TERMS AND CONDITIONS

WEBDADI LIMITED

 GENERAL TERMS AND CONDITIONS 

 SUPPLY OF SERVICES 

1.                    Interpretation

The definitions and rules of interpretation in this clause apply in this Contract.

1.1                 Definitions:

Acceptance means the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 5.

Ancillary Services means:

(a)          in relation to Hosting Services: Website hosting, low or high res data hosting and serving services and media storage, maintenance, support, data backup, or such other ancillary services as are detailed in the Order.

(b)          In relation to Software as a Service: software hosting, data warehousing, products, plugins, hosting, maintenance, version updates, backup, software support or such other ancillary services as are detailed in the Order.

Authorised Users means the employees of the Customer who are authorised by the Supplier to use the Software as a Service.

Branch means a physical or virtual location from where the Customer’s residential, international or commercial properties, premises and/or contacts are created and associated in the Supplier’s database; any ‘branch’ listed with a third party to which data is imported or exported by the Supplier’s systems shall be deemed a branch for the purposes of the Order. For the avoidance of doubt, where the Customer has a specific location from which to act as an agent acting on behalf of a landlord or vendor to sell or let properties, this location shall constitute one ‘branch’. Two physical or virtual locations where one purely facilitates property sales and another purely facilitates sales or lettings or both, shall constitute two branches. Where the Customer requires an office to exist in the system, for the purpose of associating properties to an office or branch, each physical or virtual office is automatically deemed to be a ‘branch’ for licensing and billing purposes.

Bronze Level Package means the Supplier’s default monthly support package that the Customer will receive at the end of the Minimum Period or a Further Period as defined in the Order, normally described within the SLA.

Business Day means a day other than a Saturday or Sunday or public holiday in England.

Project Change Procedure means the procedures set out in clause 14.

Charges means the charges in respect of the Services set out in clause 8 and particularised in the Order, together with any charges arising from the Project Change Procedures.

Conditions means these terms and conditions as amended from time to time.

Confidential Information means 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.

Contract means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions together with the Order, any proposal, specifications and any variations which have been agreed between the Supplier and the Customer, the Supplier’s charge out rates and other documents as agreed between the Supplier and the Customer from time to time.

CRM Software means the customer relationship management software commissioned by the Customer as specified in the Order.

Customer means the person, firm or company who purchases Services from the Supplier. 

Customer Data:  the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Software as a Service or facilitating the Customer's use of the Software as a Service.

Data Protection Legislation: (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

Data Subject: for the purpose of this Contract includes all living individuals about whom the Supplier holds Personal Data on behalf of the Customer.

Deliverables means all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form including, but not limited to, templates, designs, software codes, computer programs, data, and reports.

Design Agency means, if any, the firm or company engaged to develop the look and feel of the Site as specified in the Order.

Design and Development Services means, if applicable, the design and development of the Site provided by the Supplier to the Customer as more particularly described and for the price set out in the Order. 

Effective Date means the date of commencement of the Contract in accordance with clause 2.5.

Emergency Development Rate means the amount charged by the Supplier to the Customer on an hourly basis as detailed in the Order or in the absence of such, the Supplier’s current charge-out rates.

Final Payment means the final payment, payable by the Customer to the Supplier pursuant to clause 8.2, as detailed in the Order as a percentage of the total price payable.

GTM Features means the features of Google Tag Manager (GTM) such as, but not limited to, Containers, Workspaces, Tags, Triggers and Variables, or other features provided within Google Tag Manager that maybe used in conjunction with a Site.

Hard Reset means restoring a device to its factory settings. Passwords and other settings may be lost during this process.

Hosting Services means, if applicable, the Site hosting services to be provided by the Supplier to the Customer as more particularly described and for the price set out in the Order.

Initial Payment: means the initial payment, payable by the Customer to the Supplier pursuant to clause 8.2, as detailed in the Order as a percentage of the total price payable.

Intellectual Property Rights means 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.

Image Materials means images or photographs, forming part of the Materials, provided by the Customer to the Supplier for use on the Site. 

Materials means the content provided to the Supplier by the Customer or other third-party from time to time for incorporation in the Site including but not limited to the Image Materials.

Minimum Period has the meaning given in clause 13.2.

