1. Definitions and interpretation

 

1.1. In these Conditions:-

“Equipment” means the computer hardware, network and associated peripherals equipment specified in the Proposal or, as the case may be, the Specification or such other equipment as may be agreed from time to time, whether such equipment is operated by the Customer or a third party on the Customer’s behalf or operated by or on behalf of the Company pursuant to a Contract with the Customer for the provision of website hosting services

 

“IPRs” means all intellectual property rights including, without limitation, patents, utility models, copyrights, registered designs, unregistered design rights, applications for registration of any of these and the right to apply for any of these in any part of the world, rights in know how and other confidential information

 

“Materials” means any artwork, designs, specifications or other materials (excluding Software) developed by or on behalf of the Company and delivered to the Customer pursuant to the Contract whether as part of a Website or otherwise

 

“Party” means the Company or the Customer

 

“Payment Schedule” means the schedule for payment of the Charges issued to the Customer with the Specification

 

“Project Schedule” means the document setting out the target timescales, milestones and obligations of the Customer contained or referred to in the Proposal, as varied, where applicable, by the Specification

 

“Proposal” means the Company’s written quotation for the development of a Website or Software, the provision of support and maintenance services or the supply of other Services

 

“Services” means the website design, software development support & maintenance and/or other services described in the Proposal as varied, where applicable, by the Specification

 

“Software” means any software to be developed by the Company for the Customer under the Contract

 

“Specification” means the Company’s written specification of the Website or Software to be developed for the Customer under the Contract, as the same may be amended from time to time in accordance with these Conditions or with the written agreement of the Company

 

“Third Party Software” means the third party software (if any) specified in the Proposal

 

“Website” means any website to be developed by the Company pursuant to the Contract, being a compilation of one or more pages combining text, data, sound, images or other material which is designed to be accessible over the Internet at a domain name address and which is more particularly described in the Specification.

 

1.2. Reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, reenacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2. The Contract

2.1. These Conditions embody the entire understanding of the Parties and override any prior promises, undertakings or representations (though nothing contained in these Conditions shall operate to limit or exclude the liability of either Party for fraud).

 

2.2. Any error or omission in any sales literature, quotation, price list, invoice, specification or other document or information issued by the Company is subject to correction without any liability to the Company. In connection with Project or Fixed price work.

 

3. The Service

3.1. The Company shall use its reasonable endeavours to perform the Services in accordance with any timescales set out in the Project Schedule/Specification but, subject to using such endeavours, shall not be liable for any failure to achieve such timescales or any other timescales quoted for performance of the Services.

 

3.2. The Customer shall perform the obligations specified in the Project Schedule/Specification and shall use its reasonable endeavours to do so in accordance with any timescales set out in the Project Schedule.

 

3.3. The Customer shall be responsible to the Company for:

 

3.3.1. ensuring the accuracy and lawfulness of any specification, information or materials (whether in written, electronic or other form) submitted by the Customer for use in connection with the provision by the Company of the Services;

 

3.3.2. providing promptly all such information, data and assistance as the Company reasonably considers necessary for the purpose of enabling it to provide the Services.

 

3.4. The quantity, quality and description of the Services and any resulting deliverables is as set out or referred to in the Proposal (as varied, where applicable, by the Specification). Any other descriptive material provided by the Company is provided only to assist the Customer and does not form part of the Contract.

 

4. Customer Obligations

4.1. The Customer acknowledges that the Company'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 any information and data the Customer provides to the Company. Accordingly, the Customer shall provide the Company with access to, and use of, all information, data and documentation reasonably required by the Company for the performance by the Company of its obligations under this agreement.

 

4.2. The Customer shall be responsible for the accuracy and completeness of any information or materials it supplies to the Company for use in providing the Services.

 

5. The Specification

5.1. As the first phase of any Website or Software development, the Company shall prepare a proposed Specification for the Customer’s approval. The Customer shall notify the Company in writing within 30 days of its receipt of such document whether or not the proposed Specification is approved.

 

5.2. The Charges for Website or Software development set out in a Proposal are estimates only and will be confirmed or varied in the Specification accompanying the subsequent proposed Specification. The Customer’s approval of the Specification shall constitute its agreement to the Charges indicated in the Specification.

 

5.3. If the Customer does not notify the Company in writing of its approval of the proposed Specification within the period specified in Condition 5.1, then the proposed Specification shall be deemed not approved and the Company may terminate the Contract immediately by written notice to the Customer.

 

5.4. For the avoidance of doubt, the Company shall not be obliged to undertake any further work in connection with the development of the Website and/or the Software (as the case may be) until the proposed Specification has been approved in writing by the Customer in accordance with this Condition 4.

 

6. Alterations to the Specification

6.1. If at any time before the Customer’s acceptance of the Website or Software, the Customer wishes to alter all or any part of the Specification then the Customer shall provide the Company with full written particulars of the desired alterations and with such further information as the Company may reasonably require.

 

6.2. The Company shall then submit to the Customer as soon as reasonably practicable a written quotation for such alterations, specifying what changes (if any) will be required to the Charges payable by the Customer, the Specification, any timescales and the Conditions.

 

6.3. Within 7 days following the Customer’s receipt of the quotation the Customer shall notify the Company whether it wishes to:

 

6.3.1. accept such quotation, in which case the Contract and Specification shall be amended in accordance with the quotation; or

 

6.3.2. withdraw the proposed alterations, in which case the Contract and the Specification shall continue in force unchanged.

 

6.4. The Company may charge, in accordance with its standard hourly/daily rates from time to time in force, for time spent in considering and responding to change requests served by the Customer pursuant to this Condition 5 and may obtain reimbursement of any expenses reasonably incurred.

