1 Interpretation
In this Agreement:
1.1 “Commencement Date” means the first day on which Bluebrick Studios Limited supplies services.
“Deliverables” means all items (including without limitation reports and computer programs) agreed to be delivered and/or actually delivered to the Client by Bluebrick Studios Limited as part of the Services
“Group” in relation to a company means that company and all companies from time to time controlled by, controlling or under common control with that company, as “control” is defined in Section 840 Income and Corporation Taxes Act 1988
“Programme” means the estimated timings (if any) (by reference to the Commencement Date) for provision of the Services set out in the proposal and project plan or from time to time agreed to in writing by Bluebrick Studios Limited
“Services” means the services set out in the proposal and such further services (if any) as Bluebrick Studios Limited may from time to time agree to supply to the Client upon the terms and conditions of this Agreement
“Software” means all executable object-code-only computer programs comprised in the Deliverables
“Source code” means the source code of the Software
“Specification” means the specification for the Software set out in the proposal or to be produced by Bluebrick Studios Limited as part of the Services and agreed by the Client
“Standard Rates” means fees and expenses calculated according to the rates in the proposal under the heading Commercial
1.2 Any reference to a “person” includes an individual, a company, an unincorporated business or any other body.
1.3 References to any gender include all genders and references to the singular include the plural and vice versa.
1.4 References to a statute include any statutory modification, extension or re-enactment thereof from time to time in force.
1.5 The headings are for convenience only and shall not affect construction or interpretation.
2 Engagement
The Client engages Bluebrick Studios Limited (or shall be deemed to have engaged Bluebrick Studios Limited) with effect from the Commencement Date to supply the Services, and Bluebrick Studios Limited agrees to supply the Services subject to the terms and conditions of this Agreement.
3 Timings
Bluebrick Studios Limited shall, within reason, endeavour to adhere to the agreed Programme. However, Bluebrick Studios Limited shall not be liable in any way for delays arising due to unforeseen circumstances or situations outside of its control.
4 Staff Conditions
4.1 Observance of Regulations
Each party agrees to ensure that when its staff are employed on the premises of the other party they shall comply with such rules and regulations as are notified in writing to them regarding conduct of staff on those premises.
4.2 Replacement of Bluebrick Studios Limited Staff
4.2.1 The Client shall be entitled to request the removal and replacement of any of Bluebrick Studios Limited’s staff engaged in supplying the Services. If the Client makes any such request, then it shall give reasonable written notice, together with written reasons for the request. If Bluebrick Studios Limited accepts the reasons then it will comply with the request.
4.2.2 Bluebrick Studios Limited may from time to time replace its staff engaged in supplying the Services but shall endeavour to give reasonable written notice thereof and to maintain continuity in the supply of the Services and ensure that replacement staff are similarly experienced, competent and qualified.
4.3 Employment Offers
4.3.1 The Client shall not at any time before Bluebrick Studios Limited has completed the provision of all Services supplied or to be supplied pursuant to this Agreement, or for a period of one year thereafter, directly or indirectly seek to solicit from the employment of Bluebrick Studios Limited any employee from time to time of Bluebrick Studios Limited who is or has at any time been engaged in supplying the Services whether by making an offer of employment or otherwise.
4.3.2 If the Client breaches Clause 4.3.1 then, without prejudice to any other right or remedy of Bluebrick Studios Limited, the Client shall pay to Bluebrick Studios Limited by way of liquidated damages the sum of £25,000. The Client acknowledges that such sum is a bona fide pre-estimate of the loss which Bluebrick Studios Limited is likely to suffer as a result of a breach by the Client of Clause 4.3.1.
5 Client Co-operation
5.1 The Client acknowledges that the effectiveness of the Services and adherence to any Programme (if any) for provision of the Services will, in large part, depend upon the willing co-operation of the Client with Bluebrick Studios Limited and the Client hereby undertakes to co-operate fully with Bluebrick Studios Limited in all matters pertaining to the Services.
