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Terms and Conditions

DEFINITIONS AND INTERPRETATION

The following definitions and rules of interpretation apply in these terms and conditions:
  • “Affiliate” means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
  •  “Applicable Data Protection Laws” means:
    • To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
    • To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
  • “Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business
  • “Change Order” has the meaning given in clause 13.
  • “Client” means the individual or business entity and/or its Affiliates who purchases Services from the Company and whose details are set out in the Order. 
  • “Client Materials” means all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Company in connection with the Services.
  • “Company” means Tom Wardman Consultancy Limited, a company incorporated in England and Wales under company number 15359895 whose registered office is at 27 Old Gloucester Street, London, United Kingdom, WC1N 3AX.
  • “Company Personnel” means Company and Company’s Affiliates and subcontractors, and each of their employees, independent contractors, freelancers, and others providing services on behalf of the Company under these Terms.
  • “Contract” means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.
  • “EU GDPR” means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
  • “Force Majeure Event” means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers of Third Party Services (as defined in Section 8.3) (but not Company’s subcontractors (as provided in Section 4.4). 
  • “Group Company” means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
  • “Intellectual Property Rights( “IPR”)” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications, and rights to apply for and be granted, and 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 in any part of the world. 
  • “Order” means the order placed by the Client by counter-signing the Company’s Quotation. 
  • “Quotation” means the written quotation prepared by the Company which contains its proposals for providing Services to the Clients.
  • “Services” means the services the Company will provide to the Client as specified in the Order. 
  • “Specification” means the description or specification of the Services in the Order.
  • “Terms” means these terms and conditions as updated from time to time by the Company.
  • “Third Party IP” means Intellectual Property Rights (and its derivatives and modifications) that a third party (not including Company Personnel) owns or has rights to outside of these Terms. 
  • “Third Party Product” means any product, software, application, code, materials, or service that a third party (not including Company Personnel) owns or has rights to outside of these Terms. 
  • “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
  • “VAT” means value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere.
  • “White Label Work” means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
  • “Work Product” means all deliverables, information, materials, and other Intellectual Property Rights (and derivatives and modifications of the foregoing)) created, developed, produced, provided, authored, edited, modified, conceived, or reduced to practise (in each case, whether final or draft, tangible or intangible, and in any media) in the course of performing the Services (whether by Company (or Company Personnel) or Customer, it Affiliates, or their personnel) under these Terms.  

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 Terms use words which denote a particular gender, they shall be also read to include all genders and vice versa.

The headings in these Terms are inserted for convenience only and shall not affect the construction or interpretation of these Terms.

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.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).An Order and/or Order Form forms part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the relevant Order and/or Order Form.  Each Order Form shall be subject to these Terms.

Reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

Reference to writing or written includes email.

 

TERMS AND CONDITIONS 

These Terms shall apply to all Orders concluded between the Company 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.

These Terms and an Order may only be varied by express written agreement between the Company and the Client.

 

THE CONTRACT

The Contract shall commence on the date when Quotation has been counter-signed by all the parties and shall continue, unless terminated earlier in accordance with these Terms, until expiry of the Order.

The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms. The Contract supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the Company and Client, whether written or oral, relating to its subject matter.

Each party agrees that it 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 misstatement based on any statement in the Contract.

The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures (“Illustrations”) are issued or published for illustration purposes only. Such Illustrations shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.

A Quotation shall only be valid for a period of 14 Business Days from its date of issue.

The Client agrees that Company shall have no liability in respect of the ultimate client with whom the Client agrees to perform the White Label Work on behalf of. The Client shall be solely responsible for any liability and/or any complaints from its clients relating to the White Label Work.

The Client shall not:

  • represent itself as an agent of the Company for any purpose;
  • pledge the Company’s credit;
  • give any condition or warranty on the Company's behalf;
  • make any representation on the Company's behalf;
  • commit the Company to any contracts;
  • incur any liability for or on behalf of the Company; or
  • make any promises or guarantees about the Services or Work Product

 

COMPANY OBLIGATIONS AND WARRANTIES

The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification. 

The Company shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimated only and time shall not be of the essence for the provision of the Services.  The Company 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 the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.

The Company shall, with prior written notice to Client have the right to make any changes to the Services which are necessary to comply with any applicable law.

The Company shall be entitled to use a Group Company or, if approved by Client, other subcontractors for the provision of the Services provided always that, regardless of any Client approval, the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself. 

