Terms of Services

Terms and Conditions of Business

© Radial Path Ltd, December 2021

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PARTIES

• “Client” - a party that accepts a sales order for the supply of goods or services provided by Radial Path (The Agency).  
  

• Radial Path Ltd - registered office address: Annexe, 36 Lime Street, Newcastle upon Tyne, NE1 2PQ, England, registered in England & Wales No. 10757683. (“Agency”).
  

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INTRODUCTION

• The Agency is a supplier of digital marketing services, including, marketing strategy, content creation, lead generation and management, customer relationship management, sales enablement, digital marketing, web design and development. 
  

• Client wishes to obtain services from Agency on the terms and conditions set out in this  Agreement. 
  

• This Agreement is structured as a framework agreement whereby the parties may agree on approved cost estimates, quotations or service specifications for scope of work, from time to time, in respect of the services to be performed by Agency. To the extent there is any conflict or inconsistency between them, this Agreement shall prevail.
  

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1. DEFINITION AND INTERPRETATIONS

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1.1. In this Agreement, the following words and expressions shall have the following meanings:
“Agency” (“We”, “Our”, “Us”, “Radial Path”) means Radial Path Ltd whose registered office  address is Annexe, 36 Lime Street, Newcastle upon Tyne, NE1 2PQ, registered in England & Wales No. 10757683.

“Agreement” means the terms and conditions set out with this Agreement between Agency and Client, including all specifications, plans, drawings and any other documents referred to in this Agreement, or are agreed by the parties to form part of this Agreement.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Client” (“You”, “Your”) means any person who accepts a cost estimate provided by Agency for the supply of goods and services, which includes any individual who we  reasonably believe is acting with the client’s authority or knowledge.

“Client Materials” means any materials provided to Agency by or on behalf of Client for use in connection with Services.

“Client Personal Data” has the meaning given in Clause 7.1.
“Confidential Information” has the meaning given in Clause 6.
“Content” means information, copy, software, photographs, video, graphics, music, sound and other material appearing on or available through the Service.

“Costs”, “Fees”, “Charges” refers to all of the Client fees set forth on all agreed quotes, services specification and scope of works documents, as well as any other charges  described herein.

“Credit” means available spend that Client can use on Agency services. 

“Deliverable” means a deliverable specified in the scope of work.

“Expenses” has the meaning given in Clause 3.6.

“Intellectual Property Rights” means rights to inventions, copyright and related rights, trademarks, business names and domain names, and the right to sue for passing off, rights in design, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions. 

“Minimum Period” means the minimum period of time the Client has agreed to receive and pay for the Services. 

“Service Specification”, “Scope of Work”, “Agreed Quote”, "Sales Quote" means a specification document or email with the scope of work agreed between parties in  accordance with Clause 2.

“Service” means any service or Content provided by us, including (but not limited to) online information, communication, design, branding, research, printed matter, marketing and public relations.

“Term” is the agreed length of time the services will be provided for by Agency to Client;  “Third Party Costs” has the meaning given in Clause 3.6. ‍

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“Third Party Materials” means any material (including Intellectual Property Rights) owned by a third party.

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2. ENGAGEMENT AND SERVICE SPECIFICATION

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2.1 This Agreement sets out the overall relationship between Agency and Client with respect to the provision by Agency to Client of Services and Deliverables pursuant to Service Specifications agreed between the parties from time to time.

2.2 Each Service Specification shall expressly reference this Agreement and include as a minimum a description of the Services to be performed, the Deliverables to be provided, and the rates and/or estimated fees payable (or other fee structure agreed by the parties).

2.3 Each Service Specification, shall be legally binding, form part of and be subject to the Terms and Conditions of this Agreement, when signed by authorised representatives of Agency and Client.

2.4 In the event that there is any conflict or inconsistency between: the Terms and Conditions and the Agreement, any Service Specification or any other document referred to therein, it shall be resolved by the following order of priority to the extent necessary to resolve any such conflict: the Service Specification shall prevail, and, next, the Terms and Conditions shall prevail over any other document referred to.

