All Services provided by us will be subject to the following agreement:
1.1 The definitions and rules of interpretation in this clause and the Particulars apply in this agreement.
Acceptance Certificate: the certificate to be signed by you under clause 8(a).
Acceptance Date: the date on which the Acceptance Certificate is issued by you under clause 8(a).
Acceptance Tests: the tests of the Website after installation to be agreed in accordance with clause 7 and contained in the Specification.
Brand Guidelines: your brand guidelines provided to us from time to time.
Charges: the charges set out in the Specification, as amended from time to time.
Commencement Date: the date on which this agreement becomes effective as set out in the Particulars.
Computer Hardware: the computers and other equipment to be used by you in conjunction with the Services.
Computer Software: a computer programme or programmes, to include any operating systems required.
Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates and which has not come into the public domain during the term of this agreement in breach of any obligation of confidence, including information relating to the Website or any of its constituent parts, the Source Code relating to the Website or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing.
Contract Year: any 12-month period ending on any anniversary of the Commencement Date.
Control: a business entity shall be deemed to “Control” another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity or any other comparable equity or ownership interest with respect to a business entity other than a corporation.
Critical Fault: a reproducible fault which substantially hinders or prevents you from using a material part of the functionality of the Website.
Data Protection Law: all applicable data protection law and regulations in any jurisdiction.
Defect: an error in the Website that causes it to fail to operate substantially in accordance with the Specification.
Deliverables: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by us to you and all products and materials developed by us in relation to the Services in any media.
Development Work: services provided in developing the Website.
Dispute Resolution Procedure: the procedure for dealing with disputes under this agreement as set out in clauses 24.21 ‚24.23.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.
Hosting Services: the hosting services provided in accordance with the terms of Part 1, Schedule 2.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now, or in the future, subsist anywhere in the world, including the right to sue for and recover damages for past infringements.
Licence: the licence granted under clause 12.
Maintenance Agreement: the form of maintenance agreement for the Website contained at Part 1, Schedule 1.
Maintenance Release: a release of the Website which corrects faults, adds functionality or otherwise amends or upgrades the Website, but which does not constitute a New Version or an amendment to any Third Party Software.
Materials: the content provided to us by you from time to time for incorporation in the Website.
Modified Website: the standard Website programs used by us, modified or to be modified by us under this agreement, which shall include any Maintenance Release or New Version.
Modules: the part of the code that is responsible for a specific task/function that works as part of the magento platform.
New Release: a new release of all or any part of the Website suitable for use by you in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.
New Version: a new version of the Website released by us after the Acceptance Date which provides additional or improved functionality or performance.
Non-Critical Fault: any reproducible fault in the Website other than a Critical Fault.
Non-Host Defects: the defects described in Schedule 2.
Normal Working Hours: the hours 8.30am to 5.00pm GMT, Monday to Friday, except English Bank Holidays.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, the Website, or with which the Website is compiled or to which it is linked (which shall exclude the Modules).
Particulars: the particulars at the front of this Agreement.
Permitted Purposes: the meaning given in clause 16.1.
Personal Data: data subject to protection under Data Protection Law in any jurisdiction.
Project Manager: our employee who has overall responsibility for the Services.
Project Milestones: the project milestones set out in the Specification (where applicable).
Services: the services to be provided by us to you under this agreement, as detailed in the Specification and as amended from time to time.
Site: the location in which you want the Website to be uploaded.
Source Code: the source code of the Website to which it relates, in the language in which the Website was written, together with all related flow charts and technical Deliverables, all of a level sufficient to enable your development personnel to understand, develop and maintain that Website.
Specification: the specification of the Services to be carried out, as agreed between us which may be included in a technical specification or quote (as appropriate).
Support Services: support services supplied in accordance with Schedule 1 and the Specification.
Support Staff: our officers, employees, agents or subcontractors connected with this agreement, including those individuals who perform our obligations under this agreement.
The Website: the website configured by us for you using Open Source Software or otherwise used by us to provide the Services to you.
