Terms & Conditions

Terms & Conditions

BACKGROUND:

CW Marketing hereinafter known as “The Service Provider” provides marketing services to business clients. These Terms and Conditions shall apply to the provision of services by the Service Provider to its clients.

  1. Definitions and Interpretation
    1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

“Proposal” means the agreement entered into by the Service Provider and the Client which shall govern provision of the Services;
“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the UK
“Client” means the party procuring the Services from the Service Provider who shall be identified in the Agreement;
“Commencement Date” means the date on which provision of the Services will commence, as defined in the Agreement;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Fees” means any and all sums due under the Agreement from the Client to the Service Provider, as specified in the Agreement;
“Services” means the services to be provided by the Service Provider to the Client in accordance with the Agreement, as fully defined in the Agreement
“Term” means the term of the Agreement as defined therein.

 

    1. Unless the context otherwise requires, each reference in these Terms and Conditions to:
      1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
      2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
      3. “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
      4. a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
      5. a “Party” or the “Parties” refer to the parties to the Agreement.
    2. Words imparting the singular number shall include the plural and vice versa.
    3. References to any gender shall include the other gender.
    4. References to persons shall include corporations.
  1. Acceptance of the Proposal
    1. The Service Provider shall provide a Proposal to the Client for each project. The Proposal forms part of the agreement.
    2. The Client assumes sole responsibility for ensuring that the Service described in the Proposal meets its requirements before signing the Proposal.
    3. The Client shall return the signed Proposal / Agreement by letter, email or in person. Upon receipt of this order acknowledgement, the agreement will begin.
    4. By purchasing the Service, the Client acknowledges that it has read these Terms and Conditions, understands them and agrees to be bound by them.
  2. Provision of the Services
    1. With effect from the Commencement Date, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client.
    2. The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the marketing sector in the United Kingdom.
    3. The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Agreement.
    4. The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
    5. The Service Provider may, in relation to certain specified matters related to the Services, act on the Client’s behalf.  Such matters shall not be set out in the Agreement but shall be agreed in writing between the Parties as they arise from time to time.
    6. The Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
  3. Client’s Obligations
    1. The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services.
    2. The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services.  Any such instructions should be compatible with the specification of the Services provided in the Agreement.
    3. In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.  
    4. If any consents, licences or other permissions are needed from any third parties it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
    5. Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of the Agreement shall not be the responsibility or fault of the Service Provider.
  4. Fees, Payment and Records
    1. For printing and physical goods, unless otherwise stated in the Proposal, the Purchase Price shall be payable to the Service Provider on receipt of the order acknowledgement.
    2. For retained work billed monthly, unless otherwise stated in the Proposal, the agreed monthly element of the Purchase Price shall be payable in full to the Service Provider within 30 days of the invoice date.
    3. For single project work such as website development, brochure design, SEO etcetera unless otherwise stated in the Proposal, the Purchase Price shall be payable to the Service Provider as follows:-
      1. 25% non-refundable deposit payable on receipt of the signed proposal/agreement; and
      2. 25% upon the approval of final design concept or fulfilment of stage 2 of the project
      3. 50% upon final completion / delivery / sign-off. 
    4. Prior to each payment, the Service Provider shall issue an invoice to the Client. Unless otherwise stated in the Proposal, each invoice is payable as per the terms detailed on the invoice.
    5. The Service Provider is not obliged to carry out any work related to a Proposal before an invoice has been issued and payment has been duly received. In the event that any preliminary work is carried out prior to receipt of the payment and the order is then cancelled, the Service Provider will invoice the Customer for this work.
    6. All payments shall be paid in full without setoff, deduction or counterclaim whatsoever.
    7. The Service Provider reserves the right to vary the Purchase Price according to further requirements made by the Client subsequent to the agreed Proposal. Any such variation shall be advised by the Service Provider in writing and agreed by the Client in writing before either the work proceeds further or any charges are incurred.
    8. The Purchase Price, once accepted by both parties as signified by the receipt of a signed Proposal, is applicable for 12 months from the date of signing.
    9. If payment is not made on the due date, interest may be charged pursuant to the Late Payment Act of Commercial Debts (Interest) Act 1998, to recover interest and all costs involved in recovering outstanding monies.
  5. Liability, Indemnity and Insurance
    1. The Service Provider shall ensure that it has at all times suitable and valid insurance that shall include public liability insurance.
    2. In the event that the Service Provider fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.
    3. The Service Provider’s total liability for any loss or damage, costs or expenses (whether
      direct, indirect or consequential and whether relating to loss of profit, loss of business,
      business interruption, loss of data, depletion of goodwill or other such losses), caused as a result of its negligence or breach of the Agreement shall be limited to and in no event shall exceed, the amount originally paid to the Service Provider for the Service.
    4. Once any work has been agreed and signed off by The Client, they assume all risk as to the suitability, quality, and performance of the Service.
    5. The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.
    6. Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude the Service Provider’s liability for death or personal injury.
    7. The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Service Provider) caused by the Client or its agents or employees.
    8. Where a deliverable includes goods to be received by the Client:
      1. The passing of risk shall occur on the day of the delivery to the Client.
      2. If goods are received by the Client in any way damaged upon delivery, the Client must advise the Service Provider within 24 hours of delivery of the nature of the damage and must retain the Goods as delivered.
      3. The maximum extent of the Service Provider’s liability for damaged goods will be, at its sole discretion depending on the circumstances: a return of the Purchase Price related to the goods or replacement of the goods.
      4. Goods remain the property of the Service Provider and title remains with the Service Provider until payment has been made in full.
