Terms & Conditions

Definitions

In this Agreement, which shall include all documents referred within this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Acceptance” means the acceptance or deemed acceptance of the Website by the Customer;

“Acceptance Tests” means the tests carried out by the parties to confirm satisfactory execution of the Services;

“Additional Services” means any services in addition to the Development Services as requested by the Customer to be provided by the Supplier and agreed in writing;

“Change Request” means upon the Customer identifying a requirement for a change to the Website, a request for change of the Website sent to the Supplier detailing the suggested change;

“Charges” means the charges in respect of the Development Services set out and agreed in writing between the Supplier and Customer, together with any charges arising from the Additional Services;

“Confidential Information” means shall include, but not necessarily be limited to, all information which is not publicly known including the business, finance technology (including without limitation the Website and the Documentation) trade secrets, and any other commercially sensitive information of either party regardless of its nature;

“Customer” means you;

“Development Services” means consulting and computing programming services for the purpose of creating or developing the Website in accordance with the Specification;

“Effective Date” means the date the Customer enters into this Agreement;

“Implementation Plan” means the timing and sequence of events agreed between the Customer and the Supplier for the performance of the Agreement;

“Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered including (without limitation) patents, trade marks, service marks, trade names, registered design and any applications for the protection or registration of these rights and any renewals and extensions thereof throughout the world;

“Parties” means the Customer and Supplier;

“Project” means the development, delivery and testing of the Website;

“Service” means the design and Development Services to be provided pursuant to this agreement as set out in the Specification;

“Software” means any computer programs required for the proper use of the Website;

“Specification” means the specification of the Website to be agreed between the Parties;

“The Supplier” means DVH Design including its employees and anyone contracted or commissioned by them whose services are engaged by the Customer under this Agreement;

“Website” means the www site designed or developed for the Customer, comprising all pages including graphics, audio visual effects and other digital content as detailed in the Specification;

Interpretation

In this Agreement unless the context otherwise requires:

• words importing the singular number include the plural number and vice versa;
• words importing persons include firms, companies and corporations and vice versa;
• the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
• any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
• any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.

Services to be provided

The Supplier agrees during the continuance of this Agreement to supply the Development Services to the Customer and carry out any Additional Services for the Customer in accordance with:

• the Specification; and
• the Implementation Plan

Subject to the payment of the Charges by the Customer, the Supplier shall supply to the Customer, on request, copies of the object, source code and any database files produced by it when developing the Website.

Customer’s Obligation

The Customer acknowledges that the Supplier’s ability to provide the Development 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 Supplier.

The Customer shall promptly 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 this Agreement.

Change Control

Once the initial Website is complete thereafter if the Customer identifies a requirement for a change to the Website, a Change Request will be sent to the Supplier detailing the suggested change. The receipt of the Change Request by the Supplier will constitute a request to the Supplier to state in writing the effect such a change shall have on the Website and a request to confirm the cost of giving effect to the change. The Supplier shall use all reasonable endeavours to supply the necessary details within 10 working days from receipt of the Change Request or such other period as may be agreed. The foregoing shall not be a condition precedent of payment.

The rates used as the basis for the additional cost for the Change Request shall be the rates as then chargeable by the Supplier. The Parties, will then decide whether or not to implement the change.

The Supplier shall not implement any changes unless instructed to do so by the Customer and shall make no charge unless the changes are implemented.

Acceptance Tests

Once the Supplier has completed the design and development of the Website in accordance with Implementation Plan, the Supplier shall run the Acceptance Tests.

The Acceptance Tests shall test compliance of the Website with the Specification.

Acceptance of the Website shall occur when the Website has passed the Acceptance Tests. The Supplier shall notify the Customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing.

The Customer shall accept the Website immediately after the Website has passed the Acceptance

Tests

If any failure to pass the 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 Website shall be deemed to have passed the 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.

Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:

• the Customer uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
• the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Supplier is ready to commence running such Acceptance Tests or retests.

