TERMS AND CONDITION OF SERVICE
The definitions and rules of interpretation in this clause apply in this agreement.
Acceptance: the acceptance or deemed acceptance of the Site by The Client pursuant to Clause 4.
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
a. identified as confidential at the time of disclosure; or
b. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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.
Materials: the content provided to The Company by The Client from time to time for incorporation in the Site.
Personal Data: up to but excluding 25 May 2018, has the meaning set out in section 1(1) of the Data Protection Act 1998 and, from 25 May 2018, has the meaning set out in Article 4(1) of the GDPR.
Phase: in relation to the Project Plan, one of the key phases of work identified in the Project Plan.
Project: the provision by The Company of the Services as set out in this agreement.
Project Plan: the timetable within which The Company will implement the Project.
Services: the serves carried out in relation to these terms and as detailed.
1.2 Clause and Schedule headings do not affect the interpretation of this agreement.
1.3 References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.10 Writing or written includes fax and email.
2. PROJECT SCOPE
2.1 Dependant on the type of project under which the Company is engaged, various terms and processes will apply.
2.2 Where the Project is for the design and development of a Website, the Company shall:
a) Liaise with the Client in developing the look and feel of the Site;
b) Design, develop and deliver the Site in four phases in accordance with the Project Plan
c) Provide the Services in accordance with these terms.
d) Shall provide the services in line with best industry standards.
e) Shall use reasonable endeavours to manage and complete the Works, and deliver the Deliverables to The Client, in accordance with a Statement of Work in all material respects.
f) Shall use reasonable endeavours to meet any performance dates or the Milestones specified in the Project Plan. However, it must be noted that such dates may be subject to reasonable delay based upon the flows of the project and any changes or alterations to the project brief supplied by the Client.
2.3 Where the Project is for the purpose of Search Engine Optimisation, it shall be understood, appreciated and accepted that:
a) The Client will be required to provide the Company with administrative access to the Clients website for analysis of content and structure.
b) The Client shall provide the Company with permission to make changes for the purpose of optimization, and to communicate directly with any third parties.
c) The Client shall provide the Company with access to website traffic statistics for analysis and tracking purposes.
d) The Client accepts that the Company has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future.
e) The Client accepts that the Client’s website may be excluded from any director y or search engine at any time at the sole discretion of the search engine or directory and the Company cannot prevent this.
3. CLIENT RESPONSIBILITIES
3.1 The Client acknowledges that The Company’s ability to provide the Services is dependent upon the full and timely co-operation of The Client (which The Client agrees to provide). Accordingly, The Client shall:
(a) provide the Company with access to, and use of, all information, data and documentation reasonably required by The Company for the performance by The Company of its obligations under this agreement; and
(b) Shall provide timely responses to the enquiries of the Company throughout the project process
3.2 The Client shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with Clause 11.
3.3 Where third-party images are to be used within the website and license to be used is required to be paid, the Client shall be financially responsible for all such fees and charges.
4. DEVELOPMENT AND HANDOVER
4.1 In accordance with the Project Plan, the initial phase of the project will be the concept and consultation phase which will require the Company and the Client to work closely to getting to acquire a detailed brief to enable a clear and concise design to be designed.
4.2 Upon the completion of the concept and consultation phase, the Company will proceed to Phase 2, the design phase. This phase will result in the concept and brief being brought to life and presented to the Client. Phase 2 will provide the Client with the opportunity to fine tune any design issues and ensure that the design represents their vision and needs.
4.3 It must understood, upon Phase 2 being completed and signed off by the Client, any future changes will represent a change to the Scope of Work and will incur additional fees in addition to those quoted within the Project Order form.
4.4 Should the Client require major changes to the Scope of Work, the Company shall be entitled to submit a new and separate Proposal to the Client for written approval. The Company shall not commence work on the revised changes until he receives a fully signed and revised proposal and the payment (where required) of any additional fees.
4.5 Should the changes requested by the Client be minor in nature, the Client will be billed on a time and material basis at the hourly rate detailed within the Project Order form. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified.
4.6 Upon completion of the four-phase process, the Site will be ready for handover.
4.7 It is noted that until full payment of the project is made, the website and all content shall be deemed to be the proprietary material of the Company and the Company, where payment is not made, reserves the right to prevent access to the site.
