Background
(A) The Supplier is a specialist company designing and developing websites for its customers, and the Customer wishes to be supplied with a website.
(B) The parties have agreed that the Supplier shall provide the Customer with a website on the terms and conditions set out in this agreement.
Agreed terms
1. Interpretation
The definitions and rules of interpretation in this clause apply in this agreement.
1.1. Definitions:
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Charges: the charges in respect of the Services set out in Schedule 2 including the non-refundable deposit.
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 during discussions between the parties), where the information is:
a) identified as confidential at the time of disclosure; or
b) ought reasonably to be considered confidential given the nature of the information or
the circumstances of disclosure.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy.
Data Subject: has the meaning set out in Article 4(1) of the GDPR.
Effective Date: means the date of the Customer’s signature below.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: the content provided to the Supplier by the Customer for incorporation in the website.
Non-Supplier Defects: those defects described in clause 3.2.
Personal Data: has the meaning set out in Article 4(1) of the GDPR.
Services and/or website: the supply of a website pursuant to this agreement as set out in Schedule 1.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Visitor: a visitor to the website.
Website/application/software product: any project, product or service which includes design, development or management for a website, plugin, app, api, sofware or any third party online platform. Includes tasks for such platforms including social media management and blog writing.
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 statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9. References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.10. Writing or written includes fax and email.
2. Customer responsibilities
2.1. The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to the Supplier. Accordingly, the Customer shall 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.
2.2. The Customer shall be responsible for the accuracy and completeness of the Materials on the website in accordance with clause 8.
3. Development and acceptance of website, application, or software product
3.1. The Customer acknowledges that any dates provided by the Supplier may be subject to change and that time is not of the essence.
Furthermore, the Customer shall within five (5) Business Days of its receipt of the work from the Supplier confirm whether the website, application or sofware products supplied by the Supplier is accepted. The Supplier shall deem the Customer’s acceptance of the website if the Customer fails to report back as determined in this clause.
3.2. If any failure of the website, application or software product 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 product shall be deemed to have been accepted by the Customer 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.
4. Charges and payments
4.1. 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.
Furthermore, any ongoing Services (such as, but not limited to, website hosting) provided to the Customer by the Supplier under the terms of this agreement will be payable on a monthly basis within 7 days of the date of the Supplier’s invoice or by direct debit (whichever is agreed with the Supplier on the Effective Date). Any penalties for late payment as described in clause 4.3 will apply.
4.2. All Charges are exclusive of VAT unless otherwise stated.
4.3. If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 10, the Customer shall pay a fixed penalty of £10 for each full week the invoice is overdue incurring from the due date until payment of the overdue sum, whether before or after judgment.
5. Warranties
5.1. Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
5.2. The Supplier shall perform the Services with reasonable care and skill.
5.3. 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.
5.4. The Supplier does not warrant that the Customer’s use of the website will be uninterrupted or error- free.
6. Limitation of remedies and liability
6.1. Nothing in this agreement shall operate to exclude or limit the Supplier’s liability for:
(a) death or personal injury caused by its negligence; or
(b) 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
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
6.2. The Supplier shall not be liable to the Customer for any failure related to the hosting of the website, the provision of email and any maintenance of the website, any damage to software, maintenance or management of any website, application or software product, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
6.3. Subject to clause 6.1, the Supplier’s aggregate liability in respect of claims based on events in any calendar year 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 100% of the total Charges payable by the Customer to the Supplier under this agreement.
7. Intellectual property rights
7.1. Upon the Supplier’s receipt of full payment of the Charges as set out in clause 4, the Supplier undertakes to assign all Intellectual Property Rights in the website (including in the content of the website), arising in connection with this agreement to the Supplier, on the provision that the Customer will grant the Supplier a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the website.
7.2. The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
7.3. The indemnities in clause 7.2, and clause 8.3 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
7.4. The indemnities in clause 7.2, clause 8.3 and clause 8.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
8. Website content
8.1. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third-party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
8.2. The Supplier shall include only Materials on the website. The Customer acknowledges that the Supplier has no control over any content placed on the website by Visitors and does not purport to monitor the content of the website. The Supplier reserves the right to remove content from the website where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the website may be Inappropriate Content.
8.3. The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
8.4. The Supplier may include the statement “Website by StudioRav.co.uk” in the footer of the website in a form to be agreed unless otherwise stated.
9. Data protection
9.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 9, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
9.2. The parties acknowledge that for the purposes of the Data Protection Legislation up to the Supplier’s receipt of full payment of the Charges, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Following the Supplier’s receipt of full payment of the Charges, the Customer will act as Data Controller and the Supplier will have no further obligation as Data Controller.
9.3. Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
9.4. Without prejudice to the generality of clause 9.1 and for the period when the Supplier acts as Data Controller, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) not transfer any Personal Data outside the European Economic Area unless the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(d) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.5. The Customer consents to the Supplier appointing a third-party processor of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.
10. Term and termination
10.1. This agreement shall commence on the Effective Date and shall terminate automatically on payment of all outstanding sums.
10.2. Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer party if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the Customer 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;
(c) the Customer 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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the Customer commences negotiations with all or any class of any 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;
(e) 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 the Customer;
(f) 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 Customer;
(g) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
(i) a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(c) to clause 10.2(h) (inclusive);
(k) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(l) any warranty given by the Customer in clause 5 of this agreement is found to be untrue or misleading.
10.3. The Customer acknowledges that it will not have the right to terminate this agreement once a non- refundable deposit has been paid to the Supplier.
10.4. On expiry or termination of this agreement otherwise than on termination by the Supplier under clause 10.2, the Supplier shall promptly return all Materials to the Customer.
10.5. 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.
11. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
12. Confidentiality
12.1. Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
12.3. The obligations set out in this clause 12 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 12; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
12.4. The obligations of confidentiality in this clause 12 shall not be affected by the expiry or termination of this agreement.
13. Notices
13.1. Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
13.2. Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
13.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14. Publicity
All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
15. Assignment
Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.16. Entire agreement
16.1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17. Third party rights
17.1. This agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
17.2. The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
18. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Waiver
19.1. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. Severance
21.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
21.2. If any provision or part-provision of this agreement is deemed deleted under clause 21.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
23. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
These terms and conditions were last updated 20th January 2022.