These terms and conditions apply to each Statement of Work entered into between ThisThat and the Client referencing these terms and conditions
Agreed terms
1. Interpretation
1.1 Definitions:
Assumptions: the Assumptions as detailed in the Statement of Work.
Bespoke Deliverables: means any documents, products and materials developed by ThisThat specifically for the Client and detailed as bespoke deliverables in the Statement of Work.
Business Day: means a day other than a Saturday, Sunday or bank or public holiday in England.
Charges: the charges payable by the Client for the supply of the Services by ThisThat, as set out in the Statement of Work.
Client Responsibilities: the Client Responsibilities as detailed in the Statement of Work.
Client Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Client to ThisThat, including any content or materials created or published by a content creator and used by ThisThat in the provision of the Services.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 10 (General) (inclusive).
Contract: the standalone contract between the Client and ThisThat for the supply of the Services incorporating these Conditions, the relevant Statement of Work and any documents referenced therein.
Control: for the purpose of the definition of “Affiliate”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a company or other business entity, whether through the ownership of shares or voting securities (including without limitation through ownership of more than fifty percent (50%) of the shares or securities of an entity entitled to elect directors), contract or otherwise; and “Controls”, “Controlled” and “Controlling” shall be construed accordingly.
Data Protection Legislation: means (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated, or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including (i) the UK Data Protection Act 2018, (ii) the General Data Protection Regulation (EU) 2016/679 as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018, (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) any code of practice or guidance published by the UK Commissioner’s Office (or equivalent regulatory body) from time to time.
Deliverables: all documents, products and materials developed by ThisThat or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation, data, reports and specifications (including drafts) as detailed in the Statement of Work.
Intellectual Property Rights: means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing.
Payment Milestones: means the terms on which ThisThat will invoice the client as specified in the Statement of Work.
Services Start Date: the day on which ThisThat is to start provision of the Services, as set out in the Statement of Work.
Services: the services to be provided by ThisThat pursuant to this Contract, as described in the Statement of Work.
SOW Term: the term for the Services as detailed in the Statement of Work.
Statement of Work: means the document which sets out the applicable Services to be provided by ThisThat and related details incorporating these Conditions.
ThisThat IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Client Materials incorporated in them.
1.1 In this Contract unless otherwise stated: this Agreement, unless otherwise stated:
1.1.1 ThisThat and the Client are together the parties and each a party, and a reference to a ‘party’ includes that party’s successors and permitted assigns;
1.1.2 words in the singular include the plural and vice versa;
1.1.3 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.1.4 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and
1.1.5 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made as at the date of this Agreement under that legislation.
2. Commencement and term
This Contract shall commence on the last date of signature of the Statement of Work (Effective Date) and shall continue, unless terminated earlier in accordance with its terms, for the SOW Term. If no SOW Term is detailed in the Statement of Work, this Contract shall continue until either party gives to the other not less than 3 months' written notice to terminate.
3. Supply of services
3.1 ThisThat shall supply the Services to the Client from the Services Start Date in accordance with this Contract.
3.2 In supplying the Services, ThisThat shall:
3.2.1 perform the Services with reasonable care and skill;
3.2.2 perform the Services in accordance with the service description set out in the Statement of Work;
3.2.3 ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality;
3.2.4 use reasonable endeavours to meet any performance dates specified in a Statement of Work, but time shall not be of the essence in performance of the Services; and
3.2.5 comply with all applicable laws, statutes, regulations from time to time in force.
4. Client's obligations
4.1 The Client:
4.1.1 shall co-operate with ThisThat in all matters relating to the Services;
4.1.2 shall provide, in a timely manner, such information (including, where detailed in the Statement of Work, the relevant Client Materials) as ThisThat may reasonably require, and ensure that it is accurate and complete in all material respects; and
4.1.3 shall fulfil and/or comply with the Client Responsibilities; and
4.1.4 confirms that the Assumptions are accurate and correct.
4.2 If ThisThat's performance of its obligations under this Contract is prevented or delayed by (i) any act or omission of the Client, its agents, subcontractors, consultants or employees; or (ii) a change to any Assumptions or any Assumptions not being correct or accurate; ThisThat shall:
4.2.1 not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
4.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
4.2.3 be entitled to recover any additional costs, charges or losses ThisThat sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Data protection
5.1 For this purposes of this clause 5 the terms “data processor”, “data controller”, and “personal data” shall have the meanings given to them in the Data Protection Legislation.
5.2 Both parties shall comply with their respective obligations under the Data Protection Legislation.
5.3 The parties do not anticipate that either party will be acting as a data processor on behalf of the other party. In the event of any processing of personal data, where the parties may assume roles in a controller-to-processor relationship, both parties agree to negotiate in good faith to establish and incorporate appropriate data processing provisions in accordance with the Data Protection Legislation.
