Terms and Conditions of Business

 Application and entire agreement

1. These terms and conditions apply to the provision of the services detailed in our quotation (Services) by Brandwin Digital Limited, a company registered in England and Wales under number 13583906 whose registered office is Hollinwood Business Centre, Albert Street, Oldham OL8 3QL (we or us or Service Provider), to the person buying the services (you or Customer).
2. You are deemed to have accepted these Terms and conditions of Business when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Interpretation

4. A “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
5. The headings in these terms and conditions are for convenience only and do not affect their interpretation.
6. Words imparting the singular number shall include the plural and vice-versa.

Services

7. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
8. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out within the quotation; however, time shall not be of the essence in the performance of our obligations.
9. All of these Terms and Conditions apply to the supply of any goods as well as the Services unless we specify otherwise.

Your obligations

10. You must obtain any permissions, consents, licences or otherwise that we need and must give use access to any and all relevant information, materials, properties and ay other matters which we need to provide the Services.
11. If you do not comply with Clause 10, we can terminate the services.
12. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).

Fees and Deposit

13. The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis. Unless part of a package, or otherwise agreed in advance, our standard fee is £65 plus VAT per hour.
14. In addition to the Fees, we can recover from you a) the cost of services provided by third parties and required by us for the Performance of the Services, and b) the cost of any materials required for the provision of the Services.
15. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current applicable hourly rate in affect at the time of performance or other such rate as may be agreed between us. The provisions of clause 14 also apply to these additional services.
16. The Fees will be stated in relation to whether they are inclusive or exclusive of VAT on the quotation.
17. You may pay a deposit (“Deposit”) as detailed in the quotation within 5 days of acceptance.
18. If you do pay the Deposit to us according to the clause above, we can either withhold provision of the Services until the Deposit is received or terminate under the clause below (Termination).
19. The Deposit is non-refundable unless we fail to provide the Services and are at fault for such failure (where the failure is not our fault, no refund will be made).

Cancellation and Amendment

20. We can withdraw, cancel, or amend a quotation if it has not been accepted by you, or if Services have not started, within a period of 14 days from the date of quotation (unless the quotation has been withdrawn).
21. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation.
22. If you want to amend any details of the Services, you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you,
23. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any change in the Services and how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any changes to a minimum.

Payment

24. We will invoice you for payment of the Fees either:
25. When we have completed the Services; or
26. On the dates set out in the quotation.
27. You must pay the Fees due within 14 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
28. Time for payment shall be of the essence of the Contract.
29. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 1% per annum above the base lending rate of the Bank of England until payment is received in full.
30. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set off or counter claim against the other in order to justify withholding payment of any such amount in whole or part.
31. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise agreed with, you.
32. Receipts for payment will be issued by us only at your request.
33. All payments must be made in British Pounds unless otherwise agreed in writing between us.
34. For recurring payment services please refer to the Payment Terms available on our website www.brandwin.co.uk

Sub-Contracting and the Assignment

33. We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of your rights and obligations under these Terms and Conditions.
34. You must not, without our prior consent, transfer charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions.

Termination

35. We can terminate the provision of the Services immediately if you:
36. commit a material breach of your obligations under these Terms and Conditions; or
37. fail to make pay any amount due under the Contract on due date for payment; or
38. are or become or, in our reasonable opinion, are about become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
39. enter into a voluntary arrangement under Part 1of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors
40. Should you wish to terminate your services, a 30 day notice period is required. There will be a charge for the final 30 days services plus an Admin fee of £150 plus VAT for the packaging up and transferring of any files you require. This may include website files, Logos, Mobile Application files.

Intellectual Property

37. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services.  We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.

Liability and Indemnity

38. Our Liability under these Terms and Conditions of Business, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
39. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract. This may be Fees for a one-time service provision (such as a website build) or in the case of monthly Services, liability is limited to the Fees for one calendar month.
40. We are not liable (whether caused by our employees, agents or otherwise) in connection with the provision of our Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
41. Any indirect, special, or consequential loss, damage, cost or expenses or;
42. Any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation; loss of goodwill; business interruption; or any other third-party claims; or
43. Any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
44. Any losses caused directly or indirectly by any failure or breach in relation to your obligations; or
45. Any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any good supplied in connection with the Services.
46. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
47. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be lawful to exclude or limit liability.

Data Protection

43. When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store, or process personal data of employees of the Customer.
44. The parties agree that where such processing of personal data does take place, the Customer shall be the ‘data controller’ and the Service Provider shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
45. For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
46. The Service Provider shall only Process Personal Data to the extent legally required to enable it to supply the Services mentioned in these Terms and Conditions of Business or as requested by and agreed with the Customer and shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party’s purposes.
47. The Service Provider shall only disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors, or advisors on a strict ‘need to know’ basis and only under the same conditions as those set out in these Terms and Conditions or the extent required by applicable legislation and/or regulations.
48. The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data processed by the Service Provider on behalf of the Customer.
49. Further information about the Service Provider’s approach to data protection are contained within the Privacy policy which can be found on the website. For any enquiries or complaints regarding data privacy you can contact gemma@brandwin.co.uk

Circumstances beyond a party’s control

50. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to:  industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.  If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.

Communications

51. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice
52. Notices shall be deemed to have been duly given:
53. When delivered by courier, registered mail, or other messenger service during the normal business hours of the recipient
54. When delivered by email and a successful transmission report is generated
55. On the fifth day following mailing by ordinary mail
56. All notices under these Terms and Conditions must be addressed to the most recent postal address or email address notified to the other party.

No Waiver

54. No delay, act, or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.

Severance

55. If one or more of these Terms and Conditions is found to be unlawful, invalid, or otherwise unenforceable, those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).

Law and Jurisdiction

56. This agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or disagreements) shall be subject to the exclusive jurisdiction of the English and Welsh courts.

These terms & conditions were last reviewed and amended: July 2022.