Terms of Service

Terms and Conditions of Business

These Terms and Conditions govern the sale of goods and the supply of services by Smart Growth Agency.

The Client’s attention is particularly drawn to clause 11 (Limitation of liability).

1. Interpretation

1.1 Definitions

In these Conditions, the following definitions apply:

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

Commencement Date
Has the meaning given in clause 2.2.

Conditions
These terms and conditions, as amended from time to time in accordance with clause 14.8.

Contract
The contract between the Supplier and the Client for the supply of Goods and/or Services in accordance with these Conditions.

Client
The person, firm or company who purchases the Goods and/or Services from the Supplier.

Client Default
Has the meaning given in clause 7.2.

Data Controller, Data Processor, Personal Data, Data Subject, Processing
Shall have the meanings given in the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018.

Delivery Location
Has the meaning given in clause 3.1.

Force Majeure Event
Has the meaning given in clause 13.1.

Goods
Any goods supplied by the Supplier to the Client (for example, physical materials, printed items, hardware, or third-party licences), as set out in the Order.

Order
The Client’s order for the supply of Goods and/or Services, as set out in an email from the Client, a signed proposal, or in the Client’s written acceptance of the Supplier’s quotation.

Services
The services supplied by the Supplier to the Client (for example, website design and build, hosting, support, marketing, consultancy, automation and related digital services) as set out in the Service Specification.

Service Specification
The description or specification for the Services agreed in writing between the Supplier and the Client (including any proposal, statement of work or order form).

Supplier
Benarth Brands Ltd trading as Smart Growth Agency (SGA), registered in England and Wales, whose registered office is 207 Regent St, London, W1B 3HH.

Supplier Materials
Has the meaning given in clause 7.1(h).

1.2 Interpretation

a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b) A reference to a party includes its personal representatives, successors and permitted assigns.
c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted, and includes subordinate legislation made under it.
d) Any words following including, include, in particular, for example or any similar expression are illustrative and do not limit the preceding words.
e) A reference to writing or written includes email but not fax.

2. Basis of Contract

2.1 The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed accepted when the Supplier issues written acceptance (including by email) or starts to supply the Goods and/or Services, at which point the Contract shall come into existence (the Commencement Date).

2.3 Any descriptions of Goods or Services in the Supplier’s proposals, website, catalogues or brochures are for guidance only and do not form part of the Contract.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Supplier is not an offer and shall be valid for 30 Business Days from its date of issue, unless withdrawn earlier.

2.6 These Conditions apply to Goods and Services except where application to one or the other is specifically stated.

3. Delivery of Goods

3.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the Delivery Location) after notifying the Client that the Goods are ready.

3.2 Delivery shall be completed on the unloading of the Goods at the Delivery Location.

3.3 Any delivery dates are estimates only. Time of delivery is not of the essence. If the Supplier fails to deliver, its liability shall be limited to the reasonable costs incurred by the Client in obtaining replacement goods of similar description and quality, less the price of the Goods. The Supplier shall not be liable for failure or delay to the extent caused by a Force Majeure Event or the Client’s failure to provide adequate delivery or other instructions.

3.4 If the Client fails to accept delivery within three Business Days of notification that the Goods are ready:

a) delivery shall be deemed to have occurred at 9.00 am on the third Business Day following that notification; and
b) the Supplier may store the Goods and charge the Client for all related costs and expenses (including insurance).

3.5 If, ten Business Days after notification that the Goods are ready, the Client has not accepted delivery, the Supplier may resell or otherwise dispose of all or part of the Goods and:

• account to the Client for any excess over the price of the Goods, after deducting reasonable storage and selling costs; or

• charge the Client for any shortfall below the price of the Goods.

3.6 The Supplier may deliver Goods by instalments, which shall be invoiced and paid for separately. Each instalment is a separate contract.

4. Quality of Goods

4.1 The Supplier warrants that, on delivery, the Goods shall:

a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
b) be fit for any purpose expressly held out by the Supplier in writing.