Monthly Licence Fee means the fee payable monthly in advance for the Services such as but not limited to Hosting Services and/or the Software as a Service, and/or Ancillary Services including Plugins and/or Support Services and or any other related Services, as detailed in the Order. The Monthly License Fee is also known as the Monthly Software Subscription, or Total Monthly Cost and includes the necessary charges for access and availability of the Website(s) or Web Service(s) to the Customer and general public, as detailed in the Order.

Monthly Software Subscription means the total fees payable monthly in advance for the Hosting Services and/or the Software as a Service, and/or Ancillary Services including Plugins and/or Support Services and or any other related Services, as detailed in the Order. The total Monthly License Fees are also known as the Monthly Software Subscription, or the Total Monthly Cost, and includes the necessary charges for access and availability of the Website(s) or the aforementioned Web Services to the Customer and general public, as detailed in the Order.

Non-Supplier Defects means those defects described in clause 5.9.

Normal Business Hours means 9am to 6pm, Monday through to Friday, with the exception of Bank Holidays.

Notice of Termination
Means the written Notice that must be provided by the Customer to the Supplier terminating the agreement by the minimum time stated on the Order, normally 60 days, required by the Supplier, as the minimum time before the expiry of either the Minimum Period/term, or the Further Period/term, of the Term of Subscription.

Order means the written quotation, proposal, requirements, accepted Change, project plan or statement of work (SOW) (as varied and agreed between the Supplier and the Customer) detailing the Services to be supplied by the Supplier to the Customer.

Personal Data: has the meaning set out in Article 4(1) of the GDPR.

Phase means in relation to the Project Plan, one of the key phases of work identified in the Project Plan.

Premium Support Rate means the amount charged by the Supplier to the Customer on an hourly basis as detailed in the Order or in the absence of such, the Supplier’s current charge out rates.

Project means the provision by the Supplier of the Design and Development Services as set out in the Contract.

Project Plan means the timetable within which the Supplier will implement the Project as set out in the Order or as otherwise agreed between the Supplier and the Customer in writing.

User Acceptance Tests (UAT) means the tests to be carried out on the Site as set out in clause 5 and as described in the Order.

Server means one or more computer servers administered by the Supplier as described in the Order.

Services means the services to be provided by the Supplier under the Contract, as detailed in the Order or otherwise agreed in writing, which may include any one or more of the following services:

 ·          Design and Development Services;

 ·          Website (Site) Services;

 ·          Hosting Services and Ancillary Services;

 ·          Software as Service and Ancillary Services;

 ·          Support Services; or

 ·          any other services (related or otherwise) to be provided by the Supplier to the Customer.

 

Site means, if applicable, the website detailed in the Order.

Site Software means the software for the Site commissioned by the Customer as specified in the Order.

Site Specification means the specification for the Site set out in the Order or as otherwise agreed between the Supplier and the Customer in writing.

SLA means Service Level Agreement as detailed in the Order.

Software as a Service including the abbreviation SaaS, means the online services (if any) such as any online software, CRM Software, Site Software or Customer’s Website(s), provided by the Supplier to the Customer via a specific Web address (URL) served by Webdadi server(s), or any other Website notified to the Customer by the Supplier from time to time, normally paid on a recurring Monthly Subscription, as the Licence Fee, as more particularly described in the Order.

Software as a Service Software means the online software applications provided by the Supplier as part of the Software as a Service.

Supplier means Webdadi Limited incorporated and registered in England and Wales with company number 06650275 whose registered office is at 7-8 Crescent Stables, 139 Upper Richmond Road, Putney, London SW15 2TN.

Support Services means, if applicable, the support and maintenance services provided by the Supplier to the Customer as more particularly described and for the price set out in the Order.

Third-Party Products means third-party software products and or services such as, but not limited to: Google Maps, Google Tag Manager, Google Analytics, Google re-Captcha, FeeFo and ValPal.

Total Monthly Cost means the total fees payable monthly in advance for the Hosting Services and/or the Software as a Service(s), and/or Ancillary Services including Plugins and/or Support Services, and/or any other related services (the Monthly Software Subscription) as detailed in the Order, for access and availability thereof to the Customer, and/or to the general public.

Visitor means a visitor to the Site.

1.2                 Clause and schedule headings do not affect the interpretation of this Contract.

1.3                 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Contract.

1.4                 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.5                 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract.

1.6                 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.

1.7                 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.

1.8                 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.

1.9                 Writing or written includes fax and email.

2.                    Application of Conditions

2.1                 These Conditions shall apply to and be incorporated in the Contract.

2.2                 In the event of a conflict between these Conditions and what is set out in the Order, the Order shall prevail.

