1.1 What these terms cover
These are the terms and conditions of supply on which we supply Products and Services to you, you being the person, firm or company placing an order with us. What we mean by Products and Services will be explained later on in these terms.
1.2 The importance of these terms and why you should read them
Please read these terms carefully as they outline the agreement between us and you in relation to the supply of Products and Services. YOUR ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 9
1.3 The incorporation of these terms into our contract with you
These terms shall be incorporated into any contract we enter into with you to the exclusion of any terms or conditions stipulated or referred to by you. Any dealings with us following notification to you of these terms shall automatically be deemed acceptance of these terms by you notwithstanding the absence of formal acknowledgement by you.
1.4. The application of these terms to Products and Services
All of these terms shall apply to the supply of both Products and Services except where application to one or the other is specified.
The following terms shall have the following meanings when used in these terms:
Creative and Technical Specification: any specification for the Services that is agreed in writing by us and you.
Customer Materials: any materials provided by you to us electronically or otherwise including, by way of example, artwork, copy, models, designs, photographs, films, videos, characters, music, software, diagrams, drawings, sound recordings, text, images and other data.
Deliverables: any deliverables provided which are attributable to the Products or Services.
Products: any non-bespoke products provided by us to you in accordance with the Proposal and which are not attributable to the Services including, by way of example, websites, apps and application software, augmented reality and virtual reality apps and experiences.
Proposal: our description of the Products or Services to be provided or performed by us to or for you which we provide to you.
Services: any creative services provided by us to you in accordance with the Proposal including, by way of example, creative concepts, design work, work on illustrations and photography, television, animation and video production, work on branding, work on campaign strategies, work on digital solutions and the provision of content.
Third Party: any third party (including any developers, sub-contractors, agents and suppliers) which we use in respect of the Products or Services including, by way of example, photographers, film makers, technology providers, providers of image libraries and hosting service providers.
Third Party Materials: any materials supplied by a Third Party including, by way of example, imagery used in providing any Deliverables.
2. INFORMATION ABOUT US AND CONTACT INFORMATION
2.1 Who we are
We are Engine Creative Agency Limited, registered in England and Wales (the Company). Our company registration number is 03608666 and our registered office is at The Church Rooms, Agnes Road, Northampton, Northamptonshire, NN2 6EU. Our VAT number is GB 694483879 2.2 How to contact us
You can contact the Company by telephoning 01604 453177 or in writing to Enquiries@EngineCreative.co.uk or The Church Rooms, Agnes Road, Northampton, Northamptonshire, NN2 6EU.
2.3 How we may contact you
If the Company has to contact you for any reason it will do so by telephone or writing to you at the e-mail address or postal address you provided to the Company in the most recent correspondence.
2.4 Receipt of communications
Communications shall be deemed to have been received: 2.4.1. if sent by prepaid first class post, 5 days after posting (exclusive of day of posting); 2.4.2. if delivered by hand, on the day of delivery; and 2.4.3. if sent by e-mail transmission prior to 2pm UK time on any day, at the time of transmission and if sent after 2pm UK time, on the next day.
2.5 Reference to “day”
For the purposes of clause 2.4, any reference to a “day” shall not include Saturdays, Sundays and bank or public holidays in England.
2.6 “Writing” includes e-mail
When using the words “writing” or “written” in these terms, this includes e-mails.
3. OUR CONTRACT WITH YOU
3.1 Status of Proposals
Any Proposal given by the Company shall not constitute an offer and shall only be valid for 30 days.
3.2 Status of orders
An order in response to a Proposal constitutes an offer by you to purchase the Products and/or Services detailed in the Proposal in accordance with these terms which may be accepted at the discretion of the Company and, if so accepted, will only be accepted upon these terms.
3.3 Acceptance of an order
An order in response to a Proposal shall only be deemed to be accepted when the Company issues written acceptance of the order or does any act consistent with fulfilling the order at which point a contract will come into existence between you and the Company.
3.4 No reliance by you
You acknowledge that in entering into any contract, you have not relied on any written or oral representations made by or on behalf of the Company save as set forth in writing and expressly included in the contract. The Company shall have no liability for any representation not so reduced to writing and incorporated in the contract.
4. PURCHASE OF PRODUCTS AND SERVICES
4.1 Deemed acceptance
The Company will consider that you have accepted any Products, Services and Deliverables if no notification of non-acceptance or changes is received in writing from you within 10 days of them having been provided to you.
4.2 Provision of Customer Materials by you
You undertake to promptly provide all required Customer Materials, information and assistance that the Company reasonably requires from time to time and in such format as the Company reasonably requests to facilitate the proper and timely delivery or performance of the Products or Services. You also warrant that, to the best of your knowledge and belief, all Customer Materials and information provided by you to the Company is accurate and complete.