The Company shall comply with all applicable laws relating to its provision of the Services.

The Company shall, subject to clause 9 (Liability), indemnify the Client in full against all liabilities, costs, expenses, damages and losses suffered or incurred by the Client arising out of or in connection with any third party claim brought against the Client for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt, use or supply of the Services and the Work Product. 

 

CLIENT’S OBLIGATIONS AND INDEMNITIES

The Client shall co-operate with the Company in all matters relating to the Services, provide instructions, assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company.

The Client shall appoint a manager for the Services. That person shall have the authority to contractually bind the Customer on matters relating to the Services.

The Client shall promptly and in any case within the stipulated deadline provide feedback on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Company and implement changes on Company processes, websites, in IT systems or where it may otherwise be required by the Company. 

The Client shall inform the Company immediately of changes to information provided to Company including without limitation domain names, websites, technical setup and technical infrastructure which may affect the Services delivered by the Company. The Company shall not be liable for any such changes made by the Client or a third party employed by the Client. Client shall pay for any Services or adjustments required to Services resulting from or arising out of or connecting with such changes. Such Services or adjustment to Services shall be performed in accordance with these Terms and charged based on the Company’s price list applicable from time to time. 

If the Company’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Company shall be entitled to (i) an extension of time to perform its obligations equal to the delay caused by the Client; and (ii) to invoice for the Services in full whether or not the Company has delivered the Services.

Client warrants that the receipt and use of Client Material in the performance of the Services by the Company, its agents, subcontractors or consultants shall not infringe any applicable laws or the rights, including any Intellectual Property Rights, of any third party.

Client shall indemnify the Company in full against all liabilities, costs, expenses, damages, losses (calculated on a full indemnity basis), all professional costs and expenses suffered or incurred by the Company arising out of or in connection with Client’s acts or omissions and/or the receipt or use in the performance of the Services of the Client Materials

The Client shall comply with all applicable laws relating to its use of the Services.

Unless otherwise agreed, the Client shall be solely responsible for implementing any outputs, Work Product and/or changes recommended by the Company.  The Client shall in a timely manner and at no charge, provide access to the Client's premises, office accommodation, data, website, digital content management systems username and password, social media accounts, and other facilities or access as required by the Company to perform the Services.

The Client’s shall provide 14 days’ notice to Company before making any changes to Client’s website(s) where such changes may affect the Services or Work Product supplied by the Company.  Client shall be solely responsible for any changes to search engine placements arising out of or as a result of or connected with changes made by Client or third party on behalf of Client to Client’s website.

Client shall regularly add unique and new content on Client website. Client acknowledges that failure to add unique and new content on its websites and or social media pages may lessen the impact of the Services.

 

PRICES

Unless otherwise expressly stated, all prices shall be in Sterling Pound (£) and are exclusive of VAT and other taxes and duties. The Client shall in addition to the Services charges pay an amount equal to any VAT or applicable tax chargeable on those Services Charges on delivery of a VAT and/or tax invoice. In the event that taxes and/or duties are introduced or changed after the conclusion of an Order, the Company shall be entitled to adjust the agreed prices accordingly.

The Client acknowledges where Services involve the licensing of third party Intellectual Property Rights and the Client shall comply with the relevant third party’s terms and conditions governing the licensing of the third party Intellectual Property Rights.  Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of third party Intellectual Property Rights to be included in the Work Product.

If the price stated in an Order is hourly based, the number of hours quoted shall be an estimate.  Such estimate shall not be exceeded without Client’s approval.  Upon Client approval of additional hours, Services shall be invoiced in accordance with the actual number of hours spent in accordance with the price set out in the Order or Quotation. In the event that the price is not so stipulated, the Client shall be charged at the hourly rate specified in the Company’s then current price list. The Company shall be entitled to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order.

Whilst every effort is made to ensure that price or hours estimates are accurate, the Company reserves the right to amend any price or hours estimate, where an error or omission has been made.

 

PAYMENT

Where Services are provided on a retainer basis, unless otherwise agreed by the parties in writing, the Company shall invoice the Client monthly. Client shall make payment, unless alternative arrangements are agreed by the parties in writing, via direct debit using GoCardless on the date which the Company issues an invoice to the Client.

For one-off projects, Client shall pay the required deposit indicated in the Quotation on the date the parties counter-sign the Quotation. Upon completing a milestone set out in the relevant Quotation, Company will invoice the Client. Client shall make payment within two (2) days of Company issuing the relevant invoice. 