4.2 Subject to clause 4.3, if the Goods do not comply with the warranty in clause 4.1, the Supplier shall, at its option, repair or replace the Goods, or refund the price in full, provided that:

a) the Client notifies the Supplier in writing within a reasonable time of discovery;
b) the Supplier is given a reasonable opportunity to examine the Goods; and
c) the Client, if requested, returns the Goods to the Supplier at the Client’s cost.

4.3 The Supplier shall not be liable for failure of the Goods to comply with the warranty if:

a) the Client makes further use of the Goods after giving notice;
b) the defect arises because the Client failed to follow the Supplier’s instructions regarding storage, installation, use or maintenance, or good trade practice;
c) the Client alters or repairs the Goods without the Supplier’s written consent;
d) the defect arises from fair wear and tear, wilful damage, negligence or abnormal conditions; or
e) the Goods differ from their description due to changes made to comply with legal or regulatory requirements.

4.4 Except as set out in this clause 4, the Supplier shall have no liability to the Client in respect of Goods failing to comply with the warranty.

4.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5. Title and Risk

5.1 Risk in the Goods passes to the Client on completion of delivery.

5.2 Title to the Goods shall not pass to the Client until the earlier of:

a) the Supplier receiving payment in full (in cleared funds) for the Goods and any other goods supplied; or
b) the Client reselling the Goods in the ordinary course of business, in which case title passes immediately before the resale.

5.3 Until title passes, the Client shall:

a) store the Goods separately so they remain identifiable as the Supplier’s property;
b) not remove or obscure any identifying marks or packaging;
c) maintain the Goods in satisfactory condition and insure them for their full price;
d) notify the Supplier immediately if it becomes subject to any of the events in clause 12.2(b)–(d); and
e) provide such information about the Goods as the Supplier reasonably requires.

5.4 If, before title passes, the Client becomes subject to any of the events in clause 12.2(b)–(d), then, without limiting any other right or remedy:

a) the Client’s right to resell or use the Goods in the ordinary course of business ceases immediately; and
b) the Supplier may require the Client to deliver up all Goods which have not been resold or irrevocably incorporated into another product, and may enter the Client’s premises (or those of a third party) to recover them.

6. Supply of Services

6.1 The Supplier shall supply the Services to the Client in accordance with the Service Specification in all material respects.

6.2 The Supplier shall use reasonable endeavours to meet any performance dates, but such dates are estimates only and time is not of the essence.

6.3 The Supplier may amend the Service Specification if necessary to comply with applicable laws or regulatory requirements, or where the change does not materially affect the nature or quality of the Services. The Supplier shall notify the Client of any such changes.

6.4 The Supplier warrants that the Services will be provided with reasonable care and skill.

7. Client’s Obligations

7.1 The Client shall:

a) ensure that the terms of the Order and any information it provides (including any Service Specification and content, branding, images or copy) are complete and accurate;
b) co-operate with the Supplier in all matters relating to the Services;
c) provide the Supplier and its personnel with access to premises, systems, platforms and accounts as reasonably required;
d) provide all information, materials, approvals and decisions reasonably required to supply the Services, and ensure such information is accurate and lawful;
e) obtain and maintain any licences, consents and permissions required for the Services (including use of third-party content, trademarks and personal data);
f) comply with all applicable laws, including data protection, e-privacy, intellectual property and advertising standards;
g) ensure any website or campaign content supplied by the Client is lawful, accurate and not misleading; and
h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) in safe custody, maintain them in good condition and not dispose of or use them other than in accordance with the Supplier’s instructions.

7.2 If the Supplier’s performance is prevented or delayed by any act or omission of the Client (a Client Default):

a) the Supplier may suspend performance until the Client remedies the Client Default and rely on it to relieve the Supplier from its obligations to the extent the Default prevents or delays performance;
b) the Supplier shall not be liable for any costs or losses incurred by the Client arising from such failure or delay; and
c) the Client shall reimburse the Supplier on demand for any costs or losses arising from the Client Default.

