TERMS AND CONDITIONS
THESE TERMS WERE LAST UPDATED 18TH SEPTEMBER 2020, WITH THE FOLLOWING UPDATES:
Added support for Stripe payment servicesServices revision to DefinitionsNew CRM software definition addedSupplier obligations that were in Client obligations moved under Client sectionInternet Browser definitions and minimum version updateTotal Monthly Cost/Software Subscription/Monthly Licence Fee wording revision for increased clarityAssignment Clause revisionLate payment Interest Barclays Bank rate change from 4% to 8%
Website Template deprecation wording revisionOperating systems minimum version update
Website Template deprecation wording revision
GENERAL TERMS AND CONDITIONS
SUPPLY OF SERVICES
The definitions and rules of interpretation in this clause apply in this Contract.
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.
GTM Recipe means one, or a collection of, several Tags, Triggers or Variables in Google Tag Manager,
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
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.
4. Customer responsibilities
4.1 The Customer acknowledges that the Supplier's ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of the design specifications provided by the Supplier or the Design Agency (if applicable) and any information and data the Customer provides to the Supplier. Accordingly, the Customer shall:
4.1.1 provide the Supplier with access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations under the Contract;
4.1.2 provide instructions to the Supplier; and
4.1.3 provide instructions to and manage their Design Agency (where applicable).
4.2 The Customer shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause 12.
4.3 The Customer shall:
4.3.1 ensure that the terms of the Order, scope of work and/or any information in the specification are complete and accurate; and
4.3.2 provide in a timely manner such information and assistance as the Supplier may request, and ensure that such information is accurate in all material respects.
4.4 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
4.5 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier and who has had contact with the Customer during the Contract.
4.6 The Customer acknowledges that it is responsible for ensuring that no unauthorised access to the Server(s) and/or Site Software and/or Software as a Service is obtained by any third party using the Customer’s passwords. In the event that the Customer’s passwords are disclosed (whether or not through the fault of the Customer) to any third party, the Customer shall immediately notify the Supplier of such disclosure.
4.7 If the Supplier is providing Support Services to the Customer;
4.7.1 the Customer shall appoint/nominate one of its employees as a Super-User, normally at either its principal business premises, or at each of its business premises/branches (if more than one) to liaise with the Supplier in respect of the Support Services.
4.7.2 the Customer shall provide the name of the Super-User at any time to the Supplier and hereby acknowledges that, aside from the Super-User and any of the Customer’s directors (from time to time), none of its other employees, agents or sub-contractors shall be permitted to use or access the Support Services unless;
4.7.3 in the Customer’s reasonable opinion, it is necessary for security or business detrimental Support reasons.
4.8 A Super-User may only be changed with the prior written consent of both parties.
4.9 The Customer shall notify the Supplier within 60 days of any change to their internal systems which may affect the importing/exporting of data from or to a third party system.
4.9.1 The Customer shall notify the Supplier within 60 days if any third party has been engaged to build a replacement Website that shall be hosted at any time on the same domain. In such circumstances that this statement is true, the Customer shall provide notice of Termination of the Agreement to the Supplier including the expected switchover date.
4.10 Where the Customer does not notify the Supplier in accordance with clause 4.10 any work resulting from such a change, the Customer shall become liable for the Charges and Rates in accordance with Clauses 8.8 and 8.9.
4.11 This clause 4.12 and clauses 4.13 to 4.18 (inclusive below) shall apply if the Supplier is providing Software as a Service to the Customer. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.12 In relation to Authorised Users, the Customer undertakes that:
4.12.1 the maximum number of Authorised Users that it authorises to access and use the Software as a Service shall not exceed the maximum number detailed in the Order (unless otherwise agreed in writing by the parties);
4.12.2 each Authorised User shall keep a secure password for his use of the Software as a Service that each Authorised User shall keep his password confidential;
4.12.3 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
4.13 The Customer shall not:
4.13.1 except as may be allowed under this Contract or by any applicable law which is incapable of exclusion by agreement between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software as a Service Software (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software as a Service Software; or
4.13.2 access all or any part of the Software as a Service Software in order to build a product or service which competes with the Software as a Service; or
4.13.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software as a Service available to any third party except the Authorised Users, and
4.13.4 attempt to obtain, or assist third parties in obtaining, access to the Software as a Services, other than as provided under this clause 4.
