Introduction
These are the terms and conditions upon which we provide our services. When we use words like "we", "our' and "us", we are referring to Woods and Walker Ltd. (CRN: 09506303) whose registered office is at 63 Westgate Road, Newcastle Upon Tyne, NE1 1SG.
When we use words like "you" or "your", we're referring to you, our client, being the individual, business or organisation described in the "Proposal", that being the document that sets out the detail of your project and to which these terms and conditions (which we'll refer to as "the Conditions") are appended.
Please note that all projects that we accept are subject to these Conditions and all services that we deliver are provided subject to these Conditions. We hope that you will take the time to read them through carefully. If there is anything that concerns you or that you do not understand, please raise the issue with us BEFORE you sign the Proposal. We will not amend these Conditions but if you are worried about something, we may be able to reassure you or accommodate your concerns if you tell us before you sign. Once both of us have signed the Proposal, there will be a legally enforceable agreement between us and any further changes can only be made as set out in these Conditions.
1. Interpretation
1.1 Unless the context requires otherwise, in these Terms:
“Additional Fees” means fees that we charge over and above the Fees quoted in the Proposal, for example where you have asked us to carry out additional work that is not covered by the Proposal or where you haven't kept to your obligations under this Agreement and as a result, we have incurred extra costs.
“Agreement” means this agreement between you, our client, and us, Woods and Walker which is made up of the Proposal and these Conditions. Please note that any earlier documents, such as quotations or estimates, do not form part of this Agreement and, whilst we provide them in good faith, they are not binding upon us.
“Content” means any or all content (text, imagery or otherwise) prepared, provided, made or written by us in relation to the Services, whether it existed prior to the date of the Proposal or not, and which may include Pre-Existing Content;
“Fees” means the price payable for the Services as set out in the Proposal, which are payable in accordance with clause 4 of these Conditions;
“Infringement” means the infringement of a third party’s intellectual property rights;
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Pre-Existing Content” means Content that existed prior to the date of the Proposal or developed by us after the date of the Proposal (including source code and original files) but otherwise than exclusively in the delivery of the Services;
“Proposal” means the Proposal prepared by us and to which these Conditions are attached;
“Purpose” means the project or purpose that you require the Services in connection with, as detailed in the Proposal;
“Services” means the services to be performed by us for you as detailed in the Proposal and/or agreed in writing between the parties.
1.2 Any reference in these Conditions to any provision of any Act of Parliament shall include reference to any subordinate legislation (as defined in the Interpretation Act 1978) made pursuant thereto and shall be deemed to be a reference to such Act of Parliament or subordinate legislation as amended, modified or re-enacted (whether before or after the date hereof) and any reference to any provision of any such Act or subordinate legislation shall also include where appropriate any provision of which it is a re-enactment (whether with or without modification).
1.3 In these Conditions words denoting the masculine gender shall include the feminine and neuter genders and vice versa and words denoting the singular number shall include the plural and vice versa and references to persons shall include bodies corporate unincorporated associations and partnerships.
1.4 Unless otherwise stated, references to clauses and sub-clauses are references to clauses and sub-clauses of these Conditions. The clause headings are for ease of reference only and shall not affect the construction or interpretation of these Conditions.
2. Services
2.1 Subject to you complying with your obligations under these Conditions, we will provide the Services to you as set out in the Proposal.
2.2 The Services will be provided from the date of the Proposal until the Agreement is terminated in accordance with clause 8.
2.3 We will use our best efforts to meet any timescales and estimated delivery dates stated in the Proposal or such other performance dates as you may advise to us in writing. Any such dates shall be estimates only and time shall not be of the essence in relation to such dates, save where expressly stated otherwise.
2.4 You acknowledge that for us to provide the Services successfully in accordance with the Proposal, we require your co-operation and collaboration on a punctual basis. You accept that if you are not able to comply with those responsibilities, the Services may be delayed and Additional Fees may be incurred.
2.5 We may create copies, distribute, export and/or otherwise use the Content as required, to enable the successful delivery of the Services.
2.6 We may use the Content during the term of the Agreement or at anytime after its termination in our portfolios of work and for marketing, advertising and/or other promotional purposes.
2.7 We use our best efforts to ensure that we provide the Services to you in the manner set out in the Proposal but from time to time it may be that we are unable to do so (for example, due to ill health or other absence from work). In those circumstances we will seek to instruct a competent third party to provide the Services to you during our period of absence. If we are unable to instruct a third party we will reduce the Fees in proportion to the period of time that the Services were not delivered to you.
3. Proposal
3.1 We will prepare the Proposal after discussing the Purpose and the nature of the Services with you. This will include details of the Fees together with any timescales or estimated delivery dates.
3.2 When a draft Proposal is sent to you with a copy of these Conditions, this does not constitute a contractual offer. You will be required to check that the Proposal is correct and then accept the Proposal by signing in the place indicated if you wish to proceed. Your response will constitute an offer. We will accept the offer by also signing the Proposal, or by sending an email confirming the same, or commencing the delivery of the Services. At that point the Agreement will be formed.
