1. Interpretation

1.1. Definitions:

  • Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  • Charges: the charges payable by Client for the supply of the Services by We Are Creation, as set out in the Contract Details [and Schedule 2].
  • Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 10 (General) (inclusive).
  • Contract: the contract between Client and We Are Creation for the supply of the Services in accordance with the Contract Details, these Conditions and any Schedules.
  • Client Materials: all materials, information, drawings, specifications and data supplied by Client to We Are Creation relating to the provision of the Services or to be included in any Deliverable.
  • Deliverables: all documents, products and materials developed by We Are Creation or its agents, subcontractors and personnel as part of or in relation to We Are Creation’s provision of the Services in any form, including without limitation, digital content, creative materials, bespoke barware, websites, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.
  • Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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 unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  • Services: the services, including without limitation any Deliverables, to be provided by We Are Creation pursuant to the Contract, as described in Schedule 1.
  • Services Start Date: the day on which We Are Creation is to start provision of the Services, as set out in the Contract Details.
  • Creation IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them.

1.2. Interpretation:

  1. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
  2. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  3. A reference to writing or written includes fax and email.

2. Commencement and term

The Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than three months’ written notice to terminate, expiring on or after the first anniversary of the Services Start Date.

3. Supply of services

3.1. We Are Creation shall supply the Services to Client from the Services Start Date in accordance with the Contract.

3.2. In supplying the Services, We Are Creation shall:

  1. perform the Services with reasonable care and skill;
  2. use reasonable endeavours to perform the Services in substantial accordance with the service description set out in Schedule 1;
  3. comply with all applicable laws, statutes, regulations and codes relating to the Services from time to time in force (including, without limitation any data protection legislation from time to time in force in the UK including, without limitation the General Data Protection Regulation and any successor legislation including the Data Protection Act 2018); and provided that We Are Creation shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
  4. use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services;
  5. take reasonable care of all Client Materials in its possession and make them available for collection by Client on reasonable notice and request, always provided that We Are Creation may destroy Client Materials if Client fails to collect Client Materials within a reasonable period after termination of the Contract.

4. Client’s obligations

4.1. Client shall:

  1. willingly and promptly co-operate with We Are Creation in all matters relating to the Services;
  2. provide, for We Are Creation, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to Client’s premises, office accommodation, data and other facilities as reasonably required by We Are Creation or any of them in relation to its provision of the Services;
  3. provide, in a timely manner, such information as We Are Creation may reasonably require in relation to its provision of the Services, and ensure that it is accurate and complete in all material respects;
  4. inform We Are Creation immediately of any change and any other material information which may affect the Services delivered by We Are Creation, including, but not limited to, any action or alteration taken or made by any third party or by the Client which is relevant to, or may affect the provision of, the Services;
  5. not, without the prior written consent of We Are Creation, at any time from the date of the Contract to the expiry of 6 (six) months after the last date of supply of the Services, solicit or entice away from We Are Creation or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of We Are Creation in the provision of the Services; and
  6. provide, in a timely manner, such comment, input, sign-off or other confirmation of acceptance of Deliverables (when requested) as We Are Creation may reasonably require, such sign-off or confirmation not to be unreasonably withheld or delayed.

4.2. If We Are Creation’s performance of its obligations under the Contract is prevented or delayed by any act or omission of Client, its agents, subcontractors, consultants or employees, We Are Creation shall:

  1. not be liable for any costs, charges or losses sustained or incurred by Client that arise directly or indirectly from such prevention or delay;
  2. be entitled to payment of the Charges despite any such prevention or delay;
  3. be entitled to recover any additional costs, charges or losses We Are Creation sustains or incurs that arise directly or indirectly from such prevention or delay; and
  4. be entitled to terminate the Contract in accordance with clause 9 below.

5. Intellectual property

5.1. We Are Creation and its licensors shall retain ownership of all Creation IPRs and any initial concept, pre-production samples, packaging and final production samples and any modifications thereof. Client and its licensors shall retain ownership of all Intellectual Property Rights in Client Materials

5.2. Subject always to the Client’s payment of the Charges in accordance with the terms of the Contract, We Are Creation grants Client, or shall procure the direct grant to Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy Creation IPRs for the purpose of receiving and using the Services and the Deliverables in Client’s business during the term of the Contract.

5.3. Client grants We Are Creation a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify Client Materials for the term of the Contract for the purpose of providing the Services to Client in accordance with the Contract.

5.4. Client shall indemnify We Are Creation in full against any sums awarded by a court against We Are Creation arising of or in connection with any claim brought against We Are Creation for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of Client Materials by We Are Creation.

5.5. Client acknowledges that certain elements of the Services and Deliverables may require the licensing of third party Intellectual Property Rights, and that Client may be required to enter into an appropriate licence directly with such a third party. Unless otherwise expressly stated, all charges shall be exclusive of any costs for the acquisition or licensing of any such third party Intellectual Property Rights for materials to be included in Deliverables including if relevant (but without limitation) photographs, video and images.

6. Change Control

6.1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other party in writing (Change Request).

6.2 If We Are Creation originates a Change Request, it shall provide, with the Change Request, written details of the impact which the proposed change will have on:

  1. the Services;
  2. We Are Creation’s existing charges;
  3. the timetable of the Services; and
  4. any of the terms of any Contract.

6.3 We Are Creation may, from time to time and without notice, change the Services in order to comply with any applicable legal or reasonable business requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

6.4 If Client originates a Change Request, We Are Creation shall, as soon as reasonably practicable after receiving the Change Request, provide a written estimate to Client setting out:

  1. the likely time required to implement the proposed change;
  2. details of the impact which the proposed change will have on:
    1. the Services;
    2. We Are Creation’s existing charges;
    3. the timetable of the Services; and
    4. any of the terms of the Contract.

