Terms and Conditions of Service

1. Definitions

Agency: Transformation Marketing Limited (Company Number 13201598), Registered Office: 27 Barbourne Road, Worcester, WR1 1RU
Agreement: these Terms & Conditions, the Business Account Application Form and the Quotation.
Client: the company or individual referred to on the Business Account Application Form attached hereto.
Confidential Information: any information (whether written or in any other form) disclosed by or on behalf of one party to the other pursuant to this Agreement which is identified as confidential or is clearly confidential by its nature, including but not limited to personal data, trade secrets, rate cards, or other trade secrets.
Deliverables: the documents, proofs, products and materials developed specifically for the Client by the Agency or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation, any website or printed materials.
Intellectual Property Rights: all copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights whether registered or not.
Price: the fees and charges payable for the Services as set out in the Quotation or as otherwise made known to the Client by the Agency from time to time.
Quotation: the summary of the Services requested by the Client and the Price for the same set out in a quotation document or in an email (as appropriate).
Services: the services to be provided by the Agency (including the Deliverables) as detailed in the Quotation.

2. Services

1. The Agency shall perform the Services and deliver the Deliverables to the Client as set out in the Quotation upon written confirmation from the Client accepting the Quotation.
2. The Agency will perform the Services with due skill and care and in a timely manner.
3. It is understood that the Agency will not print, publish or otherwise use any materials which, in its reasonable opinion, may: (i) be unlawful, harmful, threatening, defamatory, obscene, infringing, harassing; (ii) facilitate illegal activity; (iii) depict sexually explicit images; (iv) promotes unlawful violence; (v) be discriminatory or offensive based on race, gender, colour, religious belief, sexual orientation or disability; or (vi) be otherwise illegal or cause damage or injury to any person or property.
4. Where the Services include web-hosting, the Client acknowledges and agrees that:
  1. any content posted on the website is the sole responsibility and property of the Client
  2. unless otherwise agreed in writing, the Agency will not be responsible for procuring or registering any domain names and this remains the sole responsibility of the Client,
  3. if any issues or concerns are raised or brought to the attention of the Agency, the Agency will immediately on becoming aware contact the Client. If the Agency is unable to reach an authorised representative, the Agency will block the website until the matter has been fully resolved with the Client
5. Either party may propose a change to the scope or the execution of the Services. The proposed changes shall only come into effect when they have been agreed by both parties in writing, including by email. The Client agrees to pay any additional charges arising as a result of a change to scope or the execution of the Services whether arising at the request of the Client or the Agent.

3. Content, Copy & Client materials

Client is responsible for all content and copy provided to the Agency for use in the Deliverables. The Client warrants and represents that it has the right and authority to use all such copy and content and that using the same for the Deliverables does not infringe the rights of any third party. In addition, the Client warrants and represents that all content and/or copy provided to the Agency is accurate and up to date in all respects.
The Client has responsibility for checking all content and copy used in the Deliverables prior to publication in accordance with clause 6 below.
The Client will ensure that all copy provided to the Agency is clear, legible and in the agreed format. The Agency reserves the right to charge and the Client agrees to pay for any additional work required by the Agency where any copy is does not meet the agreed requirements.
The Client will ensure that any artwork or images provided to the Agency are of high quality and meet any other format or quality requirements of which the Agency informs the Client. The Agency may reject any artwork or images which do not meet the standards required and reserves the right to charge for and the Client agrees to pay for any additional work undertaken by the Agency thus.
The Agency will use reasonable endeavours to secure the best results using the materials provided or specified by the Client but the Client accepts and agrees that the Agency will not be liable if Deliverables are not as expected due to defects in or unsuitability of the materials supplied or specified by the Client.