3.3 Should any changes to the Proposal be required after the Agreement is formed, such changes will only take effect as follows:
3.3.1 should you want to make changes to the scope of the Services to be delivered, the proposed changes must be set out in writing (even if the changes were previously discussed verbally);
3.3.2 on receiving your written request to make changes, we will confirm in writing the effect that the changes will have on the Agreement overall. This may mean a change to the pricing (including the payment of Additional Fees) or an estimated delivery date. It may also be necessary in some cases for us to ask you to settle further expenses before they are incurred; and
3.3.3 should you wish to proceed with the changes, you must respond as directed, confirming that the proposed changes are accepted. At that point the Agreement will be varied to take account of the changes made.
3.4 Should it become necessary to make changes to these Conditions, that do not involve the type of changes envisaged by clause 3.3, no such changes will be valid unless it is confirmed in accordance with clause 10.3.
3.5 Notwithstanding clauses 3.3 and 3.4, it may be necessary for us to make decisions during the provision of the Services that give rise to minor changes, but which do not affect the overall scope of the Services to be delivered, the Content or the outcome of the Purpose as a whole. In such a situation, it will often be impractical or even impossible for us to consult with you within a reasonable timeframe. You agree that we may make such minor changes without prior consultation to the extent that they do not adversely affect the outcome of the Services in a material way.
4. Fees and Payments
4.1 All Fees, Additional Fees and charges payable to us are exclusive of any applicable Value Added Tax (VAT) (or any similar tax) which will be paid by you at the rate and in the manner from time to time prescribed by law. We will usually list in the Proposal the charges that are likely to be incurred in delivering the Services, but whether listed in the Proposal or not, all such charges will be paid by you in addition to the Fees and Additional Fees.
4.2 All sums owed by you to us shall be paid by you together with any applicable VAT, and without any set off or other deduction, upon the payment terms as set out in the Proposal.
4.3 If any sum payable to us by you is not paid by the due date then (without prejudice to out other rights and remedies), we may do either or all of the following:
4.3.1 withhold or suspend the performance of the Services;
4.3.2 terminate your licences to use the Content and Pre-Existing Content, which has been granted to you in accordance with clause 6, with immediate effect; and/or
4.3.3 charge interest on the overdue amount on a monthly basis (before or as well as after judgment) from the due date to the date of actual payment (both dates inclusive), at the rate of 8% above the Bank of England base rate. That interest will be paid by you on demand.
4.4 We will not be liable for any loss or damage that you suffer as a result of any action that we take in accordance with clause 4.3.
4.5 We are not obliged to carry out any work except that which is specifically stated in the Proposal. We reserve the right to charge you Additional Fees for any work that we carry out at your request which is (i) not included in the Proposal, or (ii) which is necessary because of your failure to comply with your obligations in this Agreement, upon the payment terms set out in the Proposal.
4.6 On the termination of the Agreement for whatever reason you will pay to us all unpaid sums accrued up to the date of termination or expiry of the Agreement.
4.7 If it becomes necessary for us to issue legal proceedings in respect of any breach by you of these Conditions or of the Agreement as a whole, you will reimburse us for all costs and expenses that we incur as a result of having to take that action on an indemnity basis.
5. Your Obligations
5.1 You shall at your own expense:
5.1.1 appoint a dedicated point of contact with sufficient authority to instruct us on behalf of you, with authority to bind contractually you and to liaise with us at all times from the date of the Proposal to completion of the Services;
5.1.2 if required, provide us with full access to your website, Google Analytics, social media accounts and any other accounts that we may identify to enable us to perform the Services. This may include adding us to your social media accounts as an “editor” or an “administrator”;
5.1.3 fully co-operate with us in all matters relating to the Services and to communicate with us at least once every month during the term of the Agreement, for the purpose of providing feedback. You agree that we may use your name and feedback in our case studies and for any marketing, advertising and/or promotional activities that we may require;
5.1.4 provide us with contact details for, and allow us to directly communicate with, any of your employees, agents, consultants or subcontractors whom may be able to assist us in the provision of the Services;
5.1.5 give us prompt and clear briefings to ensure that all information provided regarding the Services and your requirements are accurate;
5.1.6 promptly check and verify that the Content meets your requirements. You shall notify us as soon as possible of any changes that need to be made to the Content for it to meet your requirements; and
5.1.7 promptly provide us with any other information that we reasonably request.
6. Intellectual Property Rights
6.1 Subject to and strictly conditional upon the payment of all sums due to us in accordance with these Conditions, we hereby assign to you the Intellectual Property Rights in the Content. Until you have settled all such sums, we hereby grant to you an exclusive licence to use the Content solely for the Purpose with the right to grant sub-licenses thereof. We may terminate this licence on notice to you in writing with immediate effect.