2.5 Agency will perform the Services for Client in accordance with the agreed Costs and with each Service Specification.

2.6 Schedule 1 sets out additional terms, which apply if Client orders certain types of: digital and social media services, website and software development, domain and hosting services and digital media buying services. The parties agree that if and to the extent that such Services are included in the Service Specification, the relevant additional terms which are set out in Schedule 1 shall apply and shall be deemed to form part of the relevant Service Specification.

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3. COSTS AND PAYMENT

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3.1 All cost estimates provided by the Agency are valid for thirty (30) days only or until earlier acceptance by the Client, after which time they may be altered by the Agency without giving notice to the Client.

3.2 The Agency reserves the right by giving notice to the Client at any time before completion of the Services (or completion of an element of the Services required), to increase the price of the Services and the final requirements to reflect any change in dates, quantities or specifications for the Services, which are requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give the Agency adequate information, access to systems or instructions.

3.3 Unless agreed otherwise in a Service Specification, Agency may invoice Client in respect of the Fees, monthly on the first Business Day of each month for retained services. In respect to one off projects, Agency may invoice 50% of Fees in advance and 50% on completion of project as detailed in the relevant Service Specification. Client agrees to pay 50% of invoice total for one off projects prior to work commencing.

3.4 Except as expressly stated in a Service Specification, Third Party Costs and Expenses are not included in the Fees. Agency will obtain Client’s prior written approval on the scope of work and the estimated expense before incurring any Third Party Cost or Expense. Client shall reimburse Agency for pre-approved, reasonable travel, accommodation and subsistence expenses of any of Agency personnel provided also that all expenses are incurred in accordance with Company policies as exist from time to time (“Expenses”); and any other sums payable by Agency to third parties relating to the provision of Services and Deliverables which are not Expenses (including media and advertising costs, events, training, the cost of purchases associated with production of content or other advertising materials, and the cost of licensing third party materials, the cost of software licenses) (“Third Party Costs”).

3.5 Client will pay invoices for retained services in full to a bank account nominated in writing by Agency, within thirty (30) days of the date of the invoice.

3.6 If the parties agree the Agency will invoice the Client in a different currency, the Client will be the beneficiary of all foreign exchange gains and will be responsible for all foreign exchange losses and all other costs incurred by the Agency, such as foreign exchange commissions or other banking charges.

3.7 All sums payable under this Agreement are exclusive of VAT or any other sales tax or duties, which, where applicable, shall be payable by Client to Agency in addition.

3.8 All sums due under this Agreement shall be paid in full without any deduction, set-off, abatement or withholding. We reserve the right to suspend service immediately upon payment being withheld. In the event that any sums due to Agency are subject to withholding or other similar taxes, Client agrees that such sums shall be immediately increased so that the net amount actually received by Agency is equal to the amount which it would have received had such withholdings not been due.

3.9 If Client fails to pay by the due date a 8% APR interest charge may be added, charged monthly until payment is made in full. You will be informed of this action if/when payment becomes overdue.

3.10 New clients agree to pay a deposit payment prior to commencement of work. This figure will be determined by the scope of work and duration of the project. Existing clients agree to adhere to the payment terms stated on the invoice. All deposit payments are non-refundable.

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4. INTELLECTUAL PROPERTY RIGHTS

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4.1 Subject to Client’s payment in full or undisputed amounts for the relevant Deliverable, Agency hereby assigns to Client all Intellectual Property Rights which are capable of assignment and such Deliverables shall be considered “work for hire” and assigning all rights to Client.

4.2 Agency acknowledges that any and all of the copyright, trademarks and other intellectual property rights (“IPRs”), which are created as a result of this Agreement, and that have been paid for in full by Client, subsist in and will be the sole property of Client. The Agency will not during, nor at any time after the completion, expiry, or termination, of this Agreement in any way question or dispute the ownership of, or reject Client owns, what is created by Agency on behalf of the Client.

