Terms & Conditions - The Conditions
- The definitions and rules of interpretation in this clause apply in these terms of business.
Client’s Manager: the Client’s manager for the Services, appointed in accordance with clause 4.1(d).
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Deliverables: all documents, products and materials developed by Auburn Creative Ltd. or its agents, subcontractors, consultants and employees in relation to the Proposal in any form, including any deliverables specified in the Proposal.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all documents, information and materials provided by Auburn Creative Ltd. relating to the Services which existed prior to the commencement of this agreement.
Proposal: the Proposal number set out in the Contract Details and any further or amended Proposal agreed in writing between the parties during the term of this agreement.
Milestones: a date by which a part of the Services is estimated to be completed, as set out in the Proposal.
Server (if applicable): a computer server administered by Auburn Creative Ltd.
Services: the services to be provided by Auburn Creative Ltd. under this agreement as set out in the Proposal, together with any other services which Auburn Creative Ltd. provides or agrees to provide to the Client.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- Words in the singular shall include the plural and vice versa.
- A reference to a statute or statutory provision is a reference to it as it is in force, for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
- Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
- Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
- References to clauses and schedules are to the clauses and schedules of this agreement.
Commencement and duration
- Auburn Creative Ltd shall provide the Services to the Client from the start date specified in the Proposal.
- The Services supplied under this agreement shall continue to be supplied for the duration set out in the Proposal or if earlier until the Services are completed in accordance with the Proposal unless this agreement is terminated in accordance with clause 11.
- Unless terminated earlier in accordance with clause 11 (Termination) of this clause, this agreement shall continue for 12 months (Initial Term) and shall automatically extend for 1 month (Extended Term) at the end of the Initial Term and at the end of each Extended Term.
- Auburn Creative Ltd shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Client, in accordance with the Proposal in all material respects.
- Auburn Creative Ltd shall use reasonable endeavours to meet any milestones specified in the Proposal, but any such dates shall be estimates only and time for performance by Auburn Creative Ltd shall not be of the essence of this agreement.
- The Client shall:
- co-operate with Auburn Creative Ltd in all matters relating to the Services;
- provide, in a timely manner, such materials and other information as Auburn Creative Ltd may require, and ensure that it is accurate in all material respects;
- permit Auburn Creative Ltd to attend meetings in order for it to be able to deliver the Services;
- appoint the Client’s Manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services; and
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services.
- If Auburn Creative Ltd performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Auburn Creative Ltd shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
- The Client shall be liable to pay to Auburn Creative Ltd, on-demand, all reasonable costs, charges or losses sustained or incurred by Auburn Creative Ltd (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to Auburn Creative Ltd confirming such costs, charges and losses to the Client in writing.
- The Client shall not, without the prior written consent of Auburn Creative Ltd, at any time from the date of this agreement to the expiry of twelve months after the termination of this agreement, solicit or entice away from Auburn Creative Ltd or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Auburn Creative Ltd in the provision of the Services.
- Any consent given by Auburn Creative Ltd in accordance with clause 4.4 shall be subject to the Client paying to Auburn Creative Ltd a sum equivalent to 20% of the then-current annual remuneration of Auburn Creative Ltd employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
Change to the scope of Services
- If either party requests a change to the scope or execution of the Services in writing, the other party has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Proposal and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 13.
- Notwithstanding clause 5.1, Auburn Creative Ltd may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
Charges and payment
- In consideration of the provision of the Services by Auburn Creative Ltd, the Client shall pay the charges as set out in the Proposal which shall specify whether they shall be on a time and materials basis, a monthly or annual retainer, a fixed price basis (including daily rate) or a combination of these.
- Unless otherwise provided for in the Proposal and subject to clause 6.3 below Auburn Creative Ltd shall invoice the Client for its charges for fees, expenses and materials (together with VAT where appropriate) for the month concerned.
- Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the relevant Proposal. The Client shall pay the total price to Auburn Creative Ltd (without deduction or set-off) in one lump sum or in instalments as specified in the Proposal. Auburn Creative Ltd shall invoice the Client for the charges that are then payable, together with expenses, the costs of materials and VAT.
- All charges contained in the Proposal exclude:
- the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals who Auburn Creative Ltd engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by ASSISTED. for the supply of the Services. Such expenses, materials and third party services shall be invoiced by Auburn Creative Ltd; and
- VAT, which Auburn Creative Ltd shall add to its invoices at the appropriate rate.
- Any expenses will be as set out in accordance with the agreed account management.
- The Client shall pay each invoice submitted to it by Auburn Creative Ltd, in full and in cleared funds, within 30 days of Auburn Creative Ltd invoice date.
- Without prejudice to any other right or remedy that it may have if the Client fails to pay Auburn Creative Ltd on the due date, Auburn Creative Ltd may:
- claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand; and
- suspend all Services until payment has been made in full.
- All sums are payable to Auburn Creative Ltd under this agreement shall become due immediately on its termination, despite any other provision. This clause 6.8 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
- Time for payment is of the essence of the Contract between Auburn Creative Ltd and the Client.
Intellectual property rights
- As between the Client and Auburn Creative Ltd, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by Auburn Creative Ltd Subject to clause 7.2 and provided that the Client has complied with all of its obligations under this agreement (including as to payment), Auburn Creative Ltd licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services. If Auburn Creative Ltd terminates this agreement under clause 12.3, this licence will automatically terminate.
- The Client acknowledges that where Auburn Creative Ltd does not own any of the Pre-existing Materials, the Client’s use of rights in Pre-existing Materials is conditional on Auburn Creative Ltd obtaining a written licence (or sub-license) from the relevant licensor or licensors on such terms as will entitle Auburn Creative Ltd to license such rights to the Client and at the Client’s cost.
Confidentiality and ASSISTED.’s property
- Each party (the “Recipient”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party (the Discloser”) and any other confidential information concerning the Discloser’s business or its products which the Client may obtain.
- The Recipient may disclose such information:
- to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client’s obligations under this agreement; and
- as may be required by law, court Proposal or any governmental or regulatory authority.
- The Recipient shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 8.
- The Recipient shall not use any such information for any purpose other than to perform its obligations under this agreement.
- Subject to clauses 7 and 11.4 (b), all materials, equipment and tools, drawings, specifications and data supplied by Auburn Creative Ltd to the Client (including Pre-existing Materials) shall, at all times, be and remain as between Auburn Creative Ltd and the Client the exclusive property of Auburn Creative Ltd, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Auburn Creative Ltd, and shall not be disposed of or used other than in accordance with Auburn Creative Ltd written instructions or authorisation.
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 11, Applicable Laws means (for so long as and to the extent that they apply to Auburn Creative Ltd) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Auburn Creative Ltd is the processor.
- Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Auburn Creative Ltd for the duration and purposes of the Contract.
- Without prejudice to the generality of clause 9.1, Auburn Creative Ltd shall, in relation to any personal data processed in connection with the performance by ASSISTED. of its obligations under the Contract:
- the process that personal data only on the documented written instructions of the Customer unless Auburn Creative Ltd is required by Applicable Laws to otherwise process that personal data. Where Auburn Creative Ltd is relying on Applicable Laws as the basis for processing personal data, Auburn Creative Ltd shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Auburn Creative Ltd from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
the Customer or Auburn Creative Ltd has provided appropriate safeguards in relation to the transfer;
the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
Auburn Creative Ltd complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
Auburn Creative Ltd complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- assist the Customer, at the Customer’s cost, 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;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and immediately inform the Customer if, in the opinion of Auburn Creative Ltd, an instruction infringes the Data Protection Legislation.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
Limitation of liability
- Clause 11 sets out the entire financial liability of Auburn Creative Ltd (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
- any breach of this agreement however arising;
- any use made by the Client of the Services, the Deliverables or any part of them; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
- Nothing in this agreement limits or excludes the liability of Auburn Creative Ltd:
- for death or personal injury resulting from its negligence; or
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
- Subject to clause 10.2 and clause 10.3:
- Auburn Creative Ltd shall not under any circumstances whatever be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
- Auburn Creative Ltd total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to the price paid for the Services during the previous 6 months prior to any such claim arising. The Client is responsible for making its own arrangements for the insurance of any excess loss.
