Terms and Conditions of service

Last updated 30 September 2020

Definitions
1. In these Terms and Conditions except to the extent expressly provided otherwise: “Acceptance Criteria” means compliance with the warranties set out in Clause 4.4; “Business Day” means any weekday other than a bank or public holiday in England;
  “Business Hours” means the hours of 10:00 to 17:00 GMT/BST on a Business Day; “Charges” means:
  1. the amounts specified in the quotation the writer provides to the client and elsewhere in these Terms and Conditions;
  2. such other amounts as may be agreed in writing (including email) by the parties from time to time; and
  3. amounts calculated by multiplying the quoted time-based charging rates of the Writer (as notified by the Writer to the Client before the date of the Contract) by the time spent by the personnel of the Writer performing the Services (rounded down by the Writer to the nearest quarter hour);
  “Client” means the person or entity identified as such in the quotation;
  
  “Client Confidential Information” means:
  1. any information disclosed by or on behalf of the Client to the Writer at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
    1. was marked or described as “confidential”; or
    2. should have been reasonably understood by the Writer to be confidential;
  2. the terms of the Contract; and
  3. the Deliverables;
  “Client Materials” means all works and materials supplied by or on behalf of the Client to the Writer for incorporation into the Deliverables or for some other use in connection with the Services; “Client Personal Data” means any Personal Data that is processed by the Writer on behalf of the Client in relation to the Contract; “Contract” means a particular contract made under these Terms and Conditions between the Writer and the Client; “Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679); “Deliverables” means those specified in the quotation that the Writer has agreed to deliver to the Client under these Terms and Conditions; “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars); “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); “Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom OR the European Union from time to time; “Services” means the writing services specified in the quotation; “Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; “Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the quotation, including any amendments to that documentation from time to time; “Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in the quotation or which the parties agree in writing shall be incorporated into the Deliverables; “Writer” means Raspberry Flamingo, having its principal place of business at 2 Victory Gardens, Birdwell, Barnsley S70 5FD;
Term
1. The Contract shall come into force upon the date the quotation is accepted by the Client.
2. The Contract shall continue in force until the acceptance of the Deliverables in accordance with Clause 5 subject to termination in accordance with Clause 17.
3. Unless the parties expressly agree otherwise in writing, each quotation shall create a distinct contract under these Terms and Conditions.
Services
1. The Writer shall provide the Services to the Client in accordance with these Terms and Conditions.
2. The Writer shall provide the Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Writer’s industry.
3. The Writer shall devote such of its personnel’s time and expertise to the performance of the Services as may be necessary for their satisfactory and timely completion.
4. The Writer shall keep the Client informed about the progress of the Services and, in particular, shall promptly provide information about such progress following receipt of a written request from the Client to do so.
5. The Writer shall comply with all reasonable requests and directions of the Client in relation to the Services.
Deliverables
1. The Writer shall deliver the Deliverables to the Client.
2. The Client must promptly, following receipt of a written request from the Writer to do so, provide written feedback to the Writer concerning the Writer’s proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
3. The Writer shall use its best endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable agreed.
4. The Writer warrants to the Client that:
  1. the Deliverables will conform with the requirements of the quotation;
  2. the Deliverables when used by the Client in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.
Acceptance
1. Within a maximum of 5 Business Days following the delivery of Deliverables to the Client, the Client shall:
  1. review the Deliverables to determine whether they comply with the Acceptance Criteria; and
  2. notify the Writer in writing of the results of such review, providing full details of any non-compliance with the Acceptance Criteria.
2. If the Client does not give to the Writer a notice under Clause 5.1, within the period referred to in Clause 5.1, then the Deliverables shall be deemed to meet the Acceptance Criteria.
3. If the Deliverables do not comply with the Acceptance Criteria and the Client notifies the Writer of the non-compliance in accordance with this Clause 5, the Writer will have a further reasonable period agreed by the parties (of no less than 5 Business Days and no more than 20 Business Days) to remedy the non-compliance, following which Client will repeat the review.
