Terms and conditions
These terms are dated 23rd July 2021 (the “Effective Date”)
1.1The following definitions and rules of interpretation apply in these terms (unless the context requires otherwise).
Board: the board of directors of the Client (including any committee of the board duly appointed by it).
Business: the business conducted by a party as at the Commencement Date.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Capacity: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity.
Client Property: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the Business or affairs of the Client or its customers and business contacts, and any equipment, keys, hardware or software provided for the Agency’s use by the Client during the Engagement. Any data or documents (including copies) produced by the Agency during the Engagement and specifically agreed in writing to be a Deliverable.
Commencement Date: As agreed in writing on an order form or email.
Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, clients, suppliers, products, affairs and finances of a Party for the time being confidential to the such Party and trade secrets including, without limitation, technical data and know-how relating to the Business of a Party or any of its suppliers, customers, clients, agents, distributors, shareholders, management or business contacts, and including (but not limited to) information that the Agency creates, develops, receives or obtains in connection with this Engagement, whether or not such information (if in anything other than oral form) is marked confidential.
Agency Property: all documents, books, manuals, materials, records, correspondence, papers and information that is not Client Property and all property, including, but not limited to, Intellectual Property stated as being Agency’s Property.
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.
Deliverable: the outputs of the Services as specified in Schedule 1 and any other documents and materials provided by the Agency to the Client in relation to the Services (excluding the Agency's equipment) that the parties agree in writing form part of the Deliverables.
Engagement: the engagement of the Agency by the Client.
Insurance Policies: employer's liability insurance cover professional indemnity insurance cover and public liability insurance cover.
Intellectual Property Rights: patents, utility models, rights to Inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, 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.
Invention: any invention, idea, discovery, development, improvement or innovation made by the Agency as specified as a Deliverable of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium.
Services / The Scope of Work: the work output as agreed by email or on an order form.
Termination Date: the date of termination of this arrangement, howsoever arising.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
Works: all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programs, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Agency as specified as Deliverables of the Services.
Social Media: shall mean all forms of social media channels such as Facebook, Instagram, Twitter, LinkedIn etc
Ads: shall mean online advertisements.
PPC , CPC: shall refer to Pay Per Click advertising.
PPV, PPM, PPI, CPI, CPM: shall refer to Cost Per View advertising.
Display Ads: shall means advertisements promulgated by any display networks.
SEO: shall mean Search Engine Optimisation.
Video Advertising: shall mean advertising on Youtube.com, Vimeo.com or any other similar public or private video website.
Direct mail: mailshot or admail, letterbox drop advertising material to recipients of postal mail.
Project Price: The cost of individual scope of work for a set of services as agreed by email or on an order form.
1.2The headings in these terms are inserted for convenience only and shall not affect its construction.
1.3A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.Term of engagement
2.1You shall engage us and the we shall provide the Services as specified by email or in an order form on these terms.
2.2The Engagement shall commence on the Commencement Date and shall continue unless and until terminated:
(a)as provided by the terms of these terms; or
(b)at the end of a scope of work as as agreed by email or on an order form.
3.Duties and obligations
3.1During the Engagement we shall:
(a)provide the Services with all due care, skill and ability;
(b)promptly give you all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services or your Business;
(c)as far as is reasonable allocate sufficient personnel to provide the Services, which may be made up from parties directly employed by us, or sub-contracted to a third parties (“Subcontractors”).
3.2We shall procure that any Subcontractors are contracted on terms no less onerous than those set out herein, in relation to confidentiality and Intellectual Property.
3.3For the avoidance of doubt, no fee shall be payable in accordance with clause 4 in respect of any period during which the Services are not provided.
3.4We shall use our reasonable endeavours to ensure we are available at all times on reasonable notice to provide such assistance or information as you may require.
3.5Unless we have been specifically authorised to do so by you in writing:
(a)we shall not have any authority to incur any expenditure in your name or for your account; and
(b)we shall not hold ourselves out as having authority to bind you.
