1. INTERPRETATION

 THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.

 1.1       Definitions:

 Awards: the process of writing an entry for a specific award.

Blogs: the process of writing an article for publication on a website or other online platform.

Business Day:  a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Case Studies: the process of researching and writing a piece on a particular instance of something used or analysed in order to illustrate a thesis or principle

Charges:  the charges payable by the Client for the supply of the Services in accordance with Clause 5 (Charges and payment).

Commencement Date:  has the meaning given in Clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with Clause 13.8.

Consultancy: using our expertise and experience to make recommendations about the right communications or marketing choices for a business.

Contract:  the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.

Control:  shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression Change of control: shall be construed accordingly.

Client:  the person or firm who purchases Services from the Supplier.

Client Default:  has the meaning set out in Clause 4.3.

Data Controller: has the meaning set out in GDPR Article 24 and section 1(1) of the Data Protection Act 1998.

Data Subject: an individual who is the subject of Personal Data.

Deliverables:  the deliverables set out in the Order produced by the Supplier for the Client.

GDPR: General Data Protection Regulation.

Intellectual Property Rights:  patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, 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.

Order: the Client’s written acceptance of a quotation or the use of the Supplier’s online booking form or acceptance of a quotation from an online accounts package e.g. Xero.

Personal Data:  has the meaning set out in GDPR Article 4.1 and section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which the Supplier is providing Services under the Contract.

Processing and process:  have the meaning set out GDPR Article 4.2 and section 1(1) of the Data Protection Act 1998.

Quotation: a formal statement setting out the estimated cost for a particular job or service.

Services:  the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Specification.

Specification:  the description or specification of the Services provided in writing by the Supplier to the Client.

Supplier:  Wordsmiths Un Limited registered in England and Wales with company number 07863511.

Web Content: the process of producing content for websites.

 

1.2      Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e) A reference to writing or written includes faxes and emails.

 

  1. BASIS OF CONTRACT

2.1       The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2       The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).

2.3       Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues/brochures or on their website, 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 have any contractual force.

2.4       These Conditions apply to the Contract 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.

2.5       Any Quotation given by the Supplier shall not constitute an offer and is only valid for a period of 30 Days from its date of issue.

 

  1. SUPPLY OF SERVICES

3.1       These Terms and Conditions apply to the following services, supplied by the Supplier:

(a)  Awards;

(b)  Blogs;

(c)  Web Content;

(d) Case Studies;

(e) Internal Communications Materials;

(f)  Written Marketing Materials;

(g) Consultancy

3.2       The Supplier shall supply one, or a combination of a number of the Services specified within Clause 3.1 to the Client in accordance with the Specification in all material respects.

3.3       The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4       The Supplier reserves the right to amend the Specification if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

3.5       The Supplier warrants to the Client that:

(a) the Services will be provided using reasonable care and skill;

(b) they will provide unique content.

3.6       If the Supplier is required to supply services supplied by a third party, the Supplier does not give any warranty, guarantee or other term or condition as to the quality, fitness for purpose or otherwise, but shall, where possible, pass on to the Client the benefit of any warranty, guarantee or indemnity given by such third party to the Supplier.

3.7       The Supplier reserves the right to submit a new and separate proposal for written approval if the Client requests changes or revisions are deemed to be in excess of ten percent (10%) of the time required to produce the initial deliverables, and or the value or scope of the services. Work shall not begin on the revised services and/or until a fully signed revised proposal and, if required, any additional retainer fees are agreed.

3.8       The Supplier maintains the rights to utilise any and all material created and or filmed whilst providing their services in the course of the Contract to be used for their marketing purposes or portfolio.

3.9       The term of this Agreement shall commence on Commencement Date and shall continue for the period specified within the Service Agreement, and thereafter will continue until terminated in writing by one of the parties, or as provided in Clause 10.

 

  1. CLIENT’S OBLIGATIONS

4.1       The Client shall:

(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(e) comply with all applicable laws, including health and safety laws.

