Terms and Conditions
These general terms and conditions ("Conditions") constitute a legally binding agreement between the Client and Creative Intelligence, regarding any provision by Creative Intelligence of any services to the Client.
A full contract of business is available upon request.
- In these Conditions:
- 'Client' means the person to whom Creative Intelligence has agreed to provide the Service in accordance with these Conditions;
- 'Contract' means the contract for the provision of the Service, which shall arise when the Client accepts Creative Intelligence's estimate or quotation or, alternatively, when Creative Intelligence in writing accepts an order from the Client;
- 'Document' includes, in addition to a document (including email and other methods of communication) in writing, any design or other device embodying visual images and any media or device containing any data;
- 'Creative Intelligence Material' means any Documents or other materials, and any data or other information provided by Creative Intelligence relating to the Service including, without limitation, any designs and code produced as part of the Service;
- 'Specification' means the Document to which these Conditions are appended or any other Document issued by Creative Intelligence or approved by it in writing and which specifies the Services;
- 'Service' means the service or services to be provided by Creative Intelligence to the Client.
- The headings in these Conditions are for convenience only and shall not affect their interpretation.
- In these Conditions: - 'Client' means the person to whom Creative Intelligence has agreed to provide the Service in accordance with these Conditions;
Supply of the Service
- The Supplier shall provide the Service to the Client subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such estimate or quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client. Any changes or additions to the Service or these Conditions must be agreed in writing by Creative Intelligence and the Client.
- The Client shall at its own expense supply Creative Intelligence with all necessary Documents or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable Creative Intelligence to provide the Service in accordance with the Contract. The Client shall be responsible to Creative Intelligence for ensuring the accuracy of the terms of any order (including any Client Material) submitted by the Client, and for giving Creative Intelligence any necessary information relating to the Services within a sufficient time to enable Creative Intelligence to perform the Contract in accordance with its terms.
- The Client shall at its own expense retain duplicate copies of all Client Material. Creative Intelligence shall have no liability for any loss of or damage to any Client Material, however caused.
- The price of the Service shall be Creative Intelligence's estimated or quoted price.
- Creative Intelligence reserves the right to increase the price of the Service to reflect any increase in the cost to Creative Intelligence which is due to any factor beyond the control of Creative Intelligence (such as, without limitation, any significant increase in the costs of labour or materials), any change in delivery dates, quantities or specifications for the Service which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give Creative Intelligence adequate information or instructions.
- Unless otherwise stated, all charges quoted to the Client for the provision of the Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
- Except as otherwise stated under the terms of any estimate or quotation, and unless otherwise agreed in writing between the Client and Creative Intelligence, all prices are given by Creative Intelligence on an ex works basis, and the Client shall be liable to pay Creative Intelligence's charges for transport, packaging and insurance.
- Creative Intelligence shall be entitled to invoice the Client in respect of any agreed third party costs immediately following the date of a Contract and, in respect of all other aspects of the Service, on or following delivery of the Service, or, if provision of a Service is due to take longer than a month, at the end of each month, or at other times specified in writing by Creative Intelligence.
- The price for the Service or other charges and any additional sums payable shall be paid by the Client (without any set off or other deduction) immediately on receipt of Creative Intelligence's invoice. The time of payment of the price shall be of the essence of the Contract.
- If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to Creative Intelligence, Creative Intelligence shall be entitled to:
(a) Cancel the Contract or suspend any further provision of any Service to the Client; and
(b) charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above the Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
- Any dates estimated for delivery of Creative Intelligence Materials are estimated based on the information available at time of estimate and Creative Intelligence shall not be liable for any delay in delivery, however caused. Time for delivery shall not be of the essence of the Contract. Deliveries may be made by Creative Intelligence in advance of any estimated delivery date.
- Notwithstanding delivery and the passing of risk in Creative Intelligence Materials, or any other provision of these Conditions, the property in Creative Intelligence Materials shall not pass to the Client until Creative Intelligence has received in cash or cleared funds payment in full of the price of Creative Intelligence Materials and all other items agreed to be sold by Creative Intelligence to the Client for which payment is then due.
- Until such time as the property in the Creative Intelligence Materials passes to the Client, the Client shall hold the Creative Intelligence Materials as Creative Intelligence's fiduciary agent and bailee, and shall keep the Creative Intelligence Materials separate from those of the Client and third parties and properly stored, protected and insured and identified as Creative Intelligence's property, but the Client shall be entitled to sell services based on the Creative Intelligence Materials or use the Creative Intelligence Materials in the ordinary course of its business.
