Terms of Service
Terms of Service
1) Acceptance of Terms.
2. Services provided by Creative Spark
2.1 The details of the specific services (the “Services”) that you have asked Creative Spark to provide will, for each programme, be set out as a Statement of Work (SOW) on the Creative Spark Website and in the members area of Podia for that programme. Each SOW will be subject to the terms set out in this Agreement.
2.2 For each programme, Creative Spark will send you a SOW detailing the Services you have asked Creative Spark to provide for agreement by you prior to Creative Spark starting work on the Services. If there is any conflict between the terms set out in a SOW and this Agreement, the provisions of the SOW will prevail.
2.3 This Agreement provides a framework for us to work together. Each individual SOW incorporates the terms set out in this Agreement and forms a separate contract between Creative Spark and you relating to the Services detailed in that SOW.
2.4 During the term of this Agreement, if you would like us to vary the Services or to provide additional services for you and we agree to do so, we will issue a new SOW to cover those Services for you to sign before we start work. Any variations agreed by you and us will be recorded in writing.
3. Creative Spark Obligations
3.1 We will provide the Services to you in a professional manner with reasonable skill and care.
3.2 Any timeframes set out in a SOW are estimates only but will we try to carry out our obligations within those timeframes if you provide us with the information and instructions we require in a timely manner.
3.3 The SOW will state any documents, materials or information we agree to provide to you as part of the Services (“Deliverables”).
4. Client Obligations
4.1 You agree to provide to Creative Spark all tools, information, materials and documentation (“Client Information”) requested by Creative Spark in connection with the Services in a timely manner. We will rely on the Client Information and instructions provided to us by you or on your behalf without carrying out any checks on this, unless we agree to do this in the SOW.
4.2 Creative Spark may need you buy or buy a licence to use certain tools or information so that we can provide the Services to you. If this is required, you agree to do this promptly and to provide this information and/or access details to us promptly, so we can carry out the work.
4.3 You agree that you will respond promptly to communications from Creative Spark about work performed under this Agreement and any SOW. If you do not respond to us within 14 days, Creative Spark may, at its option, suspend work on your Services or terminate the SOW or this Agreement in part or as a whole as set out in clause 8 below.
4.4 You acknowledge that our ability to provide the Services is dependent on you carrying out your obligations under this Agreement and the relevant SOW.
4.5 The client is aware that the coaching is in no way to be construed as psychological counselling or any type of therapy. Coaching results are not guaranteed. The client enters into the coaching with the full understanding that they are responsible for creating their own results.
5. Fees and Payment Terms
5.1 You agree to pay Creative Spark the fees and expenses (the “Fees”) set out in the SOW. The SOW will set out when we will invoice for you for the Fees.
5.2 Unless otherwise set out in the SOW, we will charge you on a fixed fee basis. The SOW will also state the basis upon which expenses (if any) relating to the work will be charged to you.
5.3 Where you have paid an initial instalment and then change your mind and cancel your request for Services, if you are a business, your initial payment will not be refundable as Creative Spark will have set aside time to carry out your work so will still be entitled to charge you for this amount.
5.4 If we carry out any work for you which falls outside a SOW, we will charge you for that work at our then current hourly rate then in force and will invoice you when we complete that work or monthly, if the work continues for more than one month. We will agree this with you in writing before commencing the work.
5.5 Our Fees are exclusive of VAT and any other goods or services tax and we will charge this to you in addition, if applicable.
5.6 All invoices are payable on receipt. If you do not pay an invoice within 14 days, we may charge you interest at the rate set by law from time to time. You should notify us within 7 days if you disagree with anything included in our invoice.
6. Ownership of intellectual property
6.1 Any intellectual property rights that already exist prior to Creative Spark carrying out the Services for you will be retained by the party that owns them, but each party grants the other party the right to use their intellectual property rights to the extent necessary in connection with the provisions of the Services and use of the Deliverables in accordance with the relevant SOW.
6.2 Where the pre-existing intellectual rights are owned by a third party, the party providing this information, tool or material to the other is responsible for ensuring that it has obtained the necessary licence to use this in connection with the Services.
6.3 Subject to clause 6.1, you will own the intellectual property rights in any original work which form part of the Deliverables we provide to you as part of the Services, once you have paid all sums due to us under the SOW and this Agreement.
6.4 Any Deliverables are provided to you for use within your only business only. You should not provide this to any other person, unless we have agreed to this in writing or where this is required by law.
6.5 However, unless otherwise agreed, we retain the right to use or display any Deliverables in the marketing, advertising, or promotion of Creative Spark’s services. If you do not wish us to do this, you should notify us to this effect.
6.6 Creative Spark is not responsible for carrying out any trademark searches, trademark registrations, copyright registrations or any other service related to the protection of legal rights in the Services or Deliverables. It is your responsibility to take any steps necessary to protect your intellectual property rights relating to your business.