4. If the Deliverables do not meet the Acceptance Criteria at the time of a second (or subsequent) acceptance review under this Clause 5, then Writer shall be deemed in breach of the Contract.
5. If the Client accepts or is deemed to accept the Deliverables under this Clause 5, then subject to Clause 15.1 the Client will have no right to make any claim under or otherwise rely upon Clause 4.4 unless the Client could not reasonably have been expected to have identified the breach of that provision during the testing or review process
Client Materials
1. The Client must supply to the Writer the Client Materials specified in the quotation in accordance with any timetable specified.
2. The Client hereby grants to the Writer a non-exclusive licence to copy, store, publish export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the obligations of the Writer and the exercise of the rights of the Writer under these Terms and Conditions, together with the right to sub-license these rights.
3. The Client warrants to the Writer that the Client Materials when used by the Writer in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
Intellectual Property Rights
1. The Writer hereby assigns to the Client all of its Intellectual Property Rights in the Deliverables, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding the Intellectual Property Rights in the Client Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights.
2. The Writer shall ensure that the Third Party Materials are:
  1. licensed to the Client in accordance with the relevant licensor’s standard licensing terms;
  2. licensed to the Client on reasonable terms notified by the Writer to the Client;
  3. sub-licensed by the Writer to the Client on reasonable terms notified in writing by the Writer to the Client; or
  4. sub-licensed by the Writer to the Client on the basis of a non-exclusive, worldwide, perpetual and irrevocable licence to use the Third Party Materials in connection with the Deliverables,
3. To the maximum extent permitted by applicable law:
  1. do or procure the doing of all acts; and
  2. execute or procure the execution of all documents,
Charges
1. The Client shall pay the Charges to the Writer in accordance with these Terms and Conditions.
2. If the Charges are based in whole or part upon the time spent by the Writer performing the Services, the Writer must obtain the Client’s written consent before performing Services that result in any estimate of time-based Charges given to the Client being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Client agrees otherwise in writing, the Client shall not be liable to pay to the Writer any Charges in respect of Services performed in breach of this Clause 8.2.
3. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which, if appropriate, will be added to those amounts and payable by the Client to the Writer.
4. The Writer may elect to vary any element of the Charges by giving to the Client not less than 30 days’ written notice of the variation.
Timesheets (if agreed to be used)
1. The Writer must:
  1. ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete reasonably detailed records of their time spent providing those Services; and
  2. retain such records during the Term, and for a period of at least 12 months following the end of the Term.
2. Within 10 Business Days following receipt of a written request, the Writer shall supply to the Client copies of such of the timesheets referred to in Clause 9.1 and in the Writer’s possession or control as the Client may specify in that written request.
Payments
1. The Writer shall issue invoices for the Charges to the Client in advance of the delivery of the relevant Services to the Client, from time to time during the Term and/or at any time after the relevant Services have been delivered to the Client.
2. The Client must pay the Charges to the Writer within the period of 5 days following the issue of an invoice in accordance with this Clause 10.
3. The Client must pay the Charges by debit card, credit card, direct debit, bank transfer (using such payment details as are notified by the Writer to the Client from time to time).
4. If the Client does not pay any amount properly due to the Writer under these Terms and Conditions, the Writer may:
  1. charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
  2. claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
Writer’s confidentiality obligations
1. The Writer must:
  1. keep the Client Confidential Information strictly confidential;
  2. not disclose the Client Confidential Information to any person without the Client’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
  3. use the same degree of care to protect the confidentiality of the Client Confidential Information as the Writer uses to protect the Writer’s own confidential information of a similar nature, being at least a reasonable degree of care; and
  4. act in good faith at all times in relation to the Client Confidential Information.
