These terms and conditions (Terms and Conditions) apply to the Customer’s use receipt of the Services.
The definitions and rules of interpretation in this Section apply in these Terms and Conditions and, unless expressly provided otherwise, the Order.
“Affiliate” means in respect of a party, its subsidiaries, its holding companies and every subsidiary of each such holding company from time to time (and for this purpose “subsidiary” and “holding company” shall be construed in accordance with section 1159 of the Companies Act 2006) and any other entity agreed in writing by the parties as being an Affiliate in respect of either party;
“Anonymised Data” has the meaning given in Section 4.2;
“Asset” means a building, facility or other construction;
“Asset Data” means any of the Deliverables and/or Customer Materials which relate to an Asset, including any O&M files, health and safety files and [other examples to be specified];
“Asset Owner” means the [person who owns or is in control of the Asset];
“Business Day” means any day which is not a Saturday, Sunday or public holiday in London;
“Confidential Information” means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with any copies, which relates to a party (the “Disclosing Party“), to its Group, or to its (or its Group members’) employees, officers, customers or suppliers, and which is directly or indirectly disclosed by or on behalf of the Disclosing Party to another party (the “Receiving Party“) under or in connection with the Order (or which is learnt or acquired by the Receiving Party in connection with an Order), whether before or after the date of the Order, and which would reasonably be regarded as confidential, BUT shall not include (i) information which is in the public domain other than as a result of a breach of the Order or any separate confidentiality undertaking between the parties; (ii) information which the Receiving Party received, free of any obligation of confidence, from a third party which was not itself under any obligation of confidence in relation to that information, whether before the date of its disclosure by the Disclosing Party or otherwise; or (iii) information which the Receiving Party can show by its written or other records was developed or created independently by the Receiving Party or any member of the Receiving Party’s Group;
“Contractor” means a person engaged by the Asset Owner in the construction, development and/or maintenance of an Asset;
“Control” means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity;
“Customer” means the customer entity identified as such in the Order;
“Customer Materials” all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Createmaster in connection with the Services;
“Createmaster” means the entity identified as “Createmaster” in the Order;
“Deliverables” means any output of the Services to be provided by Createmaster to the Customer;
“Disclosing Party” means a party disclosing its Confidential Information to the Receiving Party and in the case of the Customer may be the Customer and/or the Customer’s Affiliates and in the case of Createmaster may be Createmaster and/or Createmaster’s Affiliates, as applicable;
“Effective Date” means the date(s) specified in the Order Terms;
[“Expiry Date(s)” means the date(s) specified in the Order Terms from which Createmaster shall cease to provide the Customer with access to the Services;]
“Fees” means the fees payable to Createmaster by the Customer for provision of the Services, as set out in the Order Terms;
“Group” in relation to each party means that party and its Affiliates;
[“Initial Term” means the initial term specified in the Order Terms;]
“Insolvency Event” means the occurrence of any one or more of the following events in relation to a party:
the party becomes unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the party;
an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the party and/or over all or any part of the assets of the party;
the party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
anything equivalent to any of the events or circumstances listed in limbs (a) to (d) (inclusive) occurs in any applicable jurisdiction;
“Intellectual Property Rights” means: (i) patents, rights to inventions, designs, copyright and related rights, database rights, trade marks, related goodwill and the right to sue for passing off] and trade names, in each case whether registered or unregistered; (ii) proprietary rights in domain names; (iii) knowhow, trade secrets and Confidential Information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;
“IPR Claim” means any claim or action against the Customer by any third party that the receipt of the Services by the Customer in accordance with the terms of the Order, infringes the copyright of that third party;
“Order” means and order for the supply of the Services, entered into between Createmaster and the Customer;
“Order Terms” means the terms identified as such in the Order;
“Receiving Party” means a party receiving Confidential Information from the Disclosing Party and in the case of Createmaster may be Createmaster and/or Createmaster’s Affiliates, as relevant;
“Related Persons” means Createmaster’s Affiliates and Createmaster’s and Createmaster’s Affiliates’ employees, directors, officers, agents and subcontractors;
“Renewal Period” means the renewal period specified in the Order Terms;
“Sales Tax” means any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services;
“Services” means the services to be provided by Createmaster to the Customer, as identified and set out in the Order Terms;
“Software” means the software used by Createmaster, Createmaster’s Affiliates and/or any sub-contractors in delivering the Services;
“Term” means the Initial Term and any Renewal Period;
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
“Year” shall mean the period of twelve months commencing on the Effective Date and each and any period of twelve months commencing on an anniversary of the Effective Date subsequent thereto.