3.6We shall comply with all reasonable standards of safety and comply with your health and safety procedures from time to time in force at the premises where the Services are provided and report to you any unsafe working conditions or practices.
(a)comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b)promptly report to you any request or demand for any undue financial or other advantage of any kind received by us in connection with the performance of this arrangement;
(c)immediately notify you if a foreign public official becomes an officer or employee of Webstars or acquires a direct or indirect interest in the Agency (and we warrant that Webstars has no foreign public officials as officers, employees or direct or indirect owners at the date of these terms).
4.1You shall pay us the fees set as agreed on an order form or on an email (plus VAT) following the receipt of appropriate invoices from us, in each case giving details of the Services provided, the Deliverable achieved to your satisfaction in accordance with Schedule 1, the dates on the which the Services were provided and the amount of the fee payable (plus VAT, if applicable) for the achievement of the Deliverable:
4.2In consideration of the provision of the Services, you shall pay each invoice submitted by us in accordance with clause 4.1 within the due date of the invoice on payment terms as separately agreed.
5.1You shall reimburse all reasonable expenses properly and necessarily incurred by us in the course of the Engagement, subject to production of receipts or other appropriate evidence of payment. Any expenses over £25 will be presented to you for approval in advance of the cost being incurred. Email confirmation will suffice for your approval.
Nothing in these terms shall prevent us from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Engagement provided that such activity does not cause a breach of any of our obligations under these terms.
7.Confidential information and Client property
7.1Each party (a “Receiving Party”) acknowledges that in the course of the Engagement it will have access to the Confidential Information of the other party (the “Disclosing Party”). The parties have therefore agreed to accept the restrictions in this clause 7.
7.2A Receiving Party shall (except in the proper course of performing its duties hereunder), either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use its best endeavours to prevent the publication and disclosure of) any Confidential Information of a Disclosing Party. This restriction does not apply to:
(a)any use or disclosure authorised by the Disclosing Party or required by law; or
(b)any information which is already in, or comes into, the public domain otherwise than through the Receiving Party's unauthorised disclosure.
7.3At any stage during the Engagement, we will promptly on request return to you all and any of your Property in our possession.
8.1We both acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and the we are the data processor.
8.2Both parties will comply with the Data Protection Legislation.
8.3We shall, in relation to any Personal Data processed in connection with the Engagement:
(a)Process that Personal Data only on your written instructions.
(b)Keep the Personal Data confidential.
(c)Comply with your reasonable instructions with respect to processing Personal Data.
(d)Assist you at your cost in responding to any data subject access request and to ensure compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators.
(e)Notify you without undue delay on becoming aware of a Personal Data breach or communication which relates to either party’s compliance with the Data Protection Legislation.
(f)At your written request, delete or return Personal Data (and any copies of the same) to you on termination of the Engagement unless required by the Data Protection Legislation to store the Personal Data.
9.1We hereby assign to you all existing and future Intellectual Property Rights in the Works and the Inventions and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under these terms, we hold legal title in these rights and inventions on trust for you.
9.2We undertake to you:
(a)to notify you in writing full details of all Inventions promptly on their creation;
(b)to keep confidential the details of all Inventions;
(c)whenever requested to do so by you and in any event on the termination of the Engagement, promptly to deliver to you all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works and the process of their creation which are in its possession, custody or power;
(d)not to register nor attempt to register any of the Intellectual Property Rights in the Works, nor any of the Inventions, unless requested to do so by you; and
(e)to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works and the Inventions has passed, or will pass, to you.
9.3We warrant that:
(a)we have not given and will not give permission to any third party to use any of the Works or the Inventions, nor any of the Intellectual Property Rights in the Works;
(b)we are unaware of any use by any third party of any of the Works or Intellectual Property Rights in the Works; and
(c)the use of the Works or the Intellectual Property Rights in the Works by you will not infringe the rights of any third party.
9.4We agree to indemnify you and keep you indemnified at all times against all or any costs, claims, damages or expenses incurred by you, or for which you may become liable, with respect to any intellectual property infringement claim or other claim relating to the Works or Inventions supplied by us to you during the course of providing the Services. We shall maintain adequate liability insurance coverage and shall supply a copy of the policy to you on request. You may at your option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to us.