4.3 Client owns or will own the IPRs in all graphics, text, customised design, development and operation of the products created as a result of this Agreement which are necessary to enable the Client to reproduce, update and create derivative work.

4.4 Client shall remain the owner of any Intellectual Property Rights in Client Materials and nothing in this Agreement shall be deemed to restrict Client’s legal use of such Client Materials. Client hereby grants Agency a non-exclusive and royalty-free licence to use the Intellectual Property Rights in Client Materials and Deliverables for the sole and limited purpose for Agency (and any person engaged by Agency) to perform the Services.

4.5 In respect of any content or any other identifiable idea or concept which is presented to Client and which is not selected for use by Client and which is not paid for by Client, Client acknowledges and agrees that these shall remain the property of Agency and shall remain strictly confidential and Client shall not use them in any way, including by way of communication to any third party, without the prior written consent of Agency. In the event Client pays for any of the aforementioned these remain the property of Client.

4.6 Unless expressly agreed in a Service Specification, the provision of source files or preparatory materials are not included as part of Deliverables.

4.7 All third parties contracted to fulfill all or part of any Service Specification as part of thiS agreement will also be subject to Clause 4.

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5. WARRANTIES

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5.1 The Agency warrants that having taken such legal advice and undertaken such searches as the Agency considers reasonably necessary, to the best of its knowledge and belief any creative work produced by the Agency as part of the Services will be original to its authors, has not been previously published in any form in the United Kingdom (the “UK”), will not infringe the copyright of any third party in the UK and will not contain anything obscene, blasphemous, libellous or otherwise unlawful in the UK other than as contained in any legal or other advice provided to the Agency and communicated to the Client.

5.2 The Agency warrants that its personnel working on the Services are and shall be competent and suitable in every respect, whether as to qualifications, experience or otherwise, to perform the Services.

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6. CONFIDENTIAL INFORMATION

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6.1 The term "Confidential Information" means all documents business or technical information received by one party (“Recipient”) and the other party (“Discloser”), whether it is received, accessed or viewed by Recipient in writing, visually, electronically or orally. Confidential Information shall include, without limitation, technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, specifications, procurement requirements, engineering information, samples, computer software (source and object codes), forecasts, identity of or details about actual or potential customers or projects, techniques, inventions, discoveries, know-how and trade secrets."Confidential Information" also includes all such business or technical information of any third party that is in the possession of Discloser.
Notwithstanding the foregoing, any information disclosed by the Parties will be considered.

6.2 Confidential Information of Discloser, only if such information (a) is conspicuously designated as "Confidential" or "Proprietary" or would reasonably be regarded as being of a confidential nature, or (b) if provided orally or visually, is identified as confidential at the time of disclosure, or would reasonably be regarded as being of a confidential nature.

6.3 The Receiving Party shall not disclose Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 5, without the Disclosing Party’s express, prior written permission.

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7. DATA PROTECTION

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7.1 In the event that Agency processes personal data on behalf of Client pursuant to this Agreement (“Client Personal Data”), this Clause 6 shall apply to such processing. Agency shall process Client Personal Data only in accordance with Client’s instructions from time to time and shall not process Client Personal Data for any purpose other than those expressly authorised by Client and in accordance with applicable law where such data is stored, processed or communicated.

7.2 Agency shall take reasonable steps to ensure the reliability of all its employees who have access to such Client Personal Data.

7.3 Client acknowledges that Agency is reliant on Client for direction as to the extent to which the Agency is entitled to use and process Client Personal Data. Consequently, Agency will not be liable for any claim brought by a data subject arising from any action or omission by Agency, to the extent that such action or omission resulted directly from Client’s instructions. Agency may authorise a third party (sub-contractor) to process Client Personal Data provided that the sub-contractor’s contract is on terms which are substantially the same as those set out in this Clause 6 and in compliance with applicable law where such data is located and processed.