5.2 Without prejudice to the generality of Clause 5.1, the Client shall:
5.2.1 Promptly and as fully as reasonably practicable respond to all communications from Bluebrick Studios Limited relating to the Services.
5.2.2 Supply to Bluebrick Studios Limited such information as Bluebrick Studios Limited may require in order to supply the Services.
5.2.3 Permit Bluebrick Studios Limited such access as it requires (for the purposes of supplying the Services) to premises owned or occupied by the Client.
5.2.4 Ensure that where any participation by its own staff is necessary in the performance of the Services, such staff possess the appropriate skills and experience for the tasks assigned to them and are available at such times as are reasonably required by Bluebrick Studios Limited or are agreed by the parties. Further, so far as reasonably practicable, the Client shall fully acquaint such staff with the terms of this Agreement.
5.2.5 If at any time during the provision of the Services the Client notices or suspects that any wrong assumptions have been made or wrong directions taken by Bluebrick Studios Limited, forthwith inform Bluebrick Studios Limited in writing.
5.2.6 Supply to Bluebrick Studios Limited (free of charge) for the purposes of supplying the Services the facilities set out or referred to in the proposal and such other facilities as Bluebrick Studios Limited may reasonably require on premises owned or occupied by the Client.
5.2.7 Ensure that if the Client makes available to Bluebrick Studios Limited for the purposes of this Agreement any computer programs or other items where the copyright and/or other intellectual property rights are owned by a third party the Client first obtains such license as is required so that use thereof by Bluebrick Studios Limited and any sub-contractor of Bluebrick Studios Limited for the purposes of this Agreement will not result in the infringement of the copyright or other intellectual property rights of such third party.
5.2.8 Permit Bluebrick Studios Limited to place a credit for the services in the form of a hyperlink to bluebrick.studio at the footer of the deliverables.
5.2.9 Subject to a reasonable period of time for Client review and with final Client editorial approval, permit Bluebrick Studios Limited to issue a press release stating that Bluebrick Studios Limited is performing the services for the Client.
5.2.10 subject to a reasonable period of time for Client review, with final Client editorial approval and without any commercially sensitive data not already held in the public domain, permit Bluebrick Studios Limited to create a case study outlining the services undertaken and the results that the services achieved.
6 Fees and Expenses
6.1 In consideration of Bluebrick Studios Limited performing the Services, the Client shall pay to Bluebrick Studios Limited fees and expenses calculated in accordance with the Commercial section of the work order.
6.2 Unless otherwise expressly stated, all sums due to Bluebrick Studios Limited under this Agreement are exclusive of VAT and the Client shall pay VAT in addition upon Bluebrick Studios Limited rendering to the Client a VAT invoice.
6.3 The Client shall pay all sums becoming due to Bluebrick Studios Limited under this Agreement when the same become due in accordance with the Commercial section of the proposal.
6.4 If any payment due to Bluebrick Studios Limited under this Agreement is overdue then the Client shall pay interest thereon (before and after any judgement) at an annual rate (but with interest accruing on a daily basis) of 4% above the Bank Base rate then prevailing, such interest to run from the date upon which payment of such sum became due until payment thereof in full together with such interest.
6.5 Without prejudice to any other right or remedy of Bluebrick Studios Limited, if any payment due to Bluebrick Studios Limited under this Agreement is overdue then Bluebrick Studios Limited may, upon giving the Client 7 days’ prior written notice of its intention so to do suspend provision of the Services until such payment is received (together with interest as referred to above). Any extra costs incurred by Bluebrick Studios Limited arising from suspension and (if resumed) later resumption of the Services shall be added to sums due to Bluebrick Studios Limited hereunder.
7 Confidentiality
7.1 Each party agrees to keep confidential all information obtained from the other both pursuant to this Agreement and prior to and in contemplation of it and all other information that it may acquire from the other in the course of this Agreement, to respect the other’s proprietary rights therein, to use the same exclusively for the purposes of or as contemplated by this Agreement, and to disclose the same only to those of its employees and sub-contractors pursuant to this Agreement (if any) to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Agreement.