2.3                 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless it is in writing and signed by a duly authorised representative of the Supplier.

2.4                 The issuing of the Order by the Supplier to the Customer shall not constitute an offer, and is only valid for a period of 30 days from the date of issue.

2.5                 The signing by the Customer of the Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.6                 The Order shall only be deemed to be accepted on actual receipt by the Supplier of the Order signed by the Customer or when the Supplier commences the supply of any of the Services detailed in the Order (whichever is the earlier), at which point and on which date the Contract shall come into existence (the  Effective Date ).

2.7                 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.  

3.                    Supplier’s responsibilities

3.1                 The Supplier shall provide the Services to the Customer in accordance with the Order in all material respects and, in particular, if the Supplier is providing:

3.1.1           Design and Development Services, then it shall:

(a)          liaise with the Customer (or the relevant Design Agency as the case may be) in developing the look and feel of the Site; and

(b)          design, develop and deliver the Site in such Phases as are specified in the Project Plan.

3.1.2           Hosting Services, then it shall host the Site from the Server(s);

3.1.3           Software as a Service, then it shall use commercially reasonable endeavours to make the Software as a Service is available 24 hours a day, seven days a week, except for:

(i)            planned maintenance normally carried out during the maintenance window of Midnight to 5am GMT; and

(ii)          unscheduled maintenance performed outside of Normal Business Hours, provided that the Supplier has used reasonable endeavours to limit any disruption of service.

3.2                 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.3                 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4                 If the Customer postpones the performance date for the provision of the Services or the Supplier is otherwise unable to perform the Services as a result of the Customer’s failure to comply with its obligations under the Contract then, except where such failure or delay is caused by a force majeure event or by the Supplier’s failure to comply with its obligations under the Contract, the Supplier reserves the right to charge the Customer for all related costs and expenses.

3.5                 The Supplier shall use reasonable endeavours to ensure the continual availability of its Server(s) but shall accept no responsibility for any loss suffered by the Customer caused by the unavailability of the Server and does not guarantee that its use will be uninterrupted and/or error-free or that it will always be available.

3.6                 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at http://www.webdadi.com/backup-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

3.7                 The Supplier reserves the right to refuse to send Customer Data to third parties and may refuse hosting the Customer Data inside third-party websites.

3.8                 The Supplier reserves the right to refuse any of its data from being linked to or used within an iframe, iframe-like, or similar digital context within third-party Websites or Web Services to ensure that it is not subjected to unreasonable support, maintenance and hosting requirements which may exceed the scope of the Services

3.9                 The Supplier shall use all reasonable endeavours to;

3.9.1                 provide Internet Web Browser compatibility for Internet Browser versions no older than 2 years old.

3.9.2                 ensure Internet Web Browser compatibility with the Supplier’s Template Websites only. The Supplier strictly reserves the right to refuse compatibility and technical support and or resolution compatibility for any Internet Browsers older than 2 years.

3.10                 The Supplier reserves the right to neither support, nor make compatible its Websites or templates to be compatible with any Internet Browsers in current existence that are either older than 2 years, or not specifically one of the following: Microsoft Edge, Google Chrome, Mozilla Firefox, Opera, or Apple Safari.

12.8         The results and content of any implementation of GTM Features inside a Customer’s GTM account, Container or Workspace; whether such content is created, uploaded and published, either on behalf of a client, or where a client or a third party implements and publishes their own, or another third parties’ GTM Features, is expressly the sole responsibility of the Customer.

12.9        If a Customer chooses to add and Publish new GTM Features, such as a new Recipe, it is the Customer’s responsibility to ensure the new Recipe does not adversely affect the Site.

12.10      If a Customer chooses to make changes such as removing or modifying the installation of a GTM Features such as a Recipe, Tag, Trigger or Variable in Google Tag Manager, it is their sole responsibility for any unwanted results caused.

12.11      The Supplier does not agree to help rectify problems caused by Google Tag Manager, therefore the Supplier reserves the right, at its sole discretion, to provide the Customer Support relating to Google Tag Manager and may reasonably charge for any Support offered to the Customer on a time cost basis, even if the Supplier attempts to identify the problem, even if the Supplier does not agree to, or cannot resolve the nature of the problem caused by, or related to, Google Tag Manager.

