Terms and Conditions of Service
The Terms and Conditions below apply to all services provided by McBoffin & Company Ltd.
We may change these Terms and Conditions from time to time if it is necessary due to the applicable law, the evolution of our services, technical reasons or operational requirements, and we encourage you to periodically revisit this page.
If you have any queries or concerns, please send an email to hello@mcboffin.com (with subject line “Terms and Conditions of Service”) before placing your order.
1. Definitions
In these Terms and Conditions, unless the context otherwise requires, the words and expressions below have the following meanings:
“Agreement” – these Terms and Conditions, including each and every Project Details Sheet.
“Company” – McBoffin & Company Ltd registered in England and Wales with registered address at International House, 36-38 Cornhill, London, EC3V 3NG and company registration number 11811346.
“Website” – mcboffin.com and its sub-domains.
“Client” – a person or business who requests a quote and/or purchases Services from McBoffin & Company Ltd.
“Business Day” – a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Project Detail Sheet” – a statement agreed between McBoffin & Company Ltd and the Client specifying works to be carried out and Deliverables to be provided to the Client, including time schedules, and listing any documents and information to be provided by the Client to McBoffin & Company Ltd such that they may perform the Services.
“Services” – any service provided by McBoffin & Company Ltd to the Client as described in the Project Detail Sheet.
“Commencement Date” – the date when McBoffin & Company Ltd will start their work for the Client.
“Questionnaire” – a questionnaire sent by McBoffin & Company Ltd to the Client to collect the information necessary for the performance of Services.
“Deliverables” – any output from the provision of Services, as described in the Project Detail Sheet.
“Order” – Client’s written request to purchase Services or written acceptance of McBoffin & Company’s quotation.
“Fees” – any fees, including interest, payable by the Client for Services provided by McBoffin & Company Ltd.
“Subcontractor” – an independent contractor, individual or business, who has been contracted by the Company to perform specific tasks as part of Services, as evidenced by an agreement in writing.
“Confidential Information” – information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.
“Party” – McBoffin & Company Ltd or the Client.
“Recipient” – the Party that receives Confidential Information from the other Party.
“Intellectual Property Rights” – all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Data Protection Legislation” – means the Data Protection Act 2018 and thereafter: unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then any successor legislation to the GDPR or the Data Protection Act 2018.
“Data Controller” – has the meaning given to it in the Data Protection Legislation.
“Data Processor” – has the meaning given to it in the Data Protection Legislation.
“Data Subject” – has the meaning given to it in Data Protection Legislation.
“Personal Data” – has the meaning given to it in the Data Protection Legislation.
“Client Data” – any data provided by the Client to McBoffin & Company Ltd.
1.1 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.2 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date that the Client accepts to receive Services in accordance with this Agreement.
1.3 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.
1.4 A reference to writing or written includes email, unless otherwise stated.
1.5 References to clauses are to the clauses of this Agreement.
1.6 The headings in this Agreement are for convenience only and shall not affect its interpretation.
2. Order and Pre-order Confidentiality
2.1 An Order, whether in form of the Client’s written request for the Company’s Services or the Client’s written acceptance of the Company’s quotation, constitutes an offer by the Client to purchase Services from the Company in accordance with the terms of this Agreement.
2.2 An Order shall only be deemed accepted when the Company issues written acceptance of the Order in form of an Invoice that includes a Project Detail Sheet.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Company, including any discussions (whether in writing or otherwise) prior to the issue of a formal Project Detail Sheet, are made for the sole purpose of giving an approximate idea of Services described in them. They shall not form part of this Agreement.
2.4 Any quotation provided by the Company is only valid for a period of 20 Business Days from its date of issue.
2.5 Notwithstanding the prior provisions of this clause 2, the provisions of clause 11 shall apply prior to the Order at the Client’s request, provided that written confirmation has been given by the Company to that effect, at which point the confidentiality provisions shall apply from the time such confirmation is sent.
3. Services and Deliverables
3.1 The Commencement Date shall be the first Business Day after 50% of the agreed fee and all requested information and materials, including, but not limited to a completed Questionnaire, are received from the Client.
3.2 The Questionnaire is considered completed only when all questions are answered, providing enough detail for the Company to perform Services. The Company reserves the right to request additional information from the Client after the Commencement Date should it be deemed necessary for successful provision of Services.
3.3 The Company shall provide Services on the terms and conditions of this Agreement and will do so:
3.3.1 in compliance with all applicable laws and regulations;
3.3.2 with reasonable skill and care;
3.3.3 in accordance with good professional practice;
3.3.4 in accordance with the Project Detail Sheet.