- Subject to earlier termination, this agreement shall terminate automatically on completion of the Services or in accordance with the Proposal.
- Where applicable, without affecting any other right or remedy available to it, following the expiry of the Initial Term either party may terminate this agreement on giving not less than 30 days written notice to the other party, unless:
- the contract is for web hosting, which can be terminated by either Party following the written notification to the other Party, giving not less than 90 days written notice at any time after the expiry of 12 months from the Go Live Date.
- Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement immediately on giving notice to the other if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
- the other party commits a material breach of any of the material terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
- the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
- any form of insolvency event occurs, or insolvency proceeding is taken (within the meaning of the relevant provisions of the Insolvency Act 1986 or any other equivalent legislation or regulations), with respect to the other party in any jurisdiction to which it is subject that
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
- On termination of this agreement for any reason:
- the Client shall immediately pay to Auburn Creative Ltd all of Auburn Creative Ltd outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Auburn Creative Ltd may submit an invoice, which shall be payable immediately on receipt;
- on receipt of payment in accordance with clause 11.4(a), ownership of all Intellectual Property Rights in the website, excluding any third party rights and Pre-Existing Materials, shall transfer to the Client in respect of any Pre-Existing Materials Auburn Creative Ltd shall grant the Client a non-exclusive, perpetual, worldwide to such an extent necessary for the Client to make use of the website and within a reasonable time shall provide to the Client an electronic copy of the website (including all content on the website);
- where terminated by Auburn Creative Ltd for any breach by the Client, the Client shall return all of the Pre-existing Materials and Deliverables;
- the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
- clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 7 (Intellectual property rights), clause 8 (Confidentiality and Auburn Creative Ltd property), clause 9 (Data protection), clause 11 (Limitation of liability), clause 11.4, clause 21 (Notices), clause 22 (Dispute resolution), and clause 23 (Governing law and jurisdiction).
- A party shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 12.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event).
- The corresponding obligations of the other party will be suspended to the same extent.
- If the Force Majeure Event prevails for a continuous period of more than one month, either party may terminate this agreement by giving 21 days written notice to all the other parties. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
- Subject to clause 5, no variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
- Where the parties agree to Special Terms in a Proposal, in the event of conflict the Special Terms shall take precedence over these standard terms of business
- If either party delays or does not take action to enforce its rights under this agreement this does not prevent either party from taking action later.
Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
- If any court or competent authority decides that any of the provisions of these conditions are invalid, unlawful or unenforceable to any extent, the condition will, to that extent only, be severed from the remaining conditions, which will continue to be valid to the fullest extent permitted by law.
- This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
- Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
- The Client shall not, without the prior written consent of Auburn Creative Ltd, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under this agreement.
- Auburn Creative Ltd may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
- Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
No partnership or agency
Nothing in this agreement is intended to or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Rights of third parties
A person who is not a party to this agreement shall not have any rights under or in connection with it.
- A notice given to a party under this agreement shall be in writing in English, signed by or on behalf of the party giving it and shall be sent for the attention of the person, at the address specified at the top of this agreement or as notified in writing by the receiving party.
- If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received by email at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume.
- The provisions of this clause 21 shall not apply to the service of any process in any legal action or proceedings.
- If any dispute arises in connection with this agreement, Auburn Creative Ltd and the Client’s Manager shall, within 7 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
- No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has made reasonable attempts to settle the dispute as set out in clause 23.1.
Governing law and jurisdiction
- This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
- The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).