Service Terms & Conditions

Mutatio Creative Ltd Trading As Blue Whale Media STANDARD TERMS AND CONDITIONS

YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10, WHICH SETS OUT OUR LIABILITY TO YOU. 

All of the services provided by Mutatio Creative Ltd Trading As Blue Whale Media (“the Services”) to you, the Customer, are subject to the following standard terms and conditions (“Conditions”). 

These Conditions and the Schedules attached to them supersede all previous representations, understandings or agreements unless otherwise confirmed in writing by us.

  1. Interpretation – what does all the jargon mean?

1.1       The definitions and rules of interpretation in this clause apply in these Conditions and all definitions contained in the schedules and the Particulars.

Costs on Account: Costs paid on account prior to our commencing work for you.

Deliverables: all Documents, products and materials developed by us or our agents, subcontractors, consultants and employees in relation to a Proposal or the Services in any form, including computer programs, data, reports and specifications (including drafts) the deliverables specified in the Proposal. For the avoidance of doubt this does not include ad-hoc reports which we are only required to provide to you on request but may provide to you in any event during the term of the contract.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Intellectual Property Rights (“IPR”): all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, chip topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Materials: all Documents, information and materials provided by you relating to the Services, including computer programs, data, reports and specifications or the in-put materials specified in the Proposal. 

Our Equipment:  any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between us under which title passes to you.

Particulars: the Particulars to this Agreement contained in page 1. 

Pre-existing Materials: all Documents, information and materials provided by us relating to the Services which existed prior to the commencement of these Conditions, including computer programs, data, reports and specifications or the pre-existing materials specified in the Proposal.

Project: a project as described in the Proposal. 

Project Milestones: a date by which a part of the Proposal is estimated to be completed, as set out in the Proposal.

Proposal:  the detailed plan, confirmed in an email by from us, setting out the specific services and estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.

Schedules: the schedules to these Conditions which are fully incorporated into these Conditions.

Services: the specific services to be provided by us as set out in a Proposal, together with any other services which we provide or agree to provide to you in accordance with the Schedules. 

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Your Equipment: any equipment, systems or facilities provided by you and used directly or indirectly in the supply of the Services.

  • Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions. The schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules.
  • A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
  • A reference to writing or written includes e-mail.
  • Any obligation in these Conditions on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
  1. When does the agreement start and how long will it last?

2.1       We shall provide the Services to you from the date specified in the Proposal until expiry of the Term.

2.2       The Services supplied under these conditions shall continue to be supplied until the Project is completed in accordance with the Proposal and, after that, if a continuing service is being provided it shall continue to be supplied unless the Contract between us is terminated by us giving you not less than 14 days’ notice and you giving us one month’s notice to terminate from an anniversary of the date specified in the Proposal. 

2.3       Once you have accepted the Proposal in writing we shall confirm that we are prepared to undertake your instructions, from which point the contract is formed between us.  

2.4       In accordance with clause 7.8 if you have provided us with payment details we shall take payment automatically when payment becomes due for either a single payment or on the anniversary of a rolling contract unless notice is given in accordance with clause 2.2.

  1. What is the Proposal?

3.1       The Project shall be agreed in the following manner:

(a)     where appropriate, you shall provide us with a request for a Proposal, setting out the requirements and specifications of the services which you are requesting from us, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, Any test criteria as appropriate, Deliverables, Materials and such other information as we may request to allow us to prepare a draft Proposal;

(b)     we shall, as soon as reasonably practicable, provide you with a draft Proposal; and

(c)     there shall be no changes made to the Proposal without our express consent in writing.

3.2       Once the Proposal has been agreed, no amendment shall be made to it except in accordance with clause 6 and clause 14.

  1. What are we going to do for you?

4.1       We shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to you, in accordance with the Proposal in all material respects.

4.2       We shall use reasonable endeavours to meet any performance dates specified in the Proposal, as agreed in writing, but any such dates shall be estimates only and time for performance by us shall not be of the essence of these Conditions.

4.4       Acceptance of the Deliverables shall be deemed to have taken place when you use any part of the Deliverables for any purpose.

4.5       Some of the Services we provide to you are hosted on platforms or websites owned by third parties.  We do not provide any guarantees that the Services will be available at all times, and may be subject to downtime.  We shall not be liable to you for any damages you may suffer (whether direct or indirect) as a result of any such downtime or interruption to the Services.

4.6       If we are providing Services to you which are hosted on third party servers, our Services to you are merely to provide content and we have no responsibility or liability for the hosting of the content. 

4.7       In the event that the third party hosting services were interrupted, we would use our reasonable endeavours to do what we can to restore the hosting services and may migrate the content hosted on the third party server to another third party hosting provider.  In the event that this was deemed necessary, charges may apply and you will be responsible for paying these charges.  We will try and agree any such charges with you in advance, where possible. 