3.4 The Company shall use all reasonable endeavours to meet any performance dates and milestones specified in the Project Detail Sheet, but any such dates shall be estimates only and time shall not be of the essence for the performance of Services. In no event shall the Company be liable for any delay in providing Services.
3.5 All Deliverables, except websites, shall be delivered to the Client via email in formats agreed in the Project Detail Sheet. Website shall be installed on the Client´s server.
3.6 The Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Client acknowledges that the Services and Deliverables may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.7 The Client has the right to notify the Company that they wish to modify their requirements in relation to Services. Such modifications shall not enter into effect until the Company and the Client have agreed on the consequences thereof such as the Service fee and time schedule.
4. Client`s Obligations
4.1 The Client shall at all times duly make available to the Company all information and materials that the Company deems necessary to be able to perform the Services correctly, in the specified form and manner. The Client shall guarantee the correctness, completeness and reliability of any information provided to the Company.
4.2 The Client shall provide all cooperation required for the proper and timely performance of the Services. In the event of any delays in the Client’s provision of such assistance, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
4.3 The Client shall obtain and maintain all necessary licences, consents, and permissions necessary for the Company to perform their obligations under this Agreement, including without limitation the Services.
4.4 The Client shall ensure that they have provided a correct, valid and up-to-date email address, and that their email account settings do not block or filter emails from the Company.
4.5 The Client shall ensure that the content of the Deliverables is in the correct format and fit for purpose. In cases when the Deliverables are based on a set of modelling assumptions and it is the Client’s responsibility to verify that these assumptions meet their needs and requirements.
4.6 If the Company’s performance of any of its obligations under this Agreement is prevented or delayed by any failure by the Client to perform any relevant obligation (Client Default), the Company shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Client remedies the Client Default. The Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations, and the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default
4.7 The Client shall carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner.
5. Fees and Payments
5.1 The Client agrees to pay the Fee specified on the Project Detail Sheet in two (2) instalments. The first instalment, or 50% of the Fee, is payable before the Commencement Date. The second instalment, or the remaining 50% of the Fee, is payable before the Deliverables (in the correct format and without a watermark) can be sent to the Client.
5.2 All Fees referred to in this Agreement:
5.2.1 shall be payable in pounds sterling or any other currency as nominated by the Company;
5.2.2 are inclusive of value added tax (VAT), or any other applicable tax which shall be added to the Company’s invoice at the appropriate rate.
5.3 If the Client does not pay any invoice by the due date for payment, the Company may, without prejudice to any other rights and remedies that it may have:
5.3.1 suspend provision of the Services until payment in full, including any interest, is received; and/or
5.3.2 charge interest on the amount outstanding at the rate set by the Late Payment of Commercial Debts (Interest) Act 1998.
6. Termination
6.1 Either Party may terminate the provision of Services by written notice to the other Party if that other Party:
6.1.1 is in material breach of this Agreement, where the breach is capable of being remedied, fails to remedy the breach within 20 Business Days of service of Notice specifying the breach and requiring it to be remedied;
6.1.2 has a petition granted for its winding up or has a liquidator, administrator, receiver or administrator appointed in respect of it, enters into an arrangement with its creditors or ceases, or threatens to cease, trading;
6.1.3 is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months.
6.2 Without limiting its other rights or remedies, the Company may terminate the provision of Services with immediate effect by giving written Notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 20 Business Days after being notified to make such payment.
6.3 Termination under this clause 6 may be in respect of any individual Service or in respect of this Agreement including all Services.
6.4 On termination of this Agreement for any reason:
6.4.1 The Company may destroy or otherwise dispose of any of the Client Data in their possession subject to any request from a Data Subject, and in accordance with clause 12.4.5.
6.4.2 Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
6.4.3 The Client shall immediately pay to the Company all of the outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.
7. Complaints and Disputes
7.1 In case of the Client’s dissatisfaction with any aspect of the Company’s Services, the Client shall never raise a dispute via any third party without first addressing the issue directly with the Company.
7.2 If the Client has any complaints about the Services supplied by the Company, it shall submit them in writing as soon as possible to complaints@mcboffin.com, yet never later than 10 Business Days after receiving the said Services. Lodging a complaint shall not release the Client from its obligation to pay.
7.3 In the case of a valid complaint, the Company shall be granted a reasonable period of time to improve or substitute the service. If the Company cannot reasonably be expected to perform the required improvements or substitution, it may grant the Client a partial or full refund, in accordance with the Company’s Refund Policy.