4. Client Obligations The Client shall:

Co-operate with the Agency in all matters relating to the Services;
Provide any materials, information, content, copy, images to the Agency in a timely manner and will ensure that all such material provided is up to date and accurate in all respects;
Ensure that it appoints an authorised point of contact for the Agency and undertakes that such individual shall have due authority to make binding decisions on behalf of the Client;
Ensure that it has the full rights and licence to use and publish any materials to be used by the Agency to deliver the Deliverables.

5. Price & Payment

All Quotations are based on the Agency’s cost of production at the time the Quotation is provided. Quotations are subject to change at any time, including after acceptance by the Client to account for any change in costs of production. Quotations are valid for 30 days from the date thereon. The Agency will notify the Client of any change to the Quotation prior to continuing with the Services.
Subject to any changes to the Price, the Client shall pay all invoices within 30 days of the date on the invoice. However, where immediate payment is required or the Agency and the Client have agreed other payment terms (e.g. instalments), the Client shall make payment as stated on the invoice or the Business Account Application Form.
All Prices are exclusive of VAT which the Agency will add at the rate in force from time to time.
The Client acknowledges and agrees that any and all work carried out by the Agency at its request, whether experimentally or otherwise shall be charged to the Client and the Client agrees to pay for the same in accordance with this clause 5.
If the Services are suspended or delayed at the request of the Client or because of a default of the Client for 21 days or more, the Agency shall be entitled to and the Client shall be liable for all Services already provided (including any materials ordered or other costs incurred).
Late Payment: If the Client fails to pay any invoices by the date on which payment falls due, the Agency shall notify the Client that payment is late. If the Client fails to make payment within 5 working days of receiving notice of late payment, the Agency reserves the right (in addition to the provisions of clause 12(c)) to:
1. charge interest on the outstanding amount at the rate of 4% above the base lending rate of Lloyds Bank plc from time to time; and/or
2. suspend, without liability, any and all services until such time as all due and unpaid amounts are cleared in full; and/or
3. terminate the Agreement immediately and without liability where outstanding monies are and have been due and owing for 3 or more consecutive months; and/or
4. suspend or withhold access to Deliverables until all due and unpaid amounts are cleared in full.

6. Acceptance Process

The Client undertakes to accept or reject the Deliverables within 5 working days (or other agreed timeframe) of the date on which they are sent or otherwise made available to the Client by the Agency.
If the Client, acting reasonably, does not accept the Deliverables, the Client shall notify the Agency in writing detailing what is unacceptable. The Agency shall use reasonable endeavours to make the requisite changes or suggest alternatives within 5 working days of receiving the Client’s rejection notice. The process will continue in this way until the Deliverables have been accepted by the Client, acting reasonably at all times.
However, if the Client fails to communicate any acceptance or rejection to the Agency in the timescales set out above and fails to do so within 10 working days of a reminder from the Agency, the Client will be deemed to have accepted the Deliverables.
Proofs of all work will be submitted to the Client for approval and the Agency shall incur no liability for any errors in such proofs which are not corrected by the Client. If the Client fails to correct errors in proofs, any additional work or amendments required will be chargeable and the Client agrees to pay such additional charges. The acceptance process and timescales set out in this clause 6 will apply to the review and approval of all proofs submitted to the Client by the Agency for review.

7. Confidentiality

Neither party shall disclose any Confidential Information of the other party to any third party.
The parties agree that Confidential Information does not include information which:
1. Is generally available to the public otherwise than as a result of a direct or indirect disclosure by the receiving party contrary to its obligations of confidentiality; or
2. Is made or becomes available to the other party otherwise than under this agreement and is free of any restrictions as to its use or disclosure.
The receiving party shall only use Confidential Information solely in connection with this Agreement and shall not use it otherwise for its own benefit.
The receiving party may disclose Confidential Information:
1. to its directors, employees or other persons engaged by the receiving party in connection with this Agreement but only on a strictly need to know basis and provided that the receiving party has first made all such persons aware of the obligations of confidentiality and the requirement of such persons to comply with the same; or
2. which is required to be disclosed by law, provided that the party disclosing the information shall (to the extent lawfully possible), notifies the other party of the information to be disclosed and the circumstances under which the disclosure has been required as soon as possible before disclosure and takes reasonable steps to avoid and limit any such disclosure.

