Create Engage Digital Limited – Terms and Conditions (April 2020)
The Customer’s attention is particularly drawn to the provisions of clause 9 (Limitation of Liability).
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by Create Engage, as set out in the Contract Details and Schedule 2.
Commencement Date: has the meaning set out in clause 3.2.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 9 (General) (inclusive).
Contract: the contract between the Customer and Create Engage for the supply of the Services in accordance with the Letter of Engagement, Contract Details, these Conditions and any Schedules.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Create Engage: Create Engage Digital Limited registered in England and Wales with company number 09429743 and with its registered office at 36 Tyndall Court Commerce Road, Lynch Wood, Peterborough, England, PE2 6LR.
Create Engage IPRs: all Intellectual Property Rights subsisting in any materials provided by or created by Create Engage which were created by or on behalf of Create Engage prior to the Service Start Date or which Create Engage did not specifically create for the benefit of the Customer in the performance of the Services.
Create Engage Materials: all materials, equipment and tools, drawings, specifications and data supplied by Create Engage to the Customer.
Customer: the person or body corporate stated in the Contract Details.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to Create Engage.
Data Controller: the person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed by the Customer as defined in the General Data Protection Regulation and Data Protection Act 2018.
Data Subject: The identified or identifiable living individual to whom personal data relates.
Deliverables: all documents, products and materials developed by Create Engage or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.
Letter of Engagement: the letter issued by Create Engage detailing the Services to be provided to the Customer, which constitutes the Customer’s order for the Services and acceptance of the Contract, as confirmed by the Customer’s confirmation of acceptance of the letter.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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.
Minimum Term: The minimum number of calendar months for which Create Engage will provide the Services before the Customer may terminate the contract.
Resulting IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials or Create Engage IPRs incorporated in them.
Services: the services, including without limitation any Deliverables, to be provided by Create Engage pursuant to the Contract, as described in Schedule 1.
Services Start Date: the day on which Create Engage is to start provision of the Services, as set out in the Contract Details.
Services End Date: the day on which Create Engage is to end the provision of the Services, as set out in the Contract Details if applicable.
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory 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 email.
(d) If there is any conflict or ambiguity between the terms of the Letter of Engagement and these Conditions, a term set out in the Letter of Engagement shall have priority over one set out in the Conditions.
3. Basis of contract
3.1 The Letter of Engagement constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3.2 The Letter of Engagement shall only be deemed to be accepted after the Customer has confirmed acceptance (by such method as Create Engage shall specify, including, but not limited to, an electronic signature platform) and when Create Engage issues written acceptance of the Letter of Engagement (including via an electronic signature platform) at which point and on which date the Contract shall come into existence (Commencement Date).
3.3 Any samples, descriptive matter or advertising issued by Create Engage, and any descriptions or illustrations on Create Engage’s website from time to time, 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 Contract or have any contractual force.
3.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4. Commencement and term
The Contract shall commence from the date when it has been signed by both parties and shall continue until the earlier of; the Services set out in Schedule 1 are completed by Create Engage, the Services End Date or the Contract is Terminated by either Create Engage or the Customer in accordance with clause 10.
5. Supply of services
5.1 Create Engage shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
5.2 In supplying the Services, Create Engage shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavors to perform the Services in accordance with the service description set out in Schedule 1;
(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(d) Use reasonable endeavors to complete the Deliverables within the time frame reasonably requested by the Customer. Any timelines provided by Create Engage are to be considered estimates only and subject to change;
(e) comply with all applicable laws, statutes, regulations from time to time in force provided that Create Engage shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(f) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to Create Engage, provided that Create Engage shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(g) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Create Engage may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
6. Customer’s obligations
6.1 The Customer shall:
(a) co-operate with Create Engage in all matters relating to the Services;
(b) provide, for Create Engage, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by Create Engage;
(c) provide, in a timely manner, such information and materials as Create Engage may require, and ensure that it is accurate and complete in all material respects; and
(d) provide working facilities that meet Create Engage’s specification when Create Engage, its agents, subcontractors, consultants and employees, are required to visit the Customer’s premises or office accommodation to deliver the Services.
6.2 If Create Engage’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Create Engage shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses Create Engage sustains or incurs that arise directly or indirectly from such prevention or delay.