6.7 You hereby agree to indemnify Creative Spark and keep Creative Spark indemnified for any liabilities, damages, losses, costs or expenses (including reasonable professional fees) arising out of any claim, demand or action by a third party alleging infringement by Creative Spark arising from your use of the Services or the Deliverables, except to the extent that this results from breach by us of clause 7.1 or 7.2.
7. Limitation of liability
7.1 You agree that our total liability for all claims connected with the Services and Deliverables provided to you under this Agreement and the relevant SOW, whether arising in contract, tort (including negligence) statute or otherwise or for loss or damage resulting from or in connection with this Agreement and the relevant SOW shall be limited to twice the fees payable for the relevant Services.
7.2 You agree that we will not be liable for any loss of profits, loss of use, loss of data, business interruption, costs of procurement of substitute goods or services, or for any indirect, special, incidental, or consequential loss or damages, whether arising in contract, tort (including negligence) or under statute, whether or not you have advised us of the possibility of this and whether or not this is foreseeable.
7.3 Nothing in this Agreement or any SOW, will limit either party’s liability for death or injury caused by that person’s negligence, fraud, fraudulent misrepresentation or any other liability which cannot be limited or excluded as a matter of law.
7.4 We accept no liability to anyone other than the Client in connection with our provision of Services under this Agreement and any relevant SOW, unless we agree otherwise in writing.
7.5 You acknowledge and agree that we cannot give any assurance or guarantee that any particular results or outcomes will result from the provision of the Services provided under this Agreement. The Client is responsible for any use it makes or fails to make of the Services and Deliverables Creative Spark provides to the Client under this Agreement and any SOW.
8.1 Subject to the following provisions of this clause, each of Creative Spark and the Client agree to treat all information provided by the other relating to its business, clients, customers, suppliers, design, intellectual property rights, marketing, sales, finances, operations, know how, business and process information, which is a confidential in nature (“Confidential Information”) in the strictest of confidence and agrees not to use it for any purpose other than for providing or receiving the Services detailed in a SOW, without the other party express written consent.
8.2 We may provide your Confidential Information to our relevant sub-contractors or professional advisers where this is necessary in connection with the Services, provided that they are bound by confidentiality obligations in respect of that Confidential Information.
8.3 Confidential Information shall not include any information which (a) becomes available to the public other than as a result of breach of this Agreement, (b) was in receiving party’s possession prior to receipt from the disclosing party, (c) is received by the receiving party independently from a third party who is free to disclose such information, (d) is independently developed by the receiving party without use of the Confidential Information or (e) which the either party is required to disclose by order of a court or by law or regulation.
8.4 Neither party may disclose the terms of this Agreement without the other party’s prior written approval.
8.5 For the avoidance of doubt, nothing in this clause shall prevent us providing Services for other businesses whose interests may conflict with yours, provided we do not disclose your Confidential Information.
9. Changes to Appointments, term and termination
9.1 This Agreement will commence on the earlier of the date of this Agreement or the date upon which Creative Spark first provides Services to you, if earlier, and shall continue until terminated by either party in accordance with the other provisions of this clause 8.
9.2 Re-scheduling or cancelling of appointments should be done at least 48 working hours (Creative Spark office hours: Mon – Thurs) before the planned date. Less notice and the coach is at liberty to charge the client for the full or missed session.
9.3 Because of the time, scope, and nature of my work, my policy is that a request for a refund for my Funding Club Package must be in the first 15 days after the programme has started in writing with evidence that the participant has actively engaged in the programme (ie. completed Getting Started Questions & participation in Facebook Group and/or a Live Group session).
9.4 For all other services, either party may terminate this Agreement or any SOW by giving the other party 7 days’ notice in writing at any time. However, if Creative Spark has started work or set aside time to provide the Services to you when this Agreement or any SOW is terminated by you, Creative Spark is entitled to be paid compensation and may retain any Fees already paid and charge for the additional work done up to the effective date of termination.
9.5 Either party may terminate this Agreement immediately by giving the other party written notice if (a) the other party is in material breach of any provision of this Agreement or any SOW and fails to remedy the breach (if capable of remedy) within 7 days, or (b) if the other party is or appears to be unlikely to be able to pay its debts as they become due or becomes insolvent or ceases to trade.
9.6 This Agreement and any current SOWs will automatically terminate if you fail to respond to any communication from us concerning the work to be performed under this Agreement or any SOW within 30 days of such communication. In the event of such automatic termination, we shall be entitled to retain Fees already paid to us to compensate us for the fact that we have set time aside in our schedule to work for you during this period.
9.7 Unless otherwise agreed by the parties in writing, the termination of this Agreement will automatically terminate any SOWs that are current at that time.
