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white label thinking ltd
terms of service

1.   Acceptance of Terms of Service

1.1  These Terms of Service apply to and are incorporated into your acquisition of the Services pursuant to an Accepted Proposal and are incorporated into the Agreement of the parties. Each Accepted Proposal constitutes a separate legal agreement.

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1.2  You will be taken to have accepted, and will be legally bound by, these Terms of Service if you:

(a)  reply electronically to us confirming that you agree to the proposal for Services provided to you by us;

(b)  sign the proposal and return it to us electronically or by any other means;

(c)  click "I accept" on these Terms of Service where the option is made available to you; and/or

(d)  provide us with further instructions for the Services after receiving a proposal and a copy of these Terms of Service electronically or by any other means.

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1.3  Any samples, drawings, descriptive matter or advertising issued by White Label Thinking, and any descriptions or illustrations contained in White Label Thinking’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them.

They shall not form part of the Agreement or have any contractual force.

 

1.4  These Terms of Service apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law.

 

1.5  Any proposal given by White Label Thinking is only valid for a period of 90 Business Days from its date of issue.

 

2.  Basis of engagement

White Label Thinking is a non-exclusive, independent contractor to you. Nothing in this Agreement is intended to create an employment or agency relationship between us and you.

 

3.  Term

This Agreement commences on the Commencement Date and, unless otherwise stipulated in the Accepted Proposal, continues until the Services under the relevant Accepted Proposal are completed, unless terminated earlier in accordance with clause 11.

 

4.  Supply of Services

4.1  White Label Thinking shall supply the Services to you in accordance with the Accepted Proposal.

 

4.2  White Label Thinking shall use all reasonable endeavours to meet any performance dates or other timeframes agreed by the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. White Label Thinking shall not be liable for any delays caused or contributed to by you.

 

4.3  White Label Thinking reserves the right to amend the scope of the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and White Label Thinking shall notify you in any such event.

 

4.4  White Label Thinking warrants that the Services will be provided using reasonable care and skill.

 

5.  Customer’s obligations

5.1  You shall:

(a)  co-operate with White Label Thinking in all matters relating to the Services;

(b)  provide White Label Thinking with such information and materials as we may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects; and

(c)  obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.

 

5.2  If White Label Thinking’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by you or your failure to perform any relevant obligation (Customer Default):

(a)  without limiting or affecting any other right or remedy available to it, White Label Thinking shall have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays White Label Thinking’s performance of any of its obligations; and

(b)  White Label Thinking shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from White Label Thinking’s failure or delay to perform any of its obligations as set out in this clause 5.2.

 

5.3  You acknowledge and agree that the nature of White Label Thinking’s Services is advisory only. You are ultimately responsible for compliance with laws and regulations applicable to your products and business. White Label Thinking will not be liable to you for any loss, damage or third party claims you incur as a result of your breach of applicable laws and regulations, or in the ordinary course of your business.

 

6.  Fees and payment

6.1  The Fees for the Services shall be as set out in the Accepted Proposal.

 

6.2  White Label Thinking shall be entitled to charge for any expenses reasonably incurred by us in connection with the Services including travelling expenses, accommodation costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by White Label Thinking for the performance of the Services, and for the cost of any materials. Where possible, such expenses will be set out in the proposal.

 

6.3  You shall pay each invoice submitted by White Label Thinking:

(a)  within 14 days of the date of the invoice; and

(b)  in full and in cleared funds to a bank account nominated in writing by White Label Thinking, and

time for payment shall be of the essence of the Agreement.

 

6.4  All amounts payable by you under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by White Label Thinking to you, you shall, on receipt of a valid VAT invoice from White Label Thinking, pay to White Label Thinking such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

 

6.5  If you fail to make a payment due to White Label Thinking under the Agreement by the due date, then, without limiting White Label Thinking’s remedies under clause 11, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

6.6  All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

7.  Intellectual property rights

7.1  Background IP

(a)  Background IP will remain the sole property of the owner. Neither party acquires any right, title or interest in or to the Background IP of the other party by virtue of this Agreement or the disclosure or use of the Background IP in the course of the performance of the Services, other than as expressly set out in this Agreement.

(b)  You grant White Label Thinking a royalty free, irrevocable, worldwide, personal, non-exclusive licence to use, copy, duplicate or print your Background IP for the purpose of performing the Services and our obligations under this Agreement, and without the right to re-sell, share or commercially exploit your Background IP.

 

7.2  New IP: White Label Thinking will retain all rights and title to any New IP developed or created by us on your behalf as part of the Services under this Agreement until all Fees for New IP have been paid in full by you, at which time, ownership of and title to the New IP will be transferred to you. We will take all reasonable actions necessary to facilitate the transfer.

 

7.3  Know-How: Any knowledge, skills, techniques, or expertise (Know-How) that White Label Thinking develops, uses, or provides while providing the Services under this Agreement will remain White Label Thinking’s exclusive property, and you acknowledge and agree that White Label Thinking may use its Know-How in the course of its business, including with other customers.

 

7.4  Marketing materials: White Label Thinking may, with your prior consent, use your name, logo and branding in its marketing and promotional materials, including on its website, in presentations and in printed marketing materials. If consent is so granted, you grant White Label Thinking a non-exclusive, royalty-free, worldwide licence to use your name, logo and branding for such purposes. You may withdraw your consent at any time by providing written notice to White Label Thinking.

