®Our Terms of Business
Please check our terms of business carefully. Our Terms of Business may be updated at any time without notice.
1.1 In this Agreement the following words, definitions and expressions shall have the following meanings:
1.2 “The Brand Surgery® Ltd” means The Brand Surgery® Limited or any of its subsidiaries or Partners providing related goods and services;
1.3 “Partner” means an authorised partner of The Brand Surgery® Limited who provides The Brand Surgery® Limited goods and services, bound by a Partner agreement;
1.4 “customer”means the individual or company to whom the invoice is addressed;
1.5 “Service” means the goods or services specified in the proposal;
1.6 “proposal” means the order form completed and signed by the customer; this proposal may refer to supporting documentation providing detail and scope for the project. The customer does not always sign a form, however, by paying us and with The Brand Surgery, automatically accepts these terms.
1.7 “Deliverable” means a set of goods or services that may be delivered at one time, for example: a marketing strategy document, a design draft, a collection of printed items, a marketing plan document or a consultation meeting.
1.8 “the Specification” means the specification of the project as agreed by The Brand Surgery® and the customer at the point of starting the project.
1.9 “Purchase Price” or “Price” means the price for the service to be paid by the customer to The Brand Surgery®
1.10 “the Project” means the design and delivery of any work carried out by The Brand Surgery®
1.11 “Business Day” means any day which is not a Saturday, Sunday or a bank or public holiday in England;
1.12 “URL” stands for uniform resource locator; and
1.13 “website” means the websites and/or e-commerce websites to be designed/developed/maintained/hosted by The Brand Surgery® Ltd for the customer.
1.14 “the timetable” is the written agreed delivery dates of the project.
1.15 “Confidential Information” for each party the terms of this agreement and all information and/or data belonging to or relating to that party, its associates, its or their businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by that party, its representatives or advisers, to the other party, its representatives or advisers whether before, on or after the date of this agreement;
1.16 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.17 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
1.18 any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations, and trusts (in each whether or not having separate legal personality);
1.19 the headings are included for convenience only and shall not affect the interpretation of these Terms & Conditions; her or not having separate legal personality);
1.20 any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context otherwise requires) be construed as referring to:
a) such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and
b) any former legislation which re-enacts, consolidates or enacts in rewritten form.
1.21.any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1. Any notice or other communication pursuant to this agreement must be in writing and signed by or on behalf of the party giving it and may be posted first class post to the address of the relevant party as set out in this agreement or subject to the provisions by email. All such notices or demands shall be deemed to have been received:
2.2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
3. PAYMENT TERMS
3.1. For printing and physical goods, unless otherwise stated in the proposal, the Purchase Price shall be payable to The Brand Surgery® Ltd on receipt of the order acknowledgement.
3.1 The customer shall pay The Brand Surgery® Ltd the Price according to the Terms of Payment as specified in The proposal.
3.2. For ad-hoc project work consisting of a single deliverable, unless otherwise stated in the proposal, the Purchase Price shall be payable to The Brand Surgery® Ltd on receipt of the order acknowledgement.
3.3 For retained work billed monthly, payment will be paid in advance of works. The Purchase Price shall be payable to The Brand Surgery® Ltd on receipt of the order acknowledgement and then monthly from that date. Monthly invoices will be emailed one week before the due date and payment must be cleared in The Brand Surgery’s bank before the next working month.
3.4 Miscellaneous expenses and costs-of-retained-work including colour print-outs, traveling expenses, images purchased and external print work are not included in retainer arrangement regular payments unless specified otherwise in writing. Printing and images must be paid in advance and will be invoiced accordingly.
3.5 For project work consisting of multiple deliverables, unless otherwise stated in the proposal, the Purchase Price shall be payable to The Brand Surgery® Ltd as follows:-
3.6 50% non-refundable deposit payable on receipt of the order acknowledgement; and
3.7 25% upon the approval of the initial concept document.
3.8 25% upon final completion or sign-off. Where The Brand Surgery completes the project delivering the written proposal brief, the balance of the total fee must be paid then, whether the project is signed off or not.
3.9 We reserve the right to charge in full the agreed contract price if the contract is cancelled with less than two weeks notice in writing prior to the agreed contract start date. We reserve the right to invoice for projects on a monthly basis. We reserve the right to charge in full the agreed contract price if the contract is cancelled with less than two weeks notice in writing prior to the agreed contract start date.
3.10 Prior to each payment, The Brand Surgery® Ltd shall issue an invoice to the customer. Unless otherwise stated in the proposal, each invoice is payable by return.
3.12 The Brand Surgery® Ltd is not obliged to carry out any work related to a proposal before an invoice has been issued and payment has been duly received. In the event that any preliminary work is carried out prior to receipt of the payment and the order is then cancelled, The Brand Surgery® Ltd will invoice the customer for this work to be paid by return.