  

7. Charges

7.1. Except where otherwise specified in the Proposal or, where applicable, the Specification, the Customer shall reimburse to the Company any reasonable expenses properly incurred by the Company in performing the Services.

 

7.2. Unless otherwise indicated in the Proposal or Specification, the quoted price is exclusive of any applicable VAT or other sales tax, which the Customer shall, where applicable, pay in addition in the manner and at the rate from time to time prescribed by law.

  

8. Delivery and Acceptance of the Website

8.1. The Company will undertake all Website development work on agreed Third Party servers e.g. Shopify.

 

8.2. The Customer shall accept the Website upon the Company demonstrating that the Website (as installed on the Third Party’s servers) complies, in all material respects, with its Specification.

 

8.3. Where the Proposal or, where applicable, the Specification indicates that the Company will provide such a Service, the Company shall install the Website on the Equipment.

  

9. Delivery and acceptance of the Software

9.1. Where the Proposal or, as the case may be, the Specification indicates that the Company will provide such a Service, the Company shall install the Software on the Equipment. Where installation is not to be undertaken by the Company, the Company shall deliver the Software to the Customer on the media and together with any operating manuals specified in the Specification.

 

9.2. The Customer shall accept the Software upon the Company demonstrating that the Software (as installed on the Third Party’s servers) complies, in all material respects, with its Specification.

 

9.3. If at any time the Customer shall commence live running of the Software or any part of the Software, then the Customer shall be deemed to have accepted the Software.

 

10. Third Party Software

10.1 The Company shall supply the Third Party Software and shall procure that, subject to the Customer agreeing in the manner prescribed by the relevant third party (“Third Party Licensor”) to the latter’s licensing terms, the Third Party Licensor licenses the Third Party Software to the Customer on the standard terms (or such other terms as may have been notified by the Company) of the Third Party Licensor. The Company shall be responsible for the fees charged by the Third Party Licensor to license the Third Party Software to the Customer for the number of concurrent users specified in the Proposal or Specification. The Company gives no assurances about the Third Party Software and the Customer acknowledges that its only remedy concerning any fault or problem in respect of the Third Party Software is the right it has against the Third Party Licensor under the licence of the Third Party Software.

  

11. Warranties

 

11.1. The Company warrants that:

 

11.1.1. it will provide the Services with reasonable care and skill;

 

11.1.2. upon acceptance in accordance with Condition 8 or Condition 9, as the case may be, the Website or the Software (as the case may be) will, when properly used on the Equipment, comply in all material respects with its Specification;

 

11.1.3. as at delivery, the media on which the Website and Software are provided will be free from defects in materials or workmanship.

 

11.2. Without prejudice to Condition 11.1.1 above, the Company does not warrant that the Software will meet the Customer’s data processing requirements or that the operation of either the Website or the Software will be error-free.

 

11.3. The Company shall not be considered in breach of its warranty in Condition 11.1.2 to the extent that any failure of the Website or Software materially to comply with its Specification arises from any defect or error in any Equipment.

 

11.4. The Customer shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of any of the warranties contained in Condition 11.1 above.

 

11.5. Subject to the Customer complying with Condition 11.4 and providing (where possible) a documented example of the relevant defect or failure, the Company shall remedy any breach of any of the warranties set out at Condition 11.1 by the provision of remedial services (including at the Company’s option replacement of defective items) free of charge. The Company shall have no liability or obligation under that warranty or obligation other than to remedy breaches of it in accordance with this Condition 11.5.

 

11.6. Except as expressly provided in the Contract, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the Services or any items delivered or to be delivered under the Contract are excluded to the fullest extent permissible by law.

 

12. IPRs

 

12.1. In this Condition 12:

 

12.1.1. “Work Product” means the Software and the Materials to the extent specifically produced by or on behalf of the Company under the Contract and, therefore, excluding the Generic Items;

 

12.1.2. “Generic Items” means those parts of the Software or Materials that do not comprise Work Product including, without limitation, all software, tools, designs and other materials existing prior to the commencement of the Contract.

 

12.2. Unless otherwise stated in the Proposal, upon payment by the Customer of all sums due to the Company under the Contract, all IPRs in the Work Product shall belong to the Customer. The Company shall, at the request and expense of the Customer, execute all such documents and do all such things as may be necessary to vest such IPRs in the Customer.

 

12.3. All IPRs in the Generic Items belong and shall continue to belong to the Company. With effect from delivery of the Website or the Software, as the case may be (and except as otherwise indicated in the Specification), the Company grants to the Customer a perpetual, non-exclusive, royalty-free licence (without the right to grant sub-licences) of all IPRs in the Generic Items in so far as is necessary to enable the Customer to operate, maintain and update the Website or the Software, as the case may be.

 

12.4. For the avoidance of doubt, nothing in the Condition 7 of the main Terms and Conditions shall prevent the Company from using, in the furtherance of its normal business, website development tools, techniques and skills, data processing techniques, software programming or development techniques, ideas and know-how which existed prior to the Contract or were gained during the performance of the Services.

 

13. Customer materials

13.1. The Customer shall indemnify the Company and keep the Company fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatever nature arising out of or in connection with any claim that the use by the Company or its sub-contractors of any software, information or material supplied by the Customer for the purpose of enabling the Company to develop the Website or the Software infringes the intellectual property or other rights of any third party.

 

14. Force Majeure

 

14.1. Notwithstanding anything else contained in these Conditions, the Company shall not be liable to the Customer or be deemed to be in breach of the Contract as a result of any delay in performing, or any failure to perform, any of its obligations under the Contract if the delay or failure was due to any cause beyond the Company’s reasonable control.