9.5We acknowledge that no further remuneration or compensation other than that provided for in these terms is or may become due to us in respect of the performance of our obligations under this clause 9.
9.6We undertake to execute all documents, make all applications, give all assistance and do all acts and things, at your expense and at any time during or after the Engagement, as may, in your opinion, be necessary or desirable to vest the Intellectual Property Rights in, and register or obtain patents or registered designs in, your name and to defend you against claims that works embodying Intellectual Property Rights or Inventions infringe third party rights, and otherwise to protect and maintain the Intellectual Property Rights in the Works.
9.7We irrevocably appoint you to be our attorney in our name and on our behalf to execute documents, use our name and do all things which are necessary or desirable for you to obtain for your company or your nominee the full benefit of this clause.
9.8For the avoidance of doubt, Intellectual Property in our Property, shall remain our property, which we shall not be restricted in exploiting such Intellectual Property as it sees fit.
9.9Where we incorporate the Intellectual Property of a third party into a Deliverable, we shall procure an appropriate licence for the use of such Intellectual Property by you.
10.Insurance and liability
10.1Nothing in these Terms shall limit our liability to you for death or personal injury caused by our negligence.
10.2We shall not be liable for any indirect loss, consequential loss, loss of profits, revenue, data or goodwill howsoever arising or suffered by you and arising in any way in connection with these terms or for any liability of yours to any third party. You agree that you are in a better position than us to foresee and estimate any loss you may suffer in connection with the Agreement and our performance of the services set out herein, and that the Project Price has been accordingly to take into account such risks. You should take out suitable insurance to protect you in relation to the losses you may suffer as a result of the exclusions under this clause 10.2.
10.3We shall not be liable for any viruses uploaded to the Website and/or Software by third parties or your employees or agents. You shall be solely responsible for virus-checking any programs, macros, data files or other material accessed through the World Wide Web.
10.4We shall not be liable for any failure to perform the services set out in these terms, where such failure results directly or indirectly from failure or interruption in software or services provided by third parties, or any services beyond our reasonable control. This includes, but not limited to, changes in browser technology, legislation, social media integration, or APIs.
10.5Our maximum liability to you, for any claims that may occur, in relation to these terms, for any loss, be it direct or otherwise, and including (but not limited to) loss of profits, or reputation, shall never exceed, in total, whether such claim arises in contract or in tort shall not exceed a sum equal to the amount of the Project Price received by us in the previous twelve (12) month period prior to such claim, or claims, first arising.
10.6You shall indemnify us at all times and hold us harmless from and against all claims and proceedings brought by any third party arising from or incidental to any breach of these terms by you or your employees.
10.7Throughout the Term we shall maintain full and comprehensive Insurance Policies. We shall ensure that Insurance Policies are taken out with reputable insurers.
10.8We shall comply with all terms and conditions of the Insurance Policies at all times. If cover under the Insurance Policies shall lapse or not be renewed or be changed in any material way, or if we are aware of any reason why the cover under the Insurance Policies may lapse or not be renewed or be changed in any material way, we shall notify you without delay.
11.1Notwithstanding the provisions of clause 2.2, either party may terminate the Engagement with immediate effect without notice and without any liability to the other party (other than in respect of amounts accrued before the Termination Date) if at any time:
(a)the other party commits any serious or repeated breach or non-observance of any of the provisions of these terms or refuses or neglects to comply with any reasonable and lawful directions of the other party;
(b)the other party is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has a county court administration order made against them under the County Court Act 1984;
(c)the other party makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed in relation to the other party;
(d)the other party commits any offence under the Bribery Act 2010.
11.2The rights under clause 11.1 are without prejudice to any other rights a party might have at law to terminate the Engagement or to accept any breach of these terms on the part of the other party as having brought the agreement to an end. Any delay in exercising its rights to terminate shall not constitute a waiver of these rights by the party in question.