4.14 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software as a Service and, in the event of any such unauthorised access or use, promptly notify the Supplier.
4.15 The Customer shall not cause to be used or permit the use of, any automated, manual or other means to obtain, harvest or aggregate any data, software, code or other content from the Website including, without limitation: Spiders, Scrapers or Bots, without the expressed prior written agreement from the Supplier.
4.16 The Customer acknowledges that the Supplier strictly limits Internet Web Browser compatibility to;
4.16.1 The Customer acknowledges Websites and Web Templates, including technical Support services and development warranty for the duration of the Term of Subscription and any successive renewal period of the Contract only.
4.17 The Customer acknowledges bespoke Website pages have support warranty for 3 months only from the Website/Website Page(s) Go Live date. Errors or bugs found displaying content in the Internet Browsers’ described in Clause 3.10 and in accordance with Clause 4.18, where compatibility related development fixes are required, shall not constitute a Supplier defect. In such cases where the Customer, subject to Clause 4.19, requires a Web Browser compatibility related fix to be carried out by the Supplier, a development Change request from the Customer is required; the Customer understands a development charge may be applicable for the development work to resolve the compatibility issue.
4.18 Where a Customer perceives there to be a bug displaying some part of a Website on a device’s Internet browser, the Customer is required to do the following;
4.18.1 Check that the device displaying the perceived bug has the following minimum requirements;
(a) a device operating system that has either been updated to the most recent version update or currently matches the manufacturer's most recent and last version update and be no more than 1 year's old.
(b) is using an Internet Browser software version updated to the most recent software version and/or subversion on general public release by the manufacturer and not of an Alpha or Beta state version of the software.
4.18.2 In the event both the above statements are true;
(a) the Customer should upon discovery report the specific error found, in the first instance, where possible, using the Submit an issue feature in the Supplier’s software, which sends the device information to the Supplier, otherwise if this is not possible, report the issue by email to the Supplier’s support team firstname.lastname@example.org , providing a screenshot of the issue and the evidence of the above statement being true, in addition, the actions taken to create the error repeatedly.
(b) the Customer acknowledges that the Supplier reserves the right to reset any User Acceptance Testing period in progress.
4.18.3 If either of the above statements are false;
(a) the Customer acknowledges that the Supplier is not required to take any further action.
(b) the Customer shall be liable for the total time taken by the Supplier in supporting the issue with the Supplier’s time spent deducted from the Customer’s SLA Support quota.
4.19 In the event the Supplier is unable to replicate the reported bug through internal testing;
4.19.1 the Customer acknowledges that such a bug defect may be caused as a result of software or hardware installed on the device. The Supplier therefore shall not be required to support the defect;
(a) where the device operating system has either not been updated to the most recent version update or does not currently match the manufacturer's most recent and last version update and be no more than 1 year's old.
(b) where the Internet Browser software version has not been updated to the most recent software version and/or subversion on general public release by the manufacturer and is an Alpha or Beta state version of the software.
(c) where the device is NOT Hard Reset back to its original factory settings upon request to do so, thus disabling the Supplier from ruling out a third-party software conflict.
4.20 The Customer acknowledges that in the event the Supplier is unable to find the reported bug after the Customer has performed a Hard Reset of the device in question to its factory settings;
4.20.1 the parties agree to no further action being taken in relation to the issue.
4.20.2 the Customer shall be liable for the total time taken by the Supplier in supporting the issue with the Supplier’s time spent deducted from the Customer’s SLA Support quota.4.20.3 the Customer acknowledges that the Supplier’s time spent on Support and investigation shall reasonably be deducted from the Customer’s SLA Support quota; or where the SLA quota has been exceeded, or unavailable to the Customer due to being on Bronze Level SLA Support, shall otherwise be chargeable to the Customer at the Premium Support Rate in accordance with clause 8.8.