2. Notwithstanding Clause 11.1, the Writer may disclose the Client Confidential Information to the Writer’s employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
3. This Clause 11 imposes no obligations upon the Writer with respect to Client Confidential Information that:
  1. is known to the Writer before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
  2. is or becomes publicly known through no act or default of the Writer; or
  3. is obtained by the Writer from a third party in circumstances where the Writer has no reason to believe that there has been a breach of an obligation of confidentiality.
4. The restrictions in this Clause 11 do not apply to the extent that any Client Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Writer on any recognised stock exchange.
5. Upon the termination of the Contract, the Writer must immediately cease to use the Client Confidential Information.
6. The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Contract.
Writer’s publicity obligations
1. The Writer must not make any public disclosures relating to the Contract or the subject matter of the Contract (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Client.
2. Subject to the express confidentiality obligations set out in these Terms and Conditions but notwithstanding the restriction set out in Clause 12.1, the Writer may make the following types of public disclosure without the prior consent of the Client: quoting the content of any review given without identifying the client, stating the type of work carried for the client’s business type without identifying the client.
Data protection
1. Each party shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data.
2. The Client warrants to the Writer that it has the legal right to disclose all Personal Data that it does in fact disclose to the Writer under or in connection with the Contract.
3. The Client shall only supply to the Writer, and the Writer shall only process, in each case under or in relation to the Contract, the Personal Data of the client and their business of the following types: name, business name and address, email address, telephone number; and the Writer shall only process the Client Personal Data for the following purposes: quotation, general contact (email and telephone), setting up of account on shared software, and financial accounts management (including invoicing).
4. The Writer shall only process the Client Personal Data during the Term and for not more than 90 days following the end of the Term, subject to the other provisions of this Clause 13.
5. The Writer shall only process the Client Personal Data on the documented instructions of the Client (including with regard to transfers of the Client Personal Data to any place outside the European Economic Area and the United Kingdom, as set out in these Terms and Conditions or any other document agreed by the parties in writing.
6. The Writer shall promptly inform the Client if, in the opinion of the Writer, an instruction of the Client relating to the processing of the Client Personal Data infringes the Data Protection Laws.
7. Notwithstanding any other provision of the Contract, the Writer may process the Client Personal Data if and to the extent that the Writer is required to do so by applicable law. In such a case, the Writer shall inform the Client of the legal requirement before processing, unless that law prohibits such information.
8. The Writer shall ensure that persons authorised to process the Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
9. The Writer and the Client shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Client Personal Data.
10. The Writer must not engage any third party to process the Client Personal Data without the prior specific or general written authorisation of the Client. In the case of a general written authorisation, the Writer shall inform the Client at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Client objects to any such changes before their implementation, then the Client may terminate the Contract on 7 days’ written notice to the Writer, providing that such notice must be given within the period of 7 days following the date that the Writer informed the Client of the intended changes. The Writer shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Writer by this Clause 13.
11. As at the Effective Date, the Writer is hereby authorised by the Client to engage, as sub-processors with respect to Client Personal Data, third parties within the following categories; support parties including personal or virtual assistants, and accounting personnel.
12. The Writer shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Client with the fulfilment of the Client’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
13. The Writer shall assist the Client in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Writer may charge the Client for any work performed by the Writer at the request of the Client pursuant to this Clause 13.13.
14. The Writer must notify the Client of any Personal Data breach affecting the Client Personal Data without undue delay and, in any case, not later than 36 hours after the Writer becomes aware of the breach.
15. The Writer shall make available to the Client all information necessary to demonstrate the compliance of the Writer with its obligations under this Clause 13 and the Data Protection Laws. The Writer may charge the Client for any work performed by the Writer at the request of the Client pursuant to this Clause 13.15.
16. The Writer shall, at the choice of the Client, delete or return all of the Client Personal Data to the Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
17. The Writer shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client in respect of the compliance of the Writer’s processing of Client Personal Data with the Data Protection Laws and this Clause 13. The Writer may charge the Client for any work performed by the Writer at the request of the Client pursuant to this Clause 13.17, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Writer of the Contract or any security breach affecting the systems of the Writer.
18. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
Warranties
1. The Writer warrants to the Client that:
  1. the Writer has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
  2. the Writer will comply with all applicable legal and regulatory requirements applying to the exercise of the Writer’s rights and the fulfilment of the Writer’s obligations under these Terms and Conditions; and
  3. the Writer has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
2. The Client warrants to the Writer that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
3. All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
Limitations and exclusions of liability
1. Nothing in these Terms and Conditions will:
  1. limit or exclude any liability for death or personal injury resulting from negligence;
  2. limit or exclude any liability for fraud or fraudulent misrepresentation;
  3. limit any liabilities in any way that is not permitted under applicable law; or
  4. exclude any liabilities that may not be excluded under applicable law.
2. The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions:
  1. are subject to Clause 15.1; and
  2. govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
3. The Writer will not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
4. The Writer will not be liable to the Client in respect of any loss of profits or anticipated savings.
5. The Writer will not be liable to the Client in respect of any loss of revenue or income.
6. The Writer will not be liable to the Client in respect of any loss of use or production.
7. The Writer will not be liable to the Client in respect of any loss of business, contracts or opportunities.
8. The Writer will not be liable to the Client in respect of any loss or corruption of any data, database or software.
9. The Writer will not be liable to the Client in respect of any special, indirect or consequential loss or damage.
Force Majeure Event
1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
  1. promptly notify the other; and
  2. inform the other of the period for which it is estimated that such failure or delay will continue.
3. A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
Termination
1. Either party may terminate the Contract by giving to the other party not less than 10 days’ written notice of termination.
2. Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
  1. the other party commits any breach of the Contract, and the breach is not remediable;
  2. the other party commits a breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
  3. the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).
3. Subject to applicable law, either party may terminate the Contract immediately by giving written notice of termination to the other party if:
  1. the other party:
    1. is dissolved;
    2. ceases to conduct all (or substantially all) of its business;
    3. is or becomes unable to pay its debts as they fall due;
    4. is or becomes insolvent or is declared insolvent; or
    5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or
  4. if that other party is an individual:
    1. that other party dies;
    2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
    3. that other party is the subject of a bankruptcy petition or order.
4. The Writer may terminate the Contract immediately by giving written notice to the Client if:
  1. any amount due to be paid by the Client to the Writer under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
  2. the Writer has given to the Client at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 17.4.
Effects of termination
1. Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 5.5, 7.1, 7.2, 7.4, 9, 10.2, 10.4, 11, 12, 13, 15, 18, 19.2, 22 and 23.
2. Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
Status of Writer
1. The Writer is not an employee of the Client, but an independent contractor.
2. The termination of the Contract will not constitute unfair dismissal; nor will the Writer be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
Notices
1. Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.
2. Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in the quotation):
  1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
  2. sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
  providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
3. The addressee and contact details may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
Subcontracting
1. Subject to any express restrictions elsewhere in these Terms and Conditions, the Writer may subcontract any of its obligations under the Contract.
General
1. No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
2. If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
3. The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
4. The Client hereby agrees that the Writer may assign the Writer’s contractual rights and obligations under the Contract to any third party – providing that such action does not serve to reduce the guarantees benefiting the Client under the Contract. Save to the extent expressly permitted by applicable law, the Client must not without the prior written consent of the Writer assign, transfer or otherwise deal with any of the Client’s contractual rights or obligations under the Contract.
5. The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
6. Subject to Clause 15.1, a quotation produced by the Writer for the Client, together with these Terms and Conditions, shall constitute the entire agreement between the parties in relation to the subject matter of that quotation, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
7. The Contract shall be governed by and construed in accordance with English law.
8. The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.
Interpretation
1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
  1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
  2. any subordinate legislation made under that statute or statutory provision.
2. The Clause headings do not affect the interpretation of these Terms and Conditions.
3. References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
4. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.