The date of these terms and conditions (the “Conditions”) is 1st of February, 2019 (the “Effective Date”)
This is an agreement between Creative Adviser Ltd, a company registered in England and Wales with company number 08788170 and registered address at The Old School House Bridge Road, Hunton Bridge, Kings Langley WD4 8RQ (the “Supplier”), and the purchaser of the services (“You”) under these Conditions.
2.1 These are the terms and conditions for the Supplier to supply You with some or all of the following services:
2.2 The Services shall be as provided in the proposal, quote or invoice sent to You by the Supplier (the “Proposal”).
2.3 The Services shall either be provided on a project-basis, for a limited time period, or on an ongoing monthly or annual basis (the “Term”). The Term shall be noted in the Proposal.
2.4 In respect of ongoing Services, either party may terminate the provision of Services, and therefore these Conditions, upon 1 month’s written notice.
3.1 These Conditions have been made available to You at the same time as the Proposal. By proceeding with the purchase of the Services on the basis of the Proposal, whether confirming Your intention to proceed in writing or verbally, You hereby agree that these Conditions shall govern the supply of Services to You.
3.2 These Conditions and the Proposal are our entire agreement. No previous statements or representations that the Supplier has made to You form part of the contract between the parties unless they are included herein or in the Proposal. This includes samples, drawings, advertising, catalogues and other promotional or descriptive material.
3.4 If the Supplier has provided You with a quotation for the Services, it is only valid for 30 days from its issue date.
3.5 If either party requires to give the other a notice under these Conditions (“Notice”), the Notice must be effectively provided as detailed in clause 11.4.
4.1 The Supplier will supply the Services to You that are set out in these Conditions. Any performance dates are estimates, and the Supplier does not guaranteeing those timings.
4.2 The Supplier may amend the Services if necessary to comply with any regulations, or if the changes do not otherwise affect the nature and quality of the Services. If the Supplier decide to make a change, you will be notified in a Notice.
4.3 You may at any time amend the scope of the Service by Notice to the Supplier. Within 5 working days following the date of the Notice, the Supplier will notify You in writing of its ability to amend the scope of the Services, and the impact this will have on the price and these Conditions. The Supplier shall not be obliged to accept the proposed amendment, and any failure to do so shall not otherwise impact the provision of the Services.
5.1 You must comply with the following:
5.1.1 co-operate with the Supplier to enable the Supplier to provide the Services as required under this Agreement;
5.1.2 provide any information, materials, facilities, that is reasonably required;
5.1.3 at all times, You must ensure that your employees, sub-contractors and agents conduct themselves in a professional and courteous manner. In the event of any breach of this clause 5.1.3, in the Supplier’s sole opinion, the Supplier shall be entitled to immediate terminate this Agreement.
5.2 If the Supplier cannot supply the Services because You have prevented the Supplier from doing so (for example by causing delay, or by Your omission), the Supplier may stop supplying the Services until You rectified the matter (at your own cost). In this case, You will also pay the Supplier for any costs or losses You have caused the Supplier, and the Supplier shall not be responsible for any costs or losses caused to You.
5.3 You will not request any illegal or libelous Services from the Supplier at any time, and none of the Services requested by You shall infringe the rights of any third party.
5.4 Where You are authorised and/or regulated by a regulatory body, including but not limited to the Financial Conduct Authority (the “FCA”), You acknowledge that it is Your responsibility to ensure that the Services comply with the FCA Handbook in all respects. The Supplier does not accept any responsibility for ensuring FCA compliance.
6.1 The Supplier will charge You the fees as detailed in the Proposal.
6.2 The Supplier reserves the right to charge You an additional fee over and above the fees detailed in the Proposal in the event that You request Services in addition to the Services described in the Proposal, or where the proofs provided by You to the Supplier are not clear or legible.
6.3 The Supplier may also charge You for any reasonable expenses that are incurred in supplying the Services (for example, travel, subsistence, accommodation, materials, and the cost of services supplied by others).
6.4 The Supplier can increase its daily rate, but will not do this more than once every year. The Supplier will provide a Notice of any such increase. If You disagree with it, You must provide the Supplier with a Notice within 2 weeks of the date of the Notice. The Supplier will then terminate the Services, and therefore these Conditions, by providing 1 months’ Notice.
6.5 The Supplier will add VAT to invoices.
6.6 The Supplier will invoice You either when the Supplier completes the provision of the Services (in relation to one-off project work) or monthly at the end of that month (in relation to ongoing work), and You will pay the invoice in full within 30 days of the invoice date. Time of payment is critical to the Supplier, and as such the Supplier can end the Services, and these Conditions, if payment is not made on time.
6.7 If You fail to pay on time, the Supplier may charge interest at 5% per year above The Bank of England’s base rate from time to time from the due date until the invoice is settled, and this rate applies before or after any court judgment in the Supplier’s favour on the debt. The interest will be earned daily and You must pay it all with the overdue amount.