12.Obligations on termination
12.1On the Termination Date
(a)you shall pay all amounts due and owing to us; and
(b)subject to the above, we shall immediately deliver to you all your Property and original Confidential Information which is in our possession or under our control.
13.1Our relationship with you will be that of independent contractor and nothing in these terms shall render us an employee, worker, agent or partner of your company and we shall not hold ourselves out as such.
13.2We shall be fully responsible for and shall indemnify you for and in respect of any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with either the performance of the Services, where such recovery is not prohibited by law. We shall further indemnify you against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by you in connection with or in consequence of any such liability, deduction, contribution, assessment or claim other than where the latter arise out of your negligence or wilful default;
13.3We warrant that we are not, nor will we prior to the cessation of these terms, become a managed service company within the meaning of section 61B of the Income Tax (Earnings and Pensions) Act 2003.
14.1Any notice given to a party under or in connection with these terms 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 the address given in these terms or as otherwise notified in writing to the other party; or
(b)sent by email to the email address commonly used between the parties.
14.2Unless proved otherwise, any notice shall be deemed to have been received:
(a)if delivered by hand, at the time the notice is left at the address given in these terms or given to the addressee;
(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
(c)if sent by email, at the time of sending.
14.3If deemed receipt under clause 14.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause 14.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
14.4This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15.1These terms 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 unless a full contract has been agreed in writing and countersigned by both parties.
15.2Each party acknowledges that in entering into these terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
15.3Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms.
15.4Nothing in this clause shall limit or exclude any liability for fraud.
No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.Third party rights
17.1A person who is not a party to these terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms.
17.2The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under these terms are not subject to the consent of any other person.
These terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
A. We provide interface design, development and programming, as well as other services (together the “Services”) in relation to the Internet and world-wide web (hereinafter together referred to as “WWW”).
B. The services are to be provided in accordance with the terms and conditions set out below (the “Terms”).
By instructing us to commence provision of the Services, you shall be agreeing to these Terms.</>
As the supplier Webstars is referred to as “We” or “Us” as the Client you are referred to as “You”
NOW IT IS AGREED AS FOLLOWS
In this agreement unless inconsistent with the context or otherwise specified the following definitions will apply:
1.1. “The Act” shall mean the Copyright, Designs and Patents Act 1988 (as subsequently amended or varied);
1.2. “Completion Date” shall mean the date on which the Website and/or the Software is actually Delivered to Client;
1.3. “Delivered” shall mean the point at which the Website and/or the Software materially meets the Specification and is made available to Client in accordance with the terms and conditions herein;
1.4. “Hosting” shall mean the process in which the Website is made available upon the WWW
1.5. “Intellectual Property” means rights in and in relation to Confidential Information, patents, marks, registered designs, design rights, copyrights (including, without limitation, in computer programmes, software and databases) and moral rights, database rights, rights in know-how, trade secrets, utility models and all other forms of protection having an equivalent or similar nature or effect subsisting now or in the future anywhere in the world, whether enforceable, registered, unregistered or registrable (including, where applicable, all renewals, extensions and applications for registration) and the right to sue for damages for past and current infringement (including passing off and unfair competition) in respect of any of the same;
1.6. “Mobile Devices” shall mean iPads, iPhones and similar mobile devices/ smartphones;
1.7. “Project” shall mean the creation of the Website and/or Software in accordance with the Specification;
1.8. “Project Price” shall mean the cost of the Project, the Hosting charges and any associated costs, as set out in this order form;
1.9. “Server” shall mean the hardware-computing device upon which the Website will be uploaded and installed;
1.10. “Software” shall mean the coding, programming and applications incorporated in the Website or software project;
1.11. “Specification” shall mean the document attached to Schedule 2 subject to any Specification Addenda;
1.12. “Specification Addendum” shall mean an amendment to the Specification agreed by the parties in writing pursuant to Clause 4 below;
1.13. “Term” the period as set out in the Schedule for the licence of the Software; and
2. The agreement
2.1. You will pay the fees as set out in the Order Form, for the Services and / or software as described in the Order Form.