7.2 Clause 7.1 shall not apply to information which:
7.2.1 is trivial or obvious; or
7.2.2 Prior to receipt thereof from one party was in the possession of the other and at its free disposal; or
7.2.3 Is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party; or
7.2.4 Is or becomes generally available to the public through no act or default of the recipient party.
7.3 Each party shall ensure that all its employees and sub-contractors pursuant to this Agreement (if any) who have access to any information of the other to which Clause 7.1 applies shall be made aware of and subject to these obligations.
7.4 For the avoidance of doubt, nothing in this Clause 7 shall be interpreted as preventing either party from making full and unrestricted use of its knowledge and expertise pertaining generally to the industry of the other party.
8 Ownership and Use of Deliverables
8.1 All Deliverables shall remain the absolute property of Bluebrick Studios Limited until the Client has paid all sums due to Bluebrick Studios Limited pursuant to this Agreement in respect of the Services giving rise to such Deliverables whereupon such Deliverables shall become the absolute property of the Client.
8.2 All copyright and other intellectual property rights arising or created during the provision of the Services shall belong to and be the absolute property of Bluebrick Studios Limited or Bluebrick Studios Limited’s licensors but, subject to the Client paying all sums due to Bluebrick Studios Limited pursuant to this Agreement the Client shall acquire a royalty-free, non-exclusive license to do in respect of the Deliverables any act that would without a license be an infringement of the copyright or other intellectual property rights in the Deliverables, subject as follows:
8.2.1 Such license shall be perpetual, subject as otherwise provided in this Agreement.
8.2.2 Such license shall be assignable only with Bluebrick Studios Limited’s prior written consent.
8.2.3 The Client may grant to members of its Group from time to time non-exclusive, non-assignable sublicenses which prohibit further sub-licensing, provided that the Client shall be responsible to Bluebrick Studios Limited for any act or omission of any such sub-licensee in breach of the terms of the sub-license as if it were the Client’s own act or omission.
8.2.4 Subject to Clause 8.2.3 the Client shall not grant sub-licenses there under.
8.2.5 If any Source Code is included in the Deliverables it shall be used only for maintaining and enhancing the Software.
8.2.6 Where Deliverables are or include computer programs or other items the copyright and/or other intellectual property rights of which are owned by a third party then the Client shall comply with the license and other terms relating thereto imposed by the third party.
9 Warranties and Liabilities
9.1 Intellectual Property
Bluebrick Studios Limited warrants that to the best of its knowledge (but having made no special enquiry) the use of the Deliverables as permitted by this Agreement will not result in the infringement of the copyright or other intellectual property rights of any third party. If such use of the Deliverables infringes any such rights then Bluebrick Studios Limited shall as soon as reasonably practicable at Bluebrick Studios Limited’s option and cost:
9.1.1 Alter the Deliverables; and/or
9.1.2 Obtain such license(s) as may be necessary;
So that the use of the Deliverables as permitted by this Agreement shall, so far as Bluebrick Studios Limited is then aware, not thereafter infringe the copyright or other intellectual property rights of any third party. Bluebrick Studios Limited shall also indemnify the Client against damages (including costs) that may be awarded or agreed to be paid to any third party as a result of the infringement of the copyright or other intellectual property rights of any third party arising solely from use of the Deliverables by the Client as hereby permitted (an “IP Infringement”), provided that:
a. the Client gives notice to Bluebrick Studios Limited of any alleged IP Infringement immediately on becoming aware of the same; and
b. the Client gives Bluebrick Studios Limited the sole conduct of the defense to any claim or action in respect of an IP Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise such claim or action except with the express written consent of Bluebrick Studios Limited (such consent not to be unreasonably withheld); and
c. the Client acts in accordance with the reasonable instructions of Bluebrick Studios Limited and gives to Bluebrick Studios Limited such assistance as it reasonably requires in respect of the conduct of the defense. This is upon the condition that Bluebrick Studios Limited shall not have any obligations or liability to the Client under any of the foregoing provisions of this Clause 9.1 where an IP Infringement results from alterations or additions to the Deliverables made by or on behalf of the Client other than by Bluebrick Studios Limited or from alterations or additions made to the Deliverables made by Bluebrick Studios Limited in compliance with instructions or requirement of or specifications supplied by the Client or from use of the Deliverables in conjunction with any other computer program and/or hardware.
