Terms of Service

Contents

  1. Interpretation
  2. Scope of the project
  3. Development and acceptance of the site
  4. Third-party products
  5. Project management
  6. Charges and payment
  7. Warranties
  8. Limitation of remedies and liability
  9. Intellectual property rights
  10. Site content
  11. Data protection
  12. Term and termination
  13. Change control
  14. Force majeure
  15. Confidentiality
  16. Audit
  17. Notices
  18. Publicity
  19. Assignment
  20. Entire agreement
  21. Third-party rights
  22. Variation and waiver
  23. Severance
  24. Governing law and jurisdiction

Parties

  1. Go Web Design & Development Ltd
  2. THE CLIENT

Background

We submitted a proposal, which was accepted in response to your request for our services.

We have agreed to provide you with website design and development and related services on the terms and conditions set out in this agreement.

Agreed terms

  1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

  • Acceptance: the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 3.
  • Acceptance Certificate: the form of certificate served on the Supplier by the Customer to acknowledge Acceptance.
  • Acceptance Tests: the tests to be carried out on the Site as set out in clause 3 [and as described in 24.2].
  • Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in the UK.
  • Change Control Procedures: the procedures set out in 24.2.
  • Charges: the charges in respect of the Services set out in 24.2.
  • Confidential Information: has the meaning given in clause 15.1.
  • Defects: has the meaning given in clause 3.4.
  • Design Agency: Go Web Design & Development Ltd.
  • Force Majeure Event: has the meaning given in clause 14.1.
  • Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
  • Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
  • Non-Supplier Defects: those Defects described in clause 3.5.
  • Phase: in relation to the Project Plan, one of the three key phases of work identified in 24.2.
  • Project: the provision by the Supplier of the Services as set out in this agreement.
  • Project Plan: the timetable within which the Supplier will implement the Project as set out in 24.2.
  • Server: a high-performance computer server administered by the Supplier, as more particularly defined in 24.2.
  • Services: the design and development services to be provided pursuant to this agreement as set out in 24.2.
  • Site: the website.
  • Site Software: the software for the Site commissioned by the Customer as specified in 24.2.
  • Site Specification: the specification for the Site set out in 24.2.
  • Third Party Products: those third-party software products set out in 24.2.
  • Visitor: a visitor to the Site.

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

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

1.4 In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.

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

1.6 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.7 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.

1.8 References to content include any kind of text, information, images, or audio or video material which can be incorporated in a website for access by a Visitor to that website.

  1. Scope of the project

The Supplier shall:

  • Design, develop and deliver the Site in Phases in accordance with the Project Proposal; and
  • Provide all Services involved in this project.
  1. Development and acceptance of the site

Once we have deemed the project complete, we will ask you to check, test, and evaluate the website over a set period to be agreed between both parties.

After this period, we will ask you to send us (in writing) any amendments you wish to make to the finished product. We reserve the right to charge extra for any changes outside the original agreement.

  1. Third-party products

The Third-Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third-Party Products is included in the Charges payable pursuant to clause 6.1.

  1. Project management

Each party shall appoint a project manager who shall:

  1. provide professional and prompt liaison with the other party; and
  2. have the necessary expertise and authority to commit the relevant party.
  1. Charges and payment

Following acceptance, we will issue invoices for payment. Payment terms are as follows:

  • A payment of 50% of the total project fee before the project commences.
  • A payment of the remaining 50% of the total project fee upon completion of all work
  1. Warranties

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

7.2 The Supplier shall perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards.

7.3 The Supplier warrants that operation of the Site will be uninterrupted and free of errors, viruses and material defects and that the Site will perform in accordance with the Site Specification for a period of three months from Acceptance. If the Site does not so perform, provided no action has been taken on the Site by the client or a third-party developer, the Supplier shall, for no additional charge, promptly ensure that the Site complies with the Site Specification. If action has been taken after the launch of the Site that has caused defects, it is the responsibility of the Customer to either fix the issues or pay for a developer to fix them.

  1. Limitation of remedies and liability

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

  1. death or personal injury caused by its negligence; or
  2. 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
  3. fraud; or
  4. the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors; or
  5. any other liability which cannot be excluded or limited under applicable law.

8.2 Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

  1. Intellectual property rights

9.1 All Intellectual Property Rights in the Site Specification and the Site (including in the content of the Site and the Site Software) arising in connection with this agreement shall be the property of the Customer, and the Supplier hereby assigns all such Intellectual Property Rights to the Customer. The parties shall execute all documents necessary to give effect to this clause 9.1.