2.2. You may use the Software from the Completion Date.
3. Ownership of copyright
3.1. You will own the copyright of anything we design for you except if the design includes images, video, fonts, audio, text and other media assets from image libraries. In this case you will own the copyright for everything else and have a licence to use the other media assets and licences from third parties if passed to us.
3.2. You confirm to us that you either own or have a license to the copyright in all the text, images, fonts, videos, sound files and other media assets, provided by you to us.
3.3. We will be the owner of the Software included in the Website, which shall include the source code and the database structure.
3.4. Following the Completion Date and strictly conditional upon
(i) you maintaining the Software on a secure Server, to our reasonable satisfaction, and
(ii) only creating backup copies for security purposes, we will grant you a license to use the Software. You must not sublicense or transfer, the licence to use the Software. We shall not be restricted in any way from licensing the Software to third parties. You use of the Software shall be further governed by the remaining terms of this Agreement, as well as the Specification. You agree that the maintenance of any software licensed to you by other parties, acquired during the course of our development of the Website shall be your sole responsibility and expense. This might include components such as image editors, or the WYSIWG text editor included in most of the sites we build. Typically these components are provided at no cost to us or you but may require upgrades which would take us or another developer time to install.
3.5. Should you start to host your site with us and then decide to engage another party, other than ourselves to host the Website, you will be required to provide us with at least ninety days’ advance notice in writing of such change and specifying that you will be terminating such hosting services by ourselves. Where upon receiving a written notification to terminate our hosting services, we shall provide you a minimum specification for the Server. Should you choose another party, instead of ourselves, to host the Website, we shall accept no liability for the operation of the Software or the Website.
3.6. We shall be accredited for all design and programming tasks both in case studies, online portfolios and by a discrete link from your website pages to our website(s), similar to “site design by Webstars Ltd” or “system by Webstars Ltd”.
3.7. We shall provide you with the full un-encrypted source code, EXCEPT for any third party modules or scripts used in the site, as soon as the full project price has been paid and you have signed both a Non Disclosure Agreement and a Software Licence Agreement, or such other similar documentation as we may notify you.
3.8. You shall keep confidential all information related to our business and activities, including, without limitation, the Intellectual Property and any other of our technology, materials, data and information that may be obtained by you as a result of this Agreement ("Confidential Information"). You shall hold our Confidential Information in strict confidence and will not disclose such Confidential Information to any person, firm or enterprise, or use (directly or indirectly) any such Confidential Information for your own benefit or the benefit of any other party, unless we have given you our specific authorisation, in writing, to do so.
3.9. We shall keep confidential all information related to your business and activities, including, without limitation, the Intellectual Property that may be obtained by us as a result of this Agreement ("Confidential Information"). We shall hold your Confidential Information in strict confidence and will not disclose such Confidential Information to any person, firm or enterprise, or use (directly or indirectly) any such Confidential Information for our own benefit or the benefit of any other party, unless you have given us your specific authorisation, in writing, to do so.
3.10. Where information is:
(i) already known by the receiving party and there has been no duty of confidentiality restricting the use of such information; or
(ii) is obtained from an independent third party free of restriction and without breach of this Agreement; or
(iii) is or becomes publicly available through no wrongful act of the receiving party; or
(iv) is independently developed without reference to any Confidential Information of the other party, then such information shall not be classified as Confidential Information.
3.11. Where you engage a third party to work on the source code, such third party shall only use the source code for your benefit. You shall ensure that such a third party enters into a written agreement to the effect that they must protect the confidentiality of the source code and not keep any copies once the engagement with you has been terminated or expires. Should you require any changes to these requirements and restrictions, you shall first seek our prior written agreement. Within such written agreements you shall name Agency as an “interested third party with the right to injunctive relief”, in order to allow us to take direct action in order to protect our Confidential Information, where they would be in breach of this clause 3.11.
3.12. We both shall ensure that any of our employee who obtains or is in a position to obtain any Confidential Information understands and agrees to comply with the terms and conditions of this Clause 3. Each party further agrees to take all other commercially reasonable steps, by agreement, instruction or otherwise, to ensure compliance with these obligations.
