Thank You for choosing New Window Marketing. All agreements are made solely between the Client, “You” (the party to whom the Company provides services) and “New Window Marketing”.
- Project Definition
These Terms of Business should be read in conjunction with the Proposal sent to You at the same time (“Project Definition”) which incorporates these Terms of Business. The Project Definition sets out, amongst other things, the services New Window Marketing will provide to You (“Works”) and the fees which will be charged (“Fees”). New Window Marketing aims to offer a friendly and efficient service and will exercise reasonable skill, care and diligence in carrying out the Works. These Terms of Business come into force with immediate effect upon Your first instructions or order and these Terms of Business will apply to any current and future instructions or commission that You are kind enough to give New Window Marketing and to any specific Works referred to in the current or a future Project Definition.
These Terms of Business and the Project Definition constitute the entire agreement between New Window Marketing and You regarding the Works. Any additional work not specified in the Project Definition must be authorised by a written change order signed by You and New Window Marketing and may result in changes to Fees and Disbursements.
- Your Brief
You, as New Window Marketing’s client, represent, undertake and warrant to New Window Marketing that, to the best of Your knowledge: (i) any instructions given and materials supplied by You will be accurate and complete and will not cause New Window Marketing to infringe the rights (including intellectual property rights) of any third party or the laws or regulations (including data protection legislation) of any country and (ii) You have complied and will comply with the Minimum Client Requirements set out in the Project Definition.
New Window Marketing and You agree to work together to complete the Works in a timely manner. New Window Marketing agrees to work expeditiously to complete the Works in line with the Timeframe agreed in the Project Definition however this Timeframe is dependent on New Window Marketing being provided with Your continued cooperation in order to approve Works at various stages. New Window Marketing cannot be held responsible for any loss incurred where You (or any third party instructed by You) have not provided clear and complete instructions within any given time limit and with sufficient notice.
If You request changes to the Works New Window Marketing reserves the right to revise the Project Definition. If the Works are shortened, delayed, cancelled or terminated early by You, the final invoice will include the balance of the Fees for providing the Works plus any reasonable costs and disbursements incurred by New Window Marketing due to Your acts or omissions. For example, You shall be liable for the costs and disbursements incurred by New Window Marketing for prebooked fieldwork, which is delayed, not used or not fully used.
New Window Marketing recommends that You retain copies and back-ups of all materials, data or information provided to and from New Window Marketing.
New Window Marketing reserves the right to assign sub-contractors to this project to ensure the right fit for the job as well as timely completion. New Window Marketing shall be the primary obligor in relation to such sub-contractors.
New Window Marketing is only responsible for the quality of the service provided by sub-contractors if those sub-contractors have been selected and paid for directly by New Window Marketing. If You designate a specific sub-contractor, then New Window Marketing shall not be responsible for the accuracy, completeness or quality of the work of that sub-contractor.
- Fees and Disbursements
New Window Marketing’s Fees are exclusive of VAT which must therefore be added at the current rate. This will be indicated on invoices. New Window Marketing’s Fees are also exclusive of disbursements (including travel), which are therefore charged in addition. Disbursements include payments made or incurred on Your behalf as well as miscellaneous office expenses such as printing, travelling and out of pocket expenses. Mileage will be charged in line with HMRC guidelines.
Payment of Fees for Works shall be on delivery of the Works. Any Works provided over more than one calendar month will be subject to invoicing at the start of each calendar month with the final invoice raised on delivery of the final Works. All invoices shall be due on the invoice date and shall be subject to payment within 14 days.
If You dispute, deem incorrect or inaccurate any invoice, contract or agreement New Window Marketing must be notified, in writing, within 5 days of receipt. Failure to do so renders any future claim inadmissible.
In order for New Window Marketing to remain in business, payments must be made promptly. A twenty pound (£20.00) additional fee will be incurred if payment is not received within ten (10) days of the due date. If an amount remains delinquent thirty (30) days after its due date, an additional five per cent (5%) interest will be added for each month of delinquency from the date of the invoice. New Window Marketing reserves the right to suspend work without notice until Final Payment is made. Where debt collection or proceedings prove necessary, You agree to pay all fees and costs incurred by that process.
- Confidentiality and Intellectual Property
All information You provide New Window Marketing will be regarded as confidential to the extent that it is not in the public domain, but You should advise New Window Marketing if any information is particularly sensitive. New Window Marketing will not divulge any confidential information obtained from You otherwise than in accordance with Your instructions.
You unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork (including all associated intellectual property) furnished by You (or on Your behalf) to New Window Marketing for inclusion in the Works are owned by You, or that You have permission from the rightful owner to use each of these elements, and will hold harmless, indemnify, and defend New Window Marketing and its subcontractors from any claim or suit arising from the use of such elements furnished by You.
