What Creative Terms and Conditions of Services (“Terms and Conditions”)

We will always do what is reasonable to fulfil our customer’s (“You”) needs and objectives. We therefore believe it’s important that we make you aware from the outset of our terms and conditions. These terms and conditions are applicable to all customers that use the services of What Creative Limited (“We/Us”). These terms and conditions (which may be amended from time to time) detail the contract between you and us for the supply of the Services and/or Products (defined below) set out in the quotation and/or the Project Specification (defined below) and/or Project Plan (defined below).

It is important that you read these terms and conditions carefully.

1. Order

1.1 We believe it’s important (for both parties) that you are clear of our processes and how we work.

1.2 By accepting the estimate and/or the Project Specification (defined below), you agree to be bound by these terms and conditions.

1.3 Following an enquiry by you (either by telephone or email) for our Services/Products, we’ll obtain a detailed understanding of the Services you require. This discussion may take place by either telephone and/or email and/or in person.

1.4 Once we’ve discussed the project we’ll put together an estimate based on our understanding of the Services you require. The estimate will be sent to you by email.

1.5 The estimate will include several important details and will constitute an offer for us to provide the services detailed in the estimate (“the Services”) and any product(s) to be supplied to you (“the Products”.)

1.6 The estimate will include: 1.6.1 a brief written description of the Services we will provide to you; and

1.6.2 the price of the Services/Products required.

1.7 The estimate shall be deemed accepted by you once we’ve received your agreement either by email or telephone (“the Contract”.) This is also the important date upon which the Contract will begin between you and us.

1.8 We don’t believe that an estimate can last forever. The estimate therefore given by us is only valid for a period of 30 days from the date of issue. If after this date you wish to instruct us to provide Services/Products then a revised estimate will be needed.

1.9 Once we receive confirmation of your acceptance of the estimate we reserve our rights to charge a discretionary 50% minimum deposit.

1.10 If we inform you that a deposit is required, we will require full cleared funds before any work will commence.

1.11 If specified in the estimate, following acceptance of the estimate and if necessary the required deposit, we will create a list of deliverables and a time-line to complete the work. This is called the project plan (“Project Plan”).

1.12 If specified in the estimate will also put together a detailed specification (“Project Specification”), in accordance with our understanding of the work.

1.13 The Project Specification will be sent to you by email and if you do not agree with the contents of the Project Specification, we reserve our rights to revise the estimate, in order to take into account any necessary changes to the agreed Services.

1.14 Once you have read through the Project Specification, we require acceptance in writing agreeing to its content before proceeding with the project.

1.15 In order to give our customers an idea of what we do, we use samples, drawings, illustrations and descriptions of our Services on our website and in marketing material. This material does not form part of this Contract and is for illustrative purposes only.

1.16 These Conditions are the only conditions that apply to the Contract and do not include any other terms. You cannot impose or incorporate any other conditions that are implied by trade, custom, practice or course of dealing.

1.17 We reserve the right to change these terms and conditions at any time. Continued use of our Services/Products is deemed acceptance of any amends to these terms and conditions.

2. Provision of the Services

2.1 We agree to provide you with the Services and Products in accordance with the Project Specification and/or Project Plan.

2.2 We may from time to time (for reasons outside of our control) amend the Project Specification and/or Project Plan.

2.3 For avoidance of doubt, if you require photographs but have not agreed within the Project Specification and/or Project Plan to have us professionally shoot new photographs then you must send the photographs you intend to use to us as soon as possible by email in either JPG, PNG, TIFF or RAW format. If we spend any time searching for the correct type of photographs, either in our stock catalogues or from third parties you will be charged for the photographs and for our time.

3. Approval

3.1 Once we have created the Services/Products detailed in the Project Specification and/or Project Plan, we’ll send you a replica of the proposed final version of the Product(s) (which we call proofs) (“the Proofs”). We will send the Proofs to you by email or post for your approval.

3.2 The Contract (subject to the Project Specification and/or Project Plan) includes one substantial design, plus the opportunity to make a small number of amends. If you decide amends need to be made to the design you should immediately contact us by email so that revisions can be made as soon possible.

3.3 For the avoidance of doubt, amends are minor changes to the design that do not total more than 10% of our allocated design time. Amends are inclusive of but not limited to alterations in colour, sizing, fonts or layout. An amend does not constitute starting again from scratch.

3.4 If the amends total more than 10% of the allocated design time then you must be aware that we will charge a fee for any additional time it takes to make the changes.

3.5 If you do not email us within 10 business days (meaning a day other than a Saturday or a Sunday on which commercial banks are open for general business in England) (“Business Days”) after you receive the Proofs, we will deem this as acceptance of the designs. We will then complete the project.

3.6 If after approval (or deemed acceptance) you require any further changes, further developments or any additional work (not specified in the Project Specification and/or Project Plan) we will charge you a fee for such further changes or developments.

