Last updated: 22 July 2020
The following definitions and rules of interpretation apply in this Agreement:
“Business Day” means 9:00am to 5:00pm, Monday to Friday (excluding public holidays in England and Wales).
“Commencement Date” means the date that this Services Agreement was made, which can be found at the top of this document.
“Complex Creative’s Equipment”means any equipment including tools, systems, or facilities provided by Complex Creative or its agents, subcontractors, consultants, or employees and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties, under which, title passes to the Client.
“Complex Creative’s Team” means all directors, managers, employees, consultants, engineers and specialists, agents, and subcontractors engaged in relation to the Services.
“Confidential Information”means any information of a confidential nature as described in clause 9.
“Client’s Equipment” means any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of Services. This is extended to apply to any equipment, systems, or facilities which are accessed remotely.
“Deliverables”means all documents, products, and materials developed by Complex Creative or its agents, subcontractors, consultants, or employees in relation to the Services provided in any form.
“Document” includes (in additional to any document in writing) any drawing, plan, diagram, design, image, tape, disk, or any other device or record embodying information in any form.
“Input Material”means all Documents, information, and materials provided by the Client, relating to the Services.
“Intellectual Property Rights” or “IPR“ means patents; utility models; rights to inventions; copyright, neighbouring, and related rights; trademarks and service marks; business names and domain names; rights in get-up and trade dress, goodwill, and the right to sue for passing off or for unfair competition; rights in designs; database rights; rights to use, and to protective 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 future, in any part of the world.
“Pre-existing Materials”means all documents, information, and materials provided by Complex Creative or its agents, subcontractors, consultants, or employees, relating to the Services, which existed prior to the Commencement Date.
“Revision” means an amendment to an existing idea and does not include the creation of a new concept or design.
“Schedule 1”means the schedule attached to this Agreement.
“VAT”means value added tax, chargeable under the Value Added Tax Act 1994.
References to clausesand schedules are to the clauses and schedules of this Agreement, and references to paragraphsare to the paragraphs of the relevant schedule or appendix.
Schedule 1 forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes Schedule 1.
Schedules, clauses, and paragraph headings shall not affect the interpretation of this Agreement.
Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
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 or following those terms.
A reference to “writing”or “written” includes e-mail, text message, or WhatsApp.
A reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
A reference to a party shall include that party’s personal representatives, successors, and permitted assigns.
A reference to a company shall include any company, corporation, or other corporate body, wherever and however incorporated or established.
A reference to a holding company or a subsidiary means a holding company or subsidiary as defined in section 1159 of the Companies Act 2006, and a company shall be treated for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person, by way of security or in connection with the taking of security, or (b) its nominee.
A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. COMMENCEMENT AND DURATION
Complex Creative shall provide the Services to the Client under the terms and conditions of this Agreement.
Complex Creative shall provide the Services from the Commencement Date and shall continue to provide the Services throughout the term.
This Agreement shall commence on the Commencement Date and continue for the period specified in Schedule 1, and after that shall continue to be supplied unless the Agreement is terminated by one of the parties giving the other 1 month notice in writing (unless this Agreement is terminated in accordance with clause 11).
3. COMPLEX CREATIVE’S RESPONSIBILITES
Complex Creative shall:
Provide the Services and deliver any Deliverables to the Client in accordance with Schedule 1 and shall allocate sufficient resources to the Services to enable it to comply with this obligation.
Time will not be of the essence to this contract unless specifically agreed in writing by Complex Creative.
Though Complex Creative will always try their best (using commercially reasonable endeavours) to meet any deadlines for performance, this is not always possible and depends very much on the volume of work they are dealing with at that time, along with any other commercial factors that may apply.
If there are last minute changes or additions required to the project, then this will change any previously specified deadlines outlined in Schedule 1 (also see clause 5).
Complex Creative reserves the right to completely re-evaluate the timeline at any time.
Co-operate with the Client in all matters relating to the Services.
Provide all equipment, tools, or other items required to provide the Services.