4.2       In addition to Clause 4.1 the client is also specifically required to carry out the following, in relation to the specified Services:

(a) Awards:

(i)   provide the Supplier with formal agreement on the set of Awards and category/categories which are to be entered;

(ii)   provide sufficient information and detail to allow the Supplier to write the entry, including but not limited to, access to all relevant data;

(iii)   ensure the Supplier’s work is commissioned by a senior employee with sufficient authority to do so, and to make decisions about the scope, nature and specifics of the brief on their behalf, as changes to the original brief which result in additional work may fall outside of scope and may be chargeable;

(iv)   provide the Supplier with agreement on the brief and understand that should this be changed from the agreed subject matter, then the Client will be liable for additional costs incurred in addition to the original agreed fee;

(v)   provide the Supplier with feedback within the requested timescales;

(vi)   submit the award entry.

(b) Blogs:

(i)    provide agreement on the specific topic(s);

(ii)     sign off written content or provide feedback to the Supplier within 14 days of receipt, failing which agreement will be assumed and the invoice for payment will be raised;

(iii)     provide the Supplier with relevant access to their website to allow them to upload, should they require the Supplier to provide such service.

(c) Web content; Case studies, Internal Communications Materials, Other written marketing materials:

(i)    provide a suitable brief and access (including access to the Client’s own Customer’s/Client’s) and other relevant information, including not but limited to Company data;

(ii)    sign off written content or provide feedback to the Supplier, within 14 days of receipt, failing which agreement will be assumed and the invoice for payment will be raised.

4.3       If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or the Client’s agents, sub-contractors or employees, or by their failure to perform any relevant obligation (Client Default):

(a)    without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;

(b)   the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 4.3; and

(c)   the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

 

  1. CHARGES AND PAYMENT

5.1       The Charges for the Services shall be calculated on a time and materials basis:

(a)   the Charges shall be calculated in accordance with the Supplier’s fee stipulated in the Supplier’s email or online accounts package Quotation or Online Booking Form and Payment will be required in accordance with Clause 5.1(b);

(b)    the Supplier’s Services (see Clause 3.1) will be charged in the following manner:

(i)   Awards – 50% payment required prior to commencement, with final 50% payable upon completion within 21 days of invoice;

(ii)   Blogs – payable on a monthly basis, on or around the 21st of each month, for a minimum of 6 or 12 months (dependent upon specific agreement with Supplier), thereafter continuing on a rolling monthly basis until terminated by either party;

(iii)   Web Content – 50% payment required prior to commencement, with final 50% payable upon completion within 21 days of invoice;

(iv)    Case Studies – payable upon completion, within 21 days of invoice;

(v)     Internal Communications Materials – payable upon completion, within 21 days of invoice;

(vi)    Other Written Marketing Materials – 50% payment required prior to commencement, with final 50% payable upon completion within 21 days of invoice;

(vii)     Consultancy – 50% payment required prior to commencement, with final 50% payable upon completion within 21 days of invoice;

5.2       The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date, and the first such increase shall take effect on the first anniversary of the Commencement Date. The Supplier will notify the Client of any such increase at least 1 calendar month prior to implementation.

5.3       The Supplier shall invoice the Client in accordance with the terms outlined in Clause 5.1(b).

5.4       The Client shall pay each invoice submitted by the Supplier:

(a)     In accordance with the time period terms stated within the invoice; and

(b)     in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

5.5       All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.6       If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 10, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.

5.7       All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

  1. INTELLECTUAL PROPERTY RIGHTS

6.1       All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Supplier.

6.2       The Supplier grants to the Client, or shall procure the direct grant to the Client, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables in its business.

6.3       The Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2.

6.4       The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.

 

  1. DATA PROTECTION AND DATA PROCESSING

7.1       The Client and the Supplier acknowledge that for the purposes of General Data Protection Regulation (GDPR), the Client is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data.