4.8       We do not guarantee that any of the Services will be virus or error free or uninterrupted. 

  1. What do you need to do?

5.1       You shall:

  • co-operate with us in all matters relating to the Services and appoint an authorised person to act as a point of contact in relation to the Services, who shall have the authority contractually to bind you on matters relating to the Services;
  • provide images and any content in a digital form.
  • if necessary, provide access to your premises and data, as required by us;
  • provide, within 14 days of commencement of the contract, such Materials and other information as we may reasonably require, and ensure that it is accurate and complete in all material respects;
  • ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services;
  • obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Our Equipment, the use of Materials and the use of Your Equipment in relation to Our Equipment; and
  • keep and maintain Our Equipment in accordance with our instructions as notified in writing from time to time and not to dispose of or use the equipment other than in accordance with our written instructions or authorisation.
  • Provide responses to all requested reviews within a 48 hour period.

5.2       If the performance of our obligations under these Conditions is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

5.3       You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Conditions, subject to us confirming such costs, charges and losses to you in writing.

5.4       You shall not, without our prior written consent, at any time from the date of these Conditions to the expiry of 12 months after the termination of these Conditions, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of ours.

5.5       Additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services and these will be payable by you on demand but will at all times be set out in our Proposal. 

  1. What happens if either of us wants to Change the services?

6.1       If you wish to change the scope or execution of the Services, you shall submit details of the requested change to us in writing.

6.2       Following your request, we shall, within a reasonable time, provide a written estimate to you of:

  • the likely time required to implement the change;
  • any necessary variations to our charges arising from the change;
  • the likely effect of the change on the Proposal; and
  • any other impact of the change on these Conditions.

6.3       If you wish us to proceed with the change, we have no obligation to do so unless and until we have agreed the necessary variations to our charges, the Services, the relevant Proposal and any other relevant terms of these Conditions to take account of the change and these Conditions has been varied in accordance with clause 14.

6.4       Notwithstanding clause 6.3, we may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.  We may, from time to time and subject to your prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, we will give you at least three months’ notice of any change.

6.5       We may charge for the time we spend assessing a request for change from you on a time and materials basis in accordance with clause 7.

6.6       We may provide technical support however this is provided at our own discretion and at an additional charge. For the avoidance of doubt this includes reconfiguring computers or resetting email addresses.  

  1. Charges and payment

7.1       In consideration of the provision of the Services by us, you shall pay our charges which shall be on a fixed fee basis or on a time and materials basis as set out in the Particulars :

  • the charges payable for the Services shall be calculated in accordance with our Proposal, as amended from time to time by us giving not less than three months’ written notice to you;
  • our standard fee rates are calculated on an hourly basis for each individual person.  Daily fee rates are calculated on the basis of an eight-hour day, worked between 9.00 am and 5.30 pm on weekdays (excluding public holidays);
  • we shall be entitled to charge an overtime rate of 50% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Project or Services outside the hours referred to in clause 7.1(b);
  • all charges quoted to you shall be exclusive of VAT, which we shall add to our invoices at the appropriate rate;
  • we shall invoice you in accordance with the Proposal and our invoice terms are 24 hours.

7.2       Where requested you must pay the Costs on Account in full before we provide you with the Services. All payment must be received before we provide you with the Deliverables.

7.3       You agree that we may review and increase the charges set out in the Particulars, provided that such charges cannot be increased more than once in any 12 month period.  We shall give you written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to you, you may, within one week of such notice being received terminate the agreement by giving one month’s written notice to us.

7.4       You shall pay each invoice submitted to you by us, in full and in cleared funds.

7.5       Without prejudice to any other right or remedy that you may have, if you fail to pay us on the due date, we may:

  • charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand; and
  • suspend all Services until payment has been made in full.

7.6       All sums payable to us under these Conditions shall become due immediately on its termination, despite any other provision. This clause 7.7 is without prejudice to any right to claim for interest under the law, or any such right under these Conditions.

7.7       We have the right to retain or remove the Deliverables (such as taking down your website) if sums payable to us remain due for five days or over.

7.8       If you have provided us with payment details we shall take payment automatically when payment becomes due for either a single payment or on the anniversary of a rolling contract unless notice is given in accordance with clause 2.2. You acknowledge that we shall not be responsible for loss you may suffer as a result of us taking payment using any details you have lodged with us. For the avoidance of doubt this includes any bank charges.

  1. Intellectual property rights – who owns what?

8.1       As between you and us, all Intellectual Property Rights and all other rights and all other Pre-existing Materials shall be owned by us but, upon full payment of any outstanding sums due to us for the Services, shall be licensed to you, free of charge, on a non-exclusive, worldwide basis.

8.2       You acknowledge that, where we do not own any of the Pre-existing Materials, your use of rights in Pre-existing Materials is conditional on us obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.

8.3       We own the Intellectual Property Rights arising from or connected in any way to the Services and they shall at all times be owned by us.  You do not have any right to copy, duplicate, distribute, resell or give away any programming, coding CMS, Ecommerce solutions, shopping carts, database programming that we have undertaken during provision of the Services and provided to you without our written consent.