8. Charges and Payment

8.1 The price for Goods:

a) shall be the price set out in the Order, or if none is quoted, the Supplier’s standard price list at the date of the Order; and
b) is exclusive of packaging, insurance and transport, unless stated otherwise.

8.2 Charges for Services shall be as set out in the Service Specification or Order (for example, fixed fee, project fee, monthly subscription or day rate).

8.3 The Supplier may increase the price of Goods or Services by notice to the Client to reflect increases in costs due to:

a) factors beyond the Supplier’s control (including currency fluctuations, taxes, duties, labour or materials);
b) Client-requested changes to delivery dates, scope or specification; or
c) delay or failure by the Client to provide adequate instructions or information.

8.4 Unless otherwise agreed, the Supplier shall invoice:

a) for Goods, on or after delivery;
b) for Services, on completion or in accordance with any milestone or subscription schedule set out in the Service Specification (for example, monthly in advance for pay-monthly websites).

8.5 The Client shall pay each invoice:

a) within 30 days of the invoice date (or as otherwise stated in the Order); and
b) in full and in cleared funds to the bank account nominated by the Supplier. Time for payment is of the essence.

8.6 All amounts are exclusive of VAT. The Client shall pay any VAT chargeable on receipt of a valid VAT invoice.

8.7 If the Client fails to pay any sum by the due date, the Client shall pay interest on the overdue amount from the due date until payment in full at 4% per year above the Bank of England base rate (or 4% where the base rate is below 0%). Interest accrues daily.

8.8 All amounts due shall be paid in full without set-off or deduction, save as required by law.

9. Data Protection

9.1 For the purposes of the UK GDPR and Data Protection Act 2018, the Client is the Data Controller and the Supplier is the Data Processor for any Personal Data processed on the Client’s behalf in connection with the Services.

9.2 The Supplier shall:

a) process Personal Data only on the documented instructions of the Client (unless required to do otherwise by law);
b) ensure persons authorised to process Personal Data are subject to duties of confidentiality;
c) implement appropriate technical and organisational measures to protect Personal Data;
d) assist the Client, where reasonably possible, in responding to Data Subject requests and in complying with data security, breach notification and impact assessment obligations;
e) at the Client’s choice, delete or return Personal Data on termination of the Services (unless retention is required by law); and
f) make available information reasonably necessary to demonstrate compliance with this clause.

9.3 The Client shall ensure that it has all necessary notices, consents and lawful bases to allow the Supplier to process Personal Data as envisaged by the Contract.

9.4 The Supplier may appoint sub-processors to process Personal Data, provided such sub-processors are bound by written terms which are substantially similar to this clause 9.

9.5 Each party shall comply with applicable data protection legislation in relation to any Personal Data processed under the Contract.

10. Confidentiality

10.1 Each party undertakes that it shall not at any time during the Contract, and for five years after termination, disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by this clause.

10.2 Each party may disclose the other party’s confidential information:

a) to its employees, officers, representatives, subcontractors or advisers who need to know it for the purposes of the Contract, subject to appropriate confidentiality obligations; and
b) as required by law, a court or any governmental or regulatory authority.

10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform the Contract.

11. Limitation of Liability

The Client’s attention is particularly drawn to this clause.

11.1 Nothing in these Conditions limits or excludes the Supplier’s liability for:

a) death or personal injury caused by its negligence;
b) fraud or fraudulent misrepresentation;
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).

11.2 Subject to clause 11.1, the Supplier shall not be liable for:

a) loss of profits;
b) loss of sales or business;
c) loss of agreements or contracts;
d) loss of anticipated savings;
e) loss, corruption or inaccuracy of software, data or information;
f) loss of or damage to goodwill; or
g) any indirect or consequential loss.

11.3 Subject to clause 11.1, the Supplier’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 Contract shall be limited to 100% of the total charges paid by the Client under the Contract in the 12 months preceding the event giving rise to the claim.