4.21 The Customer acknowledges that the Supplier may: i) add or remove any element of functionality to or from any of the Services; (ii) withdraw any of the Services such as, but not limited to the Software as a Service, Website Template, Website layout or design; and/or (iii) add or remove any element of functionality to or from any of the Services, at its discretion at any time. In such circumstances, the Supplier shall post notice of both the effective date and details of any material changes using a Notice in accordance with Clause 17. If such changes are to the material detriment of the Customer, such as an increase in Fees for Services in excess of a 5% increase, then the Customer may within five business days of the effective date of such change terminate the Services (as applicable) with immediate effect by giving the Supplier notice of Termination in writing.
4.21.1 The Customer acknowledges that continued use of the Services (as applicable) after the expiry of five business days of the effective date of any such changes shall constitute the Client’s acceptance of such changes.
5. Development and acceptance of Site
5.1 This clause shall apply if the Supplier is providing Design and Development Services.
5.2 Once the Supplier has completed the Project, the Supplier shall run the User Acceptance Tests. The procedure set out in this clause 5 shall be repeated in respect of each Phase and any further development works agreed by the parties from time to time.
5.3 The User Acceptance Tests shall test compliance of the Site with the Site Specification. The form and detail of such tests is set out in the Order.
5.4 If the Customer has not chosen the Image Materials to be used on the Site prior to the User Acceptance Tests being undertaken, the Supplier shall use a selection of random images for the purpose of the User Acceptance Tests. Should the Customer subsequently wish to change the Image Materials that are used on the Site, this shall be treated as a separate Project to which the Supplier's standard charges (as amended from time to time) shall apply.
5.5 The Supplier shall notify the Customer when the User Acceptance Tests have been passed. The Customer shall have fourteen (14) days from the date of such notice (“User Acceptance Testing Period”) to dispute the results of the User Acceptance Tests. If the Customer does not dispute the results of the User Acceptance Tests during the User Acceptance Testing Period, the Customer shall be deemed to have accepted the results of the Acceptance Test as notified by the Supplier.
5.6 If the Customer disputes the results of the User Acceptance Tests during the User Acceptance Testing Period, the Supplier shall consider the Customer’s feedback and make any necessary changes (“Necessary Changes”) to ensure that the Site complies with the Site Specification. At the Supplier’s discretion, the User Acceptance Testing Period in the event of such a dispute shall either:
5.6.1 be paused until the Necessary Changes are made, at which point it shall automatically resume; or
5.6.2 end automatically once the Necessary Changes have been made.
5.7 Once the User Acceptance Testing Period has ended, the parties shall meet within a reasonable time to discuss any final changes that the Customer requires to the Site (“Final Changes”). Unless the Supplier otherwise agrees at this meeting, any Final Changes that are required will be treated as a separate Project to which the Supplier's standard charges (as amended from time to time) shall apply.
5.8 The Customer shall receive an email from the Supplier following the meeting referred to in clause 5.7 above to confirm the details of any Final Changes to be undertaken.
5.9 If any failure to pass the User Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer's sub-contractors or agents for whom the Supplier has no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the User Acceptance Tests notwithstanding such Non-Supplier Defect. The Supplier shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier's then current fees and prices.
5.10 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
5.10.1 the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
5.10.2 the Customer unreasonably delays the start of the relevant User Acceptance Tests or any retests for a period of 7 Business Days from the date on which the Supplier is ready to commence running such User Acceptance Tests or retests; or
5.10.3 the User Acceptance Testing Period ends and the Customer has not disputed the results of the User Acceptance Tests during such period.
6. Third party products
Any Third-Party Products shall be supplied in accordance with the relevant licensor's standard terms.
7. Project management
7.1 Each party shall appoint a project manager who shall:
7.1.1 provide professional and prompt liaison with the other party; and
7.1.2 have the necessary expertise and authority to commit the relevant party.