Ensure that all goods, materials, standards, and techniques used in providing the Services are of good quality.
Comply with all applicable laws and regulations relating to the provision of the Services.
Ensure Complex Creative’s Team use reasonable skill and care in the performance of the Services.
Complex Creative acknowledges and agrees that:
- The Client is entering into this Agreement on the basis of the description of Services as detailed in Schedule 1.
- If Complex Creative considers that the Client is not (or may not be) complying with any of the Client’s obligations, it shall only be entitled to rely on this as relieving Complex Creative’s performance under this Agreement:
- To the extent that it restricts or precludes performance of the Services by Complex Creative; and
- If Complex Creative, promptly after the actual or potential non-compliance has come to its attention, has notified details to the Client in writing.
4. CLIENT’S OBLIGATIONS
The Client shall:
- Co-operate with Complex Creative in all matters relating to the Services and appoint as it thinks fit, a 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
- Provide such information as Complex Creative may reasonably request and the Client considers reasonably necessary, in order to carry out the Services in a timely manner and to ensure that it is accurate in all material respects.
- Further to clause 3.1.2, all deadlines or timeframes given are estimates only and are dependent upon the Client providing Complex Creative with all information required to complete the work.
- Complex Creative shall not be liable in any way for work that is delivered outside of the Client’s expected timeframe in any circumstance whatsoever.
- The Client will be liable to pay Complex Creative’s fees under Clause 6 and Schedule 1 regardless of the time of delivery of any Deliverables.
- If the Client provides low quality materials, for example (including without limitation) poor resolution images or graphics, then any work that these materials will feature in will be of the same quality. Complex Creative shall bear no responsibility or fault for this.
The Client acknowledges and agrees:
- Where the work to be carried out is design based, when a design has been signed off by the Client, Complex Creative can no longer make any amendments to the designs within the initial project scope or budget.
- If the Client requests additional work after signing off designs, or that fall outside of the scope of work agreed at the outset of the project, additional fees will apply (as per clause 5).
- If Complex Creative puts the Client’s website live for any reason before full payment is made by the Client, then Complex Creative (without prejudice to any other right or remedy) shall reserve the right to take the website down at any time until full payment of Complex Creative’s fees are paid by the Client.
- Complex Creative teaching the Client how to use the website (including without limitation, admin functionality) is not included within Complex Creative’s price. Any training the Client requires will be quoted by Complex Creative separately to any design or development Services.
- Complex Creative will provide hosting and maintenance services for those using their server but are not liable for any loss of data and are not responsible to provide technical assistance to those wishing to learn how to do tasks themselves.
- Complex Creative is not a 24-hour service and will only operate during office hours. Contacting personal numbers does not guarantee a response, but using official channels will always receive a response during business hours.
5. CHANGE CONTROL
If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other, in writing.
If either party has made any request to make a change to the scope or execution of the Services, Complex Creative shall, within a reasonable time, provide a written estimate to the Client of:
- The likely time required to implement the change.
- Any necessary variations to Complex Creative’s charges arising from the change.
- Any other impact of the change on this Agreement.
Unless both parties consent to a proposed change, there shall be no change to this Agreement.
If both parties consent to a proposed change, the change shall be made only after the agreement of the necessary variations to Complex Creative’s charges, the Services, and any other relevant terms of this Agreement has been varied in accordance with clause 15.
If Complex Creative requests a change to the scope or execution of the Services in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature or scope of, or the charges for the Services, the Client shall not unreasonably withhold or delay consent to it. Unless Complex Creative‘s request was attributable to the Client’s non-compliance with the Client’s obligations, neither Complex Creative’s charges nor any other terms of this Agreement shall vary as a result of such change.
6. CHARGES AND PAYMENT
In consideration of the provision of the Services by Complex Creative, the Client shall pay the charges as set out in Schedule 1 and in accordance with this clause 6. The charges shall be paid in Great British Pounds, unless otherwise agreed in writing by Complex Creative.
