DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) in England when banks in London are open for business.
‘Contract’ means the contract between theEword and the Client for the supply of Services in accordance with and governed by these Terms, the Order and the Proposal.
‘Client’ means the individual or business entity who purchases Services from theEword and whose details are set out in the Order.
“Deliverables” means the reports, analyses, statistics, content and other materials required to be delivered by theEword in accordance with this agreement.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to labour or trade disputes, strikes, lock-outs or other industrial action, failure of a utility or hosting service or transport network, acts of God, war, riot, civil commotion, malicious damage (including, without limitation a denial of service or equivalent attack), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default or non-compliance of suppliers or subcontractors.
‘Intellectual Property Rights’ means all patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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.
‘Order’ means the order placed by the Client through counter-signing theEword’s Proposal form, which together with these terms and conditions shall form the binding Contract between the parties.
‘Proposal’ means the written Proposal prepared by theEword which contains its proposals for providing Services to the Clients.
‘theEword’ means theEword Limited, incorporated and registered in England with company number 06760888 whose registered office is at 19 Swan Street, Swan Square, Manchester, M4 5JJ.
‘Services’ means the services, including the Deliverables, which theEword will provide to the Client as specified in the Proposal.
‘Specification’ means the description or specification of the Services in the Proposal.
‘Terms’ means these terms and conditions as updated or amended from time to time by theEword.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
1.2. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality.
1.3. A reference to a party includes its personal representatives, successors or permitted assigns.
1.4. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.
1.5. The headings in these Terms are inserted for convenience only and shall not affect their construction or interpretation.
1.6. A reference to a statute or statutory provision is a reference to such statute or statutory provision 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.
1.7. 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
1.8. A reference to “writing” or “written” includes e-mails.
2. TERMS AND CONDITIONS
2.1. These Terms shall apply to all agreements and Contracts concluded between theEword and the Client 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.
2.2. These Terms, the Contract and the Order may only be varied by express written agreement between theEword and the Client.
3. THE CONTRACT
3.1. The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.2. The Order shall only be deemed to be accepted when theEword issues a written acceptance of the Order, or when theEword has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.3. The Contract constitutes the entire agreement between theEword to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract. Any illustrations, testimonials, promotional content, descriptive matter, or advertising issued by theEword and any descriptions or illustrations contained in theEword’s catalogues 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 any other contract between theEword and the Client for the supply of Services.
3.4. Any Proposal for the supply of Services given by theEword shall not constitute an offer. A Proposal shall only be valid for a period of 30 Business Days from its date of issue.
4. theEword OBLIGATIONS AND WARRANTIES
4.1. theEword warrants that it will provide the Services and the Deliverables to the Client as stipulated in the Order and on any other reasonable written instructions from the Client using reasonable care and skill to conform in all material respects with any Specification.
4.2. theEword shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. theEword shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide theEword with adequate delivery instructions or any other instructions relevant to the supply of the Services.
4.3. theEword shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
5. CLIENT’S OBLIGATIONS AND INDEMNITIES
5.1. The Client shall provide all reasonably necessary assistance and technical information as reasonably required to theEword in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to theEword and warrants and undertakes to theEword that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) Deliverables, advertising copy, social media content, and visual or other content submitted for approval by theEword. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or on social media accounts where it may otherwise be required by theEword.
5.3. The Client shall be obliged to inform theEword immediately of any change and any other material information which may affect the Services delivered by theEword, including, but not limited to, any action or alteration taken or made by any third party or by the Client which is relevant to, or may affect the provision of, the Services.
5.4. In the event that the Client fails to undertake the acts or provide the assistance, information or materials required under this clause 5 within any agreed deadline (and at least within 15 Business Days of the date requested by theEword) theEword shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order, whether or not theEword has been able to deliver them.
5.5. The Client shall indemnify and keep theEword fully indemnified against all liabilities, costs and expenses (including, without limitation, legal and professional expenses) whatsoever and howsoever incurred by theEword in respect of any damages or losses arising as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising, social media accounts or web pages which result in claims or proceedings against theEword for infringement of any Intellectual Property Rights or other proprietary rights of third parties, for breach of confidentiality, for breach of contract or for defamation and/or malicious falsehood.
5.6. The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the Data Protection Act 1998, the E-Commerce Directive and Regulations 2003 and equivalent legislation and hereby agrees to indemnify and to keep the E word indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the E word by any third party in connection with any breach of the same by the Client.
5.7. Unless otherwise notified, the Client shall be exclusively responsible for implementing any changes to their website or social media accounts recommended by theEword whilst providing the Services, and shall allow theEword use of any relevant username, password, FTP or content management system’s username and password in order to gain access to add relevant content.
5.8. theEword require that prior notice be given for any alterations relating to the Client’s website or social media accounts that may affect their provision of the Services.
5.9. If theEword’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 (Client Default):
(a) theEword 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 theEword’s performance of any of its obligations;
(b) theEword shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from theEword’s failure or delay to perform any of its obligations as set out in this clause 5.9; and
(c) the Client shall reimburse theEword on written demand for any costs or losses sustained or incurred by theEword arising directly or indirectly from the Client Default.