7.2 The project managers shall meet at such intervals as the Supplier and the Customer may agree until Acceptance and thereafter at such intervals as they agree.
7.3 The Supplier shall use reasonable endeavours to ensure that the same person acts as its project manager throughout a particular project, but may replace him from time to time where reasonably necessary in the interests of the Supplier's business.
8. Charges and payment
8.1 This clause 8.1 and clause 8.2, below, shall apply if the Supplier is providing Design and Development Services to the Customer. The Supplier shall provide the Design and Development Services for the price as detailed in the Order.
8.2 Subject to any payment schedule set out in the Order, the Customer shall pay to the Supplier an amount equal to:
8.2.1 the Initial Payment on the Effective Date; and
8.2.2 the Final Payment immediately upon Acceptance or deemed Acceptance of the Site in accordance with clause 5.
8.3 Once the Site has been rolled to live Servers the final payment shall become due.
8.4 This clause 8.4 shall apply if the Supplier is providing any Services other than Design and Development Services to the Customer. Unless otherwise agreed in writing or detailed in the Order, the Supplier shall issue an invoice for the Monthly Licence Fee in advance on a monthly basis. The first Monthly Licence Fee shall be due and payable:
8.4.1 for Hosting Services, Support Services, and Software as a Service (including Ancillary Services), on the date the User Acceptance Testing Period starts pursuant to clause 5.5; and
8.4.2 for any other Services, on the date specified by the Supplier in the Order or otherwise agreed between the parties in writing.
8.5 Thereafter, unless otherwise agreed in writing, the Monthly Licence Fee is due and payable monthly in advance until such time as the Contract is terminated in accordance with these Conditions.
8.6 This clause 8.6 and clauses 8.7 to 8.9 inclusive, below, shall apply if:
8.6.1 the Supplier is providing Support Services to the Customer; or
8.6.2 the Customer had subscribed for Hosting Services but such services have been terminated by the Customer in accordance with these Conditions and the Customer is not receiving any on-going services from the Supplier (aside from the Support Services).
8.7 Unless otherwise agreed (including but not limited to if Support Services are included as part of the Monthly Licence Fee), the Supplier shall charge the Customer for the Support and Development Services on an hourly basis in accordance with clauses 8.8 and 8.9.
8.8 The Supplier shall, where applicable, be entitled to charge the Customer each Rate as follows;
8.8.1 the Premium Support Rate where the Customer requires immediate Support for a problem, defect or bug not caused by the Supplier or where the Customer has the Bronze Service Level Agreement with the Supplier and requires Support Services;
8.8.2 the Emergency Development Rate, together the Rates, for a problem, defect or bug not caused by the Supplier and where urgent Development is necessary and accepted by the parties to begin in remedy thereof. In such circumstances the Customer shall be liable for all related remedial Support and Development charges, and the Supplier on acceptance of the undertaking of the remedial emergency Support, and or Development work, may immediately issue an invoice to the Customer in respect of the Rates which become due and payable as per the payment terms stated on the Invoice.
8.9 The Rates may be amended by the Supplier from time to time without reference to the Customer.
8.10 The remainder of this clause 8 shall apply to each of the Services as applicable.
8.11 Where a price has been quoted by the Supplier for a Change, the price maybe an estimate based on the information given to the Supplier by the Customer and/or which is available to the Supplier at that time, and may be based on a number of assumptions. If it materialises that in the Supplier’s reasonable opinion, the information provided and/or assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge the Customer for any additional Services provided in addition to those detailed in the Order together with all related costs and expenses incurred by the Supplier. The Customer shall be notified by the Supplier as soon as this additional cost reasonably becomes known to the Supplier. Both parties shall in such a case mutually agree the basis on which to proceed with or reject the Change.
8.12 Unless otherwise agreed between the parties, the Customer shall pay each invoice submitted to it by the Supplier in full within 14 days of the date of invoice, with cleared funds within 21 days of the date of invoice.