9.2 Services
Bluebrick Studios Limited warrants that Bluebrick Studios Limited will perform all Services with reasonable care and skill. If Bluebrick Studios Limited is shown to be in breach of the above warranty in relation to particular Services then Bluebrick Studios Limited shall at its option as soon as reasonably practicable take such steps as may be reasonably necessary to render the results of such Services as they would have been had Bluebrick Studios Limited supplied such Services in accordance with such warranty or refund to the Client such sums as the Client paid to Bluebrick Studios Limited in respect of such particular Services.
9.3 In Particular
Without prejudice to the generality of Clause 9.4:
9.3.1 Bluebrick Studios Limited shall not be responsible for the accuracy of advice given to the Client by Bluebrick Studios Limited where that advice is based on or relies on information supplied by the Client or third parties.
9.3.2 Statements made by or on behalf of Bluebrick Studios Limited as to the results obtainable from the Services and all surveys, forecasts and recommendations made by or on behalf of Bluebrick Studios Limited are made in good faith on the basis of information given by the Client and otherwise available at the time. To the extent that the attainment of such results and the efficacy and accuracy of such surveys, forecasts and recommendations depend on factors outside Bluebrick Studios Limited’s control, such statements, surveys, forecasts and recommendations shall not be deemed to be representations, undertakings, warranties or contractual terms or conditions.
9.3.3 Bluebrick Studios Limited shall in no event be liable for loss of or damage to any document or data of the Client and the Client shall ensure that it has adequate back-up copies of all documents and data.
9.3.4 Bluebrick Studios Limited shall not be liable to the Client for any loss or damage resulting from any defect in hardware or software originally supplied by any person other than Bluebrick Studios Limited (including without limitation third party software or hardware supplied to the Client through Bluebrick Studios Limited).
9.4 Liability Generally
9.4.1 This Clause 9.4 prevails over all other provisions of this Agreement and states the entire liability of each party to the other under or in connection with this Agreement, whether in contract or in tort or otherwise.
9.4.2 Neither party excludes or limits its liability to the other for negligence in respect of death or personal injury or otherwise insofar as any exclusion or limitation of its liability is void, prohibited or unenforceable by law and all provisions of this Agreement shall be read subject to this Clause.
9.4.3 Subject as expressly otherwise stated in this Agreement, Bluebrick Studios Limited gives no warranties and makes no representations in relation to any Deliverables or Services or otherwise in relation to this Agreement and all such warranties and representations, whether express or implied by law or otherwise, are hereby excluded to the fullest extent permitted by law. Without prejudice to the generality of the foregoing any warranty as to satisfactory quality, merchantability, conformity to any specification or description or fitness for any particular purpose is hereby excluded.
9.4.4 Without prejudice to the generality of Clause 9.4.3 the warranties given in Clauses 9.1 and 9.2 relating respectively to intellectual property infringement and the Services, are the only warranties given in relation thereto and, subject to Clause 9.4.2, Clauses 9.1 and 9.2 respectively state Bluebrick Studios Limited’s entire liability, in contract in tort or otherwise, and the Client’s exclusive remedy in respect of breach of such warranties.
