1.1 These Conditions shall apply as between Articulate(London) Ltd t/a Articulate Marketing(Company Number 07572337)(Articulate), a limited company whose registered office is at Hikenield House, East Anton Court, Icknield Way, Andover, SP10 5RG, and the Client in respect of the Services provided under the Contract.
1.2 In these Conditions the following words and phrases shall have the following meanings unless the context requires otherwise:
“Agreed Purposes” the performance of the Contract and any other purpose agreed in writing between the parties from time to time;
“Articulate Material” any Documents or other materials, and any data or other information provided by Articulate either in connection with or relating to the Services;
“Charges” Articulate’s charges as set out in the Letter of Engagement or the Scope of Work or the Contract for the provision of the Services unless otherwise expressly agreed with the Client;
“Client” the person, company, firm or entity being party to the Contract and to whom the Services are provided;
“Client Material” any Documents or other materials, and any data or other information provided by the Client and relating to the Services;
“Conditions” these terms and conditions as amended from time to time in accordance with clause 14.7;
“Confidential Information” has the meaning given to it in clause 13 of these Conditions;
“Contract” the contract between Articulate and the Client(in whatever form) for the provision of the Services;
“Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures” have the meanings set out in the Data Protection Legislation in force at the time.
“Data Protection Legislation” all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation(i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as(ii) the General Data Protection Regulation((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy(for so long as and to the extent that the law of the European Union has legal effect in the UK);
“Documents” includes, in addition to documents in writing, any map, data, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device(electronic or otherwise) embodying any data;
“Intellectual Property Rights” trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information(including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Letter of Engagement” the letter setting out the Services agreed to be provided under or pursuant to the Contract;
“Permitted Recipients” the parties to the Contract, the employees of each party and any third parties engaged to perform obligations in connection with these Conditions;
“Scope of Work” the document setting out the Services to be provided and the applicable Charges in respect of the Services;
“Services” the services agreed to be provided by Articulate to the Client and set out in the Letter of Engagement and/or Contract and may include any or all of the following services: consulting, copy writing services, proofreading services, training services and presentation preparation services.
“Shared Personal Data” the personal data to be shared between the parties under clause 5.1 of these Conditions. Shared Personal Data shall be confined to the names, postal and email address andhome, work and mobile telephone numbers of individuals who are in any way concerned with the Contract.
“Term” the period during which the Services are to be provided as set out in the Letter of Engagement or the period during which the Contract is in force whichever is the shorter unless the Contract is terminated in accordance with the provisions of these Conditions;
“VAT” value added tax.
2. Basis of Contract
2.1 An order for the Services shall only be deemed accepted when Articulate receives a signed acknowledgement of the Letter of Engagement at which point and on which date the Contract shall come into existence.
2.2 Any samples, descriptive matter or advertising issued by Articulate, and any descriptions or illustrations contained in Articulate’s marketing documentation and / or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 All proposals made, quotations given, instructions accepted and contracts entered into by Articulate with any person for the supply of the Services are subject to these Conditions to the exclusion of any other terms and conditions subject to which the Contract is accepted or purported to be accepted by the Client. Any changes or additions to the Services or these Conditions must be agreed in writing by Articulate.
2.4 Any quotation given by Articulate shall not constitute an offer, and is only valid for a period of thirty(30) days from its date of issue.
3.1 The Client pursuant to the Contract engages Articulate to provide the Services to the Client and Articulate agrees to provide the Services for the Term subject to these Conditions with reasonable care and skill.
3.2 Unless otherwise agreed by the parties in writing, the Client shall at its own expense supply Articulate with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable Articulate to provide the Services in accordance with the Contract and the Conditions. The Client shall ensure the accuracy of all Client Material and clarity of any instructions.
3.3 The Services shall in so far as is reasonably practicable be provided in accordance with the Scope of Work and Letter of Engagement but subject to these Conditions and shall be performed at such times as the Company shall in its sole discretion decide and during its normal business hours(09.00 to 18.00 Monday to Friday excluding United Kingdom public holidays).