Payment must be made to an account which will be nominated by Complex Creative in writing
Where full upfront payment for the Services is not required, we will require payment of an upfront deposit for any work carried out. Any deposit will be specified in Schedule 1. This must be paid before any work is started by Complex Creative.
All deposits shall be completely non-refundable. Complex Creative shall retain any deposits that are paid in the event of termination.
The charges and payments by the Client exclude VAT, which Complex Creative shall add to its invoices at the appropriate rate.
The Client shall pay each invoice which is properly due and submitted to it, by Complex Creative within 14 days of receipt. When the invoice must be paid depends on what kind of contract is in place:
For one-off project-based contracts, Complex Creative will usually request 50% of the deposit upfront which must be paid in advance of them starting any work. The remaining 50% must be paid upon completion of the project, but before delivery of the work.
Complex Creative reserve the right to request more deposit, or the full project amount, or to split any projects into additional milestones at the outset of the project. This will be reported in Schedule 1.
For ongoing / retainer-based contracts, the payment of the retainer will be taken on the same day each month, depicted by the date of the start of the contract. By signing up to a monthly retainer contract, the Client agrees that this Agreement shall last for a minimum term of three months before termination of this Agreement is allowed, by giving no less than 1 months’ notice in writing.
For hourly rate contracts, the Client will be invoiced for a minimum of 10 hours upfront as a deposit with the rest to be billed at the end of the month.
Complex Creative allows a maximum of 20 hours to be given to the Clients on credit. Once this 20-hour limit has been reached, the Client will be billed for the credit, which must be paid before Complex Creative can continue with any other work. Complex Creative will use commercially reasonable endeavours to notify the Client in advance of the 20-hour credit limit being reached.
For hosting & maintenance contracts, the Agreement is for 12 months and the payment is required at the start of the Agreement. If the Client wishes to terminate this Agreement, this must be done by giving no less than 1 months’ notice in writing.
If a party fails to make any payment due to the other party under this Agreement, by the due date for payment, then, without limiting the other party’s remedies under clause 17, the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate. Such interest shall accrue on a daily basis, from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
Complex Creative shall also charge an administration fee for additional work carried out if any payment under the Agreement is not paid on time. The applicable administration fee is as follows:
- £50.00 for a letter before action.
- £150 if the matter is sent to a debt collection agency.
- £250 if Complex Creative have to submit the case as a small claim.
In relation to payments disputed in good faith, interest under clause 6.6 is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
If a payment is late by 5 days or more, Complex Creative reserves the right to stop all further work until the payment is made in full.
Invoices covering payment in respect of materials purchased by, or services provided to Complex Creative, or for reimbursement of expenses, shall be payable by the Client only if accompanied by relevant receipts and prior written approval was obtained from the Client.
The parties agree that Complex Creative may review and increase the charges, provided that such charges will not be increased more than 4 times in any 12-month period. Complex Creative will give the Client not less than 1 month notice of any increase. If such increase is not acceptable to the Client, it may terminate this Agreement by giving 1 month notice to Complex Creative.
Depending on Complex Creative’s workload and the scope of the suggested project, Complex Creative may also operate a fast-track or out-of-hours service to complete work on short deadlines. If Complex Creative have capacity to deal with this work on a fast-track or out-of-hours basis we will let you know the time estimate and likely additional cost of this service.
- Standard premium for out-of-hours is 1.5x the usual rate.
- Standard premium for fast-track work is 2x the usual rate.
- Complex Creative reserves the right to charge a higher rate than specified above. Clauses 6.12.1 and 6.12.2 are for illustrative purposes of the usual premium rates.
Complex Creative reserves the right to ask for upfront payment for any work when they quote for a project.
7. QUALITY OF SERVICES
Complex Creative warrants to the Client that:
- They will perform the Services with reasonable care and skill, and in accordance with generally recognised commercial practices and standards in the industry for similar services.
- The Services will materially conform with all descriptions provided to the Client by Complex Creative, including any relevant description found in Schedule 1.
- The Services will be provided in accordance with all applicable legislation from time to time in force, and Complex Creative will inform the Client as soon as it becomes aware of any changes in that legislation.