9.4.5 Subject to Clause 9.4.2 and as otherwise expressly provided in this Agreement, Bluebrick Studios Limited’s liability, in contract in tort or otherwise, arising out of or in connection with this Agreement shall be limited to:
9.4.5.1 in respect of any claim which properly forms the subject matter of a claim by Bluebrick Studios Limited under the professional indemnity insurance to be maintained by Bluebrick Studios Limited under Clause 9.5, such
Sum as Bluebrick Studios Limited recovers under such insurance, and provided that Bluebrick Studios Limited shall use its reasonable endeavours to recover such insurance in respect of any legitimate claim thereunder
9.4.5.2 In respect of all matters not falling within Clause 9.4.5.1, in aggregate £50,000 or 125% of the total fees payable to Bluebrick Studios Limited under this Agreement whichever is the greater
9.4.6 Subject to Clause 9.4.2 and as otherwise expressly provided in this Agreement, in no event shall Bluebrick Studios Limited be liable to the Client, in contract in tort or otherwise, for any incidental or consequential loss including (without limitation) any loss of profit, business, revenue, goodwill or anticipated savings or for any special, exemplary or consequential damages arising in any way out of or in connection with this Agreement
9.5 Insurance
Without prejudice to any limitation of Bluebrick Studios Limited’s liability agreed by the Client as above, Bluebrick Studios Limited undertake for the duration of this Agreement to maintain professional indemnity insurance in an aggregate sum of £1 million.
10 Force Majeure
Neither Bluebrick Studios Limited nor the Client shall be deemed to be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any obligations hereunder to the extent that such delay or non-performance is caused by accident, illness, industrial dispute or action (whether or not involving a party’s own employees), non-availability of supplies, changes in the law, action or inaction by government authority or by any other event or circumstances beyond its reasonable control (“force majeure”). Provided that the party so affected by force majeure shall promptly notify the other party thereof in writing and shall reasonably endeavor to continue to perform its obligations under this Agreement. Provided further that if either party is by reason of force majeure unable to perform all or substantially all of its obligations hereunder for a period in excess of 3 months then the other party may terminate this Agreement forthwith by notice in writing to the party affected by force majeure.
11 Client Cancellation
If the client notifies Bluebrick Studios Limited in writing that any services under this agreement are no longer required then Bluebrick Studios Limited shall:
11.1 endeavor to reassign the resources that are scheduled to supply those services to other projects but reserve the right to charge the Client at the rates shown in the Commercial section of this document if it is unable to do so. Bluebrick Studios Limited will invoice for days that could not be reassigned.
11.2 for any services which have been charged for but not yet supplied, issue a ‘Credit of Services’ agreement so that those services may be applied to a future agreement to be made by an agreed date.
12 Termination
Either party may at any time by notice in writing to the other party terminate this Agreement with effect from the date of service of such notice if:
12.1 the other party commits a material breach of this Agreement which is not remedied, or does not otherwise cease to be material, within 30 days after the non-breaching party has given written notice to the breaching party identifying the breach and requiring it to be remedied; or
12.2 the other party passes a resolution for winding up or a court of competent jurisdiction makes an order that the other party be wound up (in either case) otherwise than for the purpose of bona fide reconstruction or amalgamation; or
12.3 A receiver, manager, administrator or administrative receiver is appointed in respect of the other party’s business or any part thereof; or
12.4 the other party makes or attempts to make any arrangement with or for the benefit of its creditors or is unable to pay its debts as they fall due; or
12.5 the other party ceases to carry on business; or
12.6 Any event occurs in relation to the other party which is analogous under any foreign jurisdiction to any of the events referred to in Clause 12.3 above.
13 Consequences of Termination
13.1 General
Termination of this Agreement, for whatever cause, shall be without prejudice to the rights of either party accrued prior thereto, including without limitation any right to payment of any sum and any right to sue in respect of any antecedent breach of this Agreement, and termination shall not affect any provision of this Agreement which, in order to give full effect to its meaning, needs to survive such termination (and all such provisions shall survive such termination to the extent necessary to give full effect to their meanings).
