- Definitions and Interpretation
- The Contract
- The Digital Marketing Services
- Coaching Programme
- Client’s Responsibilities
- Variation and Ammendments
- Cancellation and Termination
- Intellectual Property
- No Employment
- Assignment and Sub-Contracting
- Literature and Representations
- Liability and Indemnity
- Restrictive Covenants
- Force Majeure
- Data Protection
- Third Party Rights
- Law and Jurisdiction
These Terms and Conditions apply to all Services provided by us, McCall (Media) Group Ltd, a company registered in England and Wales under number 12444322, whose registered office address is at Office 129, iCentre, Interchange House, Howard Way, Newport Pagnell, Buckinghamshire, MK16 9PY (“the Agency”).
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
1.2.1 “we”, “us” and “our” is a reference to the Agency and includes our employees, subcontractors and agents;
“Contract”means the contract formed as detailed in clause 2, which will incorporate, and be subject to, these Terms and Conditions;
“Client” means you, the individual, firm or corporate body purchasing the Services from us;
“Proposal” means the written Proposal of our fees required to provide the Services, which remains open for acceptance for a period of 30 days unless otherwise stated and will constitute our entire scope of works; and
“Services” means the creative digital marketing, coaching and/or any other Services provided by us to you.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “we”, “us” and “our” is a reference to the Agency and includes our employees, subcontractors and agents;
1.2.2 “you” and “your” is a reference to the Client and includes your employees and agents;
1.2.3 “writing” and “written” includes emails and similar communications;
1.2.4 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.5 “these Terms and Conditions” is a reference to these Terms and Conditions;
1.2.6 a clause is a reference to a clause of these Terms and Conditions;
1.2.7 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation.
No terms or conditions stipulated or referred to by the Client in any form whatsoever will in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.
2. The Contract
2.1 We will provide you with a written Proposal for our Services. The acceptance of our Proposal, electronically or otherwise, or the placement of an order, creates a legally binding Contract between you and us, and includes the acceptance of these Terms and Conditions, which will apply between us.
2.2 You are responsible for the accuracy of any information you submit to us and for ensuring that our Proposal reflects your requirements. Our Proposal is based on the information provided to us at the time we prepare it. If any errors or discrepancies become evident, we reserve the right to make adjustments to it.
2.3 You agree to provide us with any information, advice, assistance, access, materials and images as we may reasonably require within sufficient time to enable us to perform the Services. However, any timescales we provide are a guideline only and are not of the essence of the Contract.
3.1 The Services shall either be on a one-off project or retained basis.
3.2 Where the Services are on a one-off project basis:
3.2.1 We shall agree a fee for the project and it may not be accurate. Should we require more time to complete the project, for example if the brief changes, we will seek your permission by sending a further Proposal, before proceeding with the additional works in accordance with clause 7.
3.3 If the Services are on a retained basis:
3.3.1 The services will commence on the commencement date outlined in the Proposal. The Contract will continue for any minimum term specified in the Proposal and thereafter will continue on a rolling monthly basis and will be automatically renewed at the end of each period for a further month, unless a written notice to terminate is given by either party in accordance with clause 7 below. We reserve the right to adjust our fees at the end of any minimum term and will notify you of this in writing.
3.3.2 Our Services will be calculated based upon what Services are included, as detailed in the Proposal. Should you require additional Services in any month, then these will be charged in accordance with clause 6.
4. The Digital Marketing Services
4.1 We will use our own exclusive judgement when carrying out the works and deciding upon artistic factors required for the provision of the Services where applicable.
4.2 We will provide you with a design proof, which must be signed off by you in writing. Any copy you provide must be correct and checked at every stage we send a proof to you. It is your responsibility to check for mistakes, including spelling and grammar mistakes, and we accept no responsibility for the same. The works will not progress until we receive your written approval.
4.3 Any alterations required after approval of the final design, any changes to the brief following the initial consultation or any additional visits required above the allowance included for in the Proposal will be chargeable at our standard rate applicable at the time.
5. Coaching Programme
5.1 You will be asked to make payment at the time of making your booking unless otherwise agreed.
5.2 We make no warranty that any Services provided will be uninterrupted or error-free and we also can’t guarantee that they will meet your requirements; however, our aim is to always offer you the very best service possible.