6.2 You acknowledge and agree that we (and/or our licensors) own all Intellectual Property Rights in the Pre-Existing Content and insofar as is necessary for the use of the Content, we hereby grant to you a non-exclusive, royalty-free licence to use the Pre-Existing Content with the right to grant sub-licenses thereof, such licence becoming irrevocable upon settlement of all charges by you in accordance with these Conditions. You shall not during or at any time after the termination of this Agreement in any way question or dispute our ownership.
6.3 Subject to the provisions of clause 6.5 below we will indemnify and hold you harmless against any action, liability, cost or expense (including legal costs and expenses) to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Content or Pre-Existing Content by you constitutes an Infringement, provided that you:
6.3.1 give us notice of the Infringement as soon as it comes to your attention;
6.3.2 give us the sole conduct of the defence to any claim or action in respect of an Infringement and do not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon our express instructions; and
6.3.3 act in accordance with our reasonable instructions and give us whatever assistance as we might require in respect of the conduct of the defence to the allegation of infringement, such as the preparation of evidence and other documents required as part of the court process.
6.4 We will not be liable to you in respect of an Infringement that results from any breach by you of your obligations under the Agreement.
6.5 In the event of an Infringement, at our expense and in our discretion, we may:
6.5.1 procure the right for you to continue using the Content or Pre-Existing Content; or
6.5.2 make such alterations, modifications or adjustments to the Content or Pre-Existing Content so that it becomes non-infringing; or
6.5.3 replace the Content or Pre-Existing Content with non-infringing substitutes; or
6.5.4 terminate this Agreement and refund the Fees and any Additional Fees.
7. Confidentiality
7.1 The parties shall not at any time disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by the other party to it, its employees, agents, consultants or subcontractors or of any member of the group of companies to which it belongs and any other confidential information concerning the other party’s business or its products or services that it may obtain, except as permitted by clause 7.2.
7.2 Either party may disclose the other party’s confidential information:
7.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 7; and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 Each party shall not use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
8. Termination
8.1 Either party may terminate the Agreement by providing 30 days written notice to the other party.
8.2 We may also terminate the Agreement in writing with immediate effect if you make a fundamental breach of these Conditions. A fundamental breach shall mean a breach of at least one of the following:
8.2.1 failure on your part to make punctual payment of all sums due to us;
8.2.2 the levying of any distress or execution against you or the making by you of any composition or arrangement with creditors or being a company that is in liquidation (other than a members’ voluntary liquidation); and/or
8.2.3 being in material or persistent breach of your obligations under clause 5.
8.3 Upon termination of the Agreement, for whatever reason, you shall promptly pay any and all sums due to us in accordance with clause 4. If payment is not received the licences granted to you under clause 6 may be terminated.
9. Limitation of Liability
Your attention is particularly drawn to this clause
9.1 This clause 9 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
9.1.1 any breach of these Conditions;
9.1.2 any use made by you of the Services, the Content or any part of them; and
9.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions.
9.3 Nothing in these Conditions limits or excludes our liability for death or personal injury resulting from negligence or for any damage or liability incurred by you as a result of our fraud or fraudulent misrepresentation.
9.4 Subject to clause 9.2 and clause 9.3 we shall not be liable for loss of profits or loss of goods, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services and the performance of these Conditions shall be limited to 100% of the Fees.
9.6 If our performance of our obligations under these Conditions is prevented or delayed by your act or omission or that of your agents, sub-contractors or employees (including but not limited to any breach by you of the provisions of clause 5), we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
9.7 We will not be liable for losses or penalties incurred if you do not act on our recommendations.
10. General
10.1 We shall not be liable to you or deemed to be in breach of our obligations to you by reason of any delay in performing, or failure to perform, any of our obligations to you in accordance with the Conditions, if the delay or failure was due to any cause beyond our reasonable control, including without limitation:
10.1.1 act of God, explosion, flood, tempest, fire or accident;
10.1.2 war or threat of war, national emergency, acts of terrorism, sabotage, insurrection or civil disturbance;
10.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, regional or local authority;
10.1.4 strikes, lock-out or other industrial actions or trade disputes (whether involving our employees or employees of a third party);
10.1.5 unavailability or shortages of goods, materials, fuel, part-machinery, or transportation;
10.1.6 power failure or breakdown in machinery; or
10.1.7 default of third party suppliers or subcontractors.
10.2 The Conditions constitute the entire agreement between us and set out the full extent of our obligations and liabilities. The Conditions supersede any previous agreements, representations, statements or understandings. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us that is not set out in these Conditions.
10.3 The Conditions may not be varied except in writing and signed between the parties.
10.4 No failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right and no waiver by either party or any breach of the Conditions by the other shall be considered as a waiver of any other breach or default or any subsequent breach or default.
10.5 All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
10.6 No agency, partnership, joint venture, or employee/employer relationship is intended or created by these Conditions. Neither party is authorised to act as agent or bind the other party except as expressly stated in these Conditions.
10.7 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
10.8 This Agreement shall be governed by English law and any proceedings arising out of or in connection with this Agreement may be brought in any court of competent jurisdiction in England and Wales.