3.4 Articulate may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Services.
3.5 The Client shall afford to Articulate all reasonable co-operation in all matters relating to the performance of Articulate’s obligations under the Contract. In particular but without limitation to this Clause, the Client shall:
3.5.1 provide Articulate, its agents, sub-contractors and employees, in a timely manner and at no charge with all such Client Material and other information as Articulate may reasonably request under the Contract;
3.5.2 where requested by Articulate, review and provide feedback on all materials prepared by Articulate in accordance with the Contract or within seven days.
3.6 Articulate may elect to suspend the provision of Services if the Client is in breach of the provisions of the Contract or these Conditions either immediately or(at its entire discretion) by first serving notice of its intention to suspend provision of the Services and allowing the Client seven(7) days to remedy such breach. Any such suspension shall be without prejudice to the payment obligations and liability of the Client.
4. Charges and Payment
4.1 Unless otherwise specified in the Scope of Work, Articulate’s Charges for the relevant Services are due and payable within thirty(30) days of the date of invoice and will be made in full and cleared funds to the bank account nominated in writing by Articulate in GBP pounds sterling.
4.2 All Charges and sums quoted(unless otherwise specified) are exclusive of any VAT, for which the Client shall be additionally liable at the applicable rate from time to time.
4.3 If any Charges are not paid by their due date, interest shall accrue on the unpaid amount at the rate of 5 per cent per annum above the base rate from time to time of Coutts & Co Bank from the time when they become due until the date of payment. If any payments remain outstanding for thirty(30) days or more, the Client’s access to the Services may be suspended. The Client agrees to pay all fees incurred by Articulate in collecting outstanding Charges or sums.
4.4 Subject to any special terms agreed in writing by the parties, the Client shall pay the Charges and any expenses together with such additional sums as are agreed between Articulate and the Client for the provision of the Services or which, in Articulate’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Material or any other cause attributable to the Client.
4.5 In the absence of agreement, Articulate’s standard charges and rates shall apply. Articulate shall be entitled to vary its standard charges from time to time by giving not less than fourteen(14) days’ written notice to the Client.
4.6 The Client shall reimburse Articulate for all out of pocket expenses, travel costs and expenses and disbursements incurred by it in connection with the Services.
5. Authorisation and Materials
5.1 The property, copyright and any other Intellectual Property Rights in any Client Material shall belong to the Client.
5. 2 Unless otherwise agreed in the Letter of Engagement, the property, copyright and any other Intellectual Property Rights in the Articulate Material shall belong to Articulate, subject only to the right of the Client to use the Articulate Material during the Term.
5.3 The Client represents to Articulate and unconditionally guarantees that any Intellectual Property Rights contained in any text, graphics, photographs, designs, trademarks, information or other copyright work provided to Articulate for the Services are owned exclusively by the Client, or that the Client has permission from the rightful owner to use such material, and shall indemnify Articulate and its sub-contractors from any claim, liability or suit arising from the use of such materials furnished by the Client.
5.4 The Client confirms and authorises Articulate to access and use the Client’s data, database and materials for the purposes of the project and provision of the Services. The Client shall indemnify Articulate on a full indemnity basis against any loss, damages, costs, expenses or other claims arising from any infringement resulting from use of the information supplied.
5.5 The Client warrants that any Client Material and its use by Articulate for the purpose of providing the Services will not infringe the copyright or other rights of any third party. The Client shall indemnify Articulate against any loss, damages, costs, expenses or other claims arising from any such infringement.
6. Data Protection
6.1 Each party acknowledges that one party(the Data Discloser) will regularly disclose to the other party for the Agreed Purposes(the Data Recipient) Shared Personal Data collected by the Data Discloser.
6.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation with regard to Shared Person Data, and any material breach of the Data Protection Legislation with regard to Shared Personal Data by one party shall, if not remedied within thirty(30) days of written notice from the other party, give grounds to the other party to terminate this Contract with immediate effect.