7.4 The Client’s right to complain shall lapse if the Client has itself edited or has hired others to edit the part or parts of the Deliverables concerned in the complaint, regardless of whether it has subsequently supplied the Deliverables to a third party or not.
8. Personnel
8.1 The Company shall use its reasonable endeavours to ensure that the same personnel provide Services to the Client in order to maintain consistency and build a relationship with the Client.
8.2 The Client shall not at any time during the term of this Agreement, or for a period of six (6) months following its expiry or termination, employ or solicit for employment or engage on any basis any member of the Company’s personnel (whether employed or engaged on some other basis by the Company).
8.3 The Client acknowledges the cost to the Company of losing and replacing any such person and the Client agrees that if it breaches the provisions of clause 8.2, the Client shall pay to the Company by way of liquidated damages a sum equal to the greater of (i) £50,000 and (ii) an amount equal to the person’s aggregate annual gross remuneration package.
9. Subcontractors
9.1 The Company may subcontract part or parts of its obligations under this Agreement but shall remain liable for the performance of those parts that have been subcontracted.
9.2 The Company shall have all Subcontractors enter into confidentiality obligations similar to the confidentiality obligations applicable to the Company. If requested by the Client, the Company shall identify these Subcontractors, specifying in each case their specific expertise.
10. Intellectual Property
10.1 All Deliverables generated by the Company, including reports, other documents and materials, shall become the property of the Client. The Company shall provide all reasonable assistance such that the Client may apply for patents, copyrights and other intellectual property rights in respect of these Deliverables.
10.2 Any pre-existing Intellectual Property Rights of the Client that are made available for use in connection with the provision of Services shall remain vested in the Client, and the Company shall have a licence to use those rights so far as may be necessary to enable them to provide Services.
10.3 Any pre-existing Intellectual Property Rights of the Company and its suppliers that are made available for use in connection with the provision of Services shall remain vested in the Company and any specific supplier, and the Client shall have a licence to use those rights so far as may be necessary to enable them to enjoy the benefit of the Services.
10.4 The Company warrants to the Client that the Deliverables will not in any way infringe the Intellectual Property Rights of any other person or business and the Company will indemnify the Client and keep the Client fully indemnified in respect of any losses, liabilities, demands, actions and claims that the Client might incur or suffer as a result of any breach of this warranty.
10.5 If the indemnity in clause 10.4 is to be called upon, the Client shall:
10.5.1 promptly notify the Company in writing of the claim;
10.5.2 make no admission or settlement without the Company’s prior written consent;
10.5.3 allow the Company to have control over the conduct of the claim including any litigation; and
10.5.4 give the Company such assistance and information that the Company reasonably requires.
10.6 The Company shall have no liability under the indemnity in clause 10.4 where the alleged infringement arises from the Client using the Deliverables in any manner or for any purpose other than those for which they were provided.
11. Confidentiality
11.1 The Company acknowledges that Client Data, including without limitation the data provided for the purpose of the Company’s quotation or performance of Services, is Confidential Information of the Client.
11.2 The Company shall keep secret and not disclose any Confidential Information of the Client obtained prior and during the provision of Services, and use the Confidential Information only for the purpose for which it was provided and for no other purpose.
11.3 The foregoing shall not apply to information which:
11.3.1 is or becomes part of the public domain without fault on the part of the Company;
11.3.2 was already known by the Company, other than under an obligation of confidentiality, at the time of disclosure by the Client;
11.3.3 is lawfully acquired by the Company from a third party on a non-confidential basis;
11.3.4 Company is required to disclose pursuant to any law, lawful governmental, quasi-governmental or judicial order.
11.4 The Client acknowledges that the contents of proposals, reports, presentations, memos, or other communications by the Company, constitute the Company’s Confidential Information and shall not publish them or otherwise make them available, unless these have been provided with the intention of providing third parties with the information set out therein.
11.5 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any government or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much Notice of such disclosure as possible and, where Notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
11.6 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.7 A Recipient shall, on request from the other Party, return all copies and records of any Confidential Information disclosed by the other Party to the Recipient and will not retain any copies or records of the Confidential Information so disclosed (unless to the extent that the Recipient requires documents that it has produced itself for its own records and such records contain Confidential Information, in which case those documents may be retained for the Recipient’s internal record-keeping purposes only).
11.8 The undertakings in this clause 11 shall continue in full force for five (5) years from:
11.8.1 the Services completion date; or
11.8.2 the Services termination date (in case Services are terminated prior to completion).