4.3 You have the right to provide Customer Materials
By supplying Customer Materials for inclusion in any Deliverables, you declare that you hold the appropriate rights and/or permissions to do so and you grant the Company permission to use those Customer Materials freely in respect of the provision of the Services. You shall not hold the Company accountable for, and shall hold the Company harmless against, any claims resulting from you not having any such rights and/or permissions.
4.4 How long we will keep any Customer Materials for
You acknowledge that the Company shall only retain either copies or originals of Customer Materials for a period of 6 months following completion of the Services and the Company shall not be liable for any losses you may suffer arising from it deleting such Customer Materials after this period.
4.5 Materials incorporated into Products, Services and Deliverables
Should the Company incorporate any materials into any Products, Services or Deliverables believing them to not be subject to any ownership or usage restrictions, then should it subsequently emerge that they are subject to ownership or use restrictions then you agree to allow the Company to remove and/or replace them.
4.6 Time is not of the essence
Any indication given in the Proposal in respect of the delivery of the Products or performance of the Services shall be considered by you to be an estimate. Time shall not be of the essence in respect of delivery of the Products or performance of the Services.
4.7 We can make changes to the Products or Services
The Company shall have the right to make any changes to the Products or the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Products of Services, and the Company shall notify you in any such event.
4.8 What we may do if you notify us of any faults
If you notify the Company of any defect or fault in respect of the Products or the Services then the Company may, at its option, repair, replace or re-perform, as the case may be, the Products or the Services.
4.9 Our rights if you delay our performance
If the Company’s performance of any of its obligations under the contract is prevented or delayed by default of you or your failure to perform a relevant obligation, then the Company shall be able to rely on this to relieve it from performance of any of its obligations to the extent it prevents or delays the Company’s performance of any of its obligations.
5. PRICE AND PAYMENT
5.1 Price of the Products and Services
The price of the Products and Services will be as stipulated in the Proposal and, unless otherwise specified, the price shall be exclusive of any applicable VAT (you shall pay at the rate required by law after receipt of a valid VAT invoice).
5.2 Variation of the price
The Company reserves the right to vary the price of the Products and Services according to further requirements made by you subsequent to your order including, by way of example, should your objectives change.
5.3 Third Party fees
Where the Proposal does not set out the fees of any Third Party, the fees charged by any Third Party are your responsibility including, by way of example, any royalty and licence fees in respect of Third Party Materials. Such fees will be passed on to you for payment if they are incurred by the Company but shall be advised by the Company in writing and accepted by you in writing before either the work proceeds or any fees are incurred.
5.4 Payment by you
All sums payable to the Company will be paid in pounds sterling unless otherwise agreed in writing. The payment terms will be as stipulated in the Proposal and may require full payment upfront, a deposit or staged payment. Prior to each payment date, the Company will issue a VAT invoice to you. Unless otherwise stated in the Proposal, each invoice is payable in 30 days.
Where a deposit is payable to the Company on receipt of your order, this is a non-refundable deposit.
5.6 Right of suspension for late payments
If any payment has not been received by the due date, the Company reserves the right to suspend access to any Products and any previous Deliverables supplied, together with further work in respect of the Services, until full payment of the outstanding balance has been received.
5.7 Lien over Customer Materials
The Company shall have a general lien on all Customer Materials in its possession in respect of any payment not received by the due date.
5.8 Interest chargeable for late payments
If you fail to make any payment due to the Company under the contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment.
You shall pay the interest together with the overdue amount. This clause 5.7 shall not apply to payments which you dispute in good faith. The Company reserves its rights under the Late Payment of Commercial Debts (Interest) Act 1998.
5.9 Set-off payments
The Company may at any time, without limiting any of its other rights or remedies, set-off any liability of yours to the Company against any liability of the Company to you. You shall pay all amounts due under the contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
5.10 Recovery of legal costs
Should the Company be required to enforce these terms against you then you shall indemnify the Company against all costs and expenses (including professional and legal costs and expenses on a full indemnity basis) suffered or incurred by the Company arising out of or in connection with the Company enforcing these terms.
6. DELAYS OUTSIDE OF OUR CONTROL
If the Company’s supply of the Products or performance of the Services is delayed by an event outside its control then the Company will contact you as soon as possible to let you know and the Company will take steps to minimise the effect of the delay. Provided the Company does this it will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact the Company to end the contract.
7. THIRD PARTIES
7.1 Third Party Materials may be included
You agree that the Products, Deliverables and Services may: 7.1.1 incorporate Third Party Materials, and/or 7.1.2 be provided by Third Parties, as the case may be.