2.1 The Section headings are for convenience only and shall not affect the interpretation of these Terms and Conditions or any other part of the Order.
2.2 References to the singular include the plural and vice versa, and references to one gender include the other genders.
2.3 Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.
2.4 Any phrase introduced by the terms “including”, “include”, “in particular”, “such as”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
|2.5||Any reference to a statute, statutory provision or subordinate legislation (legislation) (except where the context otherwise requires): (i) shall be deemed to include any by-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation; and (ii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.|
|2.6||Any reference to an English legal expression for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal expression.|
|2.7||Any reference to “writing” or “written” includes email.|
|2.8||Any reference to these Terms and Conditions or to any other agreement or document referred to in these Terms and Conditions is a reference to these Terms and Conditions or such other agreement or document as varied or novated from time to time in accordance with its terms (in each case, other than in breach of the provisions of these Terms and Conditions).|
|Unless specified to the contrary, any times stated in an Order refer to local time in London, United Kingdom.
Provision of Services
|3.1||Createmaster shall provide the Services, and deliver the Deliverables to the Customer, in accordance with the Order in all material respects.|
|Createmaster shall use reasonable endeavours to meet any performance dates specified in the Agreed Terms, but any such dates shall be estimates only and time for performance by Createmaster shall not be of the essence of the Order.
|4.1||The Customer shall:
|If Createmaster’s performance of its obligations under the Order is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Createmaster may adjust any timetable or delivery schedule as reasonably necessary and the Customer shall reimburse Createmaster’s, Createmaster’s Affiliates’ and their respective sub-contractors’ additional costs resulting from the delay.
FEES AND PAYMENT
|5.1||The Customer shall pay the Fees set out in the Order Terms for the provision of the Services.|
|5.2||Createmaster shall submit invoices to the Customer for the Fees at the times and in accordance with the procedure specified in the Order Terms.|
|5.3||Not less than forty-five (45) days prior to the commencement of any Renewal Period, Createmaster may notify the Customer of the Fees which will be payable by the Customer for that Renewal Period.|
|5.4||In addition to Section 7.3, Createmaster may, at any point in time (but not more frequently than once in any calendar year), increase the Fees (including any rate cards set out in an Order) by the greater of: (i) the percentage increase in the Consumer Price Index since the previous increase of the Fees made under the Order (or where there has been no prior increase, since the Effective Date); and (ii) five per cent (5%).|
|5.5||The Customer shall pay each invoice submitted by Createmaster in cleared funds (in the currency specified in the Order Terms) into the bank account nominated by Createmaster from time to time within 30 days of the date of the invoice.|
|5.6||All sums due to Createmaster under or in relation to the Order are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer in full at the same time as payment is due under the relevant invoice.|
|5.7||If the Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Createmaster pursuant to the Order and Createmaster is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Createmaster will be increased by the amount necessary to yield to Createmaster an amount equal to the sum it would have received had no withholdings or deductions been made.|
|5.8||If the Customer fails to make payment in accordance with this Section 7, then Createmaster shall be entitled to:
|5.9||Except where expressly stated otherwise in the Order, any Fees paid in accordance with this Section 7 shall be non-refundable in any circumstances including upon early termination of the Order.|
|The Customer shall provide accurate, current and complete information on the Customer’s billing address and billing contacts, including email address and phone number, and will promptly notify Createmaster if this information changes.