6.8 You are not allowed to hold back any payment due to the Supplier as a set-off or credit or counterclaim in relation to money which the Supplier might owe to You, unless the law provides you are entitled to do so. However, the Supplier may set off any amount You owe against any amount the Supplier owes You.
7.1 The Supplier owns all intellectual property rights arising from the Services until these Conditions are terminated, at which point the Supplier will assign the intellectual property rights arising from the Services to You.
7.2 For the avoidance of doubt, the Supplier owns and will continue to own all intellectual property rights in all work and property that has not been specifically incorporated solely for Your use as part of the Services.
7.3 Your use of intellectual property rights owned by a third party depends upon the Supplier obtaining a licence from the owner for You to use those rights.
8.1 The parties each agree to keep the other’s confidential information and know how confidential, and not to disclose it to anyone else unless they are required to do so for the performance of the Services. This clause survives termination of these Conditions.
9.1 If any of the events listed below takes place, or if the Supplier reasonably believes that any of them is likely to happen, the Supplier may cancel or suspend the Services or send You a Notice to immediately terminate the Services, and these Conditions, and You must immediately pay the Supplier all sums that You owe for the Services already supplied. The events are:
9.1.1 You stop, or threaten to stop, paying your debts (this includes your failure to pay the Supplier for the Services on time as described in clause 6);
9.1.2 You are unable to pay your debts when they arise, or You are deemed to be unable to pay your debts under the legislation known as the Insolvency Act 1986;
9.1.3 You negotiate with any creditors who You owe money to reschedule your debts to them, or You enter into any arrangement or compromise with your creditors concerning your debts;
9.1.4 a petition is filed, a notice is given, a resolution is passed or an order is made for your company to be wound up (except if that happens as part of You combining with another company whilst You are still solvent), or for your bankruptcy;
9.1.5 one or more of your creditors or someone else You owe money to becomes entitled to appoint an administrative receiver or takes possession of any of your assets, or any other legal action is taken against your assets;
9.1.6 a court application or order is made for the appointment of an administrator over You and your affairs;
9.1.7 You stop carrying on business, or threaten to do so;
9.1.8 You die or lose physical or mental capacity (if You are an individual);
9.1.9 You materially breach these Conditions.
9.2 Similarly, if the Supplier does any of the matters which are listed in clause 9.1, You may send a Notice to immediately terminate these Conditions.
10.1 The Supplier shall not be responsible to You for any loss of profit or any consequential loss arising from the Services, and the Supplier’s total liability to You under these Conditions will not exceed the amount of fees paid by You for the Services.
10.2 These Conditions do not limit the parties’ responsibility for matters that may not be excluded by law. These include death, personal injury caused by either party’s negligence, fraud or any other matter which the law provides may not be excluded. Otherwise, any warranties or terms which are implied into these Conditions by law are excluded.
10.3 Neither party will be liable to the other for failure or delay in carrying out the Services which is caused by an event beyond that party’s reasonable control, which the party could not have foreseen or which was unavoidable. This includes industrial disputes, energy or transport failures, acts of God, war, terrorism, civil unrest, explosions, mechanical breakdown, natural disasters, deliberate damage, or failures of suppliers or sub-contractors to do as they were contracted to do.
10.4 Where the Services involve printing, and the Supplier has utilised the services of a third party printing firm to carry out such printing, the Supplier shall not be liable for costs or damages if the print quality of the Services is not of satisfactory quality.
10.5 Where the Services involve digital marketing, the Supplier will use best industry practice, and trial and error, to obtain results for You. However, You acknowledge that the Supplier has no control over search engines, social media sites or third parties, and therefore cannot guarantee results. The Supplier accepts no liability for not obtaining particular results via digital marketing.
10.6 Where the Services involve the Supplier arranging web hosting on Your behalf, the Supplier endeavours to ensure there is a 99.99% uptime for servers. However, the Supplier does not warrant nor guarantee that this will be the case, and the Supplier shall not be liable for any losses, of whatever nature, suffered by You due to web hosting not functioning as it should.
11.1 The Supplier may assign, transfer, charge or sub-contract its rights and obligations under these Conditions, but You may not do so unless the Supplier has consented in writing.
11.2 No third party, other than the parties to these Conditions, may rely on any terms of these Conditions.
11.3 Changes to these Conditions are only binding if the Supplier agrees them in writing, signs them and provides You with a copy. The Supplier may update these Conditions from time to time and, in the event that this occurs, the Supplier will provide You with an updated version.
11.4 If either party wishes to provide a notice to the other under these Conditions, the party must do so in writing and either deliver it or send it by first class post to the other’s registered office (or another address specifically given to the sender for this purpose). Delivery by post will be regarded as completed by 9:00 am on the second day after posting. This arrangement does not apply to the service of any documents in legal proceedings.
11.5 Delay in exercising a right under these Conditions will not remove that right or any other right.
11.6 The parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to these Conditions or any breach of it.
11.7 Any dispute shall not affect the parties’ ongoing obligations under these Conditions.
11.8 These Conditions are governed by English law and the courts of England and Wales will have the exclusive right to deal with any disputes arising from it.