3.7 You will be precluded from taking issue with or otherwise rejecting the Product, once we receive your approval.

3.8 Text copy is your responsibility. However, if you do require text copy to be written we will charge a fee for any time spent copy writing or inputting content into a website.

4. Delivery of the Services/ Products

4.1 Although we will try our best we can’t guarantee that you will receive the Products on the date set out in the Project Plan. If the Products are digital we will usually send a link to you by email, unless the Products are physical, in which case they will be delivered to you by post.

4.2 Any dates quoted for delivery are only approximate and the time of delivery is not of the essence.

4.3 If the Product is a website and you choose to host it yourself then the installation, maintenance, updating and servicing of the website and its content is not our responsibility. We will provide the relevant files to you on completion. We will charge a fee for any assistance with the installation or testing of the website.

4.4 We shall not be liable for: 4.4.1 any delay in delivery of the Products that is caused by an event outside of our control (also known as a Force Majeure Event.)

4.4.2 any delay in delivery of the Products if you fail to provide us with adequate delivery instructions, Customer Materials (see definition below) or any other instructions that are relevant to the supply and/or installation of the Products.

4.5 In the unlikely situation that we fail to deliver the Products, our liability shall be limited to 25% of the price of the Contract.

5. Title of the Products

5.1 We will not pass title of the Products to you until we have received payment in full cleared funds for:5.1.1 the Services/Products; and

5.1.2 any other Products or Services that we have supplied to you in respect of which payment has become due.

6. Third Party Rights

It is your liability to obtain all consents and licenses needed for use of any third party’s intellectual property (which means but is not limited to copyright and related rights, trade marks ((whether registered or unregistered)), domain names, rights in designs ((whether registered or unregistered)) and any other intellectual property rights) and/or products contained within the Customer Materials, which you provide to us.

7. Customer’s Obligations

7.1 You agree:7.1.1 that you have the power and ability to enter into this Contract on behalf of your company or organisation;

7.1.2 to provide us with everything that we need to complete the work, including but not limited to text, images, photographs and other necessary information when applicable and also within the required format (“the Customers Materials”);

7.1.3 that you will co-operate promptly with us in all matters relating to the provision of the Services and/or the Products;

7.1.4 you will abide by any dates detailed in the Project Plan and/or any dates agreed between us via telephone or email;

7.1.5 we can use all Customer Materials without liability; and

7.1.6 to indemnify us in full against all costs or losses sustained or incurred by us arising directly or indirectly from our use of the Customer Materials.

7.2 You warrant that the Customer Materials do not contain any content that infringes any applicable laws, regulations or third party rights (such as but not limited to material which is obscene or discriminatory).

7.3 If our performance of any of our obligations in respect of the provision of the Services and/or the Products is prevented, compromised or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Customer Default”):7.3.1 we shall without limiting our rights or remedies have the right to suspend performance of the Services and/or delivery of the Products until you rectify the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays our performance of any of its obligations;

7.3.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause; and

7.3.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.

8. Charges and Payment

8.1 Once the work has been passed to you for approval you will have a minimum of 10 Business Days to provide feedback by email or telephone. If we don’t hear from you within this time, we reserve the right to mark the project as completed and submit the final invoice to you.

8.2 We will charge a fee for any time spent resolving feedback or issues sent to us after 10 Business Days.

8.3 We shall invoice you for the Services and/or the Products as set out in our estimate. Any works that are not listed in the Project Specification and/or Project Plan will be calculated in accordance with our standard fee rates.

8.4 We reserve the right to increase our standard fee rates for the charges for the Services and/or provision of the Products, provided that such charges cannot be increased more than once in any 6 month period. We will give you written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to you, you should notify us in writing within 14 days of the date of our notice and we shall have the right without limiting its other rights or remedies to terminate the Contract by giving 2 weeks’ written notice to you.

8.5 You agree to pay each invoice submitted by us: 8.5.1 within 30 days of the date of the invoice;

8.5.2 in full and in cleared funds to a bank account nominated in writing by us; and

8.5.3 time for payment shall be of the essence of the Contract.

8.6 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable (“VAT”) unless indicated in writing.

8.7 If you fail to make any payment due to us under the Contract by the due date for payment (“Due Date”), we shall have the right to charge interest on the overdue amount at the rate of 2 per cent per annum above the then current Barclays Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and an administration fee to cover the debt recovery costs. You must therefore pay us interest together with any overdue amount.

8.8 You shall pay all amounts due under the Contract in full without any deduction, except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us, in order to justify withholding payment of any such amount in whole or in part.

8.9 Any provision of Services and/or Products that is suspended or cancelled at your request at any stage prior to the completion of such provision shall be invoiced for all work completed up to when suspension or termination occurs. For avoidance of doubt, you will be liable for payment of any designs we produce whether you approve the designs or not.

9. Warranties

9.1 We shall perform the Services and/or provide the Products with all reasonable care and skill and in accordance with the Project Specification.