- The Client’s rights under this Agreement are in addition to the statutory terms implied in favour of the Client by the Supply of Goods and Services Act 1982 and any other statute.
- The provision of this clause 7 shall survive any performance, acceptance, or payment pursuant to this Agreement and shall extend to any substituted or remedial services provided by Complex Creative.
8. INTELLECTUAL PROPERTY RIGHTS
Complex Creative shall own all Intellectual Property Rights in existence at the Commencement Date as well as those which are created in the provision of the Services. Ownership of all Intellectual Property Rights created as deliverables for the Client has transfer to the Client upon:
- Full completion of work; AND
- Full payment being received by Complex Creative for the work.
Where full payment for the work or this Agreement is not received, Complex Creative shall retain all Intellectual Property Rights.
- Where full payment for work is not made and the Client takes or uses the designs or other deliverables, then Complex Creative shall be entitled to claim compensation from the Client, interest on any sums (at the rate described at clause 6.6), and admin fees at the same rate as those described at clause 6.7.
- Reasonable compensation here shall be decided at Complex Creative’s absolute discretion.
The Client hereby grants to Complex Creative an unlimited and irrevocable licence to use the work for purposes including, but in no way limited to, use in portfolio and public display.
In relation to any claim (including threats) or dispute brought to the Client’s attention, the Client shall:
- Upon becoming aware, notify Complex Creative of such a claim (including threats) or dispute.
- Allow Complex Creative to conduct all negotiations and proceedings to settle the IPRs claim.
- Provide Complex Creative with reasonable assistance regarding the IPRs claim.
- Not, without prior consultation with Complex Creative, make any admission in relation to the IPRs claim or attempt to settle it, provided that Complex Creative considers and defends any IPR using competent counsel, and in such a way as not to bring the reputation of the Client into disrepute.
Both parties undertake that each shall not, at any time during this Agreement, and for a period of 5 years after termination of this Agreement, disclose to any person any Input Material (in the case of Complex Creative), or Pre-existing Material (in the case of the Client), and technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature, or any other confidential information concerning the disclosing party’s business or its products which the receiving party may obtain in connection with entering into this Agreement, except as permitted by clause 9.2.
Both parties may disclose Confidential Information:
- To its employees, agents, consultants, or subcontractors (and in the case of Complex Creative, Complex Creative’s Team) as is needed for the purpose of discharging its obligations under this Agreement. The party in receipt of such information shall ensure that its employees, agents, consultants, or subcontractors to whom it discloses the Confidential Information, comply with this clause 9.
- As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
All materials, equipment and tools, drawings, specifications, and data supplied by one party to the other, shall at all times be (and remain) the exclusive property of the party supplying such materials, equipment and tools, drawings, specifications, and data, but shall be held by the receiving party in safe custody at its own risk, and maintained and kept in good condition by that party until returned to the supplying party, and shall not be disposed of or used, other than in accordance with any written instruction or authorisation.
10. LIMITATION OF LIABILITY
Complex Creative’s total liability under or in connection with this Agreement shall be limited to the greater of:
- 150% the total value of this Agreement; or
This limit shall apply howsoever that liability arises, including, and without limitation, a liability arising by breach of contract, arising by tort (including, and without limitation, the tort of negligence), or arising by breach of statutory duty.
Nothing within this clause shall exclude or limit liability for:
- Death or personal injury caused by negligence.
- Fraud or fraudulent misrepresentation.
Complex Creative will not be liable to the Client, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:
- Loss of profit.
- Loss of goodwill.
- Loss of business.
- Loss of business opportunity.
- Loss of anticipated saving.
- Loss of corruption of data or information.
- Loss of contracts.
- Loss of use of money.
- Loss of actual savings.
- Loss of revenue.
- Loss of reputation.
- Ex gratia payments.
- Loss of operation time.
- Loss of opportunity.
- Special, indirect, or consequential damage or loss suffered by the Client, arising under or in connection with this Agreement.
