Terms & Conditions

FABYL STANDARD TERMS AND CONDITIONS

  1. About us
    1. Fabyl Limited (company number 11034126) (we, our, us and Fabyl) is a company registered in England and Wales and our registered office is at Studio 4 224 Shoreditch High Street, London, England, E1 6PJ.
  2. Our Agreement with you
    1. The Fabyl Order Form (as defined below) and these Fabyl standard terms and conditions (Terms and Conditions) apply to the supply of Services and/or Deliverables (as defined below) by us to you and constitute the Agreement. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
    2. The Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
    3. Where capitalised terms are used but not defined below, they shall carry the meaning given to them in the Order Form.
  3. Placing an order and cancelling your order
    1. Fabyl will supply the Services and/or Deliverables expressly set out in the Order Form subject to this Agreement.
    2. Order Form shall mean:
      1. an order form document provided by us to you; and/or
      2. any mutually agreed instructions given by you to us in any other way including, without limitation, in writing (including email) and/or verbally.
    3. Subject to clause 3.4, you may modify or cancel an order provided that we have not already commenced the provision of Services and/or Deliverables or incurred third-party costs and expenses.
    4. On any cancellation of your order, you agree that we shall be entitled to keep the Advance (as defined below) and to invoice you for any additional sums or remuneration depending on the Services and/or Deliverables provided, the commitment of our time, any loss suffered by us, and the resources made available to you. You acknowledge that the Advance is reasonable, and that it is reasonable for Fabyl to retain all of the Advance, and that we may invoice you for any additional sums in the event of your default, bearing in mind our anticipated costs and expenses.
  4. Our Services and Deliverables
    1. We warrant to you that the Services will be provided in an efficient and professional manner using reasonable care and skill. Services shall mean the services and/or Deliverables as specified in the Order Form.
    2. To the extent we provide you with any Deliverables in the Order Form as part of the Services, they shall be of satisfactory quality. Deliverables shall mean any works, assets, products and materials in whatever form or medium (including, without limitation, designs, photographs, films and/or recordings) that are specified in the Order Form and are final rather than in draft form.
    3. Subject to clauses 7.3 and 7.5, we warrant that our provision of the Deliverables (to the extent directly created by us and excluding any Third-party Works and/or Client IP) to you shall not infringe any third-party intellectual rights or other rights.
    4. We will use reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates are estimates only and failure to perform the Services and/or provide the Deliverables by such dates will not be considered a breach of the Agreement.
  5. Your obligations
    1. You warrant, represent and undertake that:
      1. the terms of your order are complete and accurate;
      2. you shall cooperate with us in all matters relating to the Services and/or Deliverables;
      3. you shall provide us with such information and materials we may reasonably require in order to supply the Services and/or Deliverables, and ensure that such information is complete and accurate in all material respects;
      4. you shall obtain and maintain all necessary licences, permissions and consents which may be required;
      5. following your instructions shall not cause us to infringe the rights of any third parties and/or to breach any applicable laws; and
      6. you shall at all times comply with applicable laws.
    2. If our ability to supply the Services and/or Deliverables is prevented or delayed arising under or in connection with any breach of clause 5.1 (Your Default):
      1. we will be entitled to suspend performance of the Services and/or Deliverables until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services and/or Deliverables, in each case to the extent Your Default prevents or delays our performance under this Agreement. In certain circumstances Your Default may entitle us to terminate the Agreement under clause 12 (Termination);
      2. we will not be responsible for any costs or Losses (as defined below) you sustain or incur arising directly or indirectly from our failure or delay to perform the Services and/or Deliverables; and
      3. it will be your responsibility to reimburse us on written demand for any costs or Losses (as defined below) we sustain or incur arising directly or indirectly from Your Default.
  6. Charges
    1. In consideration of us providing the Services and/or Deliverables you shall pay our charges (Charges) as set out in your Order Form without set-off, counterclaim, deduction or withholding.
    2. You shall pay us a non-refundable payment of fifty percent (50%) of the Charges upon signature (or other agreement) of the Order Form (Advance). You acknowledge and agree that we will not be required to commence the Services and/or provision of Deliverables until we are in receipt of the Advance. The remainder of the payment due to us will be payable on completion of delivery of the Services and/or Deliverables.
    3. Without limiting our remedies under clause 3.4, if you wish to change the scope of the Services and/or Deliverables after we accept your order, and we agree to such change, we will modify the Charges accordingly and shall issue you with a revised Order Form.
    4. Our Charges are exclusive of VAT or any equivalent tax (if applicable). Where VAT is payable in respect of some or all of the Services and/or Deliverables you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
    5. Unless otherwise set out on the Order Form, the Charges are exclusive of all direct and identifiable out-of-pocket costs and expenses incurred by us in connection with the Services and/or Deliverables (Expenses), which you shall reimburse to us within thirty (30) days from the date of our invoice for such Expenses.
    6. We will send you an invoice to the invoicing email address set out on the Order Form (or as subsequently updated in writing), or your address set out in the Order Form, or your principal place of business. Payment is required thirty (30) days from the date of our invoice (Payment Term).