Third-Party Licences: the open-source Software licences relating to the Website, including the general public licence (if applicable), and any proprietary third-party Software licences.
Third-Party Software: the Software programs proprietary to third parties, which are to be provided to you or us without modification.
Updating Service: the service supplied under clause 2.4 of Schedule 1.
Unsuitable Content: any material or content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party’s Intellectual Property Rights.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.
Virus: anything or device (including any software, code, file or programme) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any programme or data or impair the operation of any programme or the reliability of any data including a computer virus, trojan horse, worm, logic bomb, back door or similar item.
Working Days: a day (other than a Saturday or a Sunday) or which commercial banks are open for general business in London.
Website Design: the design and development of a website using Third Party Software in accordance with the Specification.
Your Representative: a person duly authorised by you to act on your behalf for the purposes of this agreement and identified to us by written notice from you.
1.2 The schedules to this agreement, together with any documents referred to in them, form an integral part of this agreement and any reference to this agreement means this agreement together with the schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the parties.
1.3 In the event that a conflict arises between the provisions contained in the main agreement and the Schedules which apply to you, as appropriate, the provisions contained in the Schedules shall prevail.
1.4 Any reference to ‚Äúwriting‚Äù shall include e-mail.
2. SCOPE AND CHARGES
We agree to provide you with the Services from the Commencement Date in accordance with the Charges.
3. WEBSITE AND DELIVERABLES
3.1 We shall carry out the Services with skill and expertise, to provide the Website in accordance with the Specification.
3.2 The Software provided to you may be subject to Third Party licenses relating to Open-Source Software or otherwise. In signing this Agreement you agree to be bound by such terms and will indemnify us in full for any damage we suffer as a result of you breaching the terms.
3.3 We hereby licence to you, free of charge, the right to use the Deliverables on non-exclusive basis to the extent that is necessary to enable you to make reasonable use of the Deliverables.
4. DEVELOPMENT SERVICES
4.1 We shall develop the Website and make the modifications to it in accordance with the requirements of the Specification.
4.2 We agree:
(a) to deliver and install the Website to you in accordance with the Project Milestones;
(b) to carry out, in conjunction with you, the Acceptance Tests; and
(c) to provide the Website in finished format,
on the terms and conditions set out in this agreement.
4.3 If requested to do so by you and subject to our Charges, we shall:
(a) provide maintenance and support of the Website in accordance with Schedule 1;
(b) make available to you suitably qualified personnel to carry out tasks on a consultancy basis concerning the Services to include training;
(c) provide Hosting Services in accordance with Schedule 2;
(d) provide digital marketing and SEO services in accordance with the Specification and Schedule 3;
(e) provide website development services in accordance with the Specification and Schedule 4;
(f) provide any other Services agreed between us from time to time.
4.4 For the avoidance of doubt, all Services provided by us to you will be regulated by these terms and conditions, and you may only rely on the terms of the Schedules which are applicable to you.
4.5 Time shall not be of the essence regarding any date for delivery by us of any Services specified in this Agreement.
4.6 The provision of Services to you is subject to your payment of the Charges, all third party fees we incur on your behalf and third party licence fees you must pay in order for us to perform the Services. We reserve the right to suspend our Services in the event that our Charges are not paid on time. Services will recommence upon payment being received.
4.7 In performing the Services, we shall comply with your reasonable instructions to ensure minimal disruption.
5. PRE-INSTALLATION TESTING
5.1 Before delivering any item of Website to you, we shall carry out reasonable tests as set out in the Specification to ensure that such item is in operable condition and is capable of meeting the requirements of the Specification once properly installed.
5.2 If any part of the Website fails to pass the pre-installation tests, we shall remedy the defects and deficiencies, and the relevant tests shall be repeated within a reasonable time.
5.3 In the event that the pre-installation tests are not satisfactory after second submission, the provision of clause 7.3 will apply.
