (the MPB Charges);
(b) the Client may request proof from TS that TS has incurred the MPB charges;
(c) the performance of Media Planning and Buying shall be subject to the terms and conditions of the agreement between TS and the applicable third-party media space owner; and
(d) Prior to incurring any MPB Charges, TS shall submit to the Client for the Client’s approval, one or more media schedules or estimates for time, space and other facilities. The Client’s approval of such schedules and estimates will be TS’s authority to make reservations and contracts for space-time and other facilities.


7.1 The Services to be provided may be provided by TS pursuant to a specific Client project or initiative (the Project Services).
7.2 Each Project shall commence on any date set out for that purpose in the relevant Order Form specifying that Project and shall, subject to earlier termination in accordance with this Agreement, continue for the duration set out in the Order Form.


8.1 All IP Rights in any Deliverable or arising out of or in connection with the performance by TS of the Services (other than the IP Rights in any materials, databases, resources, or information provided by the Client) shall be owned by TS.
8.2 TS grants to the Client, or shall procure the grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free and perpetual licence to commercially exploit any Deliverable for the purpose of receiving and using the Deliverable in the Client’s business.
8.3 The Client grants TS a fully paid-up, worldwide, non-exclusive, royalty-free and perpetual licence to copy and modify any materials, databases, resources, or information provided by the Client for the purposes of providing the Services to the Client.


9.1 The Client warrants that all materials and information that it may provide to TS, shall, at the time it is provided, be accurate and complete in all material respects and, so far as the Client is aware, the use of the materials and information by TS in its performance of the Services shall not infringe the IP Rights of any third party.


10.1 In the course of providing the Services to the Client, TS shall Process the Personal Data of the Client’s employees and customers for the purpose of providing those Services to the Client. The Processing of the Personal Data shall be carried out for the duration of the provision of the Services.
10.2 At all times and for all purposes in relation to any Personal Data Processed in accordance with this Agreement, the Client shall be the Controller and TS shall be the Processor.
10.3 The Client, as Controller of the Personal Data, shall remain legally responsible for Processing carried out by TS
10.4 The Client shall ensure that Personal Data is Processed lawfully, fairly and transparently in accordance with the principle of the General Data Protection Regulations.
10.5 The Client shall not instruct the Processor to Process Personal Data on their behalf under this Agreement where the Client does not have a secure basis in law to Process that Personal Data.
10.6 TS shall Process the Personal Data only in accordance with the Client’s documented instructions and in accordance with the General Data Protection Regulation and this Agreement.
10.7 TS shall have in place appropriate technical and organisational security measures that protect the Personal Data it Processes on behalf of the Client from unauthorised or unlawful Processing, accidental loss, destruction or damage. TS will assist the Client in ensuring compliance with the obligations in relation to security of Personal Data, the notification of Personal Data breaches and data protection impact assessments.
10.8 TS shall have in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to requests for exercising the data subject’s rights.
10.9 TS shall ensure that that anybody authorised to Process the Personal Data has committed themselves to confidentiality.
10.10 TS shall not share the Personal Data with any third party without the prior written permission of the Client or Process Personal Data in any way or for any purpose that has not been instructed and authorised by the Client.
10.11 TS shall not transfer Personal Data on to any territory outside the European Economic Area unless there are appropriate safeguards in respect of the transfer.
10.12 TS shall make available to the Client all information necessary to demonstrate compliance with the obligations laid down in the points above and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client.
10.13 TS will inform the Client immediately upon becoming aware an instruction may infringe the General Data Protection Regulation or other data protection law of the EU or a member state.
10.14 TS shall, at the choice of the Client, delete or return all the personal data to the Client after the end of the provision of Services relating to Processing, and delete any existing copies.
10.15 TS shall notify the Client without undue delay after becoming aware of a security incident relating to any Personal Data Processed on behalf of the Client.
10.16 At the Client’s request, TS shall provide the Client with a copy of all Personal Data held by it in format and on media reasonably specified by the Client.
10.17 The Client acknowledges that TS is reliant on the Client for direction as to the extent to which TS is entitled to use and Process the Personal Data. Consequently, TS will not be liable for any claim brought by a Data Subject arising from any action or omission by TS, to the extent that such action or omission resulted directly from the Client’s instructions.