6.5 Unless both parties consent to a Change Request, there shall be no change to the Services and any other terms of this agreement.

6.6 If both parties consent to a Change Request, it shall be signed by the authorised representatives of both parties, upon which the Change Request becomes a Change Order.

6.7 We Are Creation may charge for the time it spends on dealing with Change Requests originating from the Client on a time and materials basis in accordance with clause 7.

7. Charges and payment

7.1. In consideration for the provision of the Services, Client shall pay We Are Creation the Charges in accordance with this clause 7.

7.2. The charge stated in the Contract Details [or Schedule 2] shall be an indicative estimate only and the Services shall be invoiced in accordance with the actual number of hours spent in accordance with the charge set out in the Order or Proposal. We Are Creation shall update the estimate and budgets on an ongoing basis following any changes made to an Order.

7.3. Client acknowledges that certain elements of the Services, including Courier and other third party charges, may require the involvement and provision of services by third party Suppliers. Unless otherwise expressly stated, all charges shall be exclusive of any such third party costs, which shall be billed as disbursements.

7.4. All amounts payable by Client exclude amounts in respect of value added tax (VAT), which Client shall additionally be liable to pay to We Are Creation at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

7.5. We Are Creation shall submit invoices for the Charges plus VAT if applicable to Client [monthly in arrears, on or after the [NUMBER] day of each month] OR [at the intervals specified in Schedule 2]. Each invoice shall include all reasonable supporting information required by Client, but in the event of the Client requiring the provision of such reasonable supporting information; it shall not unreasonably delay in making payment to We Are Creation further to clause 7.1.

7.6. Client shall pay each invoice due and submitted to it by We Are Creation, within [30] days of receipt, to a bank account nominated in writing by We Are Creation.

7.7. If Client fails to make any payment due to We Are Creation under the Contract by the due date for payment, then, without limiting We Are Creation’s remedies under clause 9 (Termination):

  1. Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  2. We Are Creation may suspend provision of all Services until payment has been made in full.

7.8. All amounts due under the Contract from Client to We Are Creation shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8.Limitation of liability

8.1. We Are Creation has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £[AMOUNT] per claim. The limits and exclusions in this clause reflect the insurance cover We Are Creation has been able to arrange and Client is responsible for making its own arrangements for the insurance of any excess loss.

8.2. Nothing in the Contract limits any liability which cannot legally be limited, including [but not limited to] liability for:

  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; and
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.3. Subject to clause 8.2. We Are Creation’s total liability to Client in respect of all breaches of duty occurring within any contract year shall not exceed the cap.

8.4. In clause 8.3:

  1. cap. The cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
  2. contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it;
  3. total charges. The total charges means all sums paid by Client and all sums payable under the Contract in respect of goods and services actually supplied by We Are Creation, whether or not invoiced to Client; and
  4. total liability. We Are Creation’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

8.5. This clause 8.5 sets out specific heads of excluded loss and exceptions from them:

  1. Subject to clause 8.2, the following types of loss are wholly excluded:
    1. Loss of profits.
    2. Loss of sales or business.
    3. Loss of agreements or contracts.
    4. Loss of anticipated savings.
    5. Loss of use or corruption of software, data or information.
    6. Loss of or damage to goodwill.
    7. Indirect or consequential loss.

8.6. We Are Creation has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.7. Unless Client notifies We Are Creation that it intends to make a claim in respect of an event within the notice period, We Are Creation shall have no liability for that event. The notice period for an event shall start on the day on which Client became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

9. Termination

9.1. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

  1. the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified [in writing] to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
  3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2. Without affecting any other right or remedy available to it, We Are Creation may terminate the Contract with immediate effect by giving written notice to Client if Client:

  1. fails to provide or unreasonably delays in providing such comment, input, sign-off or other confirmation of acceptance of Deliverables (when requested) as We Are Creation may reasonably require within 14 (fourteen) days of We Are Creation’s request;
  2. fails to pay any amount due under the Contract on the due date for payment.

9.3. On termination of the Contract for whatever reason:

  1. Client shall immediately pay to We Are Creation all of We Are Creation’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, We Are Creation may submit an invoice, which shall be payable immediately on receipt;
  2. any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination [or expiry] of the Contract shall remain in full force and effect; and
  3. termination [or expiry] of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination [or expiry], including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination [or expiry].

10. General

10.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10.2. Assignment and other dealings.

  1. Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without We Are Creation’s prior written consent.
  2. We Are Creation may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

10.3. Confidentiality.

  1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or We Are Creations of the other party or of any member of the group to which the other party belongs, except as permitted by clause 10.3. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
  2. Each party may disclose the other party’s confidential information:
    1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract, save in relation to We Are Creation being expressly permitted, save in relation We Are Creation being expressly permitted to confirm their engagement by the Client and feature or refer to any Deliverable in marketing and publicity materials, credentials, presentations and award materials.

10.4. Entire agreement.

  1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Any illustrations, testimonials, promotional content, descriptive matter, or advertising issued by We Are Creation and any descriptions or illustrations contained in We Are Creation’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between We Are Creation and the Client.

10.5. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.6. Waiver.

  1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

10.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

10.8. Notices.

  1. Any notice [or other communication] given to a party under or in connection with the Contract shall be in writing and shall be:
    1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    2. sent by email to the address specified in the Contract Details.
  2. Any notice or communication shall be deemed to have been received:
    1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
    2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
    3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), “business hours” means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  4. A notice given under the Contract is not valid if sent by email.

10.9. Third party rights.

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

10.10. Governing law.. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

10.11. Jurisdiction.. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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