- Until such time as the property in the Creative Intelligence Materials passes to the, Creative Intelligence shall be entitled at any time to require the Client to destroy copies of Creative Intelligence Materials held by the Client and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Creative Intelligence Materials are stored and delete the Creative Intelligence Materials.
Rights in Creative Intelligence Material
- The property and any copyright, design rights or other intellectual property rights in any Creative Intelligence Material shall, unless otherwise agreed in writing between the Client and Creative Intelligence, belong to Creative Intelligence, subject only to the right of the Client (which shall be a transferable licence) to use the Creative Intelligence Material, as contemplated by the Specification, in the ordinary course of its business. The Client shall have no such rights in respect of Creative Intelligence Materials unless and until the Client has paid all sums due to Creative Intelligence under the Contract and any other contract.
- The Client shall not resell the Creative Intelligence Materials or any items incorporating any of the Creative Intelligence Materials unless such resale is expressly contemplated by the Contract or otherwise agreed in writing by Creative Intelligence. Nor shall the Client use any of the Creative Intelligence Materials in any manner, in quantities or on or part of any item not expressly contemplated by the Contract, unless otherwise agreed in writing by Creative Intelligence.
Warranties and Liability
- Creative Intelligence warrants to the Client that the Creative Intelligence Materials will correspond with the agreed Specification at the time of delivery.
- The above warranties are given by Creative Intelligence subject to the following conditions:
(a) Creative Intelligence shall be under no liability in respect of any defect in the Service and/or Creative Intelligence Materials for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Client; and
(b) Creative Intelligence shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Service and/or Creative Intelligence Materials has not been paid by the due date for payment.
- Except in respect of death or personal injury caused by Creative Intelligence's negligence, or as expressly provided in these Conditions, Creative Intelligence shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Creative Intelligence, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service and/or Creative Intelligence Materials or their use by the Client, and the entire liability of Creative Intelligence under or in connection with the Contract shall not exceed the amount of Creative Intelligence's charges for the provision of the Service, except as expressly provided in these Conditions.
- Creative Intelligence shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Creative Intelligence's obligations in relation to the Service and/or Creative Intelligence Materials, if the delay or failure was due to any cause beyond Creative Intelligence's reasonable control.
- Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where the Service and/or Creative Intelligence Materials are supplied under a consumer transaction, the statutory rights of the Client are not affected by these Conditions.
- Any claim by the Client which is based on any defect in the quality or condition of Creative Intelligence Materials shall be notified to Creative Intelligence within 30 days from the date of delivery. If delivery the Client does not notify Creative Intelligence accordingly, the Client shall not be entitled to reject the Creative Intelligence Materials and Creative Intelligence shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the Creative Intelligence Materials had been delivered in accordance with the Contract.
- Where any valid claim in respect of any of the Creative Intelligence Materials which is based on any defect in the quality or condition of the Creative Intelligence Materials or their failure to meet specification is notified to Creative Intelligence in accordance with these Conditions, Creative Intelligence shall be entitled to replace the Creative Intelligence Materials (or the part in question) free of charge or, at Creative Intelligence's sole discretion, refund to the Client the price of the Creative Intelligence Materials (or a proportionate part of the price), but Creative Intelligence shall have no further liability to the Client.
- The Client shall not be entitled to reject, make any other claim or withhold payment in respect of any Creative Intelligence Materials if the Client has previously approved prototypes or other demonstrations provided by Creative Intelligence and such Creative Intelligence Materials conform with such prototypes, notwithstanding that they are defective in any way if such defect was evident in such prototypes.
- The Client shall be entitled to terminate the Contract for Design and Development by giving not less than three month's written notice to Creative Intelligence, in which case the Client shall be liable for any costs incurred to the date of termination , including any work in progress and indemnify Creative Intelligence in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Creative Intelligence as a result of and up to the point of termination.
- Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 60 days after being required by written notice to do so, providing the other party is not obstructing or preventing such remedy and not refusing to cooperate with it's resolution, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
- For recurring services, the Client may requested termination of services a minimum of 90 days written notice, by email or letter, prior to the next annual renewal date for fees relating to the core system – which is typically the anniversary date when the system went live. Where notice is given less than 90 days before the next renewal date, the effective date of termination will be the subsequent renewal date.
- These Conditions (together with the terms, if any, set out in the Specification or another Document which has been agreed by both parties) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
- Creative Intelligence directors, employees or agents are not authorised to make any representations concerning the Service or the Creative Intelligence Materials unless confirmed by Creative Intelligence in writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations which are not so confirmed.
- Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice, or by email directly to a director of the company.
- No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
- English law shall apply to these Conditions and the Contract generally, and the parties agree to submit to the non exclusive jurisdiction of the English courts, using mediation prior to any court process.
Updated 5th October 2023.