The Client shall pay all amounts due under the Contract in full without any set-off, deduction, withholding or counterclaim except any deduction or withholding of tax required by lawT.he Company may, without limiting its other rights or remedies, withhold or set off any amount owing to it by the Client or applicable taxes against any amount payable by the Company to the Client.

Company may withhold Work Product or suspend Services in the event of non-payment or late payment by Client.

The Client shall pay interest on the overdue sum from the due date until payment of the overdue sum and debt administrative charges, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

DELAYS AND COMPLAINTS

In the event that the Client proves to the satisfaction of the Company that the Services are delayed or not in accordance with the specification detailed in the Contract, the Company shall rectify the default within ten (10) Business Days. In the event that the Services are not rectified after ten Business Days, the Client shall pay for the conforming Services and shall be entitled to terminate the Order in accordance with clause 14.2.

Client shall submit complaints concerning delays or breach of Contract immediately after the Company delivers the Services or Work Product. If the Client fails to notify the Company of delays or breach of Contract within three (3) Business Days after the Company delivers the Services or Work Product to the Client, the Client shall be deemed to have accepted the Services.

The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’).  The Client shall comply with the terms and conditions governing Third Party Services. Company will not be liable to the Client for any liabilities arising out of or connected with Third Party Services.     

The Client’s exclusive remedies for late delivery of Services or non-conforming Services are as specified in this clause 8 and Company’s total liability is subject to the limitations set out in clause 9 below. 

 

LIABILITY

The Company has given commitments as to compliance of the Services with relevant specifications in Clause 4 (Company obligations and warranties). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.

Subject to Clause 9.3 this Clause 9.2 specifies the types of losses that are excluded:

  1. loss of profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.

Subject to clauses 9.1, 9.2, 9.5 and clause 10 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum paid by the Client under the relevant Contract.

Nothing in these Terms limits a party’s liability for: 

  1. obligations to comply with applicable laws;
  2. wilful misconduct;
  3.  death or personal injury caused by negligence;
  4. fraud or fraudulent misrepresentation;
  5. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); 
  6. Indemnities provided by a party; or
  7. liability which cannot legally be limited.

Nothing in these Terms shall limit the Client's payment obligations under the Contract.

Unless the Client notifies the Company that Client intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the event occurred and shall expire one (1) month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

 

OTHER LIMITATIONS OF LIABILITY

The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which Services are dependent or deliverables from a third party.

The Company shall use all reasonable endeavours to deliver Services in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming Services performance due to changes made to search engine’s standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. Company shall not be liable for changes or discontinuation of search engines.

The Company shall not be liable for changes in the number of views on a Client’s website or social media pages, ranking or position of Client’s website or social media pages on search results. Company shall not be liable for ensuring that the provision of Services or Work Product result in a certain volume of traffic, number of clicks, customer registrations, purchases or likes/follows on a Client’s website or social media pages.

The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.

Company shall not bear any liability for any lack of business revenues experienced by the Client subsequent to the provision of the Services.

 

INTELLECTUAL PROPERTY RIGHTS

The Client shall have ownership of all IPRs in the Work Product.

In relation to the Client Materials, the Client:

  1. and its licensors shall retain ownership of all IPRs in the Client Materials; and
  2. grants to the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to the Client.

Subject to clause 6.2  and 8.3 the Company warrants that the receipt, use of the Services and Work Product by the Client shall not infringe any Intellectual Property Rights of any third party.

Customer shall have no claim under the indemnity at Clause 11.3 to the extent the infringement arises from:
the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Services or Work Product;
any modification of the Services or Work Product, other than by or on behalf of the Company; and
compliance with the Client’s specifications or instructions.

The Client:

  1. warrants that the receipt and use in the performance of the Services by the Company, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
  2. shall indemnify the Company against all liabilities, costs, expenses, damages and losses and professional costs and expenses suffered or incurred or paid by the Company arising out of or in connection with actual or alleged infringement of a third party's Intellectual Property Rights, to the extent that the infringement or alleged infringement results from,arises out of, or is in connection with, the receipt or use of the Client Materials.

If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this Clause 11, the Indemnified Party shall:

  1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 10.3(b) or Clause 10.4(b) (as applicable) (IPRs Claim);
  2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
  3. provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
  4. not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

Use of Name.  Company shall, subject to Client’s consent (which shall not be unreasonably withheld), be entitled to use the name (and logo, if any, associated with the Client name) of the Client in its client lists, sales, marketing or promotional materials and website. 