6.3 Each party shall:
6.3.1 ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
6.3.2 give full information to any data subject whose personal data may be processed under these Conditions of the nature of such processing. This includes giving notice that, on the termination of this Contract, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
6.3.3 process the Shared Personal Data only for the Agreed Purposes;
6.3.4 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
6.3.5 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
6.3.6 not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
complies with the provisions of Article 26 GDPR(in the event the third party is a joint controller); and
ensures that(i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR;(ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or(iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
6.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
6.4.1 consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
6.4.1 promptly inform the other party about the receipt of any data subject access request;
6.4.2 provide the other party with reasonable assistance in complying with any data subject access request;
6.4.3 not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
6.4.4 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.4.5 notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
6.4.6 at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Contract unless required by law to store the personal data;
6.4.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 6.4; and
6.4.8 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation and the procedures to be followed in the event of a data security breach.
7. Completion and Acceptance
7.1 Articulate and the Client will work together to complete any relevant project in a timely manner. Articulate agrees to work expediently to provide the Services on the agreed terms and no later than the date provided in the Contract. The parties shall agree in writing the relevant sign off and acceptance for the Services in accordance with Articulate’s standard procedures.
7.2 The Client shall be deemed to have accepted any work done as part of the Services if it has not been rejected on or before the fourteenth(14th) day after it was completed.
7.3 Articulate shall use its reasonable endeavours to meet any performance dates specified in the Contract but any such dates shall be estimates only and time shall not be of the essence in respect of the performance of the Services.
8. Intellectual Property Rights
8.1 The tangible work product produced by Articulate specifically for the Client including any business and marketing plan, creative designs, copy or artwork, mechanical art, illustrations, photographs, letters, brochures, mailing packages and advertisements, shall become the sole property of the Client if and when Articulate receives payment of its Charges in full . Articulate agrees that copies of such work product may not be provided to a third party without the express written consent of the Client.
8.2 Save as otherwise provided, any Intellectual Property Rights in any Client database shall belong to the Client, and the Intellectual Property Rights in any software applications or tools, specifications, material, procedures, know-how, techniques, processes or data of Articulate used in the preparation of or which is embedded within the material produced by Articulate shall remain the property of Articulate.
8.3 All confidential information, copyright works, database rights, toolsets, inventions and patent rights and all other Intellectual Property Rights subsisting at the commencement of the Services and which may be utilised by either party in the course of performing the Services or the project shall remain the property of the originating party.
8.4 Notwithstanding any provision to the contrary, nothing in these Conditions or in relation to any project or the provision of Services shall deprive Articulate of, or grant the Client any rights of any kind to or in, any of the things listed in Clause 8.2 or any of Articulate’s research, business name, domain name, web-site content, know-how, functionality or methodology document, supplementary knowledge, design or technology process including as used by Articulate in its general business or for its database management business.
8.5 In the event that new inventions, designs or processes evolve in performance of the Services or as a result of the Contract, the Client acknowledges that the same shall be the property of Articulate unless otherwise agreed in writing by Articulate.
9. Limitation of Liability
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Articulate’s total liability whether in contract, tort(including negligence), breach of statutory duty, indemnity, or otherwise, arising under or in connection with the Contract shall not in any circumstance exceed the amount of the Charges paid by the Client to Articulate for the provision of the Services during the preceding 12 months(or lesser period, if the Contract began less than 12 months previously).
9.2 Articulate shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising in connection with any Client Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or any other fault of the Client.
9.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982(title and quiet possession).
9.4 The following types of loss are wholly excluded:
Loss of profits;
Loss of sales or business;
Loss of agreements or contracts;
Loss of anticipated savings;
Loss of use or corruption of software, data or information;
Loss of or damage to goodwill; and
Indirect or consequential loss.
9.5 The Client agrees and acknowledges that the allocation of risk in this clause is fair and reasonable in the circumstances having been taken into account by Articulate in setting the level of Charges and agreeing the extent of the Services.
9.6 Articulate makes no express warranties and all warranties, terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
9.7 Articulate does not guarantee, and nothing contained in the Contract or these Conditions shall be construed as a guarantee, that the Services performed or to be performed by Articulate will achieve any projected level of results. Additionally, Articulate does not guarantee, and nothing contained in the Contract or these Conditions shall be construed as a guarantee that the Services will be provided error-free or without omission, interruption, or be completely accurate. Articulate does not give any guarantees regarding the currency or applicability of the Services.
