Terms & Conditions
These Terms and Conditions apply to all Services provided by us, The Brady Creative Ltd,
a company registered in England and Wales under number 12533612, whose registered address
is at Gifford Court, 5, Millbrook Cl, Northampton NN5 5JF (referred to as “we/us/our”).
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Contract” means the contract formed as detailed in clause 2, which will incorporate, and be subject
to, these Terms and Conditions;
“Client/you/your” means the business detailed in our Proposal to which our Services are to be provided. Where any individual enters into the Contract on behalf of a business, that person confirms they have the authority to contractually bind and enter into the Contract on behalf of that business and the business will be our Client in the context of the Contract;
“Proposal” means our written Proposal to provide the Services, which remains open for acceptance for a period of 30 days unless otherwise stated and sets out our entire scope of works; and “Services” means the social media management, copywriting, brand development, marketing strategy and/or any other Services provided by us to you.
1.2 Each reference in these Terms and Conditions to:
1.2.1 “writing/written” includes emails and similar communications;
1.2.2 a statute or a provision of a statute refers to that statute or provision as amended or
re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” refers to these Terms and Conditions;
1.2.4 a clause refers to a clause of these Terms and Conditions;
1.2.5 “party/parties” refer to the parties to these Terms and Conditions;
1.2.6 the respective parties includes their employees and sub-contractors.
1.3 The headings used in these Terms and Conditions are for convenience only and will have no effect on their interpretation.
1.4 Words imparting the singular number include the plural and vice versa. References to persons include corporations.
2. The Contract
2.1 We will issue a Proposal to you, setting out the project brief following our initial discussions with you.
We may suggest various options within the Proposal for the Services we can provide.
2.2 Your acceptance, electronically or otherwise, of the chosen Services within our Proposal, 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.
2.3 You are responsible for the accuracy of any information you submit to us and for ensuring that our Proposal and proposed scope of works reflect 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 adjust it.
2.4 No terms or conditions stipulated or referred to by you in any form whatsoever will in any respect
vary or add to these Terms and Conditions unless we agree otherwise in writing.
3. Service Delivery and Timescales
3.1 All Services will be carried out during our normal working hours (Monday – Friday, 9am – 5pm, excluding bank holidays in England). Works required outside of these hours will be subject to our availability and may incur additional costs.
3.2 We may provide estimated timescales for the works to be carried out. Such timescales are dependent on your feedback, response times and other factors outside of our control, therefore, they represent a guideline only and are not of the essence of the Contract.
3.3 It will be your responsibility to provide us with sufficient content, information, materials, images, access and assistance relating to the Services as we may reasonably require within enough time to enable us to perform the Services.
3.4 Where we agree to attend meetings, we require no less than 48 hours’ notice to rearrange or cancel a meeting. We reserve the right to charge for any costs we incur where such notice is not provided.
4. Social Media Management Services
4.1 Where we are carrying out social media management Services, we will need you to provide us with administrator access to the agreed platforms as soon as possible, to avoid delays.
4.2 We can arrange to set up your account(s) as necessary, in which case we will add ourselves as administrators and appoint you as the owner of the account. A separate contractual relationship will be created between you and the third-party platform, subject to their terms and conditions, and we cannot be held responsible for any act or omission of theirs.
4.3 Certain features may require payment in order to function and you will need to pay the platform directly, in addition to our agreed fees as set out in the Proposal.
4.4 We will monitor the analytics and provide regular performance reports where we have agreed to do so. Such reports will be in our standard format only, unless otherwise agreed.
5. Copywriting Services
5.1 We will create content using information gathered during the project brief or other information you may send to us. It is your responsibility to update us on any changes to your business that may affect the Services we are providing, such as special offers or discontinued products or services of yours. If you fail to do so, and we have to recreate any content as a result, we reserve the right to charge for this.
5.2 Where we send draft materials or content, these will not be progressed further or published until we have received your written approval to do so and we cannot be held responsible for any delays as a result. It is your responsibility to check for mistakes, including spelling mistakes, and we accept no responsibility for the same.