7.2 The terms of Third Parties
You agree to abide by the separate terms and conditions of any Third Parties, copies of which are available to you on request, and that such terms and conditions (including any disclaimers contained within them) shall apply to you.
7.3 Removal of Third Party Materials
Should the Company’s right to incorporate any Third Parties Materials into any Products, Deliverables or Services cease then you agree to allow the Company to remove and/or replace those Third Parties Materials without any liability to you.
8.1 Warranties regarding Products and Deliverables
The Company warrants to you that the Products and any Deliverables:
8.1.1 will be of satisfactory quality and fit for their normal purpose, any purpose made known to the Company in writing on or before the time the Proposal was submitted and any purpose that the Company has represented to you that the Products or the Deliverables are fit for purpose, and will be materially in accordance with any Creative and Technical Specification; 8.1.2 will be free from material defects in design, material and workmanship; 8.1.3 will correspond with any relevant sample; and 8.1.4 will comply with all statutory requirements and regulations relating to them.
8.2 Warranties regarding Services
The Company warrants to you that, in providing the Services, it will: 8.2.1 perform the Services with all reasonable care, skill and diligence in accordance with good practice in its industry; and 8.2.2 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that its obligations are fulfilled in accordance with the contract.
8.3 Compliance with laws
It is your responsibility to ensure that any Products and Deliverables comply with all applicable laws, regulations and codes in all countries where they are to be used. You shall not hold the Company accountable for, and shall hold the Company harmless against, any use or misuse of any Products or Deliverables.
9.1 We are responsible to you for foreseeable loss and damage caused by us
Subject to the terms of this clause 9, if the Company fails to comply with these terms, it is responsible for loss or damage you suffer that is a foreseeable result of it breaking the contract, but it is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both the Company and you knew it might happen, for example, if you discussed it with the Company before the Proposal.
9.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so
This includes liability for death or personal injury caused by the Company’s negligence or the negligence of its employees, agents or sub-contractors; and for fraud or fraudulent misrepresentation.
9.3 We are not liable for business losses
The Company has no liability to you for any loss of profit, loss of business, business interruption, loss of business opportunity, loss of data, or for any indirect or consequential loss or damage.
9.4 Where you proof any work
Where any work is proofed by you and you approve it prior to publication, use or print, no liability will be accepted by the Company for errors not highlighted by you prior to publication, use or print.
9.5 You are a business customer
You acknowledge and agree that you are a business customer by virtue of the Products and/or Services being received by you for your business purposes.
9.6 Our total liability to you
Subject to clause 9.2, the Company’s total liability to you in respect of the contract, in contract, tort (including negligence), or breach of statutory duty, or howsoever otherwise arising, shall be limited to: 9.6.1 in respect of claims for loss or damage which arise directly as a result of the Company’s negligence, a sum not exceeding £250,000; and 9.6.2 in respect of all other claims, to the price paid by you in relation to the Products or Services in respect of which the claim arises.
9.7 You acknowledge that the terms set out in this clause 9 are reasonable
You acknowledge that: 9.7.1 you have read and fully understood the limitations and exclusions of the obligations and liabilities of the Company set out in these terms; 9.7.2 you have freely agreed to them; 9.7.3 they are reasonable and formed the basis for setting the price of the Products and the Services, as the case may be; 9.7.4 you freely accept the risks associated with them; and 9.7.5 you are able to insure yourself against all or some of those risks should you so desire.
10. INTELLECTUAL PROPERTY
10.1 We own the intellectual property rights arising from what we do
The intellectual property rights created by or on behalf of the Company in respect of the Products and arising as a result of the Services (including any origination and/or conceptual work together with any advertising slogans, pictures, ideas, visuals, illustrations, artwork, images, text and suggested design solutions) shall, as between you and the Company, be owned by the Company unless specifically assigned to you in writing by the Company. Provided all of your obligations under the contract are met, the Company hereby grants a non-exclusive licence of such intellectual property rights for the purpose of you making use of the Products, the Services and the Deliverables.
10.2 Presentations by us
For the avoidance of doubt, where the Company makes any presentation to you which contains material which goes beyond the scope of the Proposal or the Creative and Technical Specification, you shall have no right to make use of any such material unless specifically agreed in writing by the Company.
10.3 We accept responsibility if what we do infringes the intellectual property rights of others
The Company will accept liability to you in respect of any damages, losses and expenses you may suffer arising as a result of any action or claim that the Products or the Deliverables infringe any intellectual property rights of a third party in the UK, other than infringements arising as a result of use of any Customer Materials. You must not make any admissions or settlements in respect of any such claim or action without the Company’s prior written consent and must give the Company all reasonable assistance in respect of, and control over, any resulting litigation and settlement of the claim or action.