12.12      Pursuant to clause 12.11, should the Supplier agree to help the Customer rectify any unwanted results caused by Google Tags firing on the Customer’s Site using Google Tag Manager, the Supplier may;
  

1. Reasonably charge for Support and Development issues raised by the Customer to the Supplier at the standard Support rate and, or, where any technical expertise or Development is required, may charge the Customer at the standard development rate;
    
2. Reasonably charge for Support and development issues raised by the Customer to the Supplier at the Premium Support Rate, specifically in circumstances when urgent help is required by the Customer from the Supplier.

13.                 Term and termination

13.1             This clause 13.1 shall apply if the Supplier is solely providing Design and Development Services to the Customer. The Contract shall commence on the Effective Date and shall (subject to earlier termination under this clause 13) terminate automatically on Acceptance or deemed Acceptance of the Site and payment of all outstanding sums.

13.2             This clause 13.2 and clauses 13.3, 13.4 and 13.5, below, shall apply to the supply of any Services (Other Services) other than Design and Development Services by the Supplier. The Contract shall commence on the date of signature by the Customer on the Order;

13.3             The Monthly Subscription Commencement date for the Term of Subscription, normally begins on the first day of the User Acceptance Testing Period, also known as the BETA delivery date, or as otherwise agreed in writing, or detailed in the Order;

13.4          the Monthly Subscription and license for the Software as a Service, and or Site shall continue for a period of two calendar years (Minimum Period) (subject to earlier termination under this clause 13), unless otherwise agreed in writing or detailed in the Order;

13.5         Immediately following the end of the Minimum Period referred to in clause 13.2, the Contract for the Other Services shall either:

13.5.1        automatically renew on the terms set out in the Order, without any renewal notice required to be provided by the Supplier to the Customer, subject to any variation to the successive period (the Subscription Term Further Period) renewal charges, where communicated to the Customer in writing, in no less than 30 days before the end of the Minimum Period, or:

13.5.2        if the Order does not specify any renewal terms or the continuance of Other services being provided by the Supplier are requested by the Customer, either in writing or by verbal request, to continue to be provided after the Agreement expiry or termination date, the Contact shall;

(a)                 automatically renew on a three-month successive Subscription term, on a rolling basis, without any renewal notice required to be provided by the Supplier to the Customer, until either party gives the other party at least one month’s written notice to terminate the Contract (such notice to expire at the end of a three-month successive term). In this event, the Supplier may at its discretion increase the price payable by the Customer for the Other Services at any time (as a guide, a price increase of 15% to 20%, or the current RRP of a product, may usually be applied after the end of the Minimum Period in these circumstances.

13.6            For the avoidance of doubt, the Customer may terminate a Contract for Other Services for convenience at any time during any Minimum Period or any Further Period, by giving 30 days’ notice in writing;  in this event, all Charges that would have been payable to the Supplier, had the Contract continued for the remainder of the Minimum Term or Further Period (as applicable), will become immediately due and payable on Termination Notice being served. The Customer acknowledges and accepts that these charges are reasonable to reflect that the Supplier has incurred upfront costs to provide the Services for the Minimum Term or Further Term, including, but not limited to, acquiring IT resources such as hosting, bandwidth and storage to operate the Customer’s Site and or software-as-a-service (SaaS).

13.7             If the Customer has not given termination notice in accordance with this clause at least 30 days prior to the expiry of the Minimum Period or Further Period, the Contract shall automatically renew in accordance with clause 13.3.

13.8             At the end of a Further Period (if applicable) the parties shall follow the same procedure as set out in clause 13.3 as they followed at the end of the Minimum Period and shall continue to do so at the end of every subsequent Further Period.

13.9             If clause 13.5.2(a) above is triggered at the end of the Minimum Period or a Further Period then the Customer shall automatically be transferred onto the Supplier’s Bronze Level Package for all Other Services (as applicable).

13.10             Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.10.1        the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

13.10.2        the other party commits a material breach of any term of this Contract 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;

13.10.3        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;

13.10.4        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 that other party;

13.10.5        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 Supplier);

13.10.6        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;

13.10.7        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;

13.10.8        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;

13.10.9     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 13.10.1 to clause 13.10.9 (inclusive);

13.10.10     the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

13.10.11     any warranty given by the other party in clause 9 of this Contract is found to be untrue or misleading; or

13.11             The Supplier may terminate the Contract if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010) or the Supplier transfers or assigns any Intellectual Property Rights to the Materials.