Complex Creative may terminate this Agreement with immediate effect by giving written notice to the Client if:
- The Client fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than 14 days after being notified in writing to make such payment.
- The Client commits a material breach of any term of this Agreement where the breach is irremediable, or if such a breach is remediable, fails to remedy that breach within a period of 14 days.
This shall include any abuse (whether physically or verbally) of Complex Creative’s Team (at Complex Creative’s absolute discretion).
The Client 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.
A petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the Client’s business activities.
An application is made to court (or an order is made) for the appointment of an administrator, or if notice of intention to appoint an administrator is given over the other party.
If at any time during provision of the Services, the Client does not respond to Complex Creative’s communications for a period lasting more than 30 days then (at Complex Creatives absolute discretion) Complex Creative shall be entitled to terminate this Agreement.
If the work is a fixed project, the Client may terminate this Agreement by providing no less than 5 Business Days’ notice in writing to Complex Creative.
If the work is a recurring monthly or retainer contract the Client may terminate the Agreement by giving no less than 1 month notice in writing to Complex Creative.
12. CONSEQUENCES OF TERMINATION
On termination of this Agreement for any reason (other than a breach of contract by the Client), Complex Creative shall immediately deliver to the Client:
- A refund of any sums paid in advance for Services which have not been received by the Client as a result of the termination of the Agreement though we may charge or deduct reasonable sums as compensation for any time put into the Services.
- Any such compensation shall be determined at Complex Creative’s absolute discretion.
On termination of this Agreement for any reason, the Client shall immediately pay to Complex Creative, all sums due and owing to it in connection with this Agreement.
Both parties shall return, destroy, or otherwise deal with, any Confidential Information as the disclosing party shall wish for it to be dealt with.
On termination or expiry of this Agreement, the following clauses shall continue in force: clause 8, clause 9, clause 11, and clause 22.
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
If any Services are not supplied in accordance with Schedule 1 or Complex Creative fails to comply with any terms of this Agreement, the Client shall only be entitled (without prejudice to any other right or remedy) to require Complex Creative to carry out such additional work as is necessary to correct its failure.
14. FORCE MAJEURE
A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
- Acts of God such as flood, drought, earthquake, tsunami, or other natural disaster, epidemic, or pandemic.
- War, or threat of or preparation for war (including terrorist attack, armed conflict, civil war, civil commotion, or riots).
- Imposition of sanctions.
- Nuclear, chemical, or biological contamination.
- Sonic boom.
- Fire, explosion, or accident (including collapse of building).
- Interruption or failure of utility services.
Provided it has complied with this clause 14, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
The corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the affected party.
The affected party shall:
- As soon as practicable after the start of the Force Majeure Event, but no later than 7 Business Days from its start, notify the other party in writing of the event, the date on which it started, it’s likely or potential duration, and the effect of the event on its ability to perform any obligations under this Agreement.
- Use reasonable endeavours to mitigate the effect of the event on the performance of its obligations.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
A waiver of any right or remedy under this Agreement or by law, is only effective if given in writing and shall not be deemed a waiver of any subsequent breach.
A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, shall not constitute a waiver of that, or any other, right or remedy.
17. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part provision of this Agreement becomes invalid, illegal, or unenforceable, this shall not affect the validity and enforceability of the rest of this Agreement.
If it comes to the attention of either party that any provision or part provision of this Agreement 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.
19. AGREEMENT IN FULL
This Agreement, including any schedules and appendixes, constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and assurances between them, whether written or oral.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party the agent of another party.
20. THIRD PARTY RIGHTS
No one, other than a party to this Agreement, shall have any right to enforce any of its terms.
Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
- Delivered either by hand, by pre-paid first-class post, or by other next working day delivery service, at the receiving party’s postal address provided in this Agreement unless otherwise stated; or
- Sent by email to the party’s nominated email address.
- Sent via text message or WhatsApp to a mobile number nominated in writing by a party.
22. 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), shall be governed and construed in accordance with the law of England. We both agree that the courts of England will have exclusive jurisdiction.