|6.1||In relation to the Deliverables:
|6.2||In relation to the Customer Materials, the Customer:
|6.3||In addition to the rights granted under Section 6.2.2, Createmaster may use the Customer Materials (other than any Personal Data within the Customer Materials) provided that such data is anonymized and aggregated with the equivalent data from Createmaster’s other customers such that any Customer Materials will not be separately identifiable (the “Anonymised Data”). Createmaster may then use such Anonymised Data to provide new products or services to its customers. The Customer acknowledges and agrees that: (i) Anonymised Data is the Confidential Information of Createmaster and Createmaster owns all Intellectual Property Rights in the Anonymised Data; (ii) Createmaster shall be entitled to use the Anonymised Data as part of the in the manner contemplated by this Section 6.3; and (iii) that the rights under this Section 6.3 are irrevocable.|
|6.4||Notwithstanding anything else in the Order (including these Terms and Conditions), the Customer acknowledges and agrees if the Customer is a Contractor, if Createmaster is requested to do so by an Asset Owner, Createmaster may transfer the Asset Data to the Asset Owner for the Asset Owner to access and use for any purpose (or host the Asset Data for the Asset Owner to access and use).|
|6.5||Subject to the provisions of Section 7:
|7.1;||In this Section:
|7.2||The Order places obligations on Createmaster in relation to Data Protection Legislation where it acts as a Processor of the Customer’s Personal Data. In this regard, the Parties agree to comply with the provisions of this Section 5 in respect of all Personal Data processed by Createmaster under the Order.|
|7.3||With respect to the Parties’ obligations under the Order and Data Protection Legislation, the Parties shall give each other such assistance as is reasonable to enable each other to comply with such obligations and both Parties acknowledge that the Customer shall be the Controller and Createmaster shall be the Processor.|
|7.4||As required by Article 28(3) of GDPR, the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects shall be as set out in the Annex to the Terms and Conditions.|
|7.5||Where the Processor is required to process Personal Data under the Order, it shall:
|7.6||The Controller warrants, represents and undertakes to the Processor that it has lawful grounds for processing the Personal Data and shall indemnify and keep indemnified the Processor against any liability, fines, claims, demands, expenses and costs (including legal fees) arising as a result of any breach of Data Protection Legislation by the Controller or the Processor acting in accordance with any instruction, policy or procedure of the Controller.|
|Notwithstanding anything to the contrary in the Agreement if any of the following occur:
then any increased effort or costs incurred by the Processor in association with the aforementioned shall be additionally chargeable to the Controller and shall be agreed in writing and signed by both Parties and in default of Agreement. For the sake of clarity, the Processor shall not be obliged to provide any additional services unless and until an amendment to the Order has been agreed and executed by both Parties.
|8.1||Each party shall:
|8.2||The Receiving Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances the Receiving Party shall (to the extent practical and lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure and use all reasonable endeavours to consult with the Disclosing Party with a view to agreeing the timing, manner and extent of the disclosure.|
|8.3||All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in the Order shall (except as expressly agreed otherwise in the Order) operate to transfer, or operate as a grant of any licences or right to use, to any Intellectual Property Rights in the Confidential Information.|
|8.4||The parties’ obligations under this Section 9 shall continue in force notwithstanding the termination or expiry of the Order.|
|Each party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this Section 9. Accordingly, it is agreed that either party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this Section 9 by the other party, without prejudice to any other rights and remedies which that first party may have.
|9.1||The Customer shall defend, indemnify and hold harmless Createmaster and the Related Persons against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s receipt of the Services.|
|9.2||The Customer shall promptly notify Createmaster of any IPR Claim made or threatened against the Customer.|
|9.3||Subject to the provisions of Section 10.2, this Section 10.3 and Sections 10.4 to 10.6 Createmaster shall indemnify and hold harmless the Customer against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced provided that:
|9.4||If any IPR Claim is made, or in Createmaster’s reasonable opinion is likely to be made, against the Customer, Createmaster may at its option and expense:
|9.5||Under no circumstances shall Createmaster or any Related Persons be liable to the Customer under Section 12.3 or 12.4 (or otherwise) to the extent that the infringement (whether actual or threatened) is based on: (a) any changes, modifications, updates or enhancements made to the Services or Deliverables other than by Createmaster or the Related Persons; (b) any use of the Services or Deliverables by the Customer in a manner contrary to Createmaster’s instructions and/or in breach of the Order (including these Terms and Conditions); or (c) the Customer’s use of the Services or Deliverables after notice or becoming aware of the actual or threatened IPR Claim.|
|9.6||The provisions of Sections 10.2 to 10.5 inclusive state the entire liability of Createmaster to the Customer in connection with an IPR Claim and shall be the Customer’s sole and exclusive remedy in that regard.|
|Createmaster’s liability in relation to an IPR Claim is subject to the limitation set out in Section 11.7.
