Terms of Business

Definitions and Interpretations

1.1 In these Terms, unless the context otherwise requires:

“Agreement” means these Terms of Business and any Statement of Work;
“Background IP” means Neverbland’s proprietary software or Intellectual Property Rights incorporated in or forming part of the Deliverables which existed prior to the commencement of the Project;
“Client” means a company entering into an Agreement with Neverbland for it’s Services
“Client Materials” means the content and materials provided to Neverbland by the Client from time to time for incorporation in the Deliverables
“Deliverables” means the outputs described in the Statement of Work that are to be supplied by Neverbland to the Client;
“Fees” means any fees payable by the Client to Neverbland in connection with this Agreement;
“Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off, including all 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;
“Neverbland” means Neverbland Services Ltd, a company incorporated in England and Wales under number 13610260, whose registered office is at First Floor, 67-70 Charlotte Road, Shoreditch, London, EC2A 3PE.
“Project” means the specific scope of work agreed and detailed within the Statement of Work
“Services” means the strategic, creative and technical activities undertaken by the project team to deliver against the brief.
“Statement of Work” means the contract between Neverbland and The Client that specifies the project scope, deliverables, process, schedule and fees.
“Third Party Products” means any third party software or Intellectual Property Rights incorporated in or forming part of the Deliverables.

1.2 Any of the foregoing definitions apply, as the context may require, to the singular or the plural form of the term used.

1.3 In this Agreement:

clause headings and the table of contents are inserted for ease of reference only and shall not affect construction;
references to “writing” or cognate expressions includes a reference to email, Slack messaging or comparable means of communication;
words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice a versa, words importing the singular shall be treated as importing the plural and vice a versa, and words importing whole shall be treated as including a reference to any part thereof; and
references to clauses are to the clauses of this Agreement; and
references to “hrs” are to hours during a business day. So for example an obligation to do something within 48 hrs is determined without reference to any time over a weekend or bank holiday.

Neverbland’s Obligations

2.1 Neverbland will use reasonable endeavours to ensure that:

the Services are carried out in a good and workmanlike fashion and with the care, skill and diligence required in accordance with the practice and standards prevailing in the industry; and
resources will be utilised as effectively as possible within the context of the Project in order to best meet the Deliverables in line with how they are specified in the Statement of Work.

Client’s Obligations

3.1 The Client acknowledges that Neverbland’s ability to provide the Services is dependent upon the full and timely cooperation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the information and data the Client provides to Neverbland. Accordingly, the Client shall provide Neverbland with access to, and use of, all information, data and documentation reasonably required by Neverbland for the performance by Neverbland of its obligations under this agreement.

3.2 The Client shall provide the necessary Materials to Neverbland in a timely manner (and at the latest within 48 hours of a request from Neverbland) and in any format reasonably requested by Neverbland.

3.3 The Client shall be responsible for the compliance of the Materials and ensure they do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights);

3.4 The Client acknowledges that project processes facilitate the need for continuous review of external and internal information which may impact prioritisation of activities and therefore the final deliverables. This process will be managed collaboratively to ensure there is alignment and transparency regarding budget utilisation, timescales and any changes to the specification of Deliverables.

Price and Payment

4.1 In consideration of Neverbland providing the Services in accordance with the Statement of Work, the Client shall pay Neverbland the Fees, as set out in the Fees section.

4.2 If any payment is not paid to Neverbland within 7 days after the relevant due date and without prejudice to any other rights and remedies available to Neverbland, Neverbland may, without liability to the Client, suspend its performance of the Services under this agreement until such outstanding payment is received and Neverbland shall be under no obligation to provide any or all of the Services while the outstanding Fees remain unpaid. Neverbland also retains the right to restrict or withdraw access to deliverables, files or 3rd party platforms until relevant payment is made.

4.3 If Neverbland has not received payment within 7 days after the due date, Neverbland may elect to charge interest on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgement.

4.4 In relation to payments disputed in good faith, interest under clause 4.3 is payable only after the dispute is resolved, on sums found or agreed to be due, from 7 business days after the dispute is resolved until payment.

4.5 All Fees, unless stated otherwise in the Statement of Work:

are payable in pounds sterling;
are exclusive of value added tax, unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees.

4.6 The Fees for each of the Services provided may increase from time to time in consultation with the Client upon 30 days notice in writing, save that we shall only make such increase once in a calendar year. If the Client is unhappy with the increase, it may terminate this Agreement under clause 12. In any circumstance the fees agreed in any executed SOW will take precedence.

Project Management

5.1 Each party shall appoint a project manager who shall:

provide professional and prompt liaison with the other party; and
have the necessary expertise and authority to commit the relevant party.

5.2 The project managers will be jointly responsible for delivering the project through effective and regular communication in line with the processes, or activities, specified in the Statement of Work.

Review and Acceptance

6.1 Neverbland will provide the Client with an opportunity to review and feedback on Deliverables as part of the project process. The number of feedback loops is limited to two, unless specified otherwise in the Statement of Work.

6.2 Feedback must be provided in a timely manner and at the latest within 48 hours of a request from Neverbland, unless specifically agreed otherwise in writing

6.3 Feedback must be reasonable in so that it can be actioned within the time allowed in the project budget and schedule.