 

CONFIDENTIALITY AND PERSONAL DATA

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 12.2.

Each party may disclose the other party's confidential information:

  1. its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this these Terms. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 12; 
  2. information which is or becomes publicly available otherwise than through a breach of these Terms, is already or rightly comes into the receiving party’s possession without an accompanying obligation of confidence, is independently developed by the receiving party; or
  3. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.

Each party agrees to comply with its respective obligations under the Data Processing Agreement incorporated in these Terms as Exhibit A

 

CHANGE CONTROL

Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

  1. the Services;
  2. the Service Charges;
  3. the timetable for the Services; and
  4. any of the other relevant terms. 

If the party wishing to make a change to the Services shall provide a draft Change Order to the other party and provide as much detail as the other party reasonably requires of the proposed changes.

If the parties:

  1. agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
  2. are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure.

The Company may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Client at the Company's current rates.

 

TERM, TERMINATION AND ASSIGNMENT

Where Services are provided on a retainer basis, the term of the Contract shall be for an initial minimum period agreed by the parties (“Initial Term”) and shall continue on a rolling month-to-month basis, unless either party provides 30 days’ notice to terminate the Contract. Where Services are provided on a non-retainer basis, the term of the Contract shall be for the period agreed by the parties.

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:

  1. commits a material breach of the Contract and fails to remedy that breach within ten (10) Business Days after being notified in writing of the breach; 
  2. 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; or
  3. financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Terms is in jeopardy.

For the purposes of this clause, a material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of the Contract.

The Company shall, in addition to all other rights and remedies under these Terms, be entitled to terminate a Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.

 

ASSIGNMENT 

The Company 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 the Client.

The Client shall be entitled to assign any of its rights (but not its’ obligations) under the Contract and these Terms.

 

FORCE MAJEURE

If a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms t by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

The Affected Party shall:

  1. as soon as reasonably practicable after the start of the Force Majeure Event but no later than five (5) days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Terms; and
  2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than two (2) weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving thirty (30) days’ written notice to the Affected Party.

 

MISCELLANEOUS

The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.

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.

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.

No variation of a Contract or these Terms shall be valid unless it is in writing and signed on behalf of each of the parties by duly authorised representatives.

Unless it expressly states otherwise, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of these Terms.

The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

Any communication given to a party under or in connection with a Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next Business Day delivery service at  (i)  Company: Tom Wardman Consultancy Limited, 27 Old Gloucester Street, London, United Kingdom, WC1N 3AX, (ii)  Client: such address as is advised by the Company. Any communication shall be deemed to have been received: (i) if delivered by hand, at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; (iii) if sent by email, when acknowledged by recipient or receipt of automated delivery notice by sender. This clause does not apply to the service of any notices or proceedings or any documents in any legal action or, where applicable, any mediation or other method of dispute resolution.

 

ENTIRE AGREEMENT

The parties acknowledge and agree that 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.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.

 

MULTI-TIERED DISPUTE RESOLUTION PROCEDURE

If a dispute arises out of or in connection with a Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:

  1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Manager of the Client and Manager of the Company shall attempt in good faith to resolve the Dispute;
  2. if the Manager of the Client and Manager of the Company are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than thirty (30) days after the date of the ADR notice.
  3. If the Dispute is not resolved within thirty (30) days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of thirty (30) days, or the mediation terminates before the expiration of the said period of thirty (30) days, the Dispute shall be finally resolved in accordance with clause 19.2.

The parties agree that all disputes arising out of a Contract will be finally resolved by binding arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

The arbitration will be administered by the London Court of International Arbitration (“LCIA”) in accordance with the LCIA Rules, and the dispute will be heard by a sole arbitrator appointed by the LCIA.

The language the proceedings and all documents shall be in English.

The governing law of the Contract shall be English Law. 

Venue for the arbitration will be London, England, but meetings and hearings will be conducted online.

Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

The arbitral award will be final, binding and non-appealable, and judgement upon the award may be entered in any court having jurisdiction under applicable law, except no punitive or exemplary damages will be enforced in any court.

If a party breaches the confidentiality or intellectual property provisions of these Terms, the parties agree that money damages alone would not provide an adequate remedy and the party affected by such breach (or a threatened breach) shall be entitled to seek a temporary or permanent injunction or other equitable relief from any court of competent jurisdiction, without showing actual damages or posting a bond or other security. This equitable relief does not limit other rights, remedies, damages, or forms of relief.