5.4 As the Website is developed to only work with current browsers, testing will only be carried out on the latest and last versions of the following browsers (or as otherwise set out in the Specification):
(c) IE; and
6. WEBSITE DELIVERY, INSTALLATION AND DELAYS
6.1 We shall deliver the Website to you on the date agreed in the Specification or as soon as reasonably practicable.
6.2 We shall supply to you, any such information and assistance as may be necessary to enable you to prepare for the installation of the Website and can provide you with guidance on suitable hardware.
6.3 You shall prepare the Site in accordance with the information provided by us for the installation of the Website.
6.4 You shall be responsible for ensuring that each item of Computer Hardware is installed and is in working order and available to us no later than the relevant date specified in the Specification and make sure that it is suitable for the Services to be performed. We accept no liability for the Computer Hardware or Computer Software being incompatible with our Services.
6.5 Whilst we shall use reasonable endeavours to ensure the integrity of the network, we do not guarantee that the Website will be free from unauthorised users or hackers.
7. ACCEPTANCE TESTS
7.1 Upon receipt of the Website, Acceptance Tests will be carried out by you, as detailed in the Specification, within five Working Days of delivery, in accordance with clause 6.1. We will assist you with such tests and Charges will apply.
7.2 If the Website fails to pass the Acceptance Tests, you shall, within five Working Days from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). We shall then remedy the defects and/or deficiencies and the relevant test(s) shall be repeated within a reasonable time.
7.3 If the Website fails in some material respect to pass any repeated Acceptance Tests within four weeks from the date of its second submission to the Acceptance Tests, then upon receiving notice from you we may choose at our sole discretion:
(a) to fix (without prejudice to your other rights and remedies) a new date for carrying out further tests on the Website on the same terms and conditions;
(b) to permit installation of the Website subject to such change of acceptance criteria, amendment of Specification and/or reduction in the Charges as, after taking into account all the relevant circumstances, is reasonable; or
(c) if material defects cannot be corrected within a period of three months from the commencement of Acceptance Tests under clause 7.1, to allow you to reject the Website as not being in conformity with the agreement, in which event you may terminate this agreement.
Acceptance of the Website shall be deemed to have occurred on whichever is the earliest of:
(a) the signing by you of an Acceptance Certificate/delivery by you of an acceptance e-mail ticket;
(b) the expiry of ten Working Days after delivery of the Website if the Acceptance Tests for that module have not started, or have not been pursued with due diligence; or
(c) the use of the Website by you in the normal course of the Business.
9.1 We shall submit invoices for the Charges, in accordance with the Specification. You shall make payment of each invoice by the due date stated in that invoice or within 30 days of receipt of the invoice, whichever is sooner.
9.2 The Charges are net of tax. You shall, in addition, pay to us the amount of any tax, duty or assessment, including any applicable VAT, which we are obliged to pay and/or collect from you in respect of any supply under the agreement.
9.3 If any sum is not paid on or before the due date under this agreement, the party in default shall pay us interest at 4% above the Bank of England base rate for the period beginning on the due date and ending with the date on which the sum is paid.
9.4 We may increase the Charges at any anniversary of the Commencement Date by giving you at least three months’ notice before such anniversary of our proposed increased Charges.
9.5 Reasonable out-of-pocket expenses may be charged by us on production of reasonable evidence of expenditure to you.
9.6 Time for payment shall be of the essence.
9.7 The cost of any materials or services needed to be delivered by other parties that Space 48 need to acquire in order to perform the Services shall not be included in the Charges and will be invoiced to you separately. Such costs may include, but shall not be limited to, the following:
(a) Hosting services;
(b) Computer Hardware;
(c) Third Party Licenses;
(d) Company Software;
(e) SSL Certificates;
(f) Domain Name Services;
(g) Integrated Services (such as Analytics); and
(h) Any other Materials,
10. CHANGE CONTROL AND TECHNOLOGY SUBSTITUTION
10.1 You may, by giving written notice to us at any time during the term of this agreement, request a change to the Website.
10.2 Within seven Working Days of receipt of such notice, we shall, at our standard rates then in force, prepare for you a written statement of any increase or decrease in the Charges, and of any effect that the requested change would have on the Specification.