7.4 Any GDPR-specific criteria between Agency and Client will be outlined separately in an agreement.

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8. INDEMNITY

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8.1 Client warrants and undertakes to Agency that (a) Client Materials and any products and services of Client in respect of which Agency is providing the Services will comply with all applicable laws, rules, regulations and codes; and (b) the use by Agency of Client Materials, in accordance with this Agreement, shall not infringe the rights of any third party.

8.2 Client shall indemnify Agency against all direct liabilities, costs, expenses, damages and losses (excluding any indirect or consequential losses, loss of profit and loss of reputation) as determined by a court of competent jurisdiction suffered or incurred by Agency arising out of or in connection with any breach of Clause 7.1.

8.3 Agency warrants and undertakes to Client that; (a) Deliverables and any products and services of Agency pursuant to this Agreement will comply with all applicable laws, rules, regulations and codes; and (b) shall not knowingly, recklessly or negligently infringe the intellectual property rights of any third party.

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9. LIMITATION OF LIABILITY

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9.1 Neither party excludes or limits its liability under this Agreement for:

• death or personal injury caused by its negligence;
• fraud or fraudulent misrepresentation; or
• any other type of liability which cannot by law be excluded or limited:

9.2 Subject to Clause 9.1 and any claims for intellectual property infringement by a third party, the parties agree to limit their liability under this Agreement (including in aggregate under any agreed Service Specification), whether such liability arises in contract, tort (including without limitation negligence) or otherwise, as follows: the maximum aggregate liability to each party in respect of each scope of work, shall (a) not in aggregate exceed a sum equal to the total sums paid or payable by Client under the relevant scope of work being fulfilled. Neither party shall be liable for: (i) loss of actual or anticipated income or profits, or loss (b) of contracts; or (ii) any special, indirect or consequential loss; even if advised of the possibility of such loss or damage.

9.3 Unless expressly agreed otherwise, any indications as to the time of delivery or completion of the Services or any Deliverables are estimates given for guidance purposes only.

9.4 Subject to Clause 9.1, Agency shall not be liable for any loss or damage resulting from any delays in or failure to complete the Services or provide the Deliverables which are caused either directly or indirectly by Client or its nominated third parties or by any reason outside of the control of Agency.

9.5 Except as expressly set out in this Agreement, all warranties, conditions and guarantees relating to this Agreement whether express or implied by statute, law, custom or otherwise are excluded, to the fullest extent permitted by law.

9.6 Agency shall maintain in force adequate insurance cover with reputable insurers. Agency shall provide to Client, on reasonable notice and request, suitable evidence that it holds such cover.

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10. TERM, CANCELLATION, SUSPENSION AND TERMINATION

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10.1 Client and Agency may, by giving prior written notice, cancel a project. In such event the Agency reserves the right to charge a cancellation fee based on costs incurred on the project to date. On termination of expiry of this Agreement or an individual Service Specification, Client shall pay:

• Agency’s Fees for any Services provided until, up to and including the effective date of termination, including during any notice period;
• For any Expenses or Third Party Costs incurred by Agency until, up to and including the effective date of termination, including during any notice period; and
• For any Expenses or Third Party Costs committed to by Agency on Client’s authority until, up to and including the effective date of termination, including during any notice period, provided that Agency shall use reasonable endeavours to cancel or mitigate such Expenses or Third Party Costs.

10.2 With reference to retained Services, where a 6-month break out clause is included, either party may terminate this Agreement on giving thirty (30) days written notice to the other. If notice has not been given prior to the end of month 7 in the Agreement Term, then the Agreement will automatically continue.

10.3 Credit allocated in a gameplan within a retainer, can be reallocated on giving thirty (30) days written notice.

10.4 Credit that is not reallocated with thirty (30) days written notice prior to the first day of the month the Services are to be delivered, can either be used for the original allocation of Services, or will expire.

10.5 Client will forfeit their unused Credit up to the end of the notice period upon early termination during the Minimum Period or during any renewal period.

10.6 If Client terminates the Agreement with a negative Credit balance, then the balance will be invoiced by Agency to Client on termination of the contract, which Client will pay immediately on receipt.