 

8.  Confidentiality

8.1  Each party undertakes that it shall not at any time during the Agreement, and for a period of 5 years after termination or expiry of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2.

 

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

(a)  to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

 

8.3  Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.

 

9.  Data Protection

The parties shall comply with their data protection obligations as set out in Schedule 1.

 

10.  Limitation of liability

10.1  References to liability in this clause 10 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

 

10.2  Nothing in this clause 10 shall limit your payment obligations under the Agreement.

 

10.3  Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:

(a)  death or personal injury caused by negligence; or

(b)  fraud or fraudulent misrepresentation.

 

10.4  Subject to clause 10.3, White Label Thinking's total liability to you for all loss or damage arising from or in connection with this Agreement shall be limited to the total amount of the Fees paid by you in respect of the Services from which the liability arose.

 

10.5  Subject to clause 10.2 and 10.3, neither party is liable to the other for any kind of Consequential Loss.

 

10.6  This clause 10 shall survive termination of the Agreement.

 

11. Termination

11.1  Without affecting any other right or remedy available to it

(a)  if the Accepted Proposal indicates an ongoing or rolling term for Services, then either party may terminate the Agreement by giving the other party one month’s written notice; and

(b)  if the Accepted Proposal indicates a fixed or definite term for Services, then the parties are mutually committed to completion of the Services and neither party has a right to terminate for convenience.

 

11.2  Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a)  the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)  the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)  the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)  the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

 

11.3  Without affecting any other right or remedy available to it, White Label Thinking may terminate the Agreement with immediate effect by giving written notice to you if you fail to pay any amount due under the Agreement on the due date for payment.

 

11.4  Without affecting any other right or remedy available to it, White Label Thinking may suspend the supply of Services under the Agreement or any other contract between you and White Label Thinking if

(a)  you fail to pay any amount due under the Agreement on the due date for payment;

(b)  you becomes subject to any of the events listed in clause 11.2(c) to (d), or White Label Thinking reasonably believes that you are about to become subject to any of them; and

(c)  the White Label Thinking reasonably believes that you are about to become subject to any of the events listed in clause 11.2(b).

 

12.  Consequences of termination

12.1  On termination or expiry of the Agreement you shall immediately pay to White Label Thinking all of White Label Thinking’s outstanding unpaid invoices and interest and, in respect of Services and/or Deliverables supplied but for which no invoice has been submitted, White Label Thinking shall submit an invoice, which shall be payable by you immediately on receipt

 

12.2  Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

 

12.3  Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.

 

13.  General

13.1  Force majeure: Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

 

13.2  Assignment and other dealings

(a)  White Label Thinking may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

(b)  You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement with the prior written consent of White Label Thinking.

 

13.3  Entire agreement

(a)  The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)  Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.

(c)  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

(d)  Nothing in this clause shall limit or exclude any liability for fraud.

 

13.4  Variation: Except as set out in these Terms of Service, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

13.5  Waiver: A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

 

13.6  Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement deleted under this clause 13.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

13.7  Notices

(a)  Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the proposal.

(b)  Any notice or other communication shall be deemed to have been received:

(i)  if delivered by hand, at the time the notice is left at the proper address;

(ii)  if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii)  if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

 

13.8  Third party rights

(a)  Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

(b)  The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.

 

13.9  Governing law: The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

 

13.10 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

 

14.  Interpretation

The following definitions and rules of interpretation apply in these conditions.

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14.1  Definitions:

Accepted Proposal means a hard copy, digital or online (including via our website) proposal fully particularising the Services, in its final form which is accepted by you.

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Agreement means the contract between White Label Thinking and you for the supply of Services in accordance with these Terms of Service.

 

Background IP means Intellectual Property Rights developed, owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term, other than for the sole purpose of this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.

 

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

 

Commencement Date means the date on which you enter into the Agreement with White Label Thinking by accepting the Accepted Proposal or these Terms of Service in accordance with clause 1.

 

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:

(a)  incidental, special, remote or unforeseeable loss;

(b)  loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;

(c)  costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d)  loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

 

Customer Default has the meaning set out in clause 5.2.

 

Customer, you or your means the person or firm who purchases Services from White Label Thinking as identified in the Accepted Proposal.

 

Deliverables means the deliverables set out in the Accepted Proposal to be produced by White Label Thinking for you.

 

Fees means the fees and charges payable by you for the supply of the Services in accordance with the Accepted Proposal and clause 6 (Fees and payment).

 

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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 of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 

New IP means Intellectual Property Rights developed by White Label Thinking for the sole purposes of this Agreement.

 

Services means the services, including the Deliverables, supplied by White Label Thinking to you as set out in the Accepted Proposal.

 

Terms of Service means these terms and conditions as amended from time to time in accordance with clause 13.4.

 

White Label Thinking, we or our means White Label Thinking registered in England and Wales with company number 11420091.

 

14.2  Interpretation:

(a)  A reference to legislation or a legislative provision:

(i)  is a reference to it as amended, extended or re-enacted from time to time; and

(ii)  shall include all subordinate legislation made from time to time under that legislation or legislative provision.

(b)  Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)  A reference to writing or written includes faxes and emails.

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