    9. Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
    10. The Service provider will indemnify the client in respect of any claims that may be made by the relevant authorities against the client in respect of tax, national insurance or similar contributions relating to payment of the agreed service provided.
  6. Confidentiality
    1. Each Party undertakes that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for two years after its termination:
      1. keep confidential all Confidential Information;
      2. not disclose any Confidential Information to any other party;
      3. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
      4. not make any copies of, record in any way or part with possession of any Confidential Information; and
      5. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4
    2. Either Party may disclose any Confidential Information to:
      1. any sub-contractor or supplier of that Party;
      2. any governmental or other authority or regulatory body; or
      3. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law.
  7. Force Majeure
    1. No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  
  8. Term and Termination
    1. The Agreement shall come into force on the agreed Commencement Date and shall continue for a defined Term from that date, subject to the provisions of Clause 9.
    2. The contract may not be cancelled following order acceptance unless a trial or rejection period has been agreed in advance. At the sole discretion of the Service Provider, a contract may be cancelled either wholly or in part subject to timing, and only once agreement in writing has been notified to the Client.
    3. For retained work billed monthly and where no contract period has been explicitly stated on the Proposal, the contract may be terminated by the Client giving 2 months notice in writing.
    4. Unless otherwise stated in the proposal, the contract may not be cancelled except by agreement in writing of both parties and upon payment to the Service Provider of such amount as may be necessary to meet the costs incurred to the Service Provider up to the date of cancellation and to indemnify the Service Provider against all loss resulting from the said cancellation.
    5. The Client shall have no right to seek any cancellation or repayment of job costs on the basis of style or composition. Any changes or amendments to the signed Proposal will not be agreed without discussion and mutual consent.
    6. The Service Provider shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
  9. Effects of Termination – Upon the termination of the Agreement for any reason:
    1. any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
    2. all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
    3. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
    4. subject as provided in Clause 10 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
    5. each Party shall (except to the extent referred to in Clause 7) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
  10. No Waiver
    1. No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
  11. Further Assurance
    1. Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
  12. Assignment and Sub-Contracting
    1. The Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.  Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Service Provider.
  13. Time
    1. The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties.
  14. Relationship of the Parties
    1. Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
  15. Non-Solicitation
    1. Neither Party shall, for the Term of the Agreement and for a period of 12 months, after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
    2. Neither Party shall, for the Term of the Agreement and for a period of 12 months, after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
  16. Third Party Rights
    1. No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
    2. Subject to Clause 17, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
  17. Compliance and Intellectual Property Rights
    1. It is the responsibility of the Service Provider to ensure that the deliverables comply with all laws, regulations and codes in the United Kingdom to include but not limited to the provisions of the Data Protection Act 1998 (relating inter alia to the collection storage and handling of personal data) and do not infringe third party rights.   But for the avoidance of doubt this shall not apply in circumstances where the Service Provider has merely been asked by the Client to carry out a specific task and where that task is not  of the type where the Client would normally look to and expect the Service Provider to have responsibility for legal and regulatory compliance
    2. Once any work forming part of the service has been paid for, the ownership of the intellectual property rights to the copy, artwork and any imagery created will pass to the Client all other back end aspects of the deliverables from the Service Provider to be enjoyed by the Client (including the right to adapt and modify the same) on a perpetual royalty free licence basis for the purpose for which they were commissioned by the Client.  For the avoidance of doubt both during and at any time after the termination of the Agreement for any reason the Client shall have unlimited and unrestricted rights in respect of its website, its intranet and any other digital service for which the Service Provider has provided the Service.  
    3. Third party materials, such as imagery, used in the deliverables may be subject to usage liabilities such as royalties and license fees. The Service Provider shall procure such license as necessary for the use of third party materials for use within the scope of the Proposal. The Client should obtain written consent from the Service Provider for use of any part of the deliverables outside of the scope of the Proposal.
    4. Unless otherwise stated in the Proposal, the Service Provider reserves the continuing right to use any deliverables it produces for the promotion of its services.
  18. Notices
    1. Any notice or other communication pursuant to this agreement must be in writing and signed by or on behalf of the party giving it and may be served by pre-paid first class post to the address of the relevant party as set out in the agreement or subject to the provisions of clause 19.2 by email.  All such notices or demands shall be deemed to have been received:
      1. in the case of pre-paid first class post two Business Days after posting; and
      2. in the case of fax, at the time of transmission, provided that if receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice or demand shall be deemed to have been received at 9am on the next Business Day.
    2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
  19. Entire Agreement
    1. The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
    2. Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
    3. Counterparts
    4. The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
  20. Severance
    1. If at any time one or more of the terms of provisions of this agreement becomes in whole or in part void, invalid, or unenforceable then the remainder of this agreement shall nevertheless be valid and enforceable.
  21. Dispute Resolution
    1. The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
    2. If negotiations under sub-Clause 23.1 do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
    3. If the ADR procedure under sub-Clause 23.2 does not resolve the matter within 30 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
    4. The decision and outcome of the final method of dispute resolution under Clause 24 shall be final and binding on both Parties.
  22. Law and Jurisdiction
    1. The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.