13.2 Licenses
13.2.1 If this Agreement is terminated by Bluebrick Studios Limited then all licenses hereby granted shall forthwith and automatically terminate.
13.2.2 If this Agreement is terminated by the Client then such licenses shall survive termination of this Agreement but:
13.2.2.1 such licenses may be terminated by Bluebrick Studios Limited at any time by written notice to the Client having immediate effect if the Client commits a material breach of the terms thereof which is not remedied, or does not otherwise cease to be material, within 30 days after Bluebrick Studios Limited has given written notice to the Client identifying the breach and requiring it to be remedied
13.2.2.2 Such licenses shall forthwith and automatically terminate (without service of any notice by Bluebrick Studios Limited) if any event as referred to in Clauses 12.2 to 12.6 inclusive occurs in relation to the Client.
14 Miscellaneous
14.1 Notices
Any notice given hereunder shall be in writing and service thereof shall be effected either by fax, first class pre-paid post or personal delivery. The address for service shall be 55 Ickleford Road, HITCHIN SG5 1TS, UK. Any notice served by fax shall be deemed to have been served at the time of dispatch. Any notice served by first class pre-paid mail shall be deemed to have been served 48 hours after the time of delivery into the custody of a post office. Any notice served by personal delivery shall be deemed to have been served at the time of such personal delivery.
14.2 Entire Agreement and Amendments
This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all prior representations, agreements, negotiations or understandings with respect thereto, whether oral or in writing. Any amendment to this Agreement shall not be effective unless it is made in writing, expressly purports to amend this Agreement and is executed by both parties. In particular, but without prejudice to the generality of the foregoing, unless Bluebrick Studios Limited expressly agrees in writing that the same shall apply and operate as an amendment to this Agreement, no terms or conditions referred to in any order of the Client for Services (whether the Client’s standard terms and conditions of purchase or otherwise) shall apply.
14.3 Assignment
Bluebrick Studios Limited may sub-contract such of its obligations hereunder as it may decide. Subject thereto, neither party may except as expressly stated herein assign, sub-contract or delegate its rights or obligations under this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld in the case of an assignment of the full rights and obligations under this Agreement by either party to a subsidiary or associated company of that party. If either party consents to an assignment by the other, then the first
party shall upon the request of the assigning party execute an appropriate agreement novating this Agreement to the assigning party’s chosen assignee.
14.4 Waiver
Any failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor deemed to be a waiver of that party’s rights under this Agreement and shall not in any way affect the validity of the whole or any part of this Agreement nor prejudice that party’s right to take subsequent action. Any waiver by either party of its rights under this Agreement shall not operate as a waiver of any subsequent breach.
14.5 Severability
If the whole or any part of any provision of this Agreement is determined to be invalid or unenforceable then such provision or part thereof shall be severed from the body of this Agreement which shall continue to be valid and enforceable to the fullest extent permitted by law.
14.6 Disputes
14.6.1 The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiation between representatives of the parties who are duly authorised to resolve the dispute or claim
14.6.2 If such dispute is not resolved through such good faith negotiations within 14 days, the parties shall attempt in good faith to resolve the dispute through an alternative dispute resolution (“ADR”) procedure as recommended to the parties by the Centre for Dispute Resolution in England
14.6.3 If the matter has not been resolved by an ADR procedure within 14 days of the initiation of such procedure, or if either of the parties will not participate in such ADR procedure, the parties shall be entitled to resolve the dispute or claim by recourse to the courts
14.6.4 In the event of the dispute being referred to the courts under Clause 14.6.3;
14.6.5 Any controversy or claim of any nature arising out of or relating in any manner whatsoever to this Agreement or any breach of any terms of this Agreement shall be governed by and construed in accordance with the laws of England; and
14.6.6 Each party irrevocably acknowledges and agrees that the Courts of England shall have exclusive jurisdiction to resolve any controversy or claim of whatsoever nature arising out of or relating in any manner to this Agreement, any terms of this Agreement or any breach of this Agreement.