5. THIRD PARTY PRODUCTS
5.1 Where any third-party products are used within the design and development of the project, then the Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms and the Company shall not govern their use or continued use.
6. PROJECT MANAGEMENT AND COMMUNICATION
6.1 Each party shall appoint a project manager or a project liaison who shall:
(a) provide professional and prompt liaison with the other party; and
(b) have the necessary expertise and authority to commit the relevant party.
6.2 The project manager or the project liaison of each party shall stay in touch throughout the project development and will provide relevant and necessary updates in relation to the progress of the project.
6.3 During the project process, should the Client presents an alternative project manager or project liaison, then the Client warrants that the alternative manager or liaison has the full authority of the company and any such changes the alternative project manager or liaison requests shall be binding under these terms- where such changes incur additional fees, the Client warrants to the Company those fees shall be paid.
7. CHARGES AND PAYMENT
7.1 The Charges shall be detailed within the Project Order Form.
7.2 The Charges and fees presented in the Project Order Form are accurate at the time of commencement and do not include any additional fees which may arise as a result of additional changes or alterations requested by the Client.
7.3 Any additional changes requested after the design has been signed off, shall, in accordance Clause 4.4 and 4.5, shall be charged accordingly at either; an hourly rate, or where the changes are major in nature, as detailed within the new project proposal.
7.4 The means of payment will be detailed within the Project Order Form.
7.5 If The Client fails to make any payment due to The Company under this agreement by the due date for payment, then, without limiting The Company’s remedies under Clause 13, The Client shall 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 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%.
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
8.2 The Company shall perform the Services with reasonable care and skill.
8.3 This agreement sets out the full extent of The Company’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
9. LIMITATION OF REMEDIES AND LIABILITY
9.1 Nothing in this agreement shall operate to exclude or limit The Company’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
9.2 The Company shall not be liable to The Client 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. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Materials, arising in connection with this agreement shall be the property of The Company, and The Company hereby grants The Client a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site.
10.2 The Client shall indemnify The Company against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
10.3 The Company shall indemnify The Client against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in Clause 10.2.
10.4 The indemnities in Clause 10.2, Clause 10.3 and Clause 11.4 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
10.5 The indemnities in Clause 10.2, Clause 10.3, Clause 11.4 and Clause 11.5 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
11. SITE CONTENT
11.1 Where the Company is provided with material to include in the website, the Client shall ensure that the Materials do not infringe any applicable laws, regulations or third-party rights.
11.2 The Company shall grant The Client access to the Server in order to update information held on the Site.
11.3 The Client shall indemnify The Company against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
12. DATA PROTECTION
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause 12, Applicable Laws means (for so long as and to the extent that they apply to The Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
13. TERM AND TERMINATION
13.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination under this Clause 13) terminate automatically on Acceptance of the Site and payment of all outstanding sums.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.
(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 13.2(c) to Clause 13.2(h) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(l) any warranty given by the other party in Clause 8 of this agreement is found to be untrue or misleading.
13.3 On termination of this agreement by The Company under Clause 13.2, all licences granted by The Company under this agreement shall terminate immediately.
13.4 On expiry or termination of this agreement otherwise than on termination by The Company under Clause 13.2, The Company shall promptly return all Materials to The Client, and shall provide to The Client an electronic copy of the Site (including all content on the Site). [The Company shall provide such assistance as is reasonably requested by The Client in transferring the hosting of the Site to The Client or another service provider, subject to the payment of The Company’s expenses reasonably incurred.]
13.5 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
14. FORCE MAJEURE
14.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
15.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
15.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
15.3 The obligations set out in this Clause 15 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this Clause 15; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) [was independently developed by the receiving party; or]
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
15.4 The obligations of confidentiality in this Clause 15 shall not be affected by the expiry or termination of this agreement.
16.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by fax to its main fax number or sent by email to the address specified in the Project Order
16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address.
(b) 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 [or at the time recorded by the delivery service.
(c) if sent by fax or email, at 9.00 am on the next Business Day after transmission.
16.3 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.
16.4 A notice given under this agreement is not valid if sent by email.
17. ENTIRE AGREEMENT
17.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18. THIRD PARTY RIGHTS
18.1 Unless it expressly states otherwise, this agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
19.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. RIGHTS AND REMEDIES
21.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 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.
22.2 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.
23. GOVERNING LAW
23.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
24.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.