5.3 The Services are not guaranteed to produce results, we cannot be held responsible for the quality and/or outcomes of the Services we have provided.
5.4 It is your responsibility to carry out any agreed actions and to provide us with such information and assistance relating to the Services as we may reasonably require.
5.5 We want to help you develop your own skills, not only in yourself but within your business.
5.6 We may provide you with information and advice in connection with the Services. However, you are required to conduct your own investigations and we accept no responsibility for any actions taken following our advice or recommendations, nor will we be liable for any consequences should our professional advice be taken.
6. Client’s Responsibilities
6.1 You agree, where applicable, to:
6.1.1 provide us with any information, advice and assistance relating to the Services as we may reasonably require within sufficient time to enable us to perform the Services;
6.1.2 provide us with suitable and sufficient material and images to enable us to perform the Services;
6.1.3 ensure all content sent by you or your employees, or provided to us, is suitably backed up and thoroughly proofread for mistakes;
6.1.4 nominate a suitably qualified individual to act as your representative to liaise with us regarding the Services. This individual needs to be a decision-maker within the company;
6.1.5 not sub-licence our Services to any third party;
6.1.6 attend any arranged sessions on time and be prepared with any questions you may have;
6.1.7 obtain and maintain all necessary licences, permissions and consents in connection with the Services.
6.2 If you fail to meet any of the provisions of this clause 6, without limiting our other rights or remedies, we shall:
6.2.1 have the right to suspend performance of the Services until you remedy the default;
6.2.2 not be held liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay in performing any of our obligations as a result; and
6.2.3 be entitled to claim for any costs or losses sustained or incurred by us arising directly or indirectly from your default.
7.1 You agree to pay the fees in accordance with our terms of payment for each of our Services, as stated in Proposal
7.2 All invoices are payable in full, without set off, withholding or deduction, within 7 days from the date of invoice. All fees are exclusive of VAT, unless otherwise specified.
7.3 Monthly membership payments will be debited monthly in advance, on the date of your sign up each month by GoCardless.
7.4 You also agree to pay for any additional services requested by you and provided by us that are not specified in the Contract. These additional Services will be charged in accordance with our current, applicable hourly rate in effect at the time of the performance or such other rate as may be agreed.
7.5 We also reserve the right to charge you for our reasonable travelling time and travel expenses and for any materials, goods and services supplied by us in connection with the Services.
7.6 The time of payment is of the essence of the Contract. If you fail to make any payment to us on the due date then, without prejudice to any other right or remedy available to us, we will have the right to suspend the Services and charge you interest on a daily basis at the rate of 8% per annum above the Bank of England base rate from time to time in force, both before and after judgment, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
8. Variation and Ammendments
8.1 If you wish to vary the Services to be provided, please notify us as soon as possible. We will use all reasonable efforts to make any required changes and will invoice you for any additional costs incurred as a result.
8.2 If, due to circumstances beyond our control, we have to make any change in the arrangements relating to the Services, we will notify you immediately. We will endeavour to keep such changes to a minimum and will seek to offer you arrangements as close to the original as is reasonably possible in the circumstances.
8.3 Any agreed variation or amendment will be carried out in accordance with these Terms and Conditions and any price increase necessitated as a result will be payable in accordance with our terms for payment.
9. Cancellation and Termination
9.1 You have the right to terminate the ongoing Services detailed in clause 4 and 5 by giving 1 months’ written notice to the other at the end of the then current term, whereby there will be no continuing liability by either Party. The fees will continue to be due and payable, and we will continue to provide the Services, throughout any period of notice.
9.2 Either Party has the right to terminate any Services immediately if the other:
9.2.1 has committed a material breach of this Contract, unless the breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 30 days after a written notice to do so; or
9.2.2 goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
9.3 Upon termination, all payments required under this Contract shall become due and immediately payable.
9.4 Any and all obligations of the Parties, which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract, shall survive termination under this clause 9 on a pro-rata basis.
Each Party undertakes that throughout the duration of the Contract, the Parties may disclose certain Confidential Information to each other. Both Parties agree that they will not use the Confidential Information provided by the other, other than to perform their obligations under this Contract. Each Party will maintain the Confidential Information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other Party in writing.