11.9 If the Company and the Client enter into a separate signed non-disclosure or confidentiality agreement (either before or after the Commencement Date), then the terms of that agreement shall supersede the terms of this clause 11.
12. Data Protection
12.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Agreement is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
12.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and the Company is the Data Processor.
12.3 The Client shall ensure that it has all necessary consents and notices in place to enable lawful transfer of Personal Data to the Company for the duration and purposes of this Agreement.
12.4 The Company shall, in relation to any Personal Data processed in connection with the performance of the Company’s obligations under this Agreement:
12.4.1 process that Personal Data only for the purposes of this Agreement or on the Client’s written instructions;
12.4.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where
appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity and availability of its systems and services, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it;
12.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
12.4.4 not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
12.4.4.1 the Company has provided appropriate safeguards in relation to the transfer;
12.4.4.2 the Data Subject has enforceable rights and effective legal remedies;
12.4.4.3 the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
12.4.4.4 the Company complies with the Client’s reasonable instructions notified to it in advance with respect to the processing of the Personal Data.
12.4.5 assist the Client in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.4.6 notify the Client without undue delay on becoming aware of a Personal Data breach;
12.4.7 at the Client’s written direction, delete or return Personal Data and copies thereof to the Client on termination of this Agreement unless required by applicable law to store the Personal Data;
12.4.8 maintain records and information to demonstrate its compliance with these provisions.
13. Limitation of Liability
13.1 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
13.2 Nothing in the Contract shall limit or exclude the Company’s liability for:
13.2.1 death or personal injury caused by their negligence;
13.2.2 fraud or fraudulent misrepresentation; or
13.2.3 any other liability which cannot be limited or excluded by applicable law.
13.3 Subject to clause 13.2, the Company shall have no liability to the Client in connection with this Agreement for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect or consequential losses, whether this results from breach of contract, negligence or otherwise.
13.4 When providing Services, the Company uses information gathered from a variety of sources (including from market participants and information in the public domain) that has not been subject to independent verification by the Company. Whilst the Company considers that the information supplied from its sources is accurate, no warranty can be given as to the accuracy of the same and the Company shall not be responsible for any errors arising as a result of such information being incorrect or inaccurate.
13.5 The Company does not guarantee that the Client’s use of Services will be uninterrupted or error-free, or that the Services and Deliverables, and/or the information obtained by the Client through the Services will meet the Client’s requirements. The Company makes no warranty as to the results to be obtained from the Client’s use of the Services and Deliverables for any particular purpose, and for conclusions drawn from such use.
13.6 The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Client in connection with the Services, or any actions taken by the Company at the Client’s direction.
13.7 Subject to clause 13.2, the Company’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the provision of Services shall be limited to the total amount of Fees paid for the Services. In any event, neither Party shall be liable to the other Party for any consequential, indirect, special, incidental or exemplary damages of any nature whatsoever that may be suffered by the other Party.
14. General
14.1 Variations – No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
14.2 Waiver – If a Party does not on any occasion insist on the strict observance or performance of any right under or of any provision of this Agreement, that will not amount to a waiver of that right or provision, nor shall it prevent or restrict the further exercise of that or any other right or provision.
14.3 Entire Agreement – This Agreement constitute the complete and exclusive agreement between the Parties in respect of the subject matter to which it relates and supersedes all prior agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral.
14.4 Assignment – The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
14.5 No Partnership or Agency – Nothing in these terms is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of, or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). The Company shall have no authority to incur any liability or expense on behalf of the Client or to make any promise, representation or commitment that might be binding on the Client without the prior written consent of the Client.
14.6 Observance of Legal Requirements – The Company shall carry out their obligations under this Agreement in a manner that conforms to relevant legal requirements, including the current legislation relating to health, safety and welfare at work.
14.7 Severance – If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
14.8 Third Party Rights – No one other than the Parties to this Agreement (and, where applicable, their successors) shall have any right to enforce any of its provisions.
14.9 Notices – Any notice required to be given under this Agreement shall be in writing and shall be sent by email to the email address provided by the receiving Party. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
14.10 Force Majeure – The Company shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control, including, but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service, failure of a transport or telecommunications network, natural disaster, war, riot, default of suppliers or subcontractors, or compliance with any law or government regulation, provided that the Client is notified of such an event and its expected duration.
14.11 Governing Law and Jurisdiction – This Agreement and any dispute or claim arising out of or in connection with this Agreement, including non-contractual matters, shall be governed by the law of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, including non-contractual matters.