10.3 Within five Working Days of receipt of the written notice referred to in clause 10.2, you shall inform us in writing of whether or not you wish the requested change to be made. If the change is required, we shall not make the requested change until we have agreed any changes to the Specification and Charges in writing.
10.4 We undertake to offer to you, and you may at your sole discretion choose to obtain from us, any item of Website in substitution for any corresponding item of the Website where the substitute item contains new technology or has better performance characteristics than the Website. As part of the offer, we shall notify you of any change in the Charges which would result from such substitution. If you choose to obtain any such substitute item, we shall use our reasonable endeavours to agree to the change.
10.5 Once any changes to the specification and Charges are agreed, the change will become immediately effective and each of us will perform our respective obligations arising as a result of the Charges.
11. OWNERSHIP AND INTELLECTUAL PROPERTY
11.1 The Website and Deliverables is our property (or the appropriate third-party rights-owner(s)) and you acquire no rights in or to the Website or the Deliverables other than those expressly granted by this agreement.
11.2 The Intellectual Property Rights in the Website belong to us (other than the Third Party Software) and we reserve the right to licence our Intellectual Property Rights to any other party.
11.3 You shall use reasonable endeavours to prevent any infringement of our Intellectual Property Rights in the Website and shall promptly report to us any such infringement that comes to your attention.
11.4 As the Website (save for the Modules) are developed using Open Source Website principles using Third Party Licenses, no warranty is given by us that the Website will not infringe the Intellectual Property Rights of any third party anywhere in the world. However, we will indemnify you in full in the event that our Intellectual Property Rights are found to breach third party rights (Third Party Claim), provided you give us reasonable notice of such Third Party Claim and provide us with reasonable assistance in defending the same.
11.5 You agree that we can use any know-how developed in the performance of our Services to assist other customers but at no point will your Confidential Information be disclosed.
11.6 You retain all Intellectual Property Rights in the Materials and grant us a licence to such Intellectual Property Rights to the extent required to perform our obligations, pursuant to this Agreement.
11.7 You shall fully indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe any Intellectual Property Rights of a third party. We will provide you with notice of such infringement as soon as we are aware of the same.
11.8 We shall provide to you the Deliverables that you may require for the proper use and maintenance of the Website. Such Deliverables may be supplied in electronic form and we will, at all times, remain the owners of the Intellectual Property Rights in the Deliverables.
12. WEBSITE LICENCE, DELIVERABLES AND WARRANTY
12.1 We grant to you, subject to the terms of this agreement, the non-exclusive, non-transferable royalty-free, licence in relation to the Website (which for the avoidance of doubt shall exclude the Modules) to:
(a) use the Website;
(b) study/decompile the Website;
(c) improve the Website.
12.2 Subject to clause 12.4 we warrant that the Website will comply with the Specification for a period of one month from the Acceptance Date.
12.3 In the event that we are satisfied that the Website does not confirm to its Specification, we will remedy any non-conformity as long as you provide us with written notice of the non-conformity within 10 Working Days of being aware of the same.
12.4 Whilst we will use our reasonable endeavours to develop the Website in accordance with the Specification, we give no warranties that it will be uninterrupted, error or virus free. Website, by its very nature, is susceptible to errors and viruses.
12.5 Any unauthorised modifications or improper use by you of the Website will render our warranty null and void.
12.6 This clause 12 sets out your only remedy for a breach of warranty.
13. SUPPLIER PERSONNEL: WEBSITE AND SUPPORT SERVICES
13.1 We alone shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of the Project Manager and the Support Staff. We assume full responsibility for their acts and omissions and acknowledge that they are not your employees or agents.
13.2 During the term of this agreement and for a period of six months after its termination neither of us shall, without the prior written consent of the other, solicit, or permit any party to solicit, the employment of any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Website or any part of it.
14. THE WEBSITE: PROJECT MANAGEMENT
14.1 No later than five days after the date of this Agreement you shall notify us of the name and qualifications of the person appointed as Your Representative.
14.2 We shall appoint the Project Manager, who shall have the responsibility and commensurate authority for the overall progress of the Services and to whom all questions regarding this agreement can be referred.