11.4 The terms implied by sections 13–15 of the Sale of Goods Act 1979 and sections 3–5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded.

11.5 This clause 11 shall survive termination of the Contract.

12. Termination

12.1 Either party may terminate the Contract by giving not less than three months’ written notice to the other.

12.2 Without affecting any other right or remedy, either party may terminate the Contract with immediate effect by written notice if:

a) the other party commits a material breach of the Contract and (if remediable) fails to remedy it within 10 days of written notice;
b) the other party takes steps towards insolvency, administration, liquidation, or any composition with creditors (other than a solvent restructuring);
c) the other party suspends or ceases to carry on all or a substantial part of its business; or
d) the other party’s financial position deteriorates such that its ability to perform the Contract is, in the terminating party’s opinion, jeopardised.

12.3 Without affecting any other rights, the Supplier may terminate with immediate effect if:

a) the Client fails to pay any amount due by the due date; or
b) there is a change of control of the Client.

12.4 The Supplier may suspend the supply of Services or delivery of Goods if the Client fails to pay any amount due or becomes subject to any of the events in clause 12.2(b)–(d), or the Supplier reasonably believes it is about to.

13. Force Majeure

13.1 Neither party shall be in breach of the Contract nor liable for delay or failure in performance to the extent caused by events beyond its reasonable control, including acts of God, war, epidemic, pandemic, civil commotion, strikes, failure of utilities or telecommunications, or failure of third-party hosting or platforms (a Force Majeure Event).

14. General

14.1 Assignment

The Supplier may at any time assign, subcontract or otherwise deal with its rights and obligations under the Contract. The Client may not do so without the Supplier’s prior written consent.

14.2 Notices

Notices shall be in writing and delivered by hand or by pre-paid first-class post or next-day delivery service at the party’s registered office or principal place of business. Notices are deemed received:

• on delivery, if delivered by hand; or

• at 9.00 am on the second Business Day after posting, if sent by post.

This clause does not apply to service of legal proceedings.

14.3 Severance

If any provision of the Contract is invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid. If such modification is not possible, it shall be deemed deleted. The remaining provisions remain in full force.

14.4 Waiver

A waiver of any right is only effective if in writing and shall not be deemed a waiver of any subsequent breach. Failure or delay in exercising any right shall not constitute a waiver.

14.5 No Partnership

Nothing in the Contract is intended to establish a partnership or joint venture between the parties or authorise either party to act as agent for the other.

14.6 Entire Agreement

The Contract constitutes the entire agreement between the parties and supersedes all previous agreements relating to its subject matter. Each party agrees that it has not relied on any statement not set out in the Contract. Nothing in this clause limits liability for fraud.

14.7 Third Party Rights

No person other than the parties shall have any rights under the Contracts (Rights of Third Parties) Act 1999.

14.8 Variation

No variation of the Contract shall be effective unless in writing and signed by authorised representatives of both parties.

14.9 Governing Law and Jurisdiction

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter shall be governed by the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction.

15. Client Responsibilities for Website Content and Compliance

15.1 The Client acknowledges that there may be legal, regulatory or industry-specific obligations relating to its business (for example, professional regulations, sector-specific compliance, advertising rules, or consumer law) which fall outside the scope of the Services.

15.2 The Client is responsible for:

a) ensuring all website and marketing content (including testimonials, claims, images, scripts and offers) is accurate, lawful and not misleading;
b) ensuring any required legal notices, policies and disclosures (for example, terms of use, privacy notices, cookies notices and sector-specific disclaimers) are in place and kept up to date;
c) obtaining any necessary legal advice in relation to its own regulatory obligations;
d) notifying the Supplier promptly of any changes to its business, regulatory status or internal contacts that may affect the Services; and
e) ensuring that any data, content or instructions supplied to the Supplier do not cause the Supplier to breach any law or third-party rights.

15.3 The Supplier does not provide legal advice. Any templates or examples supplied (such as policy text or disclaimer wording) are provided for convenience only and must be reviewed by the Client’s own legal advisers.