11. Intellectual Property
11.1 The copyright in any Services provided by us is and will remain our property. Subject to a written agreement to the contrary, nothing in the Contract will give you any ownership rights in the Services provided by us.
11.2 However, as far as we are able to, we will provide you with a non-exclusive licence to use the Services provided by us, provided all payments due under the Contract have been received by us in full.
11.3 The licence will become effective only once we have provided you with the final version, where applicable. The Client may not sub-licence the licence provided by us, without our prior written permission.
11.4 We reserve the right to use any designs, websites, materials, copy, or any other Services provided by us, together with your company name, in any advertising or promotional material, on our website, in publications, print, or for any other purpose required by us.
11.5 Any licence granted will be automatically revoked if you breach any of these Terms and Conditions or if the Contract is cancelled or terminated in accordance with clause 9 above. We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of our intellectual property rights.
11.6 You warrant that any logo, design, image, document or instruction supplied or given by you will not cause us to infringe any intellectual property rights of any third party (including, but not limited to, any letter patent, registered design or trade mark) in the execution of our Services. You will indemnify us against all loss, damages, costs and expenses awarded against us or incurred by us in settlement of any claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of your information.
12. No employment
Nothing in this Contract will render or be deemed to render us an employee or agent of yours or you an employee or agent of ours.
Details are available on request.
14. Assignment and Sub-Contracting
14.1 You may not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under this Contract.
14.2 We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under this Contract, without your prior consent.
14.3 Where we subcontract the performance of any of our obligations under the Contract, we will be responsible for every act or omission of the subcontractor as if it were an act or omission of our own.
15. Literature and Representations
Any marketing literature we may provide is presented in good faith as a guide to represent the Services offered and does not form a part of the Contract. None of our employees or agents are authorised to make any representation concerning the Services unless confirmed by us in writing. In entering into the Contract, you acknowledge that you do not rely on and waive any claim for breach of any such representations, which are not so confirmed.
16. Liability and Indemnity
16.1 Except in respect of death or personal injury caused by our negligence, we will not, by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our servants or agents or otherwise) in connection with the performance of our obligations under the Contract.
16.2 We cannot be held responsible for any failure or delay in providing our Services or for any costs or losses sustained or incurred by you as a result, where our failure or delay was caused by incorrect information, a lack of information, or your failure to comply with any of your obligations detailed in these Terms and Conditions.
16.3 All warranties or conditions whether express or implied by law are hereby expressly excluded.
16.4 In the event of a breach by us of our express obligations under these Terms and Conditions, your remedies will be limited to damages, which in any event, shall not exceed the fees and expenses paid by you for the Services under the Contract.
16.5 We may provide professional advice and recommendations in relation to the Services but we cannot accept responsibility for any actions taken as a result of such advice or recommendations, nor can we guarantee the success or outcomes of any marketing campaign or any of the other Services provided. Further, we will not be liable for any consequences should our professional advice not be taken. We may from time to time provide introductions or referrals to other companies, however, under no circumstances will we be liable for the actions or lack of actions of said other companies.
17. Restrictive Covenants
17.1 Neither Party will, during the term of the Contract and for a period of 12 months after its expiry or termination, without the other’s prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director, consultant or independent contractor of the other.
17.2 While the above restrictions are considered by the parties to be reasonable in all the circumstances, it is agreed that if, taken together they are adjudged to go beyond what is reasonable in all the circumstances for our protection but would be judged reasonable if part or parts of the wording of them were deleted or its period reduced or an area defined, they will apply with such words deleted or with such modifications as may be necessary to make it valid and effective.
18. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations under the Contract where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract will constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these Terms and Conditions and the Contract shall be valid and enforceable.
21. Data Protection
Both parties agree to comply with all applicable data protection legislation, including, but not limited to the General Data Protection Regulation 2016, and any subsequent amendments thereto.
22. Third Party Rights
No part of the Contract is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
Notices shall be deemed to have been duly received and properly served immediately when posted on our website, 24 hours after an email is sent, or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that it was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that it was sent to the specified email address of the addressee.
24. Law and Jurisdiction
24.1 These Terms and Conditions andthe Contract will in all respects be subject to and construed in accordance with the laws of England and Wales.
24.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Contract will be referred to the exclusive jurisdiction of the courts of England and Wales.
Version 1.0 (Updated 30th March 2022) By Angela McCall