6.4 Delays by the Client to providing feedback may block progress and impact the utilisation of project resources. In this case, this is the responsibility of the Client and any related time wastage will be drawn from the project budget, which may lead to budget overrun.

Credits

7.1 Neverbland may include within the Deliverables a credit notice in a position and with the degree of prominence as may be agreed with the Client, with the Client to have final approval.

7.2 Neverbland may use the Client’s business name, corporate name, trade mark or any other distinctive name, logo or device in its publicity releases, advertising (including client lists) and other commercial communication material for the purposes of highlighting that the Client is a client of Neverbland, with the Client’s prior approval of the content and placing of any such communication.

Intellectual Property

8.1 All Intellectual Property Rights in the Deliverables, the Materials and any other content created as a result of this agreement but excluding the Background IP, arising in connection with this Agreement shall be the property of the Client.

8.2 Subject to full payment of all Fees, Neverbland assigns absolutely with full title guarantee all such Intellectual Property Rights to the Client. The parties shall execute all documents necessary to give effect to this clause 8.2. Should payment be withheld, Neverbland reserves the rights to the associated Intellectual Property Rights and to hold software as lien.

8.3 Neverbland shall not use or re-create the look and feel of the Deliverables or anything substantially similar to it.

Confidentiality

9.1 Neverbland and the Client agree not to:

disclose any information whether technical or commercial (including all specifications, drawings and designs, business plans and strategies, disclosed in writing, orally or by inspection of documents or during discussions between the parties) which it receives from the other party and which is identified as confidential or proprietary by the other party or the nature of which is clearly confidential or proprietary or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure (“Confidential Information”); or
make any use of any such Confidential Information other than for the purpose of performance of this Agreement.

9.2 Neverbland agrees that it will not at any time or in any manner, either directly or indirectly, use any Confidential Information for the Neverbland’s own benefit, or divulge, disclose, or communicate in any manner any Confidential Information to any third party without the prior written consent of the Client. Neverbland will protect the Confidential Information and treat it as strictly confidential. Neverbland will not, under any circumstances, contact any of the Client’s end clients directly.

9.3 Each party may disclose Confidential Information received from the other to its responsible employees, consultants, subcontractors or suppliers who need to receive the information in the course of performance of this Agreement and who have entered into an agreement containing appropriate confidentiality provisions, provided that that party shall be and shall remain responsible to the other party in respect of any such disclosure or use of such Confidential Information.

9.4 The confidentiality obligations in this clause shall not apply to any information which:

is or subsequently becomes available to the general public other than through a breach by the receiving party;
is demonstrably already known to the receiving party before disclosure by the disclosing party;
is developed through the independent efforts of the receiving party; or
the receiving party rightfully receives from a third party without restriction as to use.

9.5 Upon termination or expiration of this Agreement, each party shall return or destroy (at its election) all Confidential Information obtained from the other party and all copies thereof.

9.6 The obligations of confidentiality shall not be affected by the expiry or termination of this agreement.

Warranty and Liability

10.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

10.2 Neverbland shall use its best endeavours to complete each Project by the date specified in the Statement of Work.

10.3 Neverbland warrants that the Deliverables will be developed to the best standard allowed by the project process, budget and schedule.

10.4 Neverbland shall inform the Client in advance of any third party software that will incur a cost and is required to facilitate delivery of the project Deliverables. Where Neverbland is required to, it will purchase licences and pass costs on to the Client.

10.5 Nothing in this agreement shall operate to exclude or limit either party’s liability for death or personal injury caused by its negligence or fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law.

10.6 Neither party shall be liable to the other for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

10.7 Neverbland shall indemnify the Client for any breach of this agreement as a result of fraud or wilful wrongdoing.

10.8 Neverbland shall not in any event be liable to the Client under this Agreement in contract, tort or otherwise or be deemed to be in breach of its obligations under this Agreement:

10.9 the Client’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £50,000.

Data Protection

11.1 The Parties agree that, to the extent Neverbland processes any Personal Data on behalf of the Client:

it shall act only on instructions from the Client; and
it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

11.2 In this clause 11, “Personal Data” has the meaning given in the Data Protection Act 2018.

Termination

12.1 This Agreement may be terminated by notice in writing having immediate effect in any of the following events:

by Neverbland, if the Client fails to pay any sum payable under this Agreement when due and such sum remains outstanding more than thirty (30) days after notice from Neverbland to the Client requiring it to be paid;
by either party for any reason , by giving at least (30) days’ notice. This timeframe may be extended for larger projects with the relevant SOW. In this case the terms in the SOW will take precedence;
by either party, if the other commits any material breach of this Agreement and, in the case of a material breach capable of remedy, fails to remedy the same within five (5) days after receipt of a written notice giving particulars of the breach and requiring it to be remedied;
by either party, if the other gives notice to its creditors or any of them that it has suspended or is about to suspend payment or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if an order shall be made or resolution passed for the winding up of the other (otherwise than for the purpose of and followed by a reconstruction or amalgamation) or if an administration order shall be made in respect of the other or if the other shall become insolvent or shall make any assignment for the benefit of creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt; or
by either party, if the other suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business

12.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

12.3 Termination of these Terms shall be without prejudice to the accrued rights, remedies, obligations or liabilities of the Client or Neverbland prior to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

Consequences of Termination

13.1 The Client shall pay all Fees payable in respect of the work undertaken by Neverbland at the date of termination which has been completed prior to the date of termination. In addition the Client shall be liable to pay for 10 working days of booked resources on the Project in order to cover transition costs.