10. Term and Termination
10.1 The Term of the Contract shall be as specified in the Letter of Engagement.
10.2 The Contract may be terminated:
10.2.1 by Articulate immediately if the Client commits a material breach of any of the terms of the Contract and(if such breach is capable of remedy) fails to remedy that breach within thirty(30) days of the Client being notified in writing of the breach;
10.2.2 by Articulate immediately if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than seven(7) days after being notified in writing to make such payment or allows its financial position to deteriorate to such an extent that in Articulate’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2.3 by either party immediately if the other party:
is unable to pay its debts(within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution(otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction;
suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
10.3 Any termination of the Contract pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
10.4 On termination of the Contract for any reason, the Client shall:
10.4.1 immediately pay to Articulate all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Articulate may submit an invoice, which shall be payable immediately on receipt;
10.4.2 return all of the Articulate Materials which have not been fully paid for. If the Client fails to do so, then Articulate may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
11. Force Majeure
Articulate shall not be liable for any default(or deemed to be in breach of Contract) by reason of any delay due to any circumstance beyond its reasonable control including without limitation failure of a utility service, default of suppliers or sub-contractors, act of God, war, riot, civil commotion, malicious damage, accident, fire, flood, storm, breakdown of machinery, technical problems, server or connection issues or computer viruses.
During the Term and for a period of six(6) months thereafter(except with the prior written consent of Articulate), the Client shall not induce, solicit or employ(whether as an employee, agent, partner or consultant or any other form of employment or engagement) any employee of Articulate directly associated with the Contract and the provision of the Services or other management of the Contract or any significant part of it.
13. Confidential Information
13.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any information concerning the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, trade secrets or software which is not in the public domain(unless because of a disclosure in breach of this clause)(“Confidential Information”) of the other party, except as permitted by clause
13.2 Each party may disclose the other party's Confidential Information:
13.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
13.2.3 that information was available to the disclosing party on a non-confidential basis before disclosure by the disclosing party.
13.3 Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
14.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
14.1.1 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
14.1.2 sent by email to the address as notified by that party from time to time.
14.2 Any notice or communication shall be deemed to have been received:
14.2.1 if delivered by hand, on signature of a delivery receipt;
14.2.2 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; and
14.2.3 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, 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.
14.3 This clause 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.
15. Acknowledgements and General Matters
15.1 The parties acknowledge that the Services are not fault free and may be impaired by matters, conditions or circumstances beyond Articulate’s control and the Client will be entitled to the quality of Service generally provided by Articulate to their customers.
15.2 It is acknowledged that Articulate shall not be liable for breach of contract or any other failure or defect in performance of the Services(or any other work or project) which are performed other than by employees of Articulate or are performed by the Client or its agents or their employees or by any other third parties.
15.3 Each party acknowledges that in entering into the 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.4 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provisions eliminated.
15.5 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.6 Articulate may employ sub-contractors for carrying out any part of the Services.
15.7 These Conditions(together with the terms of any Letter of Engagement and/or Scope of Work) constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to the subject matter of the Contract and may not be varied except in writing between the parties.
15.8 Nothing in these Conditions shall limit or exclude any liability for fraud.
15.9 In the event of any conflict between the provisions of these Conditions and the Letter of Engagement or Scope of Work, these Conditions shall prevail and the parties shall adopt the meaning which best gives commercial efficacy to the Contract having regards to Articulate’s original intention.
15.10 The parties acknowledge and agree that the Contract shall not establish or constitute any relationship of partnership, joint venture, franchise or agency between the parties and, except as otherwise expressly provided or agreed, neither party shall have the power to bind the other without the other’s prior written consent.
15.11 The Client shall not assign all or any of its rights or obligations under this Contract without the written consent of Articulate.
15.12 Except as expressly provided(including in respect of indemnity), the parties do not intend any term of this Contract to create any rights or benefits to any other party other than the parties to the Contract or to be enforceable pursuant to the Contracts(Rights of Third Parties) Act 1999.
15.13 The Contract and these Conditions shall be governed by the laws of England and Wales, and the Client and Articulate submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute arising under them.