8. Copyright & Intellectual Property Rights

All Intellectual Property Rights in (without limitation) any materials, documents, information, data, reports or other items belonging to a party prior to the commencement of thisAgreement (including any updates, enhancements or other changes thereto at any time) will remain the sole property of the originating party and the other party shall have no rights in or to the same except as set out in this Agreement.
Each party hereby grants to the other a limited, non-transferrable, royalty free licence to use its Intellectual Property Rights strictly to the extent required for the purpose and duration of this Agreement.
Subject to paragraph (e) below, the Deliverables and all Intellectual Property Rights therein shall remain the property of the Agency until all outstanding amounts payable by the Client under this Agreement have been paid in full. Following this, the Deliverables and all Intellectual Property Rights therein shall transfer to or be assigned to the Client by the Agency with full title guarantee.
The Client acknowledges that where the Agency does not own any of the Intellectual Property used in the provision of the Services and/or Deliverables, the Client’s use of the same is condition on the Agency obtaining a suitable licence for the Client to use the same. The Client agrees to pay the cost of any licence and agrees to use any Intellectual Property obtained in this manner strictly in accordance with the terms and conditions of the licence. The Agency will not be liable for any liability whatsoever that the Client may incur as a result of the Client’s failure to use any Intellectual Property in accordance with the terms of its licence.
In respect of any materials made available to the Agency by the Client for use in the Deliverables and/or Services, the Client warrants and represents that it owns or has the right to use the same for the purpose of this Agreement and that use by the Agency of such materials pursuant to this Agreement will not infringe the intellectual property rights of any third party. Where required, the Client will obtain or issue a licence for the Agency to use all such materials. The Client shall indemnify the Agency in full in respect of any and all claims, expenses, costs and liabilities incurred or made against the Agency as a result of a breach of this clause 8(e).

9. Data Protection

Definitions
Data Protection Legislation:
the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacyUK Data Protection Legislation:
any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation
Data Protection Measures
1. Both parties will comply with all applicable requirements of the Data Protection Legislation.
2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Agency is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
3. Without prejudice to the generality of this clause, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Agency for the duration and purposes of the Agreement.
4. Without prejudice to the generality of this clause, the Agency shall, in relation to any Personal Data processed in connection with the performance by the Client of its obligations under the Agreement:
  - • process that Personal Data only on the written instructions of the Client unless the Agency is required by Applicable Laws to otherwise process that Personal Data. Where the Agency is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Agency shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Agency from so notifying the Client;
  - • ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  - • ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  - • not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
    - o the Client or the Agency has provided appropriate safeguards in relation to the transfer;
    - o the data subject has enforceable rights and effective legal remedies; other Agency complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal
    - o Data that is transferred; and the Agency complies with reasonable and lawful instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
  - • assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  - • notify the Client without undue delay on becoming aware of a Personal Data breach;
  - • at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
  - • maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
The Client consents to the Agency appointing third party processors of Personal Data on a strict requirement basis under this Agreement provided that the Agency has entered or (as the case may be) will enter into a written agreement with the third party incorporating terms which are substantially similar to those set out in this clause 9. As between the Client and the Agency, unless the Agency has been instructed by the Client to engage with any such third party processor, the Agency shall remain liable to the Client.

10. Liability

Nothing in this agreement limits or excludes the liability of either party for death or personal injury caused by its negligence; fraud or fraudulent misrepresentation; or for any other liability which cannot be excluded or limited by law.
Subject to paragraph (a) above, the Agency shall not be liable to the Client, whether in contract, tort (including negligence), or breach of statutory duty or otherwise arising under or in connection with this agreement for loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or any information; or any indirect, consequential or special loss.
Subject to paragraph (a) above, the maximum aggregate liability of the Agency howsoever arising shall not exceed the total Price paid by the Client to the Agency for the services in respect of which the liability arose.