6. Brand Development Services
6.1 For design work, we will provide you with the agreed number of concepts based on the project brief.
You will need to sign off the various stages as the works progress and check all content and functionality at this time.
6.2 Any alterations required after you have approved the various stages, any changes to the brief or any additional visits required above the allowance included for in the Proposal will be chargeable at our standard rate applicable at the time.
6.3 If you are providing us with any copy, photos or images, these will need to be sent in the agreed format and we will upload them exactly as we receive them, unless we have specifically included for editing within the Proposal.
6.4 Please note that for website design Services, we will build the site on a basic CMS platform such as Wix, as set out in the Proposal. You will be responsible for paying any hosting fees to the relevant platform directly and for backing up any images and data on the site. For bespoke websites, we can recommend a web developer but you will need to enter into a separate contract with them directly.
7. Marketing Strategy Services
7.1 Where we are providing marketing strategy Services, we will support you (and your team, as applicable), in implementing the agreed strategy.
7.2 In order to maximise the benefit of the Services, you will need to carry out the suggested actions in advance of the next session. If you fail to do so, we cannot be held responsible for the success or outcomes of the strategy.
8.1 For one-off projects, our standard payment terms are as follows:
8.1.1 50% of the quoted fee is due upon acceptance of our Proposal. We will not schedule the works until the deposit is paid in full. This deposit is non-refundable;
8.1.2 50% of the quoted fee will be invoiced on completion of the Services, or 1 month after a draft version has been issued to you if we have received no communication from you, whichever is the sooner. In the case of web design, the website will not be launched until we have received this final payment.
8.2 However, we reserve the right to charge staged payments as the works progress and will notify you of the various stages in the Proposal. We also reserve the right to request 100% of the quoted fee upfront.
8.3 Payment for our ongoing, retained Services is due monthly in advance throughout the term of the Contract. Payment must be received no later than the 1st day of the month, for the month ahead. We reserve the right to adjust our fees periodically and will give you no less than 3 months’ notice of this in writing.
8.4 All invoices are payable in full, without set-off, withholding or deduction, within 30 days from the date of invoice. All fees quoted are exclusive of VAT, where applicable.
8.5 We also reserve the right to charge you for our reasonable travelling time, mileage and other travel expenses and for any materials, goods and additional Services supplied by us at your request. Any additional Services will be charged in accordance with our current rate in effect at the time of the performance or such other rate as may be agreed.
8.6 The time of payment is of the essence of the Contract. If you fail to make any payment to us by 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. We will also charge for any costs we incur in attempting to recover any outstanding debt.
9. Variation and Amendments
9.1 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.
9.2 If 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.
10. Term and Termination
10.1 If you wish to cancel a one-off project after the Contract is formed, we will retain any deposit paid in advance and will invoice for any Services carried out that have not yet been paid for. Upon receipt of this final payment, we will hand over all works we have completed in relation to the Contract, up to the date of cancellation.
10.2 The Contract for ongoing, retained Services will continue in force for a minimum term of 3 months and then will continue on a rolling 3-month basis, until it is terminated in accordance with this clause 10. You may terminate the Contract at any time by giving us no less than 1 month’s written notice. We may terminate the Contract at any time by giving you no less than 14 days’ written notice. The fees will continue to be due and payable, and we will continue to provide the Services, throughout any period of notice.
10.3 Either party may terminate the Contract immediately if the other:
10.3.1 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 14 days after a written notice to do so;
10.3.2 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.
10.4 Upon termination, all payments required under the Contract will become due and immediately payable.
10.5 Any and all obligations of the parties, which either expressly or by their nature continue beyond the termination, cancellation or expiration of the Contract, will survive termination under this clause 10 on a pro-rata basis.
The parties agree that they will not use any confidential information provided by the other, except to perform their obligations under the 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.
12. Intellectual Property
12.1 Subject to a written agreement to the contrary, we retain ownership in all intellectual property which may subsist in the provision of the Services. Nothing in the Contract will vest any ownership rights in you.