8.13 Invoices that are not disputed within 21 days of the date of the invoice shall be deemed to be accurate and accepted by the Customer. Invoices disputed and subsequently paid in full shall be deemed accepted by the Customer.
8.14 All Charges are exclusive of VAT.
8.15 The Customer agrees to make payment by direct debit and to continue to make payments by direct debit for the remainder of the term of the Contract unless otherwise agreed in writing by both parties.
8.16 Where the Customer agrees to make payment by direct debit, credit card, Stripe or Paypal, the Customer hereby authorises the Supplier to bill such direct debit, credit card, Stripe or Paypal account on or at any time after the invoice date.
8.17 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
8.17.1 charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of Barclay’s Bank from time to time, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
8.17.2 withhold, remove, disable or suspend all Services until such time as any and all outstanding fees, inclusive of interest has been made in full;
8.17.3 charge and receive payment in full for the reconnection fee of £85 plus VAT for the resumption of the Services.8.17.4 continue to charge for services rendered during any part of the suspension period, due to Customer data continuing to being stored, maintained, hosted in the private Cloud and backed-up by the Supplier.
8.18 All amounts and fees stated or referred to in this agreement shall be payable in pounds sterling. The Customer shall be responsible for all bank charges for payment transmission including currency exchange rate charges.
8.19 Time for payment shall be of the essence of the Contract.
8.20 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other contrary provision. This clause is without prejudice to any right to claim for interest under any law, or any such right under the Contract.
8.21 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8.22 All amounts due under the Contract shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier shall invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
8.23 Any additional Branches or Ancillary Services added by agreement between the Supplier and Customer during the Term of Subscription shall be automatically deemed part of the existing Contract. The additional Branch or Ancillary Service shall be bound for the full Term of Subscription, including any renewal periods and these Terms unless otherwise agreed in the Order.
8.24 Any reduction in the number of total Branches or Ancillary Services shall not constitute in a reduction of the Monthly Software Subscription/Monthly Licence fee until the end of the Term of Subscription unless otherwise agreed in the Order. The standard Notice of termination still applies for withdrawal of a Branch or Ancillary Services.
8.25 The Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this Contract in line with the percentage increase in the Retail Price Index in the preceding 12-month period.8.26 The Supplier requires at least 24 hours cancellation notice of any training appointments agreed between the Supplier and Customer to avoid charges for a rescheduled training appointment.
9.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the Contract.
9.2 The Supplier shall perform the Services with reasonable care and skill and in accordance with all applicable laws and regulations in force from time to time.
9.3 If the Supplier is providing Design and Development Services then it warrants that the Site will perform substantially in accordance with the Site Specification for a period of three months from Acceptance. If the Site does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
9.4 The warranty set out in clause 9.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials, force majeure event or any act, omission or default by the Customer, its employees agents or subcontractors.
9.5 All Software as a Service and Third-Party Products are supplied "as seen". The Supplier makes no representations and gives no warranties as to the quality, condition, state or description of the Software as a Service or Third Party Products, its fitness or suitability for any purpose.
9.6 This Contract sets out the full extent of the Supplier's obligations and liabilities in respect of the supply of the Services, Site Software and Third-Party Products. All conditions, warranties or other terms concerning the Services, Site Software and Third-Party Products which might otherwise be implied into this Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
9.7 This clause 9.7 shall apply if the Supplier is providing Software as a Service to the Customer. The Supplier:
9.7.1 does not warrant that the Customer's use of the Software as a Service will be uninterrupted or error-free; or
9.7.2 does not warrant that the Software as a Service and/or the information obtained by the Customer through the Software as a Service will meet the Customer's requirements; and
9.7.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software as a Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10. Limitation of remedies and liability
10.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.1.1 any breach of the Contract howsoever arising;
10.1.2 any use made by the Customer of the Services, the deliverables or any part of them; and
10.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in the Contract excludes the liability of the Supplier:
10.3.1 for death or personal injury caused by the Supplier's negligence; or
10.3.2 for fraud or fraudulent misrepresentation.