Warranties

Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

The Supplier warrants that:

It is entitled to enter into this Agreement and that it is entitled to grant all the necessary rights for use of the commissioned Website.

The Website shall perform substantially in accordance with the Specification.

The Development Services will be carried out in a professional manner with reasonable skill and care.

This agreement sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

The Supplier does not give any warranty in respect of third party products. The Supplier will pass on to the Customer the benefit of any third party warranty supplied by a third party manufacturer or supplier.

Limitation of Remedies and Liability

The Supplier makes no warranties or representations that any Service will be uninterrupted or error-free. Where the Service is so interrupted by or subjected to error through fault or otherwise of equipment or of line or other forms of communication not under the direct control of the Supplier, such interruption or errors shall not be considered to be a breach of warranty or of this Agreement.

Nothing in this agreement shall operate to exclude or limit either party’s liability for:

• death or personal injury caused by its negligence; or
• any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
• fraud; or
• any other liability which cannot be excluded or limited under applicable law.

Subject to the above clause the Supplier’s aggregate liability in respect of claims arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the Charges.

The Supplier will not be liable for any indirect or consequential loss or damage whatsoever suffered by the Customer or any other person or body. Where any person or body not a party to this Agreement shall allege that they have suffered any such loss as a result of the provision of Services under this Agreement and claim from the Supplier. the Customer shall indemnify the Supplier in respect thereof. Without limiting the generality of the foregoing such loss referred to in this paragraph shall include loss of business, loss of opportunity, loss of profits and shall include losses arising as a result of the disclosure of the Customer’s password or security number.

Where the Supplier gives advice to the Customer (or to a third party on behalf of, or at the request of the Customer) whether the Supplier has been advised of the possibility of specified losses or damages arising out of such advice, or not the Supplier shall not be liable for any loss of damage arising from that advice.

The liability of the Supplier for any damages arising from the provision of the Service contracted for under this Agreement, including, but not by way of limitation, any breach of this Agreement, shall be deemed to terminate 12 months after the date on which the customer ought reasonably to have known of the event giving rise to the liability.

The Supplier accepts no responsibility for any domain names associated with the Website and neither the Customer or a third party may raise a claim in connection with the same with the Supplier.

Transfer of Intellectual Property

The Supplier assigns to the Customer all Intellectual Property (including the source and object code) in the Website on full and final settlement of the full Charges.

The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the content provided to the Supplier by the Customer infringe the Intellectual Property rights of a third party.

Website Linking Licence

The Customer by entering this Agreement allows a connection to the Website at the developed Website’s URL on the following terms:

Linking Licence The Customer grants the Supplier a non-exclusive, limited, revocable licence to provide a hypertext reference link to the initial, top-level display of the Website, as identified by Uniform Resource Locator (“URL”) (to be agreed) solely for commercial purposes and only for the purpose of linking the Supplier’s website to the Website (the “Linking Licence”);

Proprietary Rights We acknowledge that the Website (including without limitation, all content, text, images, software, media and other materials on the website) is proprietary to or licensed by you and is protected under copyright and other intellectual property laws, and may not be reproduced, transmitted, displayed, published or distributed without the express prior written consent of the Customer;

Limitations

The Supplier shall not:

• in any way reproduce the Website or any part of its contents;
• in any way suggest that the Supplier is endorsing any products or services other than its own;
• misrepresent the relationship between the Supplier and the Customer nor present any other false information about the Customer;
• display or use a link in a manner that causes the Website or any portion of its content to display within a frame, be associated with any advertising or sponsorship not part of the Website, or otherwise incorporate Website content into a third-party website;
• display or use an inline link to any information file contained in the Website;
• alter, block or otherwise prevent display of any content of the Website;
• link to the Website through any other URL or mirrored website;
• Termination of Linking Licence Either party may terminate this Linking Licence for any reason whatsoever by giving written notice at any time, without prejudice
• to any rights accrued under this Linking Licence.
• Upon termination of this Linking Licence, the Supplier shall immediately:
• discontinue or disable the link;
• remove the link and the Company’s name and logos from the Supplier’s website; and
• destroy any copies of material from the Website which are in the Supplier’s possession, custody or control.