LIMITATION OF LIABILITY
|10.1||Nothing in the Order, shall operate so as to exclude or limit the liability of either party to the other for:
|10.2||Subject to Sections 4.4, 1, 1, 10, 11.1 and 13, this Section 11 sets out the entire liability of Createmaster and the Related Persons to the Customer:
|10.3||The Customer acknowledges and agrees that:
|10.4||Subject to Section 11.1 and 11.2, neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether tortious or statutory), restitution or otherwise for:
|10.7||Subject to Section 11.1 and 11.2, the total aggregate liability taken of each party (including liability for breach) in contract (including under any indemnities), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising under or in connection with the Order in respect of any and all causes of action arising in each Year shall in no event exceed [the value of the Fees paid or payable by the Customer to Createmaster under the Order in that Year (or, if no Fees have been paid or are payable by the Customer to Createmaster in a Year, the value of the Fees paid by the Customer to Createmaster in the last Year in which Fees were paid by the Customer)]. The limitation of the Customer’s liability under this section 14.7 does not apply to the payment of any Fees by the Customer.|
|10.8||For the purposes of calculating liability pursuant to Section 13.7, where a cause of action arises in a Year and continues across subsequent Years and/or continues after the termination of these Order, then the cause of action shall be deemed to have arisen only in the Year in which such cause of action first arose.|
|11.||TERM, TERMINATION AND SUSPENSION|
|11.1||The Order shall commence on the Effective Date and, unless terminated earlier in accordance with its terms, shall continue in force for the duration of the Initial Term.|
|11.2||If the Order Term reaches its Expiry Date, then Createmaster may cease to provide the Customer with access to the Services unless a new Order Term is agreed and signed by or on behalf of each of the parties or by their duly authorised representatives.|
|11.3||Where the Agreed Terms provide for a Renewal Period, the Order shall automatically extend unless either party gives at least [thirty (30)] days’ written notice to the other before the expiry of the Initial Term or then current Renewal Period (as applicable), in which case the Order shall terminate at 23:59PM (GMT) on the last day of the Initial Term or then current Renewal Period (as applicable).|
|11.4||Without affecting any other right or remedy available to it, either party may terminate an Order with immediate effect by giving written notice to the other party if:
|11.5||Createmaster may terminate an Order with immediate effect by giving written notice to the Customer in the event there is a change of Control of the Customer.|
|11.6||On termination of the Order for any reason:
|11.7||Createmaster shall have no liability whether under the terms of the Order or at law to the Customer for any exercise of its rights pursuant to Sections 14.7 or 14.8.|
Createmaster may refer to the Customer in its marketing materials including any use in any client list, prospectus for investors, press release, advertisement, or any other marketing or promotional material.
Createmaster shall not be in breach of the Order nor liable for delay in performing, or failure to perform, any of its obligations under the Order if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Createmaster or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, pandemic or epidemic, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances Createmaster shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, either party may terminate the Order by giving thirty (30) days’ written notice to the other party.
The failure to exercise, or delay in exercising, a right, power or remedy under the Order or by law shall not constitute a waiver of that right, power or remedy. If a party waives a right, power or remedy arising as a result of a breach of any provision of the Order, this shall not operate as a waiver of any right, power or remedy arising as a result of any subsequent breach of that provision or any other provision of the Order, which will instead require a variation to the Order in accordance with Section 21.
The rights, powers and remedies provided in the Order are (except as expressly provided) cumulative, and not exclusive of, any rights, powers and remedies provided by law or otherwise.
|16.1||If any provision, or part of a provision, of the Order is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of these Terms and Conditions, and the legality, validity or enforceability of the remainder of the provisions of these Terms and Conditions shall not be affected, unless otherwise required by operation of applicable law.|
|16.2||The parties shall use [all] reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Order which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question and with no fundamental change to the bargain between the parties.|
|17.1||An Order (including these Terms and Conditions) constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.|
|17.2||Each party acknowledges that in entering into an Order it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings, misrepresentations or representations that were made by or on behalf of the other party in relation to the subject matter of the Order at any time before its signature (together, “Pre-Contractual Statements”), other than those that are set out expressly in the Order.|
|17.3||Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for Section 18.2.|
|17.4||Nothing in this Section 18 will exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.|
Neither Party may assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with the Order, or with any of its rights or obligations under it, without the prior written consent of the other Party, except that Createmaster shall be entitled to assign or transfer an Order to: (i) any of its Affiliates; or (ii) to any third party in connection with any restructuring, reorganisation or merger or acquisition, without requiring the Customer’s prior consent.
|19.||NO PARTNERSHIP OR AGENCY
Nothing in the Order is intended to, or shall be deemed to, establish or constitute any partnership or joint venture between the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.
Subject to Sections 1, 7.3 and 7.4, no variation of the Order shall be effective unless made in writing (which excludes email) and signed by or on behalf of each of the parties or by their duly authorised representatives. If the Customer wishes Createmaster to proceed with any proposed variation, Createmaster has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Fees and any other relevant terms of the Order to take account of the change.
|24.||THIRD PARTY RIGHTS|
|24.7||A person who is not a party to the Order may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.|
|21.1||Any notice, consent, permission or other communication required to be given under the Order shall be in writing in English and shall be delivered by hand or sent by pre-paid first-class or recorded delivery post to the other party at its address set out in the Order, or such other address as may have been notified by that party for such purposes.|
|21.2||A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.|
|23.||GOVERNING LAW AND JURISDICTION|
|23.1||The Order, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.|
|23.2||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 Order, or their subject matter or formation.|