10. Intellectual Property

10.1 You hereby grant and warrant that you are entitled to grant to us a non-exclusive, irrevocable licence to use the Customer Materials to the extent reasonably required by us to perform its obligations pursuant to the Contract and that you either own or hold the relevant consent to use the Customer Material.

10.2 Upon full payment of our invoices and upon completion of the whole project: 10.2.1 we hereby grant to you an irrevocable, non-exclusive, world-wide licence to use the software codes, CSS (Cascading Style Sheets), HTML (HyperText Mark up Language), mark ups of any website(s) we create and photographs (from our photograph catalogue) we generate for you for the sole purpose of the project detailed in the Project Specification; and

10.2.2 subject to clause 10.2.1 we hereby assign to you ownership of all intellectual property rights (including but not limited to copyright, design and related rights) in any visual graphics we create (including but not limited to images, text copy and other data) for you for the sole purpose of the project in the Project Specification.

11. Confidentiality

11.1 We understand that Confidential Information (all information whether technical or commercial including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties) is important. We therefore agree to use the same degree of care, as we do to preserve and safeguard our own confidential information.

11.2 We may disclose Confidential Information to our employees, affiliates and professional advisers who will be informed of the confidential nature of the Confidential Information. We will subsequently, obtain representations (as necessary) from our employees, affiliates and professional advisers to preserve the information’s confidentiality.

12. Data Protection

12.1 From time to time we may receive information from you that may constitute personal data within the meaning set out in the Data Protection Act 1998. We will only process such information upon your instructions and nothing within this Contract shall be construed or implied that we are the data controller within the meaning of the Data Protection Act 1998.

13. Publicity

13.1 We love to show off our work and share what we’ve learned with other people. We’ll therefore be entitled to make media releases, public announcements and public disclosures and advertise any Product/Service created by us relating to the Contract. You hereby grant to us an irrevocable, non-exclusive, world-wide licence for us to use all intellectual property rights (including copyright, design and related rights) and all visual graphics (including but not limited to images, text copy and other data) created for you, so that we may make media releases, public announcements and public disclosures and advertise any Product/Service created by us for you which relates to the Contract.

14. Limitation of Liability:

14.1 We understand that nothing in these Conditions shall limit or exclude our liability for:14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

14.1.2 fraud or fraudulent misrepresentation;

14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

14.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

14.1.5 defective products under the Consumer Protection Act 1987.

14.2 Subject to the above clause 14.1: 14.2.1 we shall not however, be liable to you whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including but not limited to any loss of profit or indirect or consequential loss arising in connection with our use of the Customer Materials; and

14.2.2 our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed 50% of the value of the Contract.

14.3 We will also not be liable for any delays in the completion of the project if you do not abide by the dates in the Project Plan or any other dates agreed via telephone or email.

14.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

15. Termination

15.1 Without limiting any rights or remedies, either of us may terminate the Contract with immediate effect by giving written notice to the other party, if the other party enters into any insolvency act such as administration or liquidation.

15.2 Without limiting its other rights or remedies, we shall have right to immediately terminate or suspend (at our own discretion) the supply of Services and/or the provision of the Products under the Contract (at any time).

16. Consequences of Termination

16.1 On termination of the Contract for any reason: 16.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services and/or Products supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by us immediately on receipt; and

16.1.2 the accrued rights and remedies of the parties as at termination shall not be affected, 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.

17. General

17.1 Force majeure: 17.1.1 You may have noticed the term “Force Majeure Event” in the Contract, which means we may not be able to perform our obligations due to an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

17.1.2 We shall not be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of a Force Majeure Event.

17.1.3 If the Force Majeure Event prevents us providing any of the Services and/or the Products for more than 8 weeks, either of us may, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice.

17.2 Assignment and subcontracting:17.2.1 We may at any time assign, transfer, charge, subcontract or deal in any other manner with all of or any of the rights under the Contract and may subcontract or delegate in any manner any or all of the obligations under the Contract to any third party.

17.2.2 You shall not, without our prior written consent assign, transfer, charge, subcontract or deal in any other manner with all or any of the rights or obligations under the Contract.

17.3 Notices:17.3.1 If either of us have to send notices or other communication to one another in connection with this Contract. The notices/communications must be in writing and delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or sent by e-mail to the other party’s main e-mail address.

17.3.2 Any notice or other communication shall be deemed to have been received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by e-mail, on the next business day after transmission.

17.3.3 Hopefully this clause will not be needed, but if the service of any proceedings or other documents in any legal action is required, then these documents must not be sent by email.

17.4 Waiver and cumulative remedies: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.5 Severance: If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

17.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us. Neither of us shall have authority to act as agent for, or to bind, the other party in any way.

17.7 Third parties: Only you and us are party to the Contract and nobody else shall have any rights under or in connection with it.

17.8 Variation: Any variation made by you of these terms and conditions, shall only be binding upon us if we agree in writing.

17.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation is be governed by, and construed in accordance with the exclusive jurisdiction of the English Courts and under the laws of the England and Wales.