13.12          On termination of this Contract by the Supplier under clause 13.8, all licences granted by the Supplier under this Contract shall terminate immediately.

13.13          On expiry or termination of this Contract otherwise than on termination by the Supplier under clause 13.8, the Supplier shall, upon the request of the Customer, return the Customer’s data in a non-relational data format at a cost of £750 plus VAT which shall be payable on demand.

13.14          On expiry or termination of this Contract, all provisions of the Contract 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.

13.15          Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

13.16          Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

13.17          If the Supplier terminates this Contract pursuant to clause 13.7 then the Customer shall remain liable to the Supplier for any such sums due to the Supplier prior to the termination, whether or not such sums relate to Services that have provided or are to be provided and including but not limited to any Monthly Licence Fee due to the end of the Minimum Period or the Further Period as appropriate and/or any such sums outstanding in relation to the Design and Development Services.

13.18        On termination of the Agreement for whatever reason, all Fees and any other monies payable by the Customer to the Supplier shall immediately become payable.

14.                 Project Change

14.1             Any request to change the scope of the Services shall be processed in accordance with the Project Change Procedure set out below.

14.2             The Supplier and the Customer shall discuss any change to this Contract or variation to a Project, Product or Service (Change) proposed by the other and such discussion shall result in either:

14.2.1        a written request for a Change by the Customer; or

14.2.2        a written recommendation for a Change by the Supplier,

or, if neither the Customer nor the Supplier wishes to submit a request or recommendation, the proposal for the Change will not proceed.

14.3             Where a written request for a Change is received from the Customer, the Supplier shall, unless otherwise agreed, submit a Project Change request (PCR) to the Customer within the period agreed between them or, if no such period is agreed, within five Business Days from the date of receipt of such request for a Change, or inform the Customer that the Supplier is not able to comply with such written request for a Change.

14.4             A written recommendation for a Change by the Supplier shall be submitted as a PCR direct to the Customer at the time of such recommendation.

14.5             Each PCR shall contain:

14.5.1        the title of the Change;

14.5.2        the originator and the date of the request or recommendation for the Change;

14.5.3        the reason for the Change;

14.5.4        the full details of the Change, including any specifications and user facilities;

14.5.5        the price, if any, of or associated with the Change;

14.5.6        a timetable for implementation, together with any proposals for acceptance of the Change;

14.5.7        the impact, if any, of the Change on other aspects of this Contract, including:

(a)          the Charges; and

(b)          the contractual documentation; and

14.5.8         the date of expiry of validity of the PCR (if applicable).

14.6             For each PCR submitted, the Customer shall, within the period of validity of the PCR as set out in clause 14.5.8:

14.6.1        allocate a case reference number to the PCR;

14.6.2        evaluate the PCR, and as appropriate either:

(a)          request further information; or

(b)          approve the PCR; or

(c)          notify the Supplier of the rejection of the PCR; and

14.6.3        if approved, arrange for the approved PCR to be signed for and on behalf of the Customer and the Supplier. The signing of the PCR shall signify acceptance of a Change by both the Customer and the Supplier.

14.7             Subject to clause 14.8, once signed by the Customer and the Supplier in accordance with clause 14.6, the Change shall be immediately effective and the Customer and the Supplier shall perform their respective obligations on the basis of the agreed amendment.

14.8             If an accepted Change results in an increase to the Charges, such increase to the Charges shall be paid by the Customer in full and in cleared funds to a bank account nominated by the Supplier:

14.8.1        if the increase is less than £150 plus VAT, within 14 days of the date of the Supplier’s invoice; or

14.8.2        if the increase is £150 plus VAT or more, immediately and the Supplier shall not be obliged to commence any work until payment of all sums due under this clause have been received in full. 

15.                 Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract 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 8 weeks, the party not affected may terminate this Contract by giving 14 days' written notice to the affected party.

16.                 Confidentiality

16.1             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.

16.2             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.

16.3             The obligations set out in this clause 16 shall not apply to Confidential Information which the receiving party can demonstrate it:

16.3.1        is or has become publicly known other than through breach of this clause 16; or

16.3.2        was in possession of the receiving party prior to disclosure by the other party; or

16.3.3        was received by the receiving party from an independent third party who has full right of disclosure; or

16.3.4        was independently developed by the receiving party; or

16.3.5        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.