6.1. Unless otherwise expressly stated, all charges shall be in Pounds Sterling and shall be inclusive of VAT and other duties, which shall be payable by the Client at the applicable rate. In the event that duties are introduced or changed after the conclusion of an Order, theEword shall be entitled to adjust agreed charges accordingly.
6.2. The Client acknowledges that certain elements of the Services may require the licensing of third party Intellectual Property Rights for use in content, and that the Client may be required to enter into an appropriate licence directly with such a third party. Unless otherwise expressly stated, all charges shall be exclusive of any costs for the acquisition or licensing of Intellectual Property Rights for materials to be included in content delivered via the provision of the Services, including if relevant (but without limitation) photographs, video, images and sound files.
6.3. The Services shall be invoiced in accordance with the fixed monthly charge set out in the Order or Proposal. theEword shall update estimates, monthly charges and budgets on an ongoing basis following any changes made to an Order.
6.4. Whilst every effort is made to ensure that estimates of charges are accurate, theEword reserves the right to amend any estimate, should an error or omission have been made or the scope of the Services changed in any way.
6.5. If the Client fails to pay any amount payable by it under this agreement, theEword shall be entitled, but not obliged, to suspend provision of the Services and charge interest on the overdue amount. Such interest shall be payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2% per annum above the base rate for the time being of Lloyd’s Bank PLC. Such interest shall accrue on a daily basis and be compounded quarterly. theEword reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.1. theEword shall invoice the Client monthly; either in arrears or after the Services have been delivered. The Client shall pay each invoice submitted by theEword within 14 days of the date of the invoice and in cleared funds in accordance with clause 7.3 below. Invoice numbers must be included as a reference in relation to all payments.
7.2. Agreed expenses shall be invoiced no less than 14 days in advance and payment made to theEword before such expenses are due for payment to relevant third parties and platforms. For the avoidance of doubt such expenses shall include (but shall not be limited to) the cost of obtaining any licence in relation to third party content referred to in clauses 6.2 above and 10.1 below.
7.3. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against theEword in order to justify withholding payment of any such amount in whole or in part. theEword may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by theEword to the Client.
7.4. In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 per cent over the base rate of HSBC (whichever should be the higher).
7.5. Late payment shall be considered as constituting a material breach of the Contract entitling theEword (at its discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach.
7.6. If the Client subsequently requires theEword to complete the work within a shorter time frame than specified in the Order theEword reserves the right to charge additional monies to prioritise such projects ahead of pre-planned work.
8. DELAYS AND COMPLAINTS
8.1. In the event that the Client can show that the Services are delayed or not provided in accordance with the Contract, theEword shall remedy or redeliver those Services at its own discretion.
8.2. The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties or platforms (‘Third Party Services’). The Client acknowledges that the provision of Third Party Services will be subject to that third party’s terms and conditions, that theEword cannot provide any guarantees, assurances or warranties in respect of Third Party Services and that theEword will not be liable to the Client for any delays and/or failings in respect of the same which related to the provision of the Services. The Client must satisfy itself as to whether or not the terms and conditions of such third parties (where given) are acceptable for the Client’s business purposes or risk management policies.
8.3. theEword’s only responsibility in respect of Third Party Services is to take reasonable care and skill when selecting the providers of the same and to make selection recommendations to the Client based upon theEword’s experience. The ultimate decision upon which, if any, Third Party Service the Client may select to use in relation to the provision of the Services remains the responsibility of the Client and theEword provides no warranty and can accept no liability in relation to the same.
8.4. The Client’s exclusive remedies for late delivery or Services not conforming with the terms of the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to termination of the Contract. theEword’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 9 below.
9. LIMITATION OF LIABILITY
9.1. Nothing in these Terms shall limit or exclude theEword’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) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2. Without prejudice to the generality of clause 9.1 above, theEword shall have no liability for any losses or damages which may be suffered by the Client, whether the same are suffered directly or indirectly or are immediate or consequential arising from:
a) Any indirect or consequential loss arising under or in relation to the Contract even though theEword was aware of the circumstances in which such loss could arise;
b) Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill; and
c) Loss of data.
9.3. To the extent that such liability is not excluded by sub-clauses 9.1, 9.2 and clause 10 below, theEword’s total aggregate liability (whether in contract, tort (including negligence or otherwise), breach of statutory duty or otherwise), under or in connection with the Contract, any Order or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed either the total sum of the charges invoiced for the Services or the total sum of the charges invoiced for the Services in any consecutive 6 (six) month period, whichever is the lesser.
9.4. theEword shall not be liable for downtimes, interference in the form of hacking, distributed denial of service attacks, viruses, disruptions, interruptions, faulty third-party software, search engines, social media platforms or websites upon which a service is dependent or other intervention by any third party. theEword shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at theEword’s discretion) the E word’s charge list applicable from time to time.