13.2 Any licence granted to Neverbland shall cease upon termination (however occurring) of this Agreement.

13.3 If this Agreement is terminated (however occurring), Neverbland shall, subject to payment of its reasonable fees calculated on a time and materials basis, cooperate fully with the Client to ensure an orderly migration to a new service provider.

13.4 Subject to full payment of any outstanding fees Neverbland shall promptly return all Materials and all copies of the Deliverables to the Client.

Notices

14.1 Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement (or such other address as the other party gives notice of). Notices should be sent by email. Correctly addressed email shall be deemed to have been received instantaneously on transmission, provided that they are sent to the correct email address and haven’t bounced or been met with an out of office reply.

14.2 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.

Miscellaneous

15.1 Neither party shall be liable to the other for any delay in performance or failure to perform its obligations under these Terms where such delay or failure is due to circumstances beyond its reasonable control such circumstances including fire, flood, government act and act of God. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this agreement by giving 5 days’ written notice to the affected party.

15.2 The Client may not assign or purport to assign this Agreement or any of its obligations thereunder without Neverbland’s prior written consent.

15.3 Save as expressly provided in this Agreement, these Terms and any relevant Statement of Work shall operate to the entire exclusion of any other agreement or understanding of any kind between the parties hereto preceding the date of the relevant Statement of Work and in any way relating to the subject matter of this Agreement.

15.4 This Agreement constitutes the whole agreement and understanding of the Parties as to its subject matter and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in these Terms.

15.5 In the event of a conflict between the terms of these Terms and the Statement of Work order form, the Statement of Work shall prevail.

15.6 This Agreement is personal to the parties and is not intended to nor shall confer a benefit on any third party. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

15.7 Any amendment to this Agreement shall be in writing, signed by the parties and expressed to be for the purpose of such amendment.

15.8 This Agreement shall not constitute or be deemed to constitute a partnership between the parties and neither party shall be or be deemed to be an agent of the other for any purpose whatsoever and neither party shall have any authority or power to bind the other in any way.

15.9 Each party acknowledges that in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.

15.10 All rights, remedies and powers conferred upon the parties are cumulative and shall not be deemed or construed to be exclusive of any other rights, remedies or powers now or hereafter conferred upon the parties by law or otherwise and any failure at any time to insist upon or enforce any such right, remedy or power shall not be construed as a waiver thereof.

15.11 The terms of this Agreement are agreed between the Parties to be reasonable but if any clause or part thereof of this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other clause or part thereof all of which shall remain in full force and effect.

15.12 This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Either party to these Terms may enter into it by signing any such counterpart.

15.13 This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.

15.14 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

15.15 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Restrictive Covenants

16.1 Neverbland and the Client mutually covenant we will not, in any Relevant Capacity:

for a period of twelve months from the Covenant Start Date, solicit or entice or cause to be solicited or enticed, business involving products or services of a type provided by the Company or any Associated Entity from any customer with whom (in each case) you had business dealings on behalf of the Company or any Associated Entity during the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment; or
for a period of twelve months from the Covenant Start Date solicit or entice to leave their employment any Key Employee employed or engaged at the Covenant Start Date (or during the twelve months prior to the Covenant Start Date) by the Company or any Associated Entity (with the exception of junior and administrative staff) with whom, in each case, you had dealings in the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment. This restriction shall apply regardless of whether the solicitation involves a breach of contract on the part of the person solicited or enticed; or
for a period of twelve months from the Covenant Start Date, offer employment, engagement, partnership or membership of an LLP to or otherwise employ or engage or go into partnership or membership of an LLP with or offer or grant any other ownership interest to any Key Employee employed or engaged at the Covenant Start Date (or during the twelve months prior to the Covenant Start Date) by the Company or any Associated Entity (with the exception of junior and administrative staff) or to a member or partner of any Associated Entity with whom, in each case, you had dealings in the twelve months prior to the Covenant Start Date or in relation to which you have gained any Confidential Information by virtue of your employment. This restriction shall apply regardless of whether the solicitation involves a breach of contract on the part of the person solicited or enticed;
Whilst you agree that the restrictions in this clause are fair and reasonable, each of those restrictions is intended to be separate and severable. If any restriction is held to be unreasonably wide but would be valid if part of the wording were deleted, such restriction will apply with the necessary wording deleted to make it valid. If you are offered new employment, engagement, partnership or membership of an LLP, before entering into any related contract you will provide a copy of this contract to the party making the offer.
The restrictions in this clause apply to you acting directly or indirectly and on your own behalf or on behalf of, or in conjunction with, any firm, company or person.