95 Wilton Road
Suite 3
London - SW1V 1BZ
United Kingdom UK
Please read the following terms (“the Conditions”) carefully as, together with the specific project terms contained in the other Sections as agreed and amended throughout the project between us and inserted into this folder, they form the entire basis for our agreement and are an essential condition of you working for us, to the exclusion of anything we may have already agreed or any other terms that either of us may seek to impose or imply into our relationship. Signature by both us and you of the Client’s Brief (Section 4) constitutes your unqualified acceptance of these terms in their entirety.
These Conditions apply between
All words which appear in quotation marks and bold type will throughout The Conditions have the meaning given to them when they first appear in that format. They are listed in Schedule 1 attached together with the clauses in which they are first defined.
The DEVELOPER is a specialist web design and communication agency and the CLIENT has requested that the DEVELOPER design, program and supply a product (the “Product”) and various services (the “Services” as specified in the Client’s Brief (Section 2) and to be described in more detail in the Developer’s Proposal (Section 4) and later on in the Project Specification (Section 7) all such work to be referred to as “the Project”.
In consideration for the Product and Services, the CLIENT agrees to
pay the DEVELOPER in accordance with the Budget (Section 6).
OPTION A - Agreed monthly payments
From now on in The Conditions the following terms have the
following meanings:
“Completion” means the date by which the DEVELOPER has
completed the Product, the CLIENT has accepted it
and made full payment to the DEVELOPER. Alternatively, Completion
will occur early where the Project is cancelled or terminated provided
that the CLIENT has paid all sums owing to the DEVELOPER under the
cancellation or termination provisions below and has accepted the
DEVELOPER’s work on the Project up to the date of cancellation or
termination;
“Front End” means the visual appearance of the Product,
layout, content, photographs, videos, music and text, branding,
corporate image and look-and-feel together with any Bespoke
Software;
“Rights” means all intellectual property, copyright, design right,
registered designs, trade marks, patents, confidential information and
ideas and moral rights and all other rights whatsoever of a like nature
world-wide whether those rights are registered or not;
“Software” means all coding and programming required for the
development and use of the Product including any content
management system for updating the Product or similar programming
tools such as are not specifically included within the definition of Front
End;
“Bespoke Software” means all software specifically developed by the
DEVELOPER for the Product which the Parties have agreed and
specified in the Project Specification will be included in the definition of
Front End.
“Third Party Material” means all content, materials and software to
be incorporated in or used in conjunction with the Product which
belong to third parties.
OPTION A: CLIENT to own Front End
Hosting
OPTION A – using a third party ISP to host
Where the Client has requested (as part of the CLIENT Brief) that
the DEVELOPER recommends an ISP to host the Website, the
DEVELOPER will do so and use all reasonable care in doing so and
ensure that any specific requirements of the CLIENT can be
accommodated by such ISP, but the DEVELOPER shall not be liable
for the performance of any services by such ISP.
OPTION B – the DEVELOPER to manage ISP relationship
As part of the Services, the DEVELOPER shall be responsible for
choosing an appropriate ISP to host the Website and the
DEVELOPER shall manage the relationship with that ISP to ensure
the smooth operation and to maximise the accessibility of the
Website at all times.
OPTION C – the DEVELOPER to