Intellectual property rights (including but not limited to copyright and database rights) in all Works are owned by New Window Marketing in the first instance. All intellectual property rights owned by New Window Marketing in finished, approved Works created specifically for You will be assigned to You automatically on receipt by New Window Marketing of the Final Payment of Fees in cleared funds. All Intellectual property rights in third party materials are owned by those third parties and will be licensed to You on the terms set out in the Project Definition.
New Window Marketing and its sub-contractors retain the right to display Works, graphics and other design elements as examples of their work in their respective portfolios (including online).
Either party may terminate this engagement upon one months notice. Notice must be provided in writing. New Window Marketing will use its reasonable endeavours to complete any Works in progress and New Window Marketing will remain entitled to payment for completion of those Works.
Either party may terminate this engagement immediately for a material breach by the other which is incapable of remedy or, if capable of remedy, is not remedied within 45 days of notification being given to the defaulting party.
New Window Marketing reserves the right, for good reason and upon reasonable notice, to terminate New Window Marketing’s engagement without further liability on New Window Marketing. This will be confirmed to You in writing, if requested. “Good reasons” include if You: do not give New Window Marketing instructions within a reasonable period of time; do not pay promptly any request for money on account; or do not pay a bill within the due period.
- Warranties and Liability
All conclusions, recommendations, forecasts, reports, letters or other communications, whether oral or written, provided by New Window Marketing (together, the “Recommendations”) are made in good faith and on the basis of information available to New Window Marketing at the time whether from You or from information in the public domain and the validity of such Recommendations will depend, amongst other factors, on Your effective cooperation and the quality of the information made available by You. No warranty or representation, express or implied, is given as to the Recommendations provided by New Window Marketing and You shall be responsible for the proper adaptation of such Recommendations to Your own circumstances.
All Recommendations given by New Window Marketing are for Your use only and are not to be disclosed or reproduced to third parties without the prior written consent of New Window Marketing.
New Window Marketing shall not be liable for any consequential or indirect loss suffered by You whether such loss arises from a breach of contract or tort or in any other way (including losses arising indirectly or consequentially from New Window Marketing’s negligence). You shall not be liable for any consequential or indirect loss suffered by New Window Marketing whether such loss arises from a breach of contract or tort or in any other way. Compensation for any direct losses arising under this agreement shall be limited to the value of the current Project Definition.
You and New Window Marketing acknowledge that the Fees payable under these Terms of Business have been determined on the basis of these limitations of liability and reflect the division of risks set out in these Terms of Business and that, accordingly, the division of risk is agreed by the parties to be fair and reasonable in the circumstances.
If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
- Data Protection
Details of the individual to whom these Terms of Business are sent, together (where relevant) with details of other key individuals within Your organisation supplied to New Window Marketing from time to time, will be entered onto New Window Marketing’s client database. New Window Marketing will use these details primarily to provide You with the Works. In addition, New Window Marketing may use these details to contact You by post, telephone, e-mail or fax for marketing purposes or to make searches with credit reference agencies. New Window Marketing may also disclose these details for these purposes to any agents, associates, advisors or contractors that we agree New Window Marketing should work with on Your behalf.
It is Your responsibility to ensure that the communication of any sensitive or personal data by You or Your agents to New Window Marketing does not breach the rights of any data subjects, and that the subsequent use of such data by New Window Marketing pursuant to the Project Definition does not breach any data protection regulations or legislation. You hereby indemnify New Window Marketing in this respect.
- Electronic Communications
During the course of this matter, we may wish to communicate electronically with one another. The electronic transmission of information cannot be guaranteed to be secure or error-free, as it will be transmitted over a public network, and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or otherwise be adversely affected or unsafe for use.
We each agree to use reasonable procedures to check for the most recently known viruses before sending and receiving information electronically, but we each recognise that such procedures cannot be a guarantee that transmissions will be virus-free. We shall each be responsible for protecting our own interests in relation to electronic communications. Neither of us shall be liable to the other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any damage or loss arising from or in connection with the electronic communication of information between us.
A person who is not a party to the agreement between us has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the engagement.
The rights and remedies available to New Window Marketing by virtue of these Terms of Business are without prejudice to any other rights or remedies available to New Window Marketing. Any failure by New Window Marketing to exercise or delay by New Window Marketing in exercising a right or remedy provided by these Terms of Business or by law does not constitute a waiver of the right or remedy, or a waiver of other rights or remedies.
The contract between us is on the basis of these Terms of Business and is subject to English Law and the exclusive jurisdiction of the English Courts.
We look forward to working with You. Your continuing instructions will amount to an acceptance of these Terms of Business.