9.2 The Supplier shall indemnify the Customer against all damages, losses and expenses arising because of any action or claim of infringement of Intellectual Property Rights of a third party.

9.3 The indemnity in clause 9.2 is subject to the following conditions:

  1. The Customer promptly notifies the Supplier in writing of the claim.
  2. The Customer making no admissions or settlements without the Supplier’s prior written consent.
  3. The Customer giving the Supplier all information and assistance that the Supplier may reasonably require; and
  4. the Customer allowing the Supplier complete control over the litigation and settlement of any action or claim.

9.4 The Supplier shall not use or re-create the look and feel of the Site or anything substantially like it.

  1. Site content

10.1 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 shall remove content from the Site where it reasonably suspects such content infringes any applicable laws, regulations or third party rights (such as 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). The Supplier shall notify the Customer immediately if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.

10.2 The Supplier shall indemnify the Customer against all damages, losses and expenses arising because of any action or claim that the content of the Site (other than the Materials) constitutes Inappropriate Content.

  1. Data protection

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

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

11.2 In this clause 11, Personal Data has the meaning given in the General Data Protection Regulation.

  1. Term and termination

12.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 12) terminate automatically on Acceptance of the Site and payment of all outstanding sums.

12.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:

a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied: or

b) that other party:

  • ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
  • becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
  • a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given, or documents relating to such an appointment are filed with any court; or
  • the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
  • any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or

c) that other party has been subject to a Force Majeure Event for a continuous period of more than 90 days.

12.3 On expiry or termination of this agreement:

  1. All licences granted to the Supplier under this agreement shall terminate immediately.
  2. The Supplier shall promptly return all Materials and all copies of the Site Specification to the Customer and shall provide to the Customer an electronic copy of the Site (including all content on the Site). The Supplier shall provide all such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another service provider, subject to payment of the Supplier’s expenses reasonably incurred; and
  3. 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.

12.4 Should the Customer fail to provide content by the agreed deadline, the Supplier reserves the right to terminate this agreement without return of any payments made for work completed.

  1. Change control

Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure.

  1. Force majeure

14.1 The definition in this clause applies in this agreement.

Force Majeure Event:  any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

14.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take all reasonable steps to mitigate the effect of the Force Majeure Event.

  1. Confidentiality

15.1 The definition in this clause applies in this agreement.

Confidential Information:  all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

  1. identified as confidential at the time of disclosure; or
  2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

15.2 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.

15.3 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.

15.4 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate:

  1. is or has become publicly known other than through breach of this clause 15; or
  2. was in possession of the receiving party prior to disclosure by the other party; or
  3. was received by the receiving party from an independent third party who has full right of disclosure; or
  4. was independently developed by the receiving party; or
  5. was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose e) gives the other party prompt written notice of the requirement.

15.5 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this agreement.

  1. Audit

The Customer shall have the right to audit the Supplier’s compliance with this agreement upon giving the Supplier seven days’ written notice. This audit may cover documents only.

  1. Notices

17.1 A notice given under this agreement:

  1. shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
  2. shall be sent for the attention of the person, and to the address, fax number or e-mail address given in this clause 17 (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
  3. shall be:
  • delivered personally; or
  • sent by e-mail; or
  • sent by pre-paid first-class post, recorded delivery or registered post; or
  • (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

17.2 The address for service of notice is:

For the Customer:

Address: Go Web Design & Development Ltd, 121 Sheffield Road, Birdwell, Barnsley, S70 5TA.

E-mail: dan@gowiththetimes.co.uk

  1. Publicity

18.1 The Customer shall not, by himself, his servants, agents, or sub-contractors, communicate with representatives of the press, television, radio or other communications media on any matter concerning the Contract without the prior written approval of the Customer.

18.2 The Customer shall comply with the Customer’s No Marketing Rights Clauses set out at Schedule 7.

  1. Assignment

The Supplier may not assign or transfer any of its rights or obligations under this agreement. The Customer may assign or transfer any of its rights or obligations under this agreement, provided it gives prior written notice to the Supplier.

  1. Entire agreement

This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes and replaces all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently), and that party’s only remedies shall be for breach of contract as provided in this Agreement.

  1. Third-party rights

21.1 Subject to clause 21.2, this agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

21.2 The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under this agreement is not subject to the consent of any person who is not a party to this agreement.

  1. Variation and waiver

22.1 A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.

22.2 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

22.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

  1. Severance

23.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

  1. Governing law and jurisdiction

24.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.

24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).