6.3 Create Engage will provide guidance and support to the Customer on the method(s) used to obtain consent to market to Data Subjects, however, as Data Controller, the Customer acknowledges and agrees that it is responsible for ensuring that any method(s) used comply with all applicable laws. The Customer warrants that it shall only ask Create Engage to send marketing communications to Data Subjects that the Customer is entitled to contact in accordance with all applicable laws.
7. Intellectual property
7.1 Create Engage and its licensors shall retain ownership of all Create Engage IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
7.2 Create Engage grants the Customer a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use, copy and modify the Create Engage IPRs for the purpose of receiving and using the Services and the Deliverables in the Customer’s business.
7.3 The Customer grants Create Engage a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
7.4 Subject to clause 7.1, ownership of all Resulting IPRs subsiding in the Deliverables shall pass to the Customer immediately upon the later of the following events: (i) the date on which the Customer has paid Create Engage all Charges for the Deliverables; and (ii) the date on which Create Engage confirms to the Customer that it has completed production of the Deliverables.
7.5 The Customer shall indemnify Create Engage in full against any sums awarded by a court against Create Engage arising of or in connection with any claim brought against Create Engage for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by Create Engage.
8. Charges and payment
8.1 In consideration for the provision of the Services, the Customer shall pay Create Engage the Charges in accordance with this clause 8.
8.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Create Engage at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
8.3 Create Engage shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in Schedule 2.
8.4 The Customer shall pay each invoice due and submitted to it by Create Engage, within 14 days of receipt, to a bank account nominated in writing by Create Engage unless otherwise stated in Schedule 2.
8.5 If the Customer fails to make any payment due to Create Engage under the Contract by the due date for payment, then, without limiting Create Engage’s remedies under clause 10 (Termination) or otherwise under the Contract:
(a) the Customer 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 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%.
(b) Create Engage may (without incurring any liability whatsoever), suspend all Services until payment has been made in full.
8.6 All amounts due under the Contract from the Customer to Create Engage 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).
9. Limitation of liability
9.1 Create Engage has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Create Engage has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 Subject to clause 9.5, the restrictions on liability in this clause 9 apply to every liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Subject to clause 9.5, neither party shall be liable to the other for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of, or loss of use of, or corruption of, software, data or information;
(f) loss of damage to goodwill; and
(g) indirect or consequential loss arising under or in connection with this Contract.
9.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.5 Subject to clause 9.4, Create Engage’s total liability to the Customer shall be limited to 100% of the total Charges paid under the Contract.
10.1 Create Engage shall be entitled to terminate this Contract for convenience by giving the Customer three months’ written notice of its intention to do so.
10.2 Subject to the Minimum Term stated in the Letter of Engagement the Customer shall be entitled to terminate this contract for convenience by giving Create Engage three month’s written notice of its intention to do so. For the avoidance of doubt, the Customer may give this notice to terminate the Contract from the date three months prior to the end of the Minimum Term.
10.3 Without affecting any other right or remedy available to it, either party to the Contract may terminate it 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 Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after 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), 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 Contract has been placed in jeopardy.
10.4 Without affecting any other right or remedy available to it, Create Engage may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.5 On termination of the Contract for whatever reason:
(a) The Customer shall immediately pay to Create Engage all of Create Engage’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Create Engage may submit an invoice, which shall be payable immediately on receipt;
(b) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) Termination or expiry of the Contract shall not affect any of the 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 Contract which existed at or before the date of termination or expiry.
11.1 Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Create Engage’s prior written consent.
(b) Create Engage may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, customers or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 11.3 (b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
(d) Create Engage shall be permitted to disclose the Customer’s name, the existence of the Contract and the nature/essence of the Services for marketing purposes.
To protect the legitimate business interest of Create Engage, during the term of the Contract and for a period of 12 months after the Contract has terminated the Customer shall not offer to employ, engage, entice away or solicit the services of anyone employed or engaged by Create Engage during the term of the Contract or 12 months prior to the last day of the Contract (“Termination Date”).
11.5 Entire agreement
(a) The Contract 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 Contract 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.6 Variation No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract 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 the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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
(ii) sent by email to email@example.com
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt and
(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 at the time recorded by the delivery service and
(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 9.8(b)(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.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.10 Third party rights
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.11 Governing law
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 or formation, shall be governed by, and construed in accordance with the law of England and Wales.
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 Contract or its subject matter or formation.