9.5. theEword shall not be liable for any changes made without notice by the Client or any third party employed by the Client which affect the Services. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of theEword’s charge list applicable from time to time at theEword’s discretion.
9.6. If the Client does not implement any or all of theEword’s recommendations, theEword shall not bear any liability for any lack of success experienced by the Client relating to the Services.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. It is the responsibility of the Client to ensure that they have the relevant right or licence to use any Intellectual Property Rights when they provide any content text, image or representation (“Materials”) to theEword for incorporation into the Services, request the inclusion of any third party content into the Services or ask theEword to source any third party content for inclusion into the Services and the Client hereby grants or agrees to procure the grant of (as applicable, and including any relevant paid or unpaid licences in relation to third party content including, without limitation, stock imagery, videos and musical content) an irrevocable license to theEword to use such Materials for the purposes of providing the Services for the duration of the Contract and the client hereby warrants that it has received any necessary consents or permissions to use the Materials in accordance with the Contract.
10.2. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, regulation or industry code and do not infringe any other third-party rights. theEword shall be entitled to reject and delete such material without incurring any liability.
10.3. The Client hereby grants to theEword a limited, non-exclusive, non-transferrable, revocable and worldwide licence to access any use any relevant website and social media account which they control and to which the Services relate and the Materials solely to provide Services to the Client in accordance with the terms of the Contract.
10.4. The Client shall indemnify theEword against all damages, losses and expenses suffered or incurred by theEword as a result of the Materials which the Client has contributed or approved being in contravention of legislation, common law, marketing or advertising or codes of conduct rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
10.5. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in clause 10.4 above.
10.6. Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services (including, without limitation, any Deliverables) and whether in existence at the date hereof or created in the future shall vest in and be the property of theEword or the relevant third party from whom theEword has acquired a right of use with a view to executing the Order. Provided always that the charges for the Services have been paid in full to and received by theEword, theEword hereby grants to the Client a licence to use all such Intellectual Property Rights in the Deliverables in conjunction with their receipt of the Services. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in theEword.
10.7. The Intellectual Property Rights as mentioned in clause 10.6 shall not be used, assigned, distributed, copied, adapted or used in any online or offline activities by the Client other than in relation to the provision of the Services without a separate, express written agreement.
10.8. The Client hereby grants to theEword an irrevocable, royalty-free licence to use and display the Client’s name, and logo as a reference on theEword’s website, other marketing materials or types of media. The Client agrees to send theEword its most recent logo if and when it is amended from time to time.
11. CONFIDENTIALITY AND PERSONAL DATA
11.1. A party (Receiving Party) shall keep in strict confidence all information concerning the business, affairs, customers, clients or suppliers of the other and all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors who may need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
11.2. During the term of the Contract and for a period ending 5 years from the date of termination, theEword shall exercise the same care as in relation to its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
11.3. The obligation in clause 11.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into theEword’s possession without an accompanying obligation of confidence, is independently developed by theEword, or which theEword is required to disclose by law or any court order or governmental or regulatory authority.
11.4. During the term of the Contract and for a period ending 5 years from termination thereof, the Client will not disclose to any persons that do not have a need to know, or to any third party, any information and non-Client materials provided by theEword concerning the method or approach theEword uses in providing the Services.
11.5. Each party agrees to comply with its respective obligations under the Data Protection Act 1998.
11.6. The Client shall be obliged to indemnify theEword for any loss, including costs incidental to legal proceedings, suffered by theEword as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 1998 or any relevant marketing law or regulation. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
12. TERM, TERMINATION AND ASSIGNMENT
12.1. The Contract shall take effect on the date specified in the Order and, subject to earlier termination in accordance with its terms, continue in full force and effect for the period specified in the Order (“Initial Term”), thereafter and where specified being renewed automatically following the Initial Term for any further term of specified in the Order (“Renewal Term”) at the end of any Renewal Term unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the current Initial or Renewal Term by giving the other party at least 30 days’ written notice to expire at the end of that Contract term.
12.2. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
a) commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
12.3. theEword shall, in addition to all other rights and remedies under these Terms be entitled to terminate the Contract on immediate written notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
12.4. Upon termination, for whatever reason, the parties shall be obliged to promptly return or destroy all materials and confidential information as defined in clause 11 above received from the other pursuant to the Contract.
12.5. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of theEword.
12.6. theEword shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services may be provided by third parties.
13 FORCE MAJEURE
13.1. Neither party shall be held liable or be in breach of the terms of the Contract for a delay in performing, or failure to perform, any of its obligations under the terms of the Contract due to the occurrence of a Force Majeure Event.
13.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
13.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
14.1. During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by theEword (whether an employee or subcontractor) to work on services which are the same as the Services.
14.2. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
14.3. If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
14.4. Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
14.5. A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.6. All notices must be sent in writing to email@example.com, or such address as is advised by theEword.
15. ENTIRE AGREEMENT
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitute the entire agreement between theEword and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
16. LAW AND JURISDICTION
16.1. theEword and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Contract through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
16.2. The Contract and any dispute or claim arising out of or in connection with them or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).