    7. If you fail to make a payment under the Agreement by the due date, then, without limiting our remedies under clause 12 (Termination), you shall have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  7. Intellectual property rights
    1. We hereby:
      1. grant you an exclusive licence to use, reproduce, maintain and, subject to our approval, modify the Deliverables;
      2. grant and confirm to you every consent under the present and future laws of every jurisdiction that may be required for the use of the Deliverables, without further liability or acknowledgement to us; and
      3. waive, and agree not to assert, any and all moral rights or similar rights or other non-transferable rights that we may have in relation to the Deliverables under the present or future laws of any jurisdiction,in each case in the territory (or territories), for the duration, in the media type(s), and for the project(s) and use(s) as specified on the Order Form (or where not so specified, in the United Kingdom, for one (1) year, and in digital media only). Other than as set out in this clause 7.1, you shall not use, reproduce, maintain or do anything with the Deliverables unless approved by us in writing.   
    2. To the extent that intellectual property rights in or comprised by any materials developed by or for us independently is supplied to you as part of the Services and/or Deliverables, you agree Fabyl shall retain full ownership of all right, title and interest in such materials including any intellectual property rights (Fabyl IP). If Fabyl IP is supplied for your use of the Services and/or Deliverables, we hereby grant you a non-exclusive licence to use, reproduce, maintain and, subject to our approval, modify the Fabyl IP for the territory (or territories), duration, media type(s), and for the project(s) and use(s) as provided for in clause 7.1.
    3. You acknowledge and agree that if any approval, licence or other clearance (Clearance) including, without limitation, location clearances, permits and permissions from any applicable authority or third party, and licenses/transfers of any intellectual property rights or other rights, consents or waivers in or comprised by any materials and/or intellectual property rights owned and/or controlled by third parties (Third-party Works) is required in respect of the Services and/or Deliverables, you shall procure any and all Clearance (including any related renewal or extension of any period, territory and/or media and any related costs, expenses or other liabilities).
    4. Despite anything express or implied to the contrary in this Agreement and notwithstanding that we may, in our discretion, permit you to make use of the Services and/or Deliverables prior to full payment, each grant of right, consent or waiver by us under this clause 7 is conditional on, and shall apply with effect from, timely payment in full of all monies due to us under this Agreement.
    5. While we shall not knowingly copy any Third-party Works in providing the Services and/or Deliverables, you accept that there may be certain unintentional similarities to Third-party Works and/or generic elements. We shall not be required to undertake (and do not warrant or otherwise assure) any trade-mark searches, copyright register searches or other due diligence in relation to the Services and/or Deliverables (Searches). You shall carry out all appropriate Searches in respect of the Services and Deliverables.
    6. To the extent that we incorporate any materials and/or intellectual property rights owned and/or controlled by you and/or supplied by you to us (Client IP) into any of the Services and/or Deliverables, you hereby grant us a non-exclusive licence to use, reproduce, maintain and modify such Client IP (i) throughout the universe; (ii) in perpetuity; and (iii) via any and all media (now or in the future known) for all purposes in connection with this Agreement.
    7. You warrant, represent and undertake that:
      1. you are able to enter into and perform this Agreement and to grant the rights expressed to be granted under this Agreement; and
      2. nothing in the Client IP or use of the Client IP does or will infringe or violate any intellectual property rights, applicable law or other rights.
  8. How we may use your personal information
    1. Each party agrees that the other party may hold and process personal data relating to the other party or its personnel for legal, personnel, administrative and management purposes and may make such data available to any other person(s) reasonably required to receive such data in connection with the provision of Services and/or Deliverables.
    2. Other than as set out in clause 8.1, you acknowledge and agree that you shall not provide us with personal data and our obligations under this Agreement shall not require us to process any personal data.
    3. Each party agrees that it shall at all times comply with the General Data Protection Regulation ((EU) 2016/679) as retained by the United Kingdom (UK GDPR) and the Data Protection Act 2018 and all other applicable data protection laws and regulations in respect of any personal data.
  9. Indemnity
    1. You shall indemnify us on demand for any and all claims, proceedings, actions, demands, damages, losses, liabilities, charges, penalties, fines, sanctions, costs and expenses (including reasonable legal expenses) (Losses) suffered or incurred by us as a result of any breach of your express warranties in this Agreement and/or for any breaches under clauses 7 (Intellectual Property) and 9.2.
    2. You acknowledge and agree that if we expressly warn you about any risk (e.g., if any licence, permission or Clearance is not or cannot be put in place for the Services and/or Deliverables) and you instruct us to proceed with the Services and/or Deliverables we shall not be liable or responsible to you for any failure to perform, or delay in performance of, any of our obligations under the Agreement. You shall indemnify us on demand against any Losses in connection with any such risk.
  10. Limitation of liability
    1. Nothing in the Agreement limits any liability: (a) for death or personal injury caused by negligence; (b) for any other liability which cannot be excluded or restricted by law; (c) for breach of any payment obligation; and (d) in connection with any indemnity.