10.4 Publicity by us
You agree that the Company may use any Deliverables for its own publicity and portfolio and may refer to having worked with you.
11. HOW TO END THE CONTRACT
11.1 Cancelling the contract
You shall be entitled to cancel the contract in full or in part by providing the Company with 90 days’ prior written notice at any time in which case you shall be liable to pay for the price of the Products and Services in respect of which you have cancelled the contract, less the Company’s net saving of cost arising from cancellation, together with any fees of Third Parties which cannot be avoided.
11.2 Terminating the contract because of something you or we have done or are going to do
The Company and you may end the contract, in full or part, by notifying the other party if at any time the other party:
11.2.1 makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of solvent amalgamation or reconstruction); 11.2.2 an encumbrancer takes possession of, or a receiver is appointed over, any of its assets or property; 11.2.3 it ceases, or threatens to cease, to carry on business; 11.2.4 the terminating party reasonably believes that any of the events mentioned above are about to occur in relation to the other party and notifies that party of this belief; 11.2.5 fails to pay an amount due under the contract and remains in default not less than 7 days after being notified in writing to make such payment and which is not the subject of a bona fide dispute; or 11.2.6 commits a material breach of the contract which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 30 days after being notified in writing to do so.
11.3 Continuance of terms
On expiry or termination of the contract, all provisions of the contract which can reasonably be inferred as continuing or which are expressly stated as continuing shall continue in full force and effect.
11.4 Payment on termination
On termination of the contract for any reason you shall be liable to pay for the price of the Products and Services in respect of which the contract has been terminated, less the Company’s net saving of cost arising from termination, together with any fees of Third Parties which cannot be avoided.
12.1 Obligations regarding confidentiality
Each party undertakes that it shall not disclose to any person any confidential information concerning the business or affairs of the other party, except as permitted by clause 12.2.
12.2 Permitted disclosures
Each party may disclose the other party’s confidential information: 12.2.1 to its employees, officers, representatives, sub- contractors, agents or advisors who need to know such information for the purposes of carrying out the party’s obligations under the contract. Each party shall ensure that any such party to whom it discloses the other party’s confidential information complies with this clause 12; and 12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Use of confidential information
Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the contract.
12.4 Clause 12 will survive termination
This clause 12 shall survive termination of the contract.
13. OUR STAFF
13.1 You shall not solicit our staff
You shall not, without the Company’s prior written consent, at any time from the Company commencing performance of the Services to the expiry of 12 months after completion of the Services for any reason solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Company and with whom you dealt with under the contract in the period of 12 months before completion of the Services (or during the period of the Services if they took less than 12 months to complete). The foregoing shall not be deemed to prohibit you from placing general advertisements for employment or hiring employees or sub-contractors, or former employees or sub-contractors, of the Company who contact you of their own accord.
13.2 Payment of liquidated damages
Any consent given by the Company pursuant to clause 13.1 shall be subject to you paying to the Company a sum equivalent to 50% of the then current gross annual remuneration of the relevant employee or sub-contractor of the Company. This payment shall represent liquidated damages and a genuine pre-estimate of the loss that the Company may suffer as a result of losing the skills and experience of the employee or sub-contractor.
14.1 Use of Third Parties
The Company reserves the right to use the services of Third Parties.
14.2 No waiver of the Company’s rights
Failure or delay by the Company to enforce or partially enforce any provision of the contract shall not be construed as a waiver of any of the Company’s rights under the contract.
14.3 No waiver will be deemed a subsequent waiver
Any waiver by the Company of any breach of, or default under, any provision of the contract by you will not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.
14.4 If a court finds part of the contract illegal, the rest will continue in force
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 14.4 shall not affect the validity and enforceability of the rest of the contract.
14.5 Modification or deletion of provisions
If any provision or part-provision of the contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.6 Nobody else has rights under the contract
Nothing in the contract is intended to confer any benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no third party shall have the right to enforce any rights under the contract, except where otherwise agreed in writing.
14.7 Which laws apply to the contract and where you may bring legal proceedings
The contract shall be governed by the laws of England and Wales and, subject as provided hereafter, both parties agree to submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute or claim arising out of or relating to the contract or the relationship between you and the Company. Nothing in this clause 14.7 shall limit the right of the Company to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such jurisdiction.
These terms were originally written in the English language and the English language version shall control over any translations.
14.9 Further assurance
You shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the contract and you shall use all reasonable endeavours to procure that any necessary third party shall do the same.
14.10 Entire agreement
These terms and the documents referred to in them constitute the entire agreement and understanding of the parties and shall supersede any previous agreement between the parties relating to the Products and Services.
No variation of these terms shall be valid unless signed in writing by the Company.