 

OBLIGATIONS ON TERMINATION AND SURVIVAL 

On termination or expiry of the Contract, the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt.

On termination or expiry of the Contract, the following clauses shall continue in force: Clause 1 (Definitions and interpretation), clause  (Intellectual property rights), clause  (Confidentiality and personal data), clause  (Liability), clause (Other limitations of liability), clause 17(Miscellaneous), clause 19 (Multi-tiered dispute resolution procedure), clause 20(Obligations on termination and survival).

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 Terms which existed at or before the date of termination or expiry.

 

DATA PROCESSING AGREEMENT

This Personal Data Processing Agreement (Agreement) sets out the terms, requirements and conditions on which the Company will process Personal Data when providing services under the Contract. This Agreement contains the mandatory clauses required by Article 28(3) of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR) for contracts between controllers and processors and the EU GDPR.

Definitions and interpretation

The following definitions and rules of interpretation apply in this Agreement.

Definitions:

  • Authorised Persons: the persons or categories of persons that the Client authorises to give the Company written personal data processing instructions and from whom the Company agrees to accept such instructions.
  • Business Purposes: the services to be provided by the Company to the Client as described in the Contract and any other purpose specifically identified in ANNEX A.
  • Commissioner: the Information Commissioner (see Article 4(A3), UK GDPR and section 114, Data Protection Act 2018).
  • Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given in the Data Protection Legislation.
  • Controller: has the meaning given in section 6, Data Protection Act 2018.
  • Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
  • Data Subject: the identified or identifiable living individual to whom the Personal Data relates.
  • EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
  • EEA: the European Economic Area.
  • Records: has the meaning in Clause 12.
  • Standard Contractual Clauses (SCCs): the ICO's International Data Transfer Agreement for the transfer of personal data from the UK and/or the ICO's International Data Transfer Addendum to EU Commission Standard Contractual Clauses and/or the European Commission's Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 as set out in the Annex to Commission Implementing Decision (EU) 2021/914 and/or the European Commission's Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), as set out in the Annex to Commission Decision 2010/87/EU as adapted for the UK, or such alternative clauses as may be approved by the European Commission or by the UK from time to time.
  • Term: this Agreement's term as defined in Clause 10. 
  • UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

This Agreement is subject to the terms of the Contract and is incorporated into the Contract. Interpretations and defined terms set forth in the Contract apply to the interpretation of this Agreement.

The Annexes form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Annexes.

A reference to writing or written including email.

In the case of conflict or ambiguity between:

  1. any provision contained in the body of this Agreement and any provision contained in the Annexes (excluding any executed SCC), the provision in the body of this Agreement will prevail;
  2. the terms of any accompanying invoice or purchase order or other documents annexed to this Agreement and any provision contained in the Annexes, the provision contained in the Annexes will prevail; 
  3. any of the provisions of this Agreement and the provisions of the Contract, the provisions of this Agreement will prevail; and
  4. any of the provisions of this Agreement (or any other provision contained in the Annexes or any of the documents referred to in (b) and (c) above) and any executed SCC, the provisions of the executed SCC will prevail.

Personal data types and processing purposes

The Client and the Company agree and acknowledge that for the purpose of the Data Protection Legislation:

  1. the Client is the controller and the Company is the processor.
  2. the Client retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including but not limited to providing any required notices and obtaining any required consents, and for the written processing instructions it gives to the Company.
  3. ANNEX A describes the subject matter, duration, nature and purpose of the processing and the Personal Data categories and Data Subject types in respect of which the Company may process the Personal Data to fulfil the Business Purposes.

Company's obligations

The Company will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with the Client's written instructions. The Company will not process the Personal Data for any other purpose or in a way that does not comply with this Agreement or the Data Protection Legislation. The Company must promptly notify the Client if, in its opinion, the Client's instructions do not comply with the Data Protection Legislation.

The Company shall comply with Client written instructions requiring the Company to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing.

The Company will maintain the confidentiality of the Personal Data and will not disclose the Personal Data to third parties unless the Client or this Agreement specifically authorises the disclosure, or as required by domestic law, court or regulator (including the Commissioner). If a domestic law, court or regulator (including the Commissioner) requires the Company to process or disclose the Personal Data to a third party, the Company must first inform the Client of such legal or regulatory requirement and give the Client an opportunity to object or challenge the requirement, unless the domestic law prohibits the giving of such notice.