10.4 Subject to clause 10.2 and 10.3:
10.4.1 the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of contract; or
(g) loss of use; or
(h) loss or corruption of data or information; or
(i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
10.4.2 the Supplier's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services in the preceding 6 months.
10.6 This clause 10.6 shall apply where the Supplier is providing Software as a Service. The Customer assumes sole responsibility for results obtained from the use of the Software as Service Software by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Software as a Service, or any actions taken by the Supplier at the Customer's direction.
11. Intellectual property rights
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, the Site (including in the content of the Site and the Site Software but excluding the Materials) and any Deliverables arising in connection with the Contract.
11.2 Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Site (including in the content of the Site and the Site Software but excluding the Materials) and any Deliverables arising in connection with the Contract.
11.3 Where the Supplier is providing Design and Development Services, the Supplier hereby grants the Customer a non-exclusive, non-transferable licence of Intellectual Property Rights in the Site (including in the content of the Site and the Site Software) for the purpose of the Supplier operating the Site.
11.4 Where the Supplier is providing Software as a Service, the Supplier grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Software as a Service for the Minimum Period and any Further Period solely for the Customer's internal business operations.
11.5 For the avoidance of doubt, the Customer shall not, without the written consent of the Supplier, disclose any of the Supplier’s Intellectual Property Rights to any third party.
11.6 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
11.7 The Supplier shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 11.6.
11.8 The indemnities in clause 11.6, clause 11.7 and clause 12.5 are subject to the following conditions:
11.8.1 the indemnified party promptly notifies the indemnifier in writing of the claim;
11.8.2 the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
11.8.3 the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
11.8.4 the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
11.9 The indemnities in clause 11.6, clause 11.7 and clause 12.5 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
11.10 The Customer hereby grants to the Supplier a non-exclusive licence of any of its Intellectual Property Rights for the purpose of fulfilling the Supplier’s obligations under the Contract.
12. Site content
12.1 This clause shall apply if and to the extent that the Supplier is providing Website Design and Development Services and/or Hosting Services and/or Software as a Service to the Customer.
12.2 The Supplier shall update the Site with Materials provided from time to time by the Customer. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
12.3 The Customer shall ensure that the Materials are free from any defects, viruses or dirty data (Defects). The Supplier reserves the right to charge the Customer for any corrective action taken by it to and the Customer hereby agrees to the reasonable charges incurred by the Supplier.
12.4 The Supplier shall include only Materials on the Site. The Customer acknowledges that the Supplier has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. The Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
12.5 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content or any Defects.
12.6 The Supplier may include the statement "Software, Design & SEO by Webdadi” on the footer of the home page of the Site in a form to be agreed. The statement may be amended to reflect any other services that the Supplier is providing in connection with the Site provided that the statement shall not exceed more than 10 words (unless otherwise agreed).12.7 The Supplier is not responsible for the maintenance, technical support or any resulting Website problems caused by the use of GTM Features belonging to a Customer's Google Tag Manager account, in either a Container or Workspace, is the sole responsibility of the Customer whether published or unpublished. GTM Features or Recipe(s) are not provided to the Customer as part of the Software as a Service, Monthly Software Subscription/Licence fee, therefore GTM Features and the results thereof are not maintained, nor supported by the Supplier.
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;
- 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;
- 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, begins on the first day of the User Acceptance Testing Period, also known as the BETA delivery date;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
13.5.1 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, 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% 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 60 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 (as applicable) including, but not limited to, acquiring bandwidth and storage space to host the Customer’s Site and or software as a service
13.7 If the Customer has not given notice in accordance with this clause at least 60 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 £500 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.
16.1 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.
17.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
17.1.1 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
17.1.2 sent by email specifically and only in cases for a Notice of Termination where an email address is specifically specified for a Notice of Termination on the Order or such other address as notified by the Supplier from time to time; 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 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, at 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 17.1.2.
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.
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.
The Supplier may vary these Conditions from time to time by giving notice to the Customer.
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.
26.1 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.
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:-