3.13. Each party acknowledges and agrees that as damages alone are not likely to be sufficient compensation for the losses that may be caused by a breach of this clause 3, that the remedy of injunctive relief is reasonable and is likely to be essential to safeguard the interests of the parties in relation to such an actual or threatened breach. Notwithstanding the foregoing, each party shall be entitled to pursue any other available remedies at law or equity, including the recovery of monetary damages, with respect to the actual or threatened breach of the foregoing provisions of this clause 3.
4. Specification and changes to brief or specification
4.1. The Specification for the Software and the Website are set out in the Order Form.
4.2. At any time prior to the Completion Date, we may recommend and you may request, in writing, changes to any part of the Project.
4.3. Within five working days of receipt of the change request or the making of the change recommendation, we shall send to you details of the time and cost needed to investigate the implications to the Specification, of implementing the proposed change. The investigation will only be carried once we have received your written instruction.
4.4. Following the investigation (if any), we will provide you with a written estimate (valid for up to thirty (30) days from the date it is given to you) showing the increase or decrease in the Project Price and any other related effect on other contractual matters that the proposed change would cause. We will use all reasonable endeavours to provide the estimate within ten (10) working days (or such longer period as may be agreed) of receipt by us of a written instruction to investigate the implications of the proposed change.
4.5. If you wish to proceed with the proposed change, you shall notify us in writing (a “Change Acceptance Notice”) of your wish to do so, as soon as reasonably practicable after receipt of our written estimate, but no later than ten (10) working days (or such other period as we may agree between) of receipt of the written estimate. Once we receive your Change Acceptance Notice, authorising us to go ahead with the proposed change, the specification affected by the change will then be deemed to be modified accordingly and we shall incorporate this change as soon as reasonably practicable.
4.6. Please note that until we receive a Change Acceptance Notice, we will continue to carry on with the Project, for the same fees, as if the change had not been proposed.
4.7. You acknowledge that we may have to charge additional fees in respect of overtime worked by our staff, or our suppliers (outside their normal hours of business), in order to meet your deadlines required, where such overtime has arisen due to delays caused by you, or other reasons beyond our, or our suppliers’, reasonable control AND the original Completion Date cannot be changed. We will provide you with a supplementary order form if we do feel overtime is required OR an updated completion date if you do not wish us to undertake overtime.
4.8. Following the Completion Date, any additions or changes to the Specification, that you have requested, shall be separately quoted in writing.
4.9. Unless specifically agreed in the Specification, a data / content migration service is not included.
4.10. It is essential that all copy is correct and has been approved by you. Whilst every effort is made to ensure that copy is correct, it is your responsibility to proof-read and approve (“sign off”) all copy and the setting, before final production commences. If you require alterations once the copy has been proofed, these subsequent amendments shall be liable to a further charge payable by you, as well as any related costs. Errors discovered during proof-reading that have been made by us or our suppliers in preparing the copy will be corrected at no charge.
4.11. We code sites using semantically correct xhtml code and although this should render and function on Mobile Devices, it cannot and is not guaranteed. If compatibility with Mobile Devices is essential, you must request a specific quote for a mobile specific version, or mobile application, for such Mobile Devices. Alternatively during the design and build phase and by keeping the site very simple, we can achieve better compatibility.
4.12. We test the Software to perform materially as specified in the order form, which, as well as detailing the Specification, sets out the platforms for which the Software shall be tested and approved. Furthermore, should changes beyond our control affect the functionality of the Software, such as changes in browser technology, legislation, social media integration or APIs, we shall agree a cost with you for updating the Software, based upon us providing a reasonable level of work required to accommodate such changes.
5. Exclusion of liability and indemnity
5.1. Nothing in these Terms shall limit our liability of you for death or personal injury caused by our negligence.
5.2. We shall not liable for any indirect loss, consequential loss, loss of profits, revenue, data or goodwill howsoever arising or suffered by you and arising in any way in connection with this Agreement or for any liability of yours to any third party. You agree that you are in a better position than us to foresee and estimate any loss you may suffer in connection with the Agreement and our performance of the services set out herein, and that the Project Price has been accordingly to take into account such risks. You should take out suitable insurance to protect you in relation to the losses you may suffer as a result of the exclusions under this clause 5.2.