11.1 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Nothing in this clause 11 shall limit the Client’s payment obligations under this Agreement.
11.3 Subject clause 11.2 (No limitation of customer’s payment obligations) and clause 11.1 (Liabilities which cannot legally be limited), this clause 11.2 sets out the types of loss that are wholly excluded:
(a) loss of revenue;
(b) loss of actual or anticipated profits;
(c) loss of agreements or contracts;
(d) loss of the use of money;
(e) loss of anticipated savings;
(f) loss of business;
(g) loss of opportunity;
(h) loss of or damage to goodwill;
(i) loss of reputation;
(j) ex gratia payments;
(k) loss of, damage to or corruption of data;
(l) any indirect or consequential loss; or
(m) any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfil its obligations under this Agreement.
11.4 Subject to clause 11.1 (Liabilities which cannot legally be limited), TS’s total liability to the Client for all any costs, charges or losses sustained by the Client shall not exceed 110% of the total Fees received by TS from the Client in the twelve-month period commencing on the date of the Client’s claim for such costs, charges or losses.
11.5 References to liability or liabilities in this clause 11 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.6 This clause 11 shall survive termination of the Agreement.


12.1 Confidential Information: Each of the TS and the Client acknowledges that, whether by virtue of and during this Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (Confidential Information).
12.2 Obligations: Each of the TS and Client undertakes to always maintain the confidentiality of the other’s Confidential Information and to keep the other’s Confidential Information secure and protected against theft, damage, loss or unauthorised access. Neither TS nor Client shall at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
12.3 Exclusions (1): 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 hereunder.
12.4 Exclusions (2): Neither TS nor Client shall be in breach of this Clause 12 if it discloses the other’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.


13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract:
(a) by giving the other party 30 days’ written notice; or
(b) in accordance with clause 16.4(d).
13.2 Without affecting any other right or remedy available to it, TS may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so;
(b) the Client fails to pay any amount due under the Agreement on the due date for payment;
(c) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13.3 Without affecting any other right or remedy available to it, TS may suspend the supply of Services under the Agreement or any other contract between the Client and TS if:
(a) the Client fails to pay any amount due under the Agreement on the due date for payment;
(b) TS reasonably believes that the Client is about to become subject to any of the events listed in clause 13.2(c).


14.1 On termination of the Contract:
(a) the Client shall immediately pay to TS all of TS’ outstanding unpaid invoices and any accrued interest, and, in respect of Services supplied but for which no invoice has been submitted, TS shall submit an invoice, which shall be payable by the Client immediately on receipt; and
(b) the Client shall return to TS any Deliverables which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for there safe keeping and will not use them for any purpose not connected with the Agreement.


15.1 The Client agrees that, without the prior written consent of TS, neither it nor any of its Group shall directly or indirectly, whether by itself, its employees or agents and whether on its own behalf or on behalf of any other person or otherwise howsoever:
(a) at any time during the Term (or for 6 months thereafter) solicit or entice away or seek to solicit or entice away from TS or any company in TS’s Group any person who at the time of such solicitation, enticement or seeking was during the Term (or for 6 months thereafter or during any part of the period of 3 months immediately preceding the Term) an employee of TS or any company in TS’s Group, and whether or not that person would commit any breach of his contract of employment by reason of leaving the service of TS or any company in TS’s Group; or
(b) at any time during the Term (or for 12 months thereafter) employ or otherwise engage any person who during the Term (or for 12 months thereafter or during any part of the period of 3 months immediately preceding the Term) was employed by TS or any company in TS’s Group.