The Company will reasonably assist the Client, at Client’s sole cost, with meeting the Client's compliance obligations under the Data Protection Legislation, taking into account the nature of the Company's processing and the information available to the Company, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with the Commissioner [or other relevant regulator] under the Data Protection Legislation.

The Company shall notify the Client of any changes to the Data Protection Legislation that may reasonably be interpreted as adversely affecting the Company's performance of the Contract or this Agreement. 

Company's employees

The Company will ensure that all of its employees:

  1. are informed of the confidential nature of the Personal Data and are bound by confidentiality obligations and use restrictions in respect of the Personal Data;
  2. have undertaken training on the Data Protection Legislation relating to handling Personal Data and how it applies to their particular duties; and
  3. are aware both of the Company's duties and their personal duties and obligations under the Data Protection Legislation and this Agreement.
  4. The Company will take reasonable steps to ensure the reliability, integrity and trustworthiness of all of the Company's employees with access to the Personal Data.

Security

The Company shall implement appropriate technical and organisational measures against unauthorised or unlawful processing, access, copying, modification, reproduction, display or distribution of the Personal Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Personal Data including, but not limited to, the security measures set out in ANNEX A.

The Company shall implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

  1. the pseudonymisation and encryption of personal data;
  2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
  3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
  4. a process for regularly testing, assessing and evaluating the effectiveness of the security measures.

Personal Data Breach

The Company will within 72 hours notify the Client if it becomes aware of:

  1. the loss, unintended destruction or damage, corruption, or unusability of part or all of the Personal Data. The Company will restore such Personal Data at its own expense as soon as possible.
  2. any accidental, unauthorised or unlawful processing of the Personal Data; or
  3. any Personal Data Breach.
Where the Company becomes aware of (a), (b) and/or (c) above, it shall, without undue delay, also provide the Client with the following information:
  1. description of the nature of (a), (b) and/or (c), including the categories of in-scope Personal Data and approximate number of both Data Subjects and the Personal Data records concerned;
  2. the likely consequences; and
  3. a description of the measures taken or proposed to be taken to address (a), (b) and/or (c), including measures to mitigate its possible adverse effects.
Following any accidental, unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will co-ordinate with each other to investigate the matter. Further, the Company will reasonably co-operate with the Client, in the Client's handling of the matter, including but not limited to:
  1. assisting with the Personal Data Breach investigation; and 
  2. taking reasonable and prompt steps to mitigate the effects and to minimise adverse effects resulting from the Personal Data Breach or accidental, unauthorised or unlawful Personal Data processing.

The Company will not inform any third party of any accidental, unauthorised or unlawful processing of all or part of the Personal Data and/or a Personal Data Breach without first obtaining the Client's written consent, except when required to do so by domestic law.

The Company agrees that the Client has the sole right to determine:

  1. whether to provide notice of the accidental, unauthorised or unlawful processing and/or the Personal Data Breach to any Data Subjects, the Commissioner, other in-scope regulators, law enforcement agencies or others, except where Company is required to provide notice by law or regulation; and
  2. whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy except where Company is required to provide remedy by law or regulation.

Transfers of personal data

The Company (and any subcontractor) may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:

  1. the Company is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals.; or
  2. the Company participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Company (and, where appropriate, the Client) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the UK GDPR and EU GDPR. 

If any Personal Data transfer between the Client and the Company requires execution of SCCs in order to comply with the Data Protection Legislation (where the Client is the entity exporting Personal Data to the Company outside the EEA), the parties will complete all relevant details in, and execute, the SCCs, and take all other actions required to legitimise the transfer.

Subcontractors

The Company may only authorise a third party (subcontractor) to process the Personal Data if:

  1. the Client is provided with an opportunity to object to the appointment of each subcontractor within five (5) working days after the Company notifies the Client with full details in writing regarding such subcontractor;
  2. the Company enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this Agreement, in particular, in relation to requiring appropriate technical and organisational data security measures; 
  3. the Company maintains control over all of the Personal Data it entrusts to the subcontractor .

Those subcontractors approved as at the commencement of this Agreement are as set out in ANNEX A.

Where the subcontractor fails to fulfil its obligations under the written agreement with the Company which contains terms substantially the same as those set out in this Agreement, the Company remains fully liable to the Client for the subcontractor's performance of its agreement obligations. 