16.4             The obligations of confidentiality in this clause 16 shall not be affected by the expiry or termination of this Contract.

17.                 Notices

17.1            Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

17.1.1         sent by email, from the Customer, and must be specifically addressed and sent to the business email address of the Customer's Account Manager, or such other email address as agreed by both parties, or as notified by the Supplier from time to time, or in the case that an alternate email address is otherwise specifically stated in the Agreement for the receipt of a Notice by the Supplier; or

17.1.2        delivered by hand, or by pre-paid first-class post, or other next working day delivery service at its registered office (if a Supplier) or its principal place of business (in any other case); or

17.1.3      sent by email, from the Supplier to the Customer or;

17.1.4      via a notice on the login page, or when logged into the VIA Software, the Software as a Service.

17.2            Any notice shall be deemed to have been received:

17.2.1        if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

17.2.2        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.

17.2.3        if sent by email, and received by 9.00am on the next Business Day after transmission.

17.3            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.

17.4         For the avoidance of doubt, notices given by the Customer under the Agreement shall not be validly served if sent by email, except and in accordance with Clause 17.1.1.

18.                 Publicity

All media releases, public announcements and public disclosures by either party relating to this Contract or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.

19.                 Assignment

The Customer may not make any assignment of this Agreement, assign or transfer any of its rights or obligations, or any interest herein, by operation of law or otherwise, without the prior written consent of the Supplier.  This Agreement shall inure to the benefit of and be binding upon the Customer, their respective successors, executors, administrators, heirs and permitted assigns. Any such successor of the Company will be deemed substituted for the Customer under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets, liabilities, contracts, or business of the Customer.

20.                 Data Protection

20.1             Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

20.2             The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.

20.3             Without prejudice to the generality of clause 20.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Contract.

20.4             Without prejudice to the generality of clause 20.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Developer of its obligations under this Contract:

20.4.1        process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union, by the laws of any country comprising the United Kingdom or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws);

20.4.2        ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

20.4.3        not transfer any Personal Data outside the European Economic Area unless the following conditions are fulfilled:

(a)          the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

(b)          the Data Subject has enforceable rights and effective legal remedies;

(c)          the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(d)          the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

20.4.4        assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

20.4.5        notify the Customer without undue delay on becoming aware of a Personal Data breach;

20.4.6        at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Personal Data; and

20.4.7        maintain complete and accurate records and information to demonstrate its compliance with this clause 20.

20.5             The Customer consents to the Supplier appointing third-party processors of Personal Data under this Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 20. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 20.5.

21.                 Entire agreement

21.1             This Contract 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.

21.2             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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

22.                 Third-party rights

22.1             Except as expressly provided elsewhere in the Contract, a person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.

22.2             The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any other person.

23.                 Variation

The Supplier may vary these Conditions from time to time by giving notice to the Customer.

24.                 Waiver

No failure or delay by a party to exercise any right or remedy provided under this Contract 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.

25.                 Rights and remedies

Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

26.                 Severance

26.1             If any provision or part-provision of this Contract 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 Contract.

26.2             If any provision or part-provision of this Contract 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.

27.                 Governing law

This Contract 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.

28.                 Jurisdiction

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 this Contract or its subject matter or formation (including non-contractual disputes or claims).

 

 

 

Schedule 1– Processing, Personal Data and Data Subjects 

1.                Processing by the Supplier

 1.1              Scope and Nature

The storage and processing of Personal Data provided by the Customer to the Supplier.

 1.2              Purpose of processing

To hold the Personal Data securely for the purposes of the Supplier carrying out its obligations to the Customer under this Contract including, but not limited to, providing Hosting Services, Support Services and a client relationship management system.

 1.3              Duration of the processing

The processing shall continue until the termination of the Contract or the Customer providing the Supplier with written notice to delete or return the Personal Data in accordance with clause 20.4.6.

2.                Types of personal data and categories of data subject

The different types of Personal Data provided by the Customer to the Supplier relating to the Customer’s customers may include:

Identity Data including first name, last name, title, date of birth and gender.

Contact Data including billing address, residential address, email address and telephone numbers.

Technical Data including internet protocol (IP) address, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices used to access the website.

Profile Data including username and password, purchases made, interests, preferences, feedback and survey responses. 

Usage Data including information about how the customer uses the website.

N.B. Other References: Standing Operating Procedures:-

Backup Policy, Privacy Policy, Dispute & Complaint Procedure