10.7 Termination of a Service Specification shall not cause the Agreement or any other Service Specification to terminate automatically and this Agreement and any other Service Specification shall remain in force unless and until they are terminated or expire in accordance with their own terms.

10.8 Notwithstanding any other provisions herein contained and without prejudice to any other rights such party serving notice may have, either party may terminate this Agreement immediately, without notice, if the other party commits a material breach of this Agreement and if any of the following events will occur:

• if the Client/Agency commits any breach of the terms or conditions of this Agreement and fails to remedy such breach (unless it is a breach which entitles the Agency / Client to terminate this Agreement immediately or insofar as such breach is not capable of remedy to furnish adequate compensation therefor within thirty (30) days after receiving written notice giving full particulars of the breach and of the steps required to remedy;
• if the Client / Agency becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution will be threatened or levied upon any equipment and/or software or other property of the party entitled to serve notice hereunder or if the other party is unable to pay its debts in accordance with the law relating to this Agreement.

10.9 Termination of this Agreement will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by expiry or termination hereof.

10.10 Agency may at its sole discretion immediately suspend or terminate this Agreement or suspend the provision of the Services in the event that:

• The Agency is directed by any competent authority to cease the Services for the Client
• The Client fails to pay the Fees where they are required to do so. 
• The Client uses the Services in breach of this Agreement or otherwise fails to meet their obligations under this Agreement. 
• The Client use of the Services materially disrupts the provision of Agency’s services to other customers.
• The Client repeatedly fails to adhere to Agency’s Code of Conduct.
• The Agency is no longer able to provide the Services as a result of change of law, regulation or tax.
• The Agency believes the Client’s conduct is likely to result in breach of law or is otherwise prejudicial to the Agency’s interest.

10.11 For clarification, the Client’s failure to pay charges when due shall be deemed a material breach for the purpose of termination.

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11. GENERAL

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11.1 Any notice to be given under this Agreement will be in writing and addressed to the respective parties at their registered offices. Notices will be deemed given and effective (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) if sent by email, at 9.00am on the next Business Day after transmission or (iii) if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service.

11.2 Subject to Clause 11.3, neither party shall assign, transfer, mortgage, or charge any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

11.3 Either Party may, after having given prior written notice to the other, assign any or all of its rights and obligations under this Agreement to a member of its respective Group or to any person to which it transfers its business or that part of its business to which this Agreement relates, provided that the assignee undertakes in writing to the other Party to be bound by the assignee’s obligations under this Agreement.

11.4 No variation of this Agreement or any Service Specification shall be valid unless it is in writing and signed by or on behalf of each of the parties.

11.5 Failure or neglect by the Client to enforce at any time any of the provisions hereof will not be construed nor will be deemed to be a waiver of the Client’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Client’s rights to take subsequent action.

11.6 Neither party will be under any liability to the other in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body.

11.7 Agency shall not be deemed to be in breach of this Agreement or liable for any delay or non performance of for the consequences of any delay or non-performance which is due to any cause beyond its reasonable control of which it has notified Client.

11.8 This Agreement and any Service Specification entered into pursuant to this Agreement constitute the entire agreement and understanding between the parties and supersede any previous agreement or arrangement between the parties relating to the subject matter of this Agreement.

11.9 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

11.10 In the event that any of these terms, conditions or provisions or those of any schedule or attachment hereto will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

11.11 In the event of any dispute or claim arising out of this Agreement, the parties will attempt to settle such dispute or concern by negotiation. To this end, each party shall use all reasonable endeavours to negotiate with each other and, recognising their mutual interests, attempt to reach a just and equitable settlement satisfactory to both parties. Negotiations shall be conducted between the respective parties who have authority to settle disputes. If the parties do not reach a settlement by negotiation within a period of 21 days after either party has made a written offer to the other party to negotiate a settlement to a dispute or claim, the parties may resort to court proceedings in accordance with Clause 1.12.

11.12 This Agreement shall be governed by the law of England and Wales and the Client agrees to submit to the non-exclusive jurisdiction of the Courts of England and Wales.