Complaints, data subject requests and third-party rights

The Company must, at no additional cost to the Client, take such technical and organisational measures as may be appropriate, to enable the Client to comply with the rights of Data Subjects under the Data Protection Legislation.

The Company shall notify the Client in writing if it receives any complaint, notice or communication that relates to the processing of the Personal Data under these Terms.

The Company shall notify the Client within fifteen (15) days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their other rights under the Data Protection Legislation.

The Company will give the Client, at Client’s sole cost, its full co-operation and assistance in responding to a complaint, notice, communication or Data Subject request.

The Company shall not disclose the Personal Data to any Data Subject or to a third party other than in accordance with the Client's written instructions, or as required by domestic law.

Term and termination

This Agreement will remain in full force and effect so long as:

  1. the Contract remains in effect; or 
  2. the Company retains any of the Personal Data related to the Contract in its possession or control (Term).

Any provision of this Agreement that expressly or by implication should come into or continue in force on or after termination of the Contract in order to protect the Personal Data will remain in full force and effect.

If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Contract obligations, the parties may agree to suspend the processing of the Personal Data until that processing complies with the new requirements. If the parties are unable to bring the Personal Data processing into compliance with the Data Protection Legislation within thirty (30) days, either party may terminate the Contract on not less than thirty (30) days’ written notice to the other party.

Data return and destruction

At the Client's request, the Company will give the Client, or a third party nominated in writing by the Client, a copy of or access to all or part of the Personal Data in its possession or control in a machine readable format.

On termination of the Contract for any reason or expiry of its term, the Company will securely delete or destroy or, if directed in writing by the Client, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control, except for one copy that it may retain and use for archiving and back-up purposes only.

If any law, regulation, or government or regulatory body requires the Company to retain any documents or materials or Personal Data that the Company would otherwise be required to return or destroy, it will notify the Client in writing of that retention requirement, giving details of the documents, materials or Personal Data that it must retain, the legal basis for retention, and establishing a specific timeline for deletion or destruction once the retention requirement ends.

Records

The Company will keep written records regarding any processing of the Personal Data (Records).

Audit

The Company will make relevant audit reports available to the Client as evidence of compliance with Company’s obligation under this Agreement. The Client will treat such audit reports as the Company's confidential information under the Contract.

 

ANNEX A

Personal Data processing purposes and details

Subject matter of processing: Company will Process Personal Data as necessary to perform the Services pursuant to the Contract, and as further instructed by Client in its use of the Services. 

Duration of Processing: Company will Process Personal Data for the duration of the Contract, unless otherwise agreed upon in writing.

Nature of Processing: The nature of the Processing is the performance of the Services pursuant to the Agreement. 

Business Purposes: Digital marketing services.

Personal Data Categories: Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: 

  1. Professional and personal contact details-company, email, phone, physical address
  2. Online identifiers 
  3. Online behaviours 
  4. ID data 
  5. Professional life data 
  6. Personal life data 
  7. Localisation data
  8. racial or ethnic origin
  9.  political opinions 
  10. religious or philosophical beliefs
  11. trade-union membership 
  12. processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, 
  13. data concerning health or 
  14. data concerning a natural person’s sex life or sexual orientation

Data Subject Types: 

Prospects, customers, business partners and vendors of Client (who are natural persons)

Employees or contact persons of Client’s prospects, customers, business partners and vendors 

 Employees, agents, advisors, freelancers of Clients (who are natural persons)

 Customer’s Users authorized by Customer to use the Services [Set out categories of data subjects such as employees, Clients, students and so on]

Approved Subcontractors:

  1. White Orchid Studio-graphic design services - Manor Gardens, Verwood BH31 6DP, United Kingdom
  2. clickability -Technical SEO services - One, The Embankment, Neville St, Leeds LS1 4DW
  3. HubSpot
  4. Google
  5. Krisp
  6. ClickUp
  7. GoCardless
  8. PandaDoc
  9. Glow - 1 The Mews, Little Brunswick Street, Huddersfield, HD1 5JL, UK

Security measures

  • All documents and Client work is stored securely on Google Drive, access is provided to clients on request and is not shared externally with third parties.
  • Direct Debit mandates are stored in GoCardless https://gocardless.com/faq/merchants/security/
  • Meetings are recorded via Krisp AI and can be deleted on request https://krisp.ai/security-for-ai-meeting-assistant/