14.3 Your Representative shall co-operate with the Project Manager and shall attend meetings scheduled by the Project Manager at reasonable intervals not less than once a week to advise and assist us on all matters relating to the Services.
15. CUSTOMER’S OBLIGATIONS
15.1 During the term in which the Support Services are to be provided, you shall not, without our prior written approval, allow any person other than a representative of ours to modify, repair or maintain any part of the Website.
15.2 You shall co-operate with us in any manner reasonably required by us in order to carry out the Services, including provision of information and data, making available suitably qualified employees and contractors of yours and, subject to our compliance with your normal security requirements you shall also:
(a) provide access to your systems for the purpose of carrying out diagnostics and correction of Defects, provided that system access shall be direct or remote, at your option, and that, in the latter case, such access will be subject to our compliance with any additional requirements for security and encryption techniques or Website which may from time to time be specified by us;
(b) provide such further access for the Support Staff as is necessary to carry out our obligations under this agreement. You shall obtain for us all permissions necessary to obtain such access;
(c) when the Support Staff are working on your site, provide facilities and supplies reasonably required by us, such as power and computer consumables;
(d) make back-up copies of the data updated to the Website and we will have no liability for your failure to do the same;
(e) keep all passwords and user access credentials secure. We cannot accept any liability for your failure to do this, or for any damage you may suffer, as a result of a third party hacker accessing the internet;
(f) encrypt any data you upload to the Website or transmit over the internet;
(g) maintain insurance cover in respect of any loss or damage to data stored on the Website.
15.3 You may restrict access to certain areas of your premises or systems on security grounds.
16. CONFIDENTIALITY AND PUBLICITY
16.1Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (‚ÄúPermitted Purposes‚Äù).
16.2The restrictions imposed by clause 16.1 shall not apply to the disclosure of any Confidential Information which:
(a) is now in or hereafter comes into the public domain otherwise than as a result of a breach of this clause 16;
(b) before any negotiations or discussions leading to this agreement was already known by the receiving party and was obtained or acquired in circumstances under which the receiving party was not bound by any form of confidentiality obligation; or
(c) is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).
16.3 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
16.4 This clause 16 shall remain in full force and effect, despite any termination of the Licence or this agreement.
17. DATA PROTECTION
17.1 The following definitions apply:
(a) the terms “data controller”, “data processor”, “data subject” and “processing” bear the respective meanings given them in the Data Protection Act 1998, and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act.
(b) data includes Personal Data.
(c) Customer Personal Data means any Personal Data provided by or on behalf of you.
17.2 We shall:
(a) only carry out processing of any Customer Personal Data on your instructions;
(b) implement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
(c) only transfer Customer Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject.
17.3 We shall promptly and fully notify you in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as you may reasonably
17.4 You acknowledge that we will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which we carry out under this agreement.
18.1 Neither party shall in any circumstances export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including Website, incorporating any such data) in breach of any applicable laws or regulations (‚ÄúExport Control Laws‚Äù), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
18.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
19. LIMITATION OF LIABILITY
19.1 Neither party excludes or limits liability to the other party for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by negligence;
(c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any matter for which it would be unlawful for the parties to exclude liability.
19.2 Subject to clause 19.1, we shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
(b) any loss or corruption (whether direct or indirect) of data or information;
(c) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
(d) any loss or liability (whether direct or indirect) under or in relation to any other contract.
19.3 Clause 19.2 shall not prevent claims, which fall within the scope of clause 19.4, for:
(a) direct financial loss that are not excluded under any of the categories set out in clause 19.2(a) to clause 19.2(d); or
(b) tangible property or physical damage.
19.4 Subject to clause 19.1, our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall, in respect of any cause of action related to the provision of the Services, be limited to the total charges paid for the Services by you to us during the 12 month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period.
20. ASSIGNMENT AND SUBCONTRACTING
20.1 Subject to clause 20.3, this agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.3 Either party may assign, transfer or subcontract any or all of its rights and obligations under this agreement to an affiliate of that party for so long as that company