    2. Subject to clause 10.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
      1. loss of profits;
      2. loss of sales or business;
      3. loss of agreements or contracts;
      4. loss of anticipated savings;
      5. loss of use or corruption of software, data or information;
      6. loss of or damage to goodwill; and
      7. any indirect, special or consequential loss, howsoever arising, even if advised in advance of the possibility of such loss or damage.
    3. Subject to clause 10.1 and 10.2, the liability of each of us to the other arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to an amount equal to the Charges paid or payable by you to us under the Agreement.
    4. Except as expressly set out in these Terms and Conditions, all warranties, conditions, terms and assurances of any kind are disclaimed and excluded to the fullest extent permitted by law.
  11. Confidentiality
    1. In this clause 11, Confidential Information means, in relation to either party, information (in any form) that is confidential to such party or to any third party to whom such party owes a duty of confidentiality (including the provisions of this Agreement, details of the Services and/or Deliverables, and information relating to such party or its business or affairs), but excluding confidential information which, at the time of its disclosure by such party, is lawfully and verifiably in the public domain otherwise than by breach of this Agreement, any third-party agreement or law.
    2. We each undertake that we will not at any time during the Agreement, and for a period of five (5) years after termination of the Agreement, disclose to any person any Confidential Information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 11.3.
    3. We each may disclose the other’s Confidential Information:
      1. to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Agreement. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 11; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    4. Each of us may only use the other’s Confidential Information for the purpose of fulfilling our respective obligations under the Agreement.
    5. Despite anything express or implied to the contrary in this Agreement, you acknowledge and agree that we may publicise that you are a Client of ours and you grant us permission to publicise the Services and/or Deliverables supplied to you on our website, social media platforms, or on any of our marketing materials in any and all media (now or in the future known).
  12. Termination, consequences of termination and survival
    1. Without limiting any other rights, either party may suspend or terminate the Agreement with immediate effect by giving written notice to the other if the other party:
      1. commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of being notified in writing to do so;
      2. fails to pay any amount due under the Agreement on the due date for payment;
      3. takes any step or action in connection with it entering administration, provisional liquidation or any composition or arrangement with creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      4. suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
    2. Despite anything express or implied to the contrary in this Agreement, we may terminate this Agreement at any time by giving you thirty (30) days’ written notice.
    3. On termination of the Agreement you must return all of the Deliverables which have not been fully paid for. If you fail to do so, then we may enter your premises and/or take any action to take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and must not use them for any purpose.
    4. Termination of the Agreement shall not affect either party’s rights or remedies that have accrued prior to the date of termination. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
  13. Events outside our control
    1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
    2. If an Event Outside Our Control takes place that affects the performance of our obligations under the Agreement:
      1. we will contact you as soon as reasonably possible to notify you; and
      2. our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for the supply of the Services and/or Deliverables with you after the Event Outside Our Control is over.
    3. You may cancel the Agreement affected by an Event Outside Our Control which has continued for more than ninety (90) days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred by us in the supply of the Services and/or Deliverables up to the date of the occurrence of the Event Outside Our Control.
  14. Communications between us
    1. Any notice to be given under this Agreement shall be in writing (including via email) and in English and shall be served by hand, pre-paid first-class post (or, if posted to or from the UK, an internationally recognised courier service) or email (if applicable) to:
      1. in your case, the postal address for your then-current principal place of business or the email address as set out in the Order Form; or
      2. in our case, the postal address for us as set out at the head of these Terms and Conditions; or
      3. such other postal address or email address as the recipient may designate by notice given in accordance with this clause.
    2. A notice shall be deemed to have been received (a) if delivered by hand, at the time of delivery, (b) if sent by pre-paid first-class post, 48 hours after posting (or, if sent by an internationally recognised courier service, 48 hours from the date of delivery to the courier service) or (c) if sent by email, at the time of successful transmission (except where such email gives rise to a system notification of failure of delivery).  Where, however, receipt occurs outside normal business hours in the recipient’s location, the notice shall be deemed to have been received at the start of the next such business hours.
    3. The provisions of this clause 14 will not apply to the service of any proceedings or other documents in any legal action.
  15. General
    1. Assignment and subcontractors. You may not assign or transfer the Agreement to anyone else without our prior written consent (not to be unreasonably withheld). We may assign or transfer this Agreement on written notice as part of any reorganisation of our business (including, without limitation, any acquirer of all (or substantially all) of its shares or assets). We may subcontract the Services provided that we shall at all times be liable for such subcontractors.
    2. Variation. Any variation of the Agreement only has effect if it is in writing and signed by you and us (or our respective authorised representatives). We may by written notice vary this Agreement with immediate effect to comply with applicable law.
    3. Waiver. If we do not insist that you perform any of your obligations under the Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
    4. Conflict. If there is any inconsistency between the Order Form and these Terms and Conditions, the Order Form shall prevail.
    5. Severance. Each clause of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining clauses will remain in full force and effect.
    6. Third party rights. The Agreement is between you and us. No other person has any rights to enforce any of its terms whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
    7. Governing law and jurisdiction. The Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.