11. Force Majeure

Where a party is delayed, prevented or hindered from performing any of its obligations under this Agreement as a result of a Force Majeure Event, the affected party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations provided that:
1. it has notified the other party in writing for the reasons of the delay or failure and the likely duration and effect of the Force Majeure Event on its ability to perform its obligations under this Agreement as soon as possible; and
2. it uses reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
A “Force Majeure Event” means any circumstance not within a party’s reasonable control. This includes but is not limited to an act of God, war, act of terrorism, riot, fire, flood, explosion, civil commotion, power failure (if not caused by negligence of the affected party) or any other occurrence that is beyond the control of either party.
If the Force Majeure Event continues in for more than 15 days and the time for performance cannot be extended by agreement, either party may terminate this Agreement immediately by written notice.

12. Termination

Either party can terminate this Agreement by giving to the other party no less than 2 full calendar month’s prior written notice at any time.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the contract immediately (and without liability) by written notice to the other party if:
1. the other party commits a material breach or persistent breaches of any term of this Agreement and (if such breach can be remedied) fails to remedy such breach within 15 days of written notice of the breach; or
2. the other party suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits it is or is deemed to be unable to pay its debts; or
3. the other party enters negotiations with any creditors with a view to rescheduling its debts, files a notice or petition or passes a resolution relating to its winding up, or
4. enters any other form of insolvency proceedings.
(c) In addition, without liability and without prejudice to any of its other rights and remedies, the Agency shall have the right to terminate this Agreement immediately by written notice if the Client or any representative of the Client threatens, is abusive towards or otherwise behaves inappropriately with any manner of the Agency’s staff

13. Notices

Any formal notice under this Agreement will be given by a party to the other party in writing and will be either: (i) delivered by hand or next working day delivery service – in the case of the Client to the address on the Business Account Application Form (as may be updated) and in the case of the Agency, to its registered address; or (ii) sent by email – in the case of the Client to the contact provided to in the Business Application Form and in the case of the Agency, to the primary contact.
Any notice will be deemed to have been received, where delivered by: (i) hand – at the time of signature of a delivery receipt or at the time notice is left; (ii) next day delivery service – at the time recorded by the delivery service; or (iii) email – the time when a delivery receipt it received or by 9:00am the next working day.
Any service of proceedings or documents in any legal action or arbitration shall be sent in accordance with relevant procedural rules.

14. General

Variation: To be valid and binding, any variation to the terms of this Agreement must be agreed in writing by both parties.
Entire Agreement: These terms and conditions and any documents referred to herein form the entire agreement between the parties.
Assignment & Sub-contracting: The Client shall not, without the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed) assign, transfer, charge, mortgage, subcontract or deal in any other manner with any of its rights or obligations under this Agreement. The Agency shall have the right, subject to informing the Client in advance, to assign, transfer, charge, mortgage, subcontract or deal in any other manner with any of its rights or obligations under this Agreement.
No Partnership or Agency: Nothing is this agreement is intended to or shall operate to create a partnership between the parties or to authorise either party to act as an agent for the other. Neither party shall have the right to act in the name of or otherwise to bind the other party in any way (including making any representations or warranties, assuming any obligations or liabilities or the exercise of any right or powers).
Rights of Third Parties: A person who is not a party to this Agreement shall not have any rights under it or in connection with it.
Ongoing Rights: The following clauses shall survive the termination of this Agreement however it may arise: 4(a), 7, 8, 9, 10, 14 and 15.

15. Law & Jurisdiction:

This Agreement will be governed by the laws of England and Wales and any claims or disputes arising under this Agreement shall be subject to the exclusive jurisdiction of the Courts of England and Wales.

Terms and Conditions of Service

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