12.2 Provided payment is made in accordance with our terms for payment, we will grant you a non-exclusive license to use the intellectual property the subject of the Contract, only for the purposes for which we are engaged by you. The licence will become effective only once the Services are complete and once we have received all payments under the Contract in full. You may not sub-licence these rights without our prior written permission.
12.3 We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of such intellectual property rights.
12.4 The licence will apply only to final design(s) and will not extend to any draft concepts, images, designs or other material viewed by you. These cannot be used without our express permission.
12.5 Any licence granted will be automatically revoked if you breach any of these Terms and Conditions or if the Contract is cancelled or terminated.
12.6 If you require stock photography for your project, we can source this for you, however, your use of the images will be subject to the relevant copyright restrictions accompanying such images. Any fees we incur will be chargeable.
12.7 We reserve the right to use any works created by us in any advertising or promotional material, publication, print or for any other purpose we require.
12.8 You warrant that any image, logo, document or instruction given to us will not cause us to infringe any advertising codes of conduct or any intellectual property or other legal rights in the provision of our Services. You will indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in settlement of any claim for any such infringement, including infringement of stock photography copyright as specified in clause 12.6, which results from our use of any information supplied by you or your breach of the Contract.
13. Data Protection
13.1 Both parties agree to comply with all applicable data protection legislation including, but not limited to, the Data Protection Act 2018, the General Data Protection Regulation 2016 and any subsequent amendments.
13.2 If you provide us with, or allow us access to, the personal data of any other person (for example, your customers’ data if we are working on email marketing campaigns), it is your responsibility to obtain permission from those persons to pass their data to us, as a third party. We will only use that data to provide our Services and will not use it for any other purpose.
13.3 Where we are providing photography Services, it is your responsibility to obtain the necessary permissions from the venue and release forms from any participants in advance.
14. Liability and Indemnity
14.1 Nothing in these Terms and Conditions excludes or seeks to exclude our liability for death or personal injury caused by our negligence, or for fraud or fraudulent misrepresentation.
14.2 Except as provided in clause 14.1, 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 in the Contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our employees, sub-contractors or otherwise) in connection with the performance of our obligations under the Contract. All warranties or conditions whether express or implied by law are expressly excluded, to the maximum extent permitted by law.
14.3 In the event of a breach by us of our express obligations under the Contract, your remedies will be limited to damages, which in any event, will not exceed the total fees paid by you under the Contract in the preceding 12-month period.
14.4 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.
14.5 Any marketing literature we may provide is presented in good faith as a guide to represent the Services offered and does not form part of the Contract. None of our employees or agents are authorised to make any representation concerning the Services unless we confirm this in writing. You acknowledge that you do not rely on and waive any claim for breach of any such representations which are not confirmed.
15. Restrictive Covenants:
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 or sub-contractor of the other.
Neither party will 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 that party’s reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, earthquake, epidemic, act of terrorism or war, governmental action or any other event beyond the control of the party in question.
17. Other Important Terms
17.1 You may not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Contract. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Contract, without your prior consent. Where we use sub-contractors, we will be responsible for every act or omission of the sub-contractor as if it were an act or omission of our own.
17.2 Nothing in the Contract will render or be deemed to render us an employee or agent of yours or you an employee or agent of ours.
17.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
17.4 If 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 will be deemed severed from the remainder of these Terms and Conditions (and the Contract). The remainder of these Terms and Conditions and the Contract shall be valid and enforceable.
17.5 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.
17.6 Notices will be deemed to have been duly received and properly served 24 hours after an email is sent, or 3 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.
18. Law and Jurisdiction
18.1 These Terms and Conditions and the relationship between you and us (whether contractual or otherwise) will be governed by, and construed in accordance with, the laws of England and Wales.
18.2 Any dispute, controversy, proceedings or claim between you and us relating to the Contract or these Terms and Conditions (whether contractual or otherwise) will be subject to the jurisdiction of the courts of England and Wales.