12.1 The parties agree that the provisions of this clause 12 shall apply where the parties process any Shared Personal Data and/or either party processes any other personal data in connection with the performance of these Conditions.
Processing by Controller
12.2 Where the parties process:
(a) any Shared Personal Data as data controllers in common; and/or
(b) any other personal data as data controllers; in connection with the performance of these Conditions the provisions of clauses 12.2 to 12.5 (inclusive) shall apply.
12.3 Each party shall comply with all applicable controller obligations under the Data Protection Law and shall provide assistance in respect of the other’s compliance with such obligations, in particular in relation to the Shared Personal Data, where reasonable and permitted by Data Protection Law including notification of and consultation and co-operation with the other party over fair processing notices for, and where necessary consents and compliance with rights requests from, data subjects, as well as responses to any actual or suspected personal data breach and any contact with of from any supervisory authorities or regulators.
12.4 When disclosing any Shared Personal Data to the other party, the disclosing party shall ensure that it has compliant fair processing notices, and where necessary consents, in place to enable the lawful transfer to and processing (including any onward transfer) by the other party and the Permitted Recipients of the Shared Personal Data for the Agreed Purposes.
12.5 Without limitation of the above, when receiving any Shared Personal Data from the other party, the receiving party shall:
(a) process, and procure that Permitted Recipients process, the Shared Personal Data only for the Agreed Purposes;
(b) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients except as permitted by the Data Protection Law;
(c) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by these Conditions;
(d) ensure that it has in place appropriate technical and organisational security measures, in accordance with the Data Protection Law; and
(e) not transfer any Shared Personal Data outside the European Union unless the transfer is to a country approved by the European Commission, or there are appropriate safeguards in place or an applicable derogation for a specific situation, as provided for under the Data Protection Law.
Processing by Processor
12.6 Where either party processes any Shared Personal Data as data processor (the Processor) acting on behalf of the other party as data controller (the Controller), in connection with the performance of these Conditions the provisions of clauses 12.6 to 12.10 (inclusive) shall apply.
12.7 The Controller shall ensure that it has compliant fair processing notices, and where necessary consents, in place to enable the lawful transfer to and processing by the Processor of the Shared Personal Data for the Agreed Purposes.
12.8 The Processor shall in relation to the Shared Personal Data processed by it in connection with the performance of these Conditions:
(a) process the Shared Personal Data only on the written and lawful instructions of the Controller (unless the Processor is required by the Data Protection Law to process the Shared Personal Data in which case it shall promptly notify the Controller before doing so unless prevented by the Data Protection Law);
(b) ensure that all personnel who have access to and/or process the Shared Personal Data are obliged to keep the Shared Personal Data confidential;
(c) ensure that it has in place appropriate technical and organisational security measures as required by the Data Protection Law;
(d) be generally authorised to appoint third party sub-processors on terms which are substantially similar to those set out here including any sub-processors identified in these Conditions;
(e) assist the Controller in responding to any request from a data subject and in ensuring compliance with the Controller’s obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Controller without undue delay on becoming aware of a personal data breach and assist the Controller with its Data Protection Law obligations in respect thereof taking into account the nature of the processing and information available to it;
(g) at the written direction of the Controller, delete or return the Shared Personal Data and copies thereof to the Controller on termination of these Conditions unless required by the Data Protection Law to store the Shared Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with the above and allow for audits by the Controller or the Controller’s designated auditor.
12.9 The Processor shall not transfer any Shared Personal Data outside the European Union without the prior approval of the Controller.
12.10 In respect of the Shared Personal Data:
(a) the scope, nature, purpose and duration of processing;
(b) the types of personal data and
(c) the categories of data subject; are as set out in this clause or in, or agreed under, these Conditions.
12.11 For the avoidance of doubt, when the Services involve the provision of newsletters on Your behalf, the Supplier shall not be responsible for ensuring that the recipients of the newsletters consent to such receipt in accordance with the Data Protection Law. You shall be responsible for ensuring there is a legal basis upon which to contact, and specifically send newsletters to, such recipients, and the Supplier accepts no responsibility in this regard.
12.12 In this clause 12:
(a) Agreed Purposes: means the processing necessary for the performance of these Conditions as identified herein;
(b) Controller, data subject, personal data, personal data breach, processor and processing: are as defined in the GDPR (and process and process shall be construed accordingly);
(c) Data Protection Law: means the General Data Protection Regulation (EU) 2016/679 (GDPR), the UK Data Protection Act (as amended or replaced) and any other applicable data protection or electronic privacy laws, regulations and decisions in force from time to time;
(d) Permitted Recipients: means the parties to these Conditions and (as necessary) the employees, personnel and advisers of each party and third parties engaged to perform obligations in connection with these Conditions; and
(e) Shared Personal Data: means the personal data to be shared between the parties as necessary for the performance of these Conditions as identified herein.