5.3. We shall not be liable for any viruses uploaded to the Website by third parties or your employees or agents. You shall be solely responsible for virus-checking any programs, macros, data files or other material accessed through the World Wide Web.
5.4. We shall not be liable for any failure to perform the services set out in this Agreement, where such failure results directly or indirectly from failure or interruption in software or services provided by third parties, or any services beyond our reasonable control. This includes, but not limited to, changes in browser technology, legislation, social media integration, or APIs.
5.5. Our maximum liability to you, for any claims that may occur, in relation to this Agreement, for any loss, be it direct or otherwise, and including (but not limited to) loss of profits, or reputation, shall never exceed, in total, whether such claim arises in contract or in tort shall not exceed a sum equal to the amount of the Project Price received by us in the previous twelve (12) month period prior to such claim, or claims, first arising.
5.6. You shall indemnify us at all times and hold us harmless from and against all claims and proceedings brought by any third party arising from or incidental to any breach of this Agreement by you or your employees.
6. Force majeure
6.1. Neither party shall be liable for any loss suffered by the other, or be deemed to be in default, for any delays or failures in performing its obligations as set out under this Agreement, where such delays or failures result from acts or causes beyond its reasonable control. Examples of such acts include; acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, fire, riots, strikes, lock- outs, labour troubles, illness, labour or transportation difficulties, inability to obtain export or import licences, failure or fluctuation of electric power, air conditioning or humidity control.
7. Defects warranty
7.1. We shall for a period of one (1) months from the project’s Completion Date, without charge to you, rectify any Defect within seven (7) days of being notified by you in writing of such Defect either by repair or, at our option, by supply of a replacement. For the purposes of this clause a “Defect” means any non-conformance with the Specification.
7.2. Subject always to Clause 3.5 we shall have no liability in respect of any Defect unless the Defect is promptly reported to us in writing and occurs within the time scales as described in Clause 7.1
7.3. We shall only be obliged to take action under this Clause 7 where we have been given by you, without delay and free of charge, full and complete details of the Defect and adequate time and access to the Software during our normal working hours to rectify such Defect. If we rectify the Defect, we shall have no other liability of any kind in respect of or arising from such Defect.
7.4. If a Defect is found upon investigation not to be our responsibility under this Clause 7, we shall be entitled to charge you immediately for all reasonable costs and expenses incurred by us in the course of or in consequence of such investigation.
7.5. We shall not be responsible for (i) any defect arising from or caused by any modification (whether by alteration, deletion, addition, or otherwise) made to the Software, or any part of it, by anyone other than ourselves; or (ii) for Defects otherwise outside the scope of the Specification.
7.6. Further to Clause 4.11above, we specifically excludes any warranty in relation to the Software functioning on Mobile Devices, unless the Software has been specifically designed for such use.
7.7. Further to Clause 4.12 above, we specifically exclude any warranty in relation to the Software functioning on platforms not agreed in the Order Form.
Our terms applicable to its Hosting of the Website are available on request.
9. Estimated completion date
9.1. We shall provide you with an estimate of the amount of time required to complete the Project. This estimate is based on you providing us with full details of the information required to be included within the Website or Software and all necessary artwork and licences in a timely manner. We shall then use all reasonable efforts to achieve the estimated delivery date but shall not be liable in the event that such delivery date should not be achieved. A guaranteed delivery date will only be agreed where you agree to pay our “guaranteed delivery premium” (details of which are available upon request).
9.2. Should the Project be put on hold, either due to no feedback or a delay by you in delivering assets, and this period exceeds two (2) weeks, or if the Project is put on hold at your request, we will raise an invoice for all work carried out up to that date. This invoice will become due fourteen (14) days after issue and payment will be required to re-commence the Project. At the end of the Project, this sum will be deducted from the final invoice.