7.2       The Supplier shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.

7.3       The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

7.4       Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

7.5       The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:

(a)   take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

(ii) the nature of the data to be protected.

(b) take reasonable steps to ensure compliance with those measures.

7.6       Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 7.

7.7       The Client acknowledges that the Supplier is reliant on the Client for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Client’s instructions.

7.8       The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:

(a) is on terms which are substantially the same as those set out in the Contract; and

(b) terminates automatically on termination of the Contract for any reason.

 

  1. CONFIDENTIALITY

8.1       Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Client’s, Client’s or Suppliers of the other party, fees/pricing except as permitted by Clause 8.2.

8.2       Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information, comply with this Clause 8; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.3       Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

 

  1. LIMITATION OF LIABILITY

9.1       The total liability of Supplier to Client from any cause whatsoever, will be limited to the lesser of Client’s actual damages or the contractual price paid to the Supplier for those Services supplied that are the subject of Client’s claim

9.2       Subject to Clause 9.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) any claims (including libel) arising from any amendments made by the Client to any written content provided by the Supplier;

(f) loss of use or corruption of software, data or information;

(g) delays or failure to deliver the agreed service or product, resulting from the Client’s failure to fulfil their responsibilities and obligations under the contract;

(h) any claim arising out of the Client’s failure to obtain and maintain all necessary licences, permissions and consents which may be required for the Services;

(i) loss of or damage to goodwill; and

(j) any indirect or consequential loss.

9.3       Subject to Clause 9.1, the Supplier’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 50% of the total Charges paid under the Contract.

9.4       The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

9.5       All claims against the Supplier must be brought within one 1 year after the cause of action arises and the Supplier waives any statute of limitations which might apply by operation of law or otherwise.

9.6       This Clause 9 shall survive termination of the Contract.

 

  1. TERMINATION

10.1     Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days written notice.

10.2     Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving 7 days written notice to the other party if:

(a)   the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 48 hours of that party being notified in writing to do so;

(b)    the Client fails to pay any amount due under the Contract on the due date for payment;

(c)     the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(d)    the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;

(e)    the Client’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(f)    there is a change of control of the Client;

10.3     Without affecting any other right or remedy available to it, the Client may terminate the Contract by providing 30 days written notice to the Supplier if:

(a)     the Supplier commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

(b)     the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)    the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

10.4     Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier, if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in Clause 10.2(c) to Clause 10.2(f), or the Supplier reasonably believes that the Client is about to become subject to any of them.

 

  1. CONSEQUENCES OF TERMINATION

11.1     On termination of the Contract:

(a)  the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices for all agreed Services, including those not yet supplied and any outstanding agreed retainer period and interest and, in respect of Goods and Services for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b)    the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

11.2     Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

11.3     Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

 

  1. FORCE MAJEURE

Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to acts of God, acts of Governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, accident, epidemics, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, power failure or any other cause beyond its reasonable control.

 

  1. GENERAL

13.1     Assignment and other dealings

(a)    The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b)    The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

13.2     Notices

(a)     Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its principal place of business; or sent by email to the address specified in the quote or order.

(b)    Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.

(c)    This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

13.3     Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

13.4     Waiver

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

13.5     No partnership or agency

(a)    Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

(b)    The Supplier will have primary responsibility for the provision of services and if any supervision and/or direction of any individual providing such Services is required, then these will be provided by the Supplier. No individual providing Services on the Supplier’s behalf will work under the supervision and direction of the Client. The understanding and intention of all parties is that no individual providing Services on behalf of the Supplier will be an ‘agency worker’, within the meaning of the Agency Workers Regulations 2010 (AWR), and that AWR will not apply in respect of any engagement under these Terms.

13.6     Entire agreement

(a)    The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)    Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.

(c)    Nothing in this clause shall limit or exclude any liability for fraud.

13.7     Third parties’ rights

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

13.8     Variation

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

13.9     Governing law

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

13.10   Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.