Price & Payment

The Customer agrees to pay a non-refundable deposit of 25% of the estimated Charges or £100 whichever is the greater. An invoice for the balance of the Price shall be issued on completion of the Acceptance Testing.

Following Acceptance, the Supplier shall issue an invoice in respect of the Charges, and the Customer shall pay to the Supplier the Charges set out in such Supplier’s invoice within 14 days of the date of the Supplier’s invoice.

All Charges are exclusive of VAT.

Any third party charges (subject to change without notice) are to be paid as specified above.

The Suppliers Charges may be varied at anytime on the provision of 21 days notice to the Customer.

If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Barclays Bank PLC.

Such interest shall accrue on a daily basis and be compounded quarterly.

The Supplier reserves the right to:

• suspend goods and services until full settlement is made.
• claim interest and a base rate of compensation under the Late Payment of Commercial Debts (Interest) Act 1998.

Data Protection

The Supplier warrants that to the extent it processes any Personal Data on behalf of the Customer:

• it shall act only on instructions from the Customer; and
• it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

Confidentiality

Both parties to this Agreement undertake, to treat as confidential and keep secret all information marked ‘confidential’ or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Website, the Specification and other information supplied by the Customer or the Supplier (in this Agreement collectively referred to as ‘the Information’) with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).

Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.

The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding non-completion of the Project.

Termination

This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this agreement) terminate automatically on Acceptance of the Website and full payment of all outstanding sums and Charges.

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

• the other party fails to pay any amount due under this agreement on the due date for payment;
• the other party commits a material breach of any term of this agreement 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;
• 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;
• the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
• 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;
• 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 company);
• 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;
• a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
• 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;
• the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
• any warranty given by the other party in clause 8 of this agreement is found to be untrue or misleading.

On termination of this agreement by the Supplier, all licences granted by the Supplier under this agreement shall terminate immediately.

On expiry or termination of this agreement otherwise than on termination by the Supplier, the Supplier shall promptly return all content provided to the Supplier by the Customer to the Customer, and shall provide to the Customer an electronic copy of the Website (including all content on the Website).

On expiry or termination of this agreement, all provisions of this agreement 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.

Agency Partnership

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.

Amendments

Save for the Specification document this Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except in writing signed by a duly authorised officer or representative of each of the parties.

Announcements

No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.

Assignment

This Agreement is personal to the parties and, subject to the specification below, neither this Agreement nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.

Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets or business relating to the subject matter of this Agreement or to any equity controlled by that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause will be void and without effect.

Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and along with the Specification constitutes the entire Agreement between the parties relating to the subject matter. However the obligations of the parties under the pre-existing non-disclosure Agreement shall remain in full force and effect.

Force Majeure

Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 3 months, either party may terminate this Agreement by written notice to the other party.

Notices

All notices under this Agreement shall be in writing.

Notices shall be deemed to have been duly given:

• When delivered, if delivered by courier or other messenger (including during normal business hours of the recipient; or
• When sent, if transmitted by fax or email and a successful transmission receipt is generated; or
• On the fifth business day following mailing, if mailed by national ordinary mail prepaid; or
• In each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

Successors and Assignees

This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.

In this Agreement references to a third party include references to a person:

• Who for the time being is entitled (by assignment, novation or otherwise rights under this Agreement (or any interest in those rights); or
• Who, as administrator, liquidator or otherwise is entitled to exercise those and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party’s rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

Waiver

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

Counterparts

This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

Sub-Contracting

With the prior written consent of the Customer (such consent not to be unreasonably withheld or delayed) the Supplier may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Supplier shall remain liable for such performance and shall indemnify the Customer against any loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors.

Set-off

Where either party has incurred any liability to the other party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under this Agreement.

Third Parties

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.

Governing law

This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and Wales.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).