9.3. All invoices issued by us are deemed to be correct unless you notify us in writing otherwise within fourteen (14) days of receipt of the invoice concerned. Such notice by you must set out the reasons why you believe the invoice is thought to be incorrect, giving as much detail as possible. We shall have a further period of fourteen (14) days in which to respond to you, either accepting the suggested revised amount, or stating that we do not agree with you and that the matter should be escalated to both our senior management.
9.4. Pause Clause, should the fortnightly, monthly or staged payments (as applicable) as specified in the order form be delayed we will stop working on the Project. As soon as payment re-commences we will advise of the new time line. Should one or more such pauses occur we may need to revise the price to allow for our increased costs or wasted staff time. This increase will be limited to ten (10) percent of the total project price unless the pause exceeds two (2) calendar months, whereupon we shall provide you with a revised schedule of fees.
10.1. All notices to be given under this Agreement will be in writing and will be sent to the address of the recipient as set out in the Order Form, or any other address the recipient may designate by notice given in accordance with this Clause. Notices may be delivered personally by recorded delivery letter, fax, or by such other electronic means capable of establishing the identity of the signing party such as the use of digital signature technology. Notices will be deemed to have been received:
by recorded delivery letter - 24 hours after the date of mailing;
by fax - immediately upon transmission provided a confirmatory copy is sent by recorded delivery by the end of the next business day; or
by electronic means - immediately upon transmission.
Copies of all notices to Client shall simultaneously be sent to Lanyard Consulting Limited, Park House, Charlton Court Place, East Sutton, Kent ME17 3AN.
No delay or failure by either party to exercise any of its powers rights or remedies under this Agreement will operate as a wavier of such rights, nor will any single or partial exercise of any such powers, rights, or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing and signed by both parties. The remedies provided under this Agreement are cumulative and not exclusive of any remedies provided by law.
If any part of these Terms are found by a court with appropriate authority to be invalid, unlawful, or unenforceable then such part will be considered removed from the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
13. Entire agreement
13.1. The terms set out in this Agreement shall take precedence over any other prior agreements, negotiations, representations or promises, and whether written or oral, where they prove to be inconsistent with this Agreement. This will not apply where such agreements, negotiations, representations or promises, are made fraudulently, regarding its subject matter. More specifically, the terms set out in this Agreement shall take precedence over any terms and conditions appearing in your own documentation (if any) and overrides and excludes any other terms and conditions stipulated or referred to by you, whether in any negotiations or in any course of dealing established between us.
13.2. The terms set out in this Agreement shall take precedence over your standard terms of contract in all cases and circumstances whatsoever, unless otherwise agreed in writing between us.
Except as otherwise set out in this Agreement, no changes shall be effective unless they are in writing and signed by persons authorised on behalf of both parties.
15.1. Any provision in this Agreement which must survive its termination or expiration, including all obligations to pay any fees and expenses due and not yet paid at the time of termination, shall survive and continue after any expiration or termination of this Agreement and shall bind the parties and their legal representatives, successors and assigns.
15.2. For the avoidance of doubt, the following Clauses shall survive the termination/expiration of this Agreement, or the relevant Schedule thereunder: Clauses 3, 5, 7, 10, 11, 12, 13, 14, this Clause 15 and 18.
16.1. Either party may terminate this Agreement and hence the Services immediately by giving written notice to the other party if the other party:
16.2. commits any material breach of any term of this Agreement, and:
16.2.1.the breach is not remediable; or
16.2.2.the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
16.2.3.persistently breaches the terms of this Agreement.
16.2.4.Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
16.2.6.ceases to conduct all (or substantially all) of its business;
16.2.7.is or becomes unable to pay its debts as they fall due;
16.2.8.is or becomes insolvent or is declared insolvent
16.2.9.convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
16.2.10.an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
16.2.11.an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent designer reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);
Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, the clauses
18. Governing law
This Agreement will be construed in accordance with and governed by the laws of England and Wales and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.
A signature on this order form or your continued instruction confirms your acceptance of these terms.