10. Consequences of termination
10.1 If this Agreement is terminated after we have started work under this Agreement and any SOW, we will not be obliged to refund any Fees paid by you prior to termination and we will be entitled to charge you for all work done and expenses incurred prior to the effective date of termination.
10.2 On the termination of this Agreement we will return to your any Client Information and handover any Deliverables to you. If you have provided us with any login details, you should change your password(s) and revoke Creative Spark’s access once we have completed the relevant work for you.
10.3 Any provision of this Agreement or any SOW that, by its terms, is intended to continue to apply after any termination or expiry of this Agreement and any relevant SOW, shall survive such termination or expiry and continue to apply in accordance with its terms. This includes, but is not limited to, clauses 5, 6, 7 ,8 ,10 ,13 ,20 and 21 of this Agreement.
10.4 Termination of this Agreement and the SOW by either party and for any reason shall be without prejudice to any rights that may have accrued as at the date of such termination or which otherwise arise following the termination of this Agreement and any SOW.
11. Independent contractor
11.1 We will provide the Services under this Agreement and any relevant SOW as an independent contractor and we will determine the time, place and the way in which we provide the Services to you.
11.2 Nothing in this Agreement or any SOW shall be interpreted as creating any agency, employment, partnership or joint venture between the parties.
12.1 You agree that we have the right to use independent subcontractors to assist with the provision of the Services to you. All such independent subcontractors shall be bound by the terms of this Agreement.
12.2 Any subcontracting will not relieve us of our obligations under this Agreement and any SOW.
13. Successors, assignments and third party rights
13.1 This Agreement shall be binding on, and shall continue for the benefit of, the parties to it and their successors and assignees.
13.2 The Client may not assign any of its rights under this Agreement or any SOW, except to a wholly owned subsidiary entity of Client, without our prior written consent. No such assignment by Client to its wholly owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.
13.3 Except as set out in this Agreement or any relevant SOW, a person who is not a party to this Agreement and the relevant SOW has no right to enforce it against Creative Spark.
14. Matters beyond a party’s reasonable control
14.1 We shall not be liable to you for any failure or delay in providing the Services due to matters beyond our reasonable control.
14.2 Notwithstanding clause 14.1, we will notify you of any matter affecting our performance of the Services and aim to continue with the Services as soon as is reasonably practical.
15. Entire Agreement
15.1 This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all previous and contemporaneous agreements, representations, and or understandings, whether written or oral, between the parties.
15.2 There are no conditions, warranties, representations or terms, express or implied, that are binding on the parties except as specifically stated in this Agreement and any SOW Statement of Work and all such conditions, warranties, representations and terms are excluded to the maximum amount permitted by law.
16. No implied waiver
16.1 The failure of either party to insist on strict performance of any provision of this Agreement or any SOW shall not be deemed a waiver of such party's right to demand strict compliance in the future.
16.2 No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement or any SOW shall constitute a waiver of any other breach or default in the performance of the same or any other obligation.
17.1 If any term, provision, covenant, or condition of this Agreement or any SOW shall be found to be illegal or otherwise unenforceable, that provision shall be disregarded and the remainders of this Agreement or any relevant SOW shall survive unaffected.
17.2 If the effect of clause 17.1 affects or alters the commercial basis of this Agreement and any relevant SOW, the parties shall negotiate in good faith to amend the provisions and terms of this Agreement and the relevant SOW so as to achieve, so far as possible, the same effect.
18.1 All notices and other communications delivered or sent under this Agreement shall be in writing and sent to the address of the relevant party as set out in this Agreement. Either Party may change the address to which notices are to be sent by giving written notice of the new address to the other party.
18.2 Notices and other communications shall be deemed to have been duly given (a) on the date delivery, if personally delivered, (b) upon receipt by the receiving party, if sent by registered or certified mail (first-class mail, postage prepaid, return receipt requested), (c) on the date targeted for delivery, if delivered by courier, or (d) if sent by email, at the time of transmission, unless there is email notification that it has not been delivered.
18.3 Any notice relating to any proceedings or other documents in any legal action shall not be sent by email.
19. Counterparts and electronic signature
19.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document.
19.2 Use of electronic signature, email, or other electronic medium shall have the same force and effect as an original signature.
20.1 The parties agree that they will work together in good faith to resolve any dispute arising under this Agreement and any relevant SOW within 30 business days.
20.2 If a dispute cannot be settled by negotiation, the parties will attempt to settle it by a mediation procedure agreed by the parties before resorting to any other remedies. Each party shall be responsible for their own costs relating to the mediation, unless otherwise agreed.
21. Governing law and jurisdiction
21.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to its choice of law or conflict of law provisions.
21.2 The parties agree that the courts of England and Wales, shall subject to clause 20 (Disputes) have the exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement and any relevant SOW.