8.4       By supplying materials to us, you declare that you hold the appropriate Intellectual Property Rights in these, or a licence to use them.  The ownership of such materials will remain with you, or rightful copyright or trademark owner.  You will, however, provide us with a perpetual non-exclusive licence to use and modify the Intellectual Property Rights in the Materials for the purpose of providing the Services. 

8.5       You undertake to defend us from and against any claim or action that the possession, use, development, modification or maintenance of the Materials (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold us harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against us as a result of, or in connection with, any such Claim.

  1. Confidentiality

9.1       You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents, consultants or subcontractors and any other confidential information concerning our business or its products which you may obtain.

9.2       You may only disclose such information: 

  • to your employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out your obligations under these Conditions; and
  • as may be required by law, court order or any governmental or regulatory authority.

9.3       You shall ensure that your employees, officers, representatives, advisers, agents or subcontractors to whom you disclose such information comply with this clause 9.

9.4       You shall not use any such information for any purpose other than to perform your obligations under these Conditions.

9.5       All materials, equipment and tools, drawings, specifications and data supplied by us to you (including Pre-existing Materials and Our Equipment) shall, at all times, be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.

  1. Limitation of Liability- Your Attention is Particularly Drawn to this Clause

10.1     Nothing in these Conditions limits or excludes our liability for:

  • death or personal injury caused by our negligence;
  • fraud or fraudulent misrepresentation; or
  • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

10.2     Subject to clause 10.1 we shall not be liable to you, whether in contract or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions for:

  • loss of profits or anticipated profits;
  • loss of sales or business;
  • loss of agreements or contracts;
  • loss of anticipated savings;
  • loss of or damage to goodwill or business opportunity;
  • loss of use or corruption of software, data or information;
  • any indirect or consequential loss;

10.3     Subject to clause 10.1 and clause 10.2, our total liability to you, whether in contract or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions shall be limited to the amount of the charges set out in the Proposal which you have paid in the last three months in respect of the Services.

10.4     The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.

  1. Data protection and third party consent

11.1     You undertake to us that all third parties involved in any of the Services we undertake on your behalf (“Third Parties”) have provided their express written consent to you to be involved in the Service whether this be by way of having their photos, images or video footage captured or otherwise.  You will provide us with a list of parties that are not to be used in the provision of any of our Services in advance of the Services commencing.   

11.2     You will indemnify us fully for all losses and damages we may suffer as a result of your breach of clause 11.2, or losses and damages we may suffer as a result of Third Parties asking to be removed from any of the Deliverables. 

  1. Specific reasons why this agreement may have to come to an end

12.1     Without prejudice to any other rights or remedies which we both may have, either of us may terminate our contractual relationship without liability to the other immediately on giving notice to the other if the other party:

  1. fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
  2. commits a breach of any of the terms of these Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
  3. repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions; or
  4. ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
  5. becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
  6. a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
  7. the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
  8. any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

12.2     What you need to do when the agreement ends – On termination of our contractual relationship for any reason:

  • you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services or Deliverables supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
  • you shall, within a reasonable time, return all of Our Equipment, Pre-existing Materials and Deliverables. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned or repossessed, you shall be solely responsible for their safe keeping;
  • the accrued rights, remedies, obligations and liabilities of us both as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and
  • clauses which expressly or by implication have effect after termination shall continue in full force and effect.
  1. Force majeure – events outside of our control

13.1     A party, provided that it has complied with the provisions of clause 13.3, shall not be in breach of these Conditions, nor liable for any failure or delay in performance of any obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following: 

  • acts of God, including but not limited to fire, explosion, accidental damage, flood, earthquake, windstorm or other natural disaster;
  • war, threat of or preparation for war, armed conflict, terrorist attack, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
  • compliance with any law;
  • collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
  • any labour dispute, including but not limited to strikes, industrial action or lockouts;
  • non-performance by suppliers or subcontractors; and
  • interruption or failure of utility service, including but not limited to electric power, gas or water.

13.2     The corresponding obligations of the other party will be suspended to the same extent.

13.3     Any party that is subject to a Force Majeure Event shall not be in breach of these Conditions provided that:

  • it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
  • it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
  • it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

13.4     If the Force Majeure Event prevails for a continuous period of more than six months, either party may terminate these Conditions by giving 7 days’ written notice to all the other party. On the expiry of this notice period, these Conditions will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Conditions occurring prior to such termination.

  1. General
    • We are not in partnership with each other, nor are we agents of each other.
    • Any notice given under this agreement shall be in writing and shall be delivered by hand, transmitted by fax, or sent by pre-paid first class post or recorded delivery post to the address of the party as set out in the Particulars. A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in business hours, 9.00 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. A notice sent by fax to the fax number of the relevant party shall be deemed to have been