6. Intellectual property
6.1 ThisThat and its licensors shall retain ownership of all ThisThat IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
6.2 ThisThat grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy and modify ThisThat IPRs for the purpose of using the Deliverables in the Client's business.
6.3 On receipt of payment of the corresponding Charges, ThisThat hereby assigns to the Client all Intellectual Property Rights in the Bespoke Deliverables.
6.4 The Client grants ThisThat a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the purpose of providing the Services to the Client in accordance with this Contract.
6.5 ThisThat warrants that the use of the Deliverables and the Bespoke Deliverables by the Client in accordance with the terms of this Contract shall not infringe the Intellectual Property Rights of any third party.
6.6 ThisThat shall indemnify the Client against any sums awarded by a court against the Client arising out of any claim brought against the Client for infringement of a third party's Intellectual Property Rights directly arising out of the use of the Deliverables or Bespoke Deliverables by the Client.
6.7 The Client shall indemnify ThisThat in full against any sums awarded by a court against ThisThat arising of any claim brought against ThisThat for infringement of a third party's Intellectual Property Rights directly arising out of the receipt or use of the Client Materials by ThisThat.
7. Charges and payment
7.1 In consideration for the provision of the Services, the Client shall pay ThisThat the Charges in accordance with this clause 7.
7.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to ThisThat at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
7.3 ThisThat shall submit invoices for the Charges plus VAT if applicable to the Client on the Payment Milestones. Each invoice shall include all reasonable supporting information required by the Client.
7.4 The Client shall pay each invoice due and submitted to it by ThisThat, within 30 days of receipt, to a bank account nominated on the applicable invoice by ThisThat.
7.5 If the Client fails to make any payment due to ThisThat under this Contract by the due date for payment, then, without limiting ThisThat's remedies under clause 9 (Termination):
7.5.1 the 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%; and
7.5.2 ThisThat may suspend all Services until payment has been made in full.
7.6 All amounts due under this Contract from the Client to ThisThat 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).
7.7 In the event that the Statement of Work details Payment Milestones that include Charges paid in advance, all such Charges are non-refundable (including in the event the Client does not utilise all or part of the Services during the applicable Service Term. The preceding sentence does not affect the Client’s right to terminate this Contract for ThisThat’s material breach under clause 9.1.1, in which case any refund of prepaid Charges shall be calculated on a pro rata basis for Services not yet performed as at the effective date of termination.
8. Limitation of liability
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with this Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Client's payment obligations under this Contract.
8.3 Nothing in this Contract limits any liability which cannot legally be limited, including liability for:
8.3.1 death or personal injury caused by negligence; and
8.3.2 fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.2 (No limitation on client's payment obligations), and clause 8.3 (Liabilities which cannot legally be limited), each party’s aggregate liability to the other party shall not exceed 100% of the Charges paid or payable by the Client to ThisThat under this Contract.
8.5 Subject to, clause 8.2 (No limitation on client's payment obligations) and clause 8.3 (Liabilities which cannot legally be limited), this clause 8.5 sets out the types of loss that are wholly excluded:
8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill; and
8.5.7 indirect or consequential loss.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of this 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;
9.1.2 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
9.1.3 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
9.1.4 the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
9.2 Without affecting any other right or remedy available to it, ThisThat may terminate this Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and such payment is still not paid 14 days after the due date for payment.
9.3 On termination of this Contract for whatever reason:
9.3.1 the Client shall immediately pay to ThisThat all of ThisThat's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ThisThat may submit an invoice, which shall be payable immediately on receipt;
9.3.2 any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect; and
9.3.3 termination or expiry of this 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 this 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 this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
10.2.1 The 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 this Contract without ThisThat's prior written consent.
10.2.2 ThisThat 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 this Contract.
10.3 Confidentiality.
10.3.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination or expiry of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 10.3.
10.3.2 Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under this Contract.
10.4 Entire agreement.
10.4.1 This 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.
10.4.2 Each party acknowledges that in entering into this 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 this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
10.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver.
10.6.1 A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
10.6.2 A failure or delay by a party to exercise any right or remedy provided under this 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 this 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 this 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 10.7 shall not affect the validity and enforceability of the rest of this Contract.
10.8 Notices.
10.8.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
(i) 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
(ii) sent by email to the address specified in the Statement of Work.
10.8.2 Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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
(iii) 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 10.8.2(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.
10.8.3 This clause 10.8 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.
10.9 Third party rights.
10.9.1 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 this Contract.
10.9.2 The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.
10.10 Governing law. This 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 this Contract or its subject matter or formation.
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