16.1 Notices: Except as expressly stated to the contrary in the Agreement, all notices provided under the Agreement shall be: (i) in writing; (ii) given or shall be served by hand delivery, by letter sent by courier service which records receipt; and (iii) sent or delivered to the intended recipient’s address given in the Order Form or otherwise in this Agreement (or such other address as may from time to time be notified for this purpose). Any notice served by hand shall be deemed to have been served on delivery, any notice served by courier shall be deemed to have been served two Business Days after posting. In proving service, it shall be sufficient to prove that the notice was properly addressed and delivered or posted (as the case may be).
16.2 Entire Agreement: The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to the Agreement except as expressly stated in the Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Agreement (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party’s ability to perform the Agreement) and that party’s only remedies shall be for breach of contract as provided in the Agreement.
16.3 Variation: Any variation, modification or amendment of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer but may also take effect by the parties’ exchange of emails indicating their agreement to implement such variations, modifications or amendments and the date(s) on which such revisions shall become effective.
16.4 Force Majeure:
(a) In this Agreement, Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
i. acts of God, flood, drought, earthquake or other natural disaster;
ii. epidemic or pandemic;
iii. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
iv. nuclear, chemical or biological contamination or sonic boom;
v. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
vi. collapse of buildings, fire, explosion or accident;
vii. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
viii. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
ix. interruption or failure of utility service.
(b) Provided it has complied with clause 16.4(c), if TS is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event TS shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
(c) TS shall:
i. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
ii. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
(d) If the Force Majeure Event prevails for a continuous period of more than two months, either party may terminate this Agreement by giving 14 days’ written notice to all the other party. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
16.5 Waiver: TS’s failure or delay to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect TS’s right later to enforce or to exercise it.
16.6 Third-Party Rights: No person (including, for the avoidance of doubt, any third party to whom any or all rights and/or obligations under the Agreement are assigned, transferred or novated in accordance with the terms hereof or otherwise by written agreement of the parties) who is not a party to the Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to the Agreement its assent to any such term.
16.7 Severability: If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
16.8 Equitable Relief: The parties acknowledge and agree that a breach by the Client of any of the terms of the Agreement may result in irreparable and continuing damage to TS for which there may or will be no adequate remedy at law and that in the event of such breach, TS shall be entitled to apply for injunctive relief and/or a decree for specific performance and such other and further relief as may be appropriate.
16.9 Assignment and Delegation: The Client may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with the Agreement or any right, benefit, or interest under it nor transfer, novate (or sub-contract any of the Client’s obligations under it) without the prior written consent of TS. Subject to the foregoing, the rights, and obligations of each party in the Agreement shall inure to the benefit of the respective successors of the parties hereto. TS may appoint sub-contractors to perform any of the Services provided that TS will remain responsible to the Client for the full and complete discharge of all such obligations.
16.10 Independence. The Parties are independent contractors dealing at arm’s length. Nothing in this Agreement shall create any relationship as partners, joint ventures, agent, employee, or representative of the other. Subject to TS’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.


17.1 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales
17.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

The following definitions and rules of interpretation shall apply in these standard terms and conditions:

18.1 Definitions:
Business Day: a day, other than a Saturday, Sunday, public holiday in England, when banks in London are open for business.
Client: the person or organisation named on the Order Form to whom TS has agreed to provide the Services.
Controller: has the meaning set out in Article 4(7) of the General Data Protection Regulation.
Data Subject: means an individual who is the subject of Personal Data.
Group: means, in relation to either the Client or TS (each a “Company”) any entity which Controls, is directly or indirectly Controlled by, or is in common Control with the Company.
Order Form: an order form for Services signed by representatives of the Client and TS.
Personal Data: has the meaning set out in Article 4(1) of the General Data Protection Regulation but only in respect of personal data, or any part of such personal data, in relation to which the Client is the Data Controller and in relation to which the Supplier is providing services under this Agreement.
Project: any particular project scope agreed between TS and the Client pursuant to which TS will perform the Services.
Processing: has the meaning set out in Article 4(2) of the General Data Protection Regulation and cognate terms shall be construed accordingly.
Processor: has the meaning set out in Article 4(8) of the General Data Protection Regulation.
Services: the services which TS has agreed to provide to the Client, as named/listed in any Order Form.
Term: the period commencing on the date the contract for services between the Client and TS has been entered into, and ending on the date the same contract is terminated by howsoever means.
TS: Talking Stick Digital Ltd, a company registered in England and Wales with company number 13333443 whose registered office is at Mallard Court, Bristol Road, Bridgwater, TA64RN.
18.2 Interpretation:
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written does not include fax.

V003 (FEBRUARY 2024)