3.13 The Purchase Price is exclusive of VAT. The Brand Surgery® Ltd is not currently VAT registered. If and when it does become VAT registered, it will advise you within 14 days written notice by email.
3.14 All payments shall be paid in full without set-off, deduction or counterclaim whatsoever.
3.15 For the avoidance of doubt, all customer meetings are chargeable at our standard rate. Travelling expenses are not included in our fee. If customers request additional meetings not included in the proposal, these are automatically chargeable at our standard rate.
3.10 The customer shall make payment to The Brand Surgery® Ltd by return of receipt of an invoice from The Brand Surgery® Ltd, all payments to be made in pounds sterling via online bank payment. Payment by the customer of any sum under this Agreement shall be without prejudice to any claims or rights the customer may have against The Brand Surgery® Ltd and shall not constitute any admission by the customer as to the performance by The Brand Surgery® Ltd of his obligations under this Agreement.
3.11 The Brand Surgery® Ltd reserves the right to alter The Brand Surgery® Ltd’s price list at any time but such alteration shall only take effect one month after notice has been given to the customer.
3.12 All quotes and estimates for ongoing projects are reviewable after two months
3.13 Customer meetings for website development/design are charged at our standard rate. Traveling expenses are not included in our fee.
3.14 customers are requested to settle by proforma invoice until after six months suitable trading, when a 7 day account may be arranged upon suitable references and credit checks. Late payments will result in immediate cancellation of any credit terms.
3.15 Should the client fail to settle an invoice within the payment terms specified on that invoice, and payment becomes overdue, all credit facilities will be immediately withdrawn and further work must be paid for in advance until trust has been re-established and credit terms are mutually agreed again.
3.16 We understand and will exercise our statutory right to claim interest and compensation for debt recovery costs under the ‘late payment legislation’ if we are not paid according to the agreed credit terms. A £25 administration fee is applicable for returned payments and reminder letters.
3.17 The Brand Surgery® Ltd’s policy is to exceed customer requirements and continuously offer an exceptional level of advice and input, as well as excellent final products. However, the above estimate is based on allocation of time deemed reasonable. Should this be exceeded you will be notified before incurring extra cost.
3.18 Extra author’s corrections and re-proofing are charged according to the current price list. All artwork will be supplied with low-resolution positional scans in place unless otherwise specified. Any additional work, i.e. high resolution scanning, retouching, colour balancing etc. will be charged extra if required. Please note: colour proofs should not be used for colour matching.
3.19 Prices are correct to be best of our knowledge at time of preparation and are valid for one month. We reserve the right to correct errors and omissions and will notify you in writing.
4. VARIATION TO PRICING
4.1 Where the proposal includes design work, the Purchase Price includes an allowance for two sets of changes to each deliverable. Additional changes shall be charged at the prevailing hourly rate. Any such variation shall be advised by The Brand Surgery® Ltd in writing and confirmed by the customer in writing before either the work proceeds further or any charges are incurred.
4.2 The charge for carriage of goods is at additional cost to the customer, unless otherwise stated in the proposal.
4.3 The Brand Surgery® Ltd reserves the right to vary the Purchase Price according to further requirements made by the customer subsequent to order acknowledgement. Any such variation shall be advised by The Brand Surgery® Ltd in writing and confirmed by the customer in writing before either the work proceeds further or any charges are incurred.
4.4 The Brand Surgery® Ltd reserves the right to charge expenses when fulfilling the work. Any mileage shall be charged at the rate of £45p per mile. No expenses shall be incurred without the customer’s express written agreement.
4.5 The Purchase Price, once accepted by both parties as signified by the receipt of a signed proposal, is applicable for 12 months from the date of signing. The Brand Surgery® Ltd reserves the right to increase the price of any work outstanding after that period.
4.6 If payment is not made on the due date, interest may be charged pursuant to the Late Payment Act of Commercial Debts (Interest) Act 1998, to recover interest and all costs involved in recovering outstanding monies.
5.1 The Brand Surgery® Ltd shall provide a proposal or written quote to the customer for each project . The proposal/quote forms part of this agreement.
5.2 The customer assumes sole responsibility for ensuring that the Service described in the proposal meets its requirements before signing the proposal.
5.3 The customer must return the signed proposal by letter or email upon receipt of order acknowledgement, a contract shall be created between The Brand Surgery® Ltd and the customer for the supply of the Service. If no signed proposal is received, an email from the customer confirming that he or she has read the proposal and our Terms of Business is acceptable.
5.4 By purchasing the Service, the customer acknowledges that it has read these Terms and Conditions, understands them and agrees to be bound by them.
5.5 Customer meetings are chargeable at our standard rate. Travelling expenses are not included in our fee. 3.6 These terms and conditions may be updated at any time without notice.
6. DUTIES OF THE BRAND SURGERY®
6.1 In consideration of the payment by the customer of the Price and subject to the terms and conditions of this Agreement, The Brand Surgery® Ltd agrees:
6.1 to deliver creative design, marketing strategy, website development or executive coaching as set out in this Agreement;
6.2 to create and deliver the agreed pages for brochures, leaflets and websites. The Brand Surgery® Ltd shall place logos, illustrations, photographs, images, moving images, sound, illustrations and other materials supplied by the customer. These items may be purchased by The Brand Surgery® Ltd on the customer’s behalf if a proforma invoice has been paid for by the customer for the total price of these items and related image searches
6.3 to advise the customer in relation to the design and the production of printed and web pages
6.4 Unless otherwise specified in writing at quoting stage, copywriting is not included in any project.
6.5 Projects including brochures and websites will only be populated if requested by the customer in writing at briefing/proposal/quoting stage. If population is requested, then the customer must request in writing whether copywriting services is requested, or existing copy is to be provided by the customer. If this service is not included on the website quote, it is the responsibility of the customer to bring this to The Brand Surgery® Ltd’s attention in writing.
6.6 The Brand Surgery® Ltd undertakes to carry out the objectives set out in the proposal if agreed by the customer in writing.
6.7 Where the customer has engaged more than one supplier in the provision of brand identity, design and development services, the exact delivery obligations of each supplier must be agreed in writing by the customer before work commences.
6.8 Where there appears to be slippage of the scope of the proposal, then the Brand Surgery may charge for extra works outside the proposal at its hourly rate.
6.9 The Brand Surgery® shall use it’s professional experience and expertise in all creative design to provide a professional solution which answers the brief.
7 DUTIES OF THE CUSTOMER
7.1 The customer shall deliver The Brand Surgery® Ltd all drafts, concepts, text, photographs, images, moving images, sound, illustrations and other materials, FTP and all required database back-end access details as required, for use in accordance with this Agreement in the agreed format and shall use reasonable efforts to ensure that it is correct and update it when required to do so pursuant to this Agreement.
7.2 If the customer’s website/emails/online/social media account is cyber-attacked or hacked in anyway, after “successful completion” (see 7), this is the responsibility of the customer and the customer agrees to pay for restoring its website to working order. Sourcing insurance to protect the customer against restoration and development costs of rectifying such cyber attack or hacking is the responsibility of the website customer.
7.3 The customer shall appoint a single point of contact in his or her team or business to take full responsibility, lead, approve and make decisions on behalf of their organisation. The responsible point of contact will have adequate leadership skills to make decisions that are free from personal attachment, subjective preference and/or culture influences. The customer understands that The Brand Surgery is a professional and experienced creative and marketing consultancy and therefore trusts the advice and creative input of The Brand Surgery®. The customer understands that any payment made in advance of work undertaken covers work implemented by The Brand Surgery® and is therefore non-refundable under any circumstances. The customer understands that any item created or produced by The Brand Surgery® remains the property of The Brand Surgery® until full payment is made.
8. WEBSITE RELATED TERMS – PLEASE READ THE WHOLE OF THIS DOCUMENT AS MOST TERMS RELATE TO WEBSITE customers.
8.1 The customer wishes to establish an internet website to enhance his position in the market, and keep one step ahead of his competition.
8.2 The Brand Surgery® Ltd is engaged in business as a website designer and developer and has agreed to supply a website for the customer upon the following terms and conditions.
8.5 Testing and live websites developed and/or designed and/or maintained by The Brand Surgery® Ltd will be hosted by the web hosting company specified by the The Brand Surgery® Ltd. The website hosting contract becomes valid upon payment of the first invoice presented by The Brand Surgery Limited®. The website hosting fee agreed within the initial proposal will be reviewed annually. If the customer wishes to change web hosting companies, they may purchase a website licence / source code / software from The Brand Surgery® Ltd upon request. The Brand Surgery requires two months written notice of termination of cancellation of website hosting / management in any case.
8.6 Domain names purchased on behalf of clients will be renewed and invoiced accordingly and the cost passed to clients, payment terms, 7 days. Should clients request transfer of domains we manage on behalf of them, there will be a £25 administration fee payable to The Brand Surgery to cover the cost of transferring the domain names. We also require all outstanding invoices to be paid before we complete domain transfers.
8.7 The Brand Surgery® Ltd shall nominate a Project Manager who shall be available to respond to the customer’s enquiries and who shall manage the Project. The Project Manager shall act promptly and fairly at all times during the term of this Agreement and in particular shall:
8.8 contribute as many hours or days of work as are required from time to time for the needs of the Project in accordance with the timetable; and
8.9 keep detailed records of all work carried out in relation to the Project by him or any other employee or agent of The Brand Surgery® Ltd, such records or copies thereof to be made available to the customer on request and to remain confidential to The Brand Surgery® Ltd and the customer.
8.10 The customer shall nominate a Project Co-ordinator who shall be available to co-ordinate with the Project Manager and who shall provide all information and documentation required by The Brand Surgery® Ltd for the proper performance of the Project.
8.11 The parties shall ensure that the Project Manager and the Project Co-ordinator review the progress of the Project on a weekly basis and agree a report of it.
8.12 If the Project Manager or the Project Co-ordinator is prevented by illness or injury from performing his duties under this Agreement, The Brand Surgery® Ltd or the customer (as the case may be) shall report the fact and its expected duration to the other party. If the Project Manager’s absence through illness or injury continues for more than 3 consecutive working days The Brand Surgery® Ltd shall make available an alternative suitably qualified and experienced Project Manager acceptable to the customer. If the Project Co-ordinator’s absence through illness or injury continues for more than 3 consecutive working days, the customer shall make available an alternative suitably qualified and experienced Project Co-ordinator.
8.13 The Brand Surgery® Ltd shall be entitled to procure the services of any other persons with suitable skills and experience as are necessary from time to time in order to complete the Project with the agreed timetable.
8.14 HTML and WordPress websites are “successfully completed” once The Brand Surgery® Ltd is satisfied that it has completed the website to the requirements of the written brief.
8.15 E-commerce websites including Magento, Open Cart, Cube Cart or Woo Commerce websites are “successfully completed” once the e-commerce website is connected to the specified payment gateway. For the avoidance of doubt, “successfully completed” also means “successful completion” and website hosting charges will be paid by the website customer from “successful completion” date.
8.16 In circumstances where there are delays to e-commence website payment gateway system being successfully connected to the website, whether or not the delays are caused by payment gateway provider, “successful completion” of the customer’s website will be exactly 24 hours after The Brand Surgery® Ltd has initially contacted the payment gateway provider and requested they fix any connection problems – website hosting charges become payable by the website customer from “successful completion” date. The Brand Surgery® Ltd is not liable for any losses or damages caused by delays to payment gateway systems and website connections.
8.17 Administration time for fixing payment gateway connection issues whether or not caused by the payment gateway provider is the responsibility of the website customer and must be paid for by the website customer in advance where possible – sometimes is difficult to quote in advance for fixing such issues, therefore the website customer agrees to pay this amount in stage payments before and during the payment gateway completion.
8.18 Liability for risk of loss or damage of any kind, including damage caused by cyber-attack and/or hacking, to the customer website, the software used, the content or the documentation related to it shall pass to the customer upon “successful completion”.
8.19 Where The Brand Surgery® is managing email marketing services for its clients, the customer is solely responsible for managing it’s mailing lists and all associated data. The customer is responsible for complying with the Information Commissioners Officer and ensuring that all email addresses comply to data protection and TPS rules. Clients are also responsible for exporting and backing up their mailing lists. The Brand Surgery® is not liable for any third party software malfunction / licence failure or data leakage; such responsibility passes back to the client.
8.20 The customer is required to test the website within 7 days of “successful completion” and must supply one clear notice of written modifications, within 7 days to The Brand Surgery® Ltd. If the payment gateway system is not yet working as outlined above, the website customer must test the entire website with the exception of payment submission function.
8.21 If after “successful completion”, the customer has supplied one clear notice of written modifications within 7 days, The Brand Surgery® will check the modifications required against the original brief and will advise the website customer if these changes fall within the scope of the original brief. If they fall within the scope of the brief, modifications will be completed at the discretion of The Brand Surgery®. If the changes fall outside the brief, modifications will be charged at the standard hourly rate. The customer will be advised whether or not modifications are free or chargeable in advance of works and must pay in advance of works.
8.22 For the avoidance of doubt, The Brand Surgery® Ltd shall not undertake any changes free of charge where the website customer requires the Website to operate in a manner not provided for in the original written Specification.
8.23 The Brand Surgery® Ltd can accept written or verbal confirmation via email from the customer indicating website sign-off which can include wording such as “signed-off”, “working”, “happy with this”, “complete” or similar.
8.24 Websites are automatically “signed-off” if no written amendments or corrections to the website are received by The Brand Surgery® within 7 days of “successful completion”.
8.25 If the website customer has specified in writing, that the website is to be developed on a test server, and the customer requests the website to “go live” before it is fully signed off, then The Brand Surgery® Ltd is not liable for any loss of business, legal proceedings or any costs associated with damage caused by an incomplete website.
8.26 If there proves to be a result of an error or by the customer, The Brand Surgery® Ltd shall be entitled to charge for the costs of investigation and of making the changes that are necessary and agreed at The Brand Surgery® Ltd’s then current price list.
8.27 If changes required are not part of the original agreement or agreed sign-off, for example, image sourcing / image replacement, proof-reading, page names, file names, these changes will be paid for by the customer in advance of works.
8.28 The Brand Surgery® Ltd endeavours that successful completion occurs on or before the date set out in the timetable for completion to occur. If any delay in achieving successful completion is due to delay or error beyond the control of The Brand Surgery® Ltd, the relevant dates set out in the timetable shall be deemed deferred as agreed.
8.29 Websites that require security updates, upgrades, patches and new versions of software, including but not exclusive to WordPress, Woocommerce, Cube Cart, Open Cart and Magento, are the responsibility of the website customer. The customer agrees to pay for the cost of software updates, installations and associated work in advance of works unless otherwise agreed in writing. The Brand Surgery® is not liable for conflicts to the website and other software that are caused by installed patches, updates or new software versions. If conflicts happen, the customer agrees to pay the cost of fixing such conflicts and restoring website to full working order.
10 Upon successful completion:
10.1 the customer will pay for website hosting as previously agreed.
10.2 Risk of loss or damage of any kind, including damage caused by any security and/or cyber-attack and/or hacking, to the customer website or e-commerce website, the software used, the content or the documentation related to it shall pass to the customer upon “successful completion”
10.3 In the case of websites with a customer Management System (CMS) including but not exclusive to Magento and WordPress: Once full payment is received from the website customer and/or The Brand Surgery® states that the website is at the point of “successful completion” which is at the discretion of The Brand Surgery® Ltd, the customer must complete a disclaimer form provided by The Brand Surgery® Ltd before administration passwords are released to the website customer. Upon receipt of signed disclaimer forms, one CMS user will be set up per website customer. Website customers will be issued with “editor” access for 24 months. After 24 months, administration access may be requested which is at the discretion of The Brand Surgery® Ltd .
10.4 Once the customer receives any form of CMS login details, the website customer understands that if they or a third party causes any structural, technical or other damage of any kind to the website or related software, then the website customer to restore the website to working order at their own financial cost.
10.5 Customer websites stored on The Brand Surgery’s hosting servers are backed up by its hosting company every day and these back-ups are stored for seven days. The restore service from said back-ups is provided within 2 working days. Cybercrime is on the increase and unless it has been agreed in writing on the business order, It is the responsibility of the customer to check the state of their website daily so they can report potential problems quickly. Should a customer website be damaged, destroyed, deleted, hacked or subject to any cyber-crime in any way, it is the responsibility of the customer to report this to The Brand Surgery within 24 hours so it can restore the website from one of its seven day backups. If damage to a website, as listed in 10.5 above, is reported outside of the seven day restore period, then a website restore will not be available and the customer website will be rebuilt at the customer’s cost. The customer understands that when websites are restored from a seven day backup, that all changes made to the website, after the backup they choose to restore from will be lost. The Brand Surgery® Ltd is not liable for any website design, development or copywriting loss or business lost in any event. If the customer requires more than one website restore per week, this is charged at £50 per restore. The number or restores cannot be banked or saved.
10.6 One hour’s basic CMS training may be provided by The Brand Surgery® Ltd for up to two people upon written request. This training must be delivered within 28 days of successful completion of the website – training requested outside of this time will be chargeable. Further training time can be purchased from The Brand Surgery® in one hour slots at £65ph for up to two people. CMS training will generally be provided at a customers’ premises and a seat with a comfortable view of a computer screen for viewing and using the CMS system must be made available by the website customer for both the trainer and the trainees.
10.7 The customer’s liability insurance must be adequate and will cover any damage to its website/s. customers are required to sign-off that they understand each stage of the training. Travelling expenses including parking fees are chargeable. If there are more than two people who require CMS training, then the higher hourly rate will be agreed in advance at quoting stage and must be paid for by the website customer in advance. Training manuals are not included as part of the training service and website customers are expected to write clear notes. If the training is to be held at The Brand Surgery® Ltd , then customers must bring laptops and work from these. customers are responsible for their own safety at The Brand Surgery® Ltd office and must have adequate liability insurance in place.
11.1 The customer may at any time request alterations to the Specification by notice in writing to The Brand Surgery® Ltd.
11.2 On receipt of the request for alteration The Brand Surgery® Ltd shall, within 5 working days or such other period as may be agreed between the parties, advise the customer by notice in writing of the effect of the alteration, if any, on the price, the timetable and any other terms already agreed between the parties. Any increase in the Price shall be in accordance with the standard charges of The Brand Surgery® Ltd for labour. For the avoidance of doubt, the customer’s requirement that The Brand Surgery® Ltd carry out amendments or modifications or corrective or remedial work is deemed a chargeable fee; in this case the customer must pay The Brand Surgery® for modification/corrective or remedy work before these works are commenced.
11.3 Where The Brand Surgery® Ltd gives written notice to the customer agreeing to perform an alteration on terms different to those already agreed between the parties, the customer shall, within 5 working days of receipt of such notice, advise The Brand Surgery® Ltd by notice in writing whether or not he wishes the alteration to proceed.
11.4 Where The Brand Surgery® Ltd gives written notice to the customer agreeing to perform an alteration on terms different to those already agreed between the parties, and the customer confirms in writing that he wishes the alteration to proceed on those terms, this Agreement shall be deemed automatically to have been amended so as to include the alteration and thereafter The Brand Surgery® Ltd shall perform this Agreement upon the basis of such amended terms. If not written notice is received for these alteration works for a chargeable fee as above.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 The customer grants to The Brand Surgery® Ltd a royalty-free, world-wide, non-exclusive license to use the content supplied by the customer for the purposes of the Project only.
12.2 Copyright to the assembled work of Web Pages produced by The Brand Surgery® Ltd is owned by The Brand Surgery® Ltd. Upon final payment The Brand Surgery® Ltd shall grant to the customer a royalty-free, world-wide, non-exclusive license to use the Website Design, the Web Pages and the parts of the content designed by The Brand Surgery® Ltd. Rights to graphics, source code and computer programs are not transferred to the customer and remain the property of The Brand Surgery® Ltd. The Brand Surgery® Ltd retains the right to display graphics and other web design elements as examples of their work.
12.3 All websites designed, developed and managed by The Brand Surgery® Ltd display the words ‘designed and developed by The Brand Surgery®’ with a hyperlink to The Brand Surgery® Ltd’s website. Alterations to this must be agreed by both parties before contract stage. If after the contract stage, the customer wishes to remove or removes by his own methods, The Brand Surgery® Ltd’s business name and hyperlink, this must be agreed by The Brand Surgery® Ltd and the customer must pay The Brand Surgery® a fee of £1000.
13. COMPLIANCE AND IPR
13.1 It is the responsibility of the customer to ensure ensuring that the deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The customer agrees to indemnify The Brand Surgery® Ltd against any costs arising from the use or misuse of the deliverables.
13.2 Once the project has been completed, signed off, and full payment made, the ownership of the rights to the artwork and any imagery created will pass to the customer. This does not include website design which is covered in our website terms.
13.3 Third party materials, such as imagery, used in the deliverables may be subject to usage liabilities such as royalties and license fees. The Brand Surgery® Ltd shall procure such license as necessary for the use of third party materials for use within the scope of the proposal. The customer should obtain written consent from The Brand Surgery® Ltd for use of any part of the deliverables outside of the scope of the proposal.
13.4 Unless otherwise stated in the proposal, The Brand Surgery® Ltd reserves the continuing right to use any deliverables it produces for the promotion of its services.
14.1 The customer warrants and represents to The Brand Surgery® Ltd that any elements of text, graphics, photos, designs, trademarks or other material supplied to The Brand Surgery® Ltd for inclusion in the Website are owned by the customer, or that the customer has permission from the rightful owner to use each of these elements and that The Brand Surgery® Ltd’s use of such material shall not infringe the intellectual property rights of any third party.
14.2 The Brand Surgery® Ltd warrants and represents to the customer that all works created by The Brand Surgery® Ltd in the course of the Project will, unless otherwise stated in this Agreement, be original or partners’ work and not subject to any intellectual property or other rights of any third party and that the customer’s use of the Website shall not infringe the intellectual property rights of any third party.
14.3 All conditions, terms, representations and warranties that are not expressly stated in these terms, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded.
14.4 The Brand Surgery® Ltd makes no warranties that the Website will be error-free or free from any viruses or malicious/harmful mechanisms.
14.5 The Brand Surgery® Ltd makes no warranties about the accuracy, reliability, completeness or timeliness of the Website Content, Services, software, text, graphics and any links through to third party sites.
14.6 The Brand Surgery® Ltd makes no warranties in relation to Website security and the Company shall not be responsible or liable for any form of “attack” carried out by a third party on the Website (such “attack” to include but not be limited to a breach of security, anything with malicious intent, hacking, cyber attacks, cyber terrorism, any other form of cyber crime targeted at the Company).
15 LIMITATION OF LIABILITY
15.1 Nothing in these terms and conditions shall exclude or limit The Brand Surgery® Ltd’s liability for death or personal injury resulting from The Brand Surgery® Ltd’s negligence or that of its employees, agents or sub-contractors.
15.2 The entire liability of The Brand Surgery® Ltd to the customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to 10% of the Price paid by the customer under this Agreement.
15.3 Should the customer at any time involve a third party or pass website passwords / administration access / hosting or other information to a third party for any reason, then the customer is liable for security and function of the website and agrees to pay The Brand Surgery® Ltd in advance for restores/repair of the website to remove potential malware/viruses and/or restore the website to a working order. In these events, The Brand Surgery® Ltd has the right to terminate the agreement with immediate effect.
15.4 The Services are supplied by The Brand Surgery® Ltd are on the basis that they are for the sole use of the customer for the agreed purposes as set out in the Specification. If the customer divulges any information provided as part of the Services to any third party, the customer indemnifies The Brand Surgery® Ltd against any loss and liabilities whatsoever which The Brand Surgery® Ltd may incur either at common law or by statute in respect of any loss or damage suffered by that third party by reason of any such information
15.5 customers who install additional website software or plug-ins after website sign-off, either by themselves or via a third party developer, do so at their own risk and are liable for security and function of their website and agree to pay The Brand Surgery® Ltd in advance for restores/repair of the website to remove potential malware/viruses and/or restore the website to a working order.
15.6 Where the website customer requires an external database to be imported into their website, in no event shall The Brand Surgery® Ltd be liable for that data in any way. The Brand Surgery® Ltd has the right to charge the website customer for additional time and work required to import external databases that take longer than originally quoted.
15.7 Integration with other marketing platforms: The Brand Surgery® understands that the Internet of Things and connectivity is key to successfully marketing your business. As such, we work with a number of preferred suppliers for such tasks who we connect to as default unless otherwise specified, for example Mailchimp e-marketing solutions. Where we are requested to connect your website to a platform of the client’s choice, we can only estimate for the time taken to successfully complete the connection and configuration work. We will assume when estimating that the client will provide us with associated user access, logins or passwords for a simple ‘plug and play’ connection. If further work is required to configure integrations, The Brand Surgery® reserves the right to charge for extra time incurred for works completed including extra research and training required.
15.8 In no event shall The Brand Surgery® Ltd be liable for any cybercrime, hacking, malware or similar attack that affects/damages the customer websites it designs and/or develops and/or manages and/or hosts, whether hosted on its servers or hosted independently. Restoring such websites to full working order after a cybercrime, hacking, malware or similar attack is the responsibility of the website customer and must be paid for by the website customer in advance of works to fix the customer website.
15.9 In no event shall The Brand Surgery® be liable to the customer for any loss of business, loss of data or information, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or The Brand Surgery® had been made aware of the possibility of the customer incurring such a loss.
15.10 The following provisions set out the entire financial liability of The Brand Surgery® Ltd (including any liability for the acts or omissions of its employees, agents or subcontractors) to the customer in respect of:
15.10.1 any breach of this agreement; and
15.10.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
15.11 Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.12 Nothing in these conditions excludes or limits the liability of The Brand Surgery® Ltd for death or personal injury caused by negligence or for fraudulent misrepresentation.
15.13 The Brand Surgery® Ltd shall not be liable to the customer for any loss or damage, costs or expenses (whether direct, indirect or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the customer which arise out of or in connection with the supply of the Service or their use by the customer.
15.14 The customer assumes all risks as to the suitability, quality, and performance of the Service.
15.15 The Brand Surgery® Ltd’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to The Brand Surgery® Ltd for the Service.
15.16 No verbal or written information or advice given by The Brand Surgery® Ltd or its dealers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.
15.17 Where a deliverable includes goods to be received by the customer:
15.18 The passing of risk shall occur on the day of the delivery to the customer.
15.19 If goods are received by the customer in any way damaged upon delivery, the customer must advise The Brand Surgery® Ltd within 24 hours of delivery of the nature of the damage and must retain the Goods as delivered.
15.20 The maximum extent of The Brand Surgery® Ltd’s liability for damaged goods will be, at its sole discretion depending on the circumstances: a return of the Purchase Price related to the goods or replacement of the goods.
15.21 Goods remain the property of The Brand Surgery® Ltd and title remains with The Brand Surgery® Ltd until payment has been made in full.
15.22 All times or dates given for delivery of the Service are given in good faith and shall not be of the essence of any contract.
15.23 The Brand Surgery® Ltd shall make every effort to achieve any quoted delivery dates and execute any obligations set out in the proposal but will not be under any liability if delivery is delayed or prevented by events beyond its control or as a result of delays by the customer.
16 TERMINATION OF A PROJECT BY THE SUPPLIER (THE BRAND SURGERY)
16.1 The Brand Surgery® Ltd shall have the right to terminate this Agreement and ‘tailored’ agreements/terms previously agreed with a customer. Termination may include immediate suspension of a customer website / immediate withdrawal of hosting facility / cancellation of previous notice periods / immediate termination of agreed services as decided by The Brand Surgery®. Termination will be advised in writing to the customer via email if one/some/all of the following circumstances occur:
16.1.1 the customer fails to make any payment when it becomes due.
16.1.2 if the customer involves a Third Party intending to make alterations to the website(s) or any other project for any other reason.
16.2.4 If alterations by the customer or their Third Party cause a security threat to the server the website is hosted on.
16.1.5 If advice or recommendations offered by The Brand Surgery® Ltd to the customer are not actioned or taken on board by the customer
16.1.6 the customer or their Third Party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
16.1.7 the customer or their Third Party commits a material breach of this Agreement which cannot be remedied under any circumstances
16.2 Either party may terminate this Agreement forthwith by notice in writing to the other if:
16.2.1 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
16.2.2 the other party ceases to carry on its business or substantially the whole of its business; or
16.2.3 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
16.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
17 TERMINATION OF A PROJECT BY THE CUSTOMER
17.1 The contract may not be cancelled following order acceptance unless a trial or rejection period has been agreed in advance. At the sole discretion of The Brand Surgery® Ltd, a contract may be cancelled either wholly or in part subject to timing, and only once agreement in writing has been notified to the customer.
17.2 For retained work billed monthly and where no contract period has been explicitly stated on the proposal, the contract may be terminated by the customer giving 3 months notice in writing.
17.3 Unless otherwise stated in the proposal, the contract may not be canceled except by agreement in writing of both parties and upon payment to The Brand Surgery® Ltd of such amount as may be necessary to meet the costs incurred to The Brand Surgery® Ltd up to the date of cancellation and to indemnify The Brand Surgery® Ltd against all loss resulting from the said cancellation.
17.4 The customer shall have no right to seek any cancellation or repayment of job costs on the basis of style or composition. Any changes or amendments to the signed proposal will not be agreed without discussion and mutual consent.
17.5 The Brand Surgery® Ltd shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
18 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
The Brand Surgery® Ltd reserves the right to assign or transfer this Agreement to any other party, without the express written permission of the customer. The customer does not have the right to assign its rights or obligations under this agreement without the express written consent of The Brand Surgery® Ltd. This Agreement shall be binding upon each party’s successors.
20.1. During the period of this agreement and for a period of 3 years after both parties undertake:
21.1.1. to keep the Confidential Information confidential;
20.1.2. not to use the Confidential Information for any purpose except the performance of its obligations under this agreement; and
20.1.3. not to use the Confidential Information so as to procure any commercial advantage over the other party.
20.2. The obligations contained above shall not apply to any Confidential Information which:
20.2.1. is already in the possession of the disclosing party other than as a result of a breach of this agreement;
20.2.2. is at the date of this agreement or at any time after the date of this agreement comes into the public domain other than through breach of this agreement; or
20.2.3. is required to be disclosed by any applicable law or regulation or by any governmental or administrative authority or by an order of any court of competent jurisdiction.
20.3. Each party undertakes to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors.
20.4. The customer agrees that the ideas, materials and other documents relating to the Service are confidential and all proprietary rights belong to The Brand Surgery® Ltd and shall not be used or disclosed except as permitted by this agreement.
20.5. This clause shall survive the termination of this agreement for whatever reason.
21 ENTIRE AGREEMENT
This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.
22 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts. Should you have any questions concerning these Terms and Conditions, contact The Brand Surgery® Ltd before submitting your signed agreement to the proposal.
23 CHANGES TO OUR TERMS OF BUSINESS FOR WEBSITE DESIGN AND DEVELOPMENT SERVICES
The Brand Surgery Ltd® reserves the right to change its Terms of Business for Website Design and Development Services at any time.
If at any time one or more of the terms of provisions of this agreement becomes in whole or in part void, invalid, or unenforceable then the remainder of this agreement shall nevertheless be valid and enforceable.If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
No failure or delay by either party in exercising, wholly or partially, any of its rights with regard to any breach or default of this agreement by the other party shall constitute a waiver of such rights and no waiver of any such breach or default shall be deemed to constitute a waiver of any other rights or any subsequent or continuing breach of default.
26. INFORMATION RETENTION POLICY customer data (online or offline) will be kept for three years after the last paid invoice date. After this date, the data is confidentially destroyed and irretrievable and The Brand Surgery® Ltd is no longer liable for it restores, retrieval or any loss off business or inquiries occurring from such data.
27. AGREEMENT DOCUMENTATION
Each party acknowledges that it has entered into this agreement in reliance only on the representations, warranties, promises and terms contained or expressly referred to within the proposal and as expressly set out in these terms and conditions. Neither party shall have any liability in respect of any other representation, warranty or promise unless it was made fraudulently.
27. THIRD PARTY RIGHTS
Unless expressly provided in our terms of business for Marketing Services, no term of this agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
28 CHANGES TO OUR TERMS OF BUSINESS FOR MARKETING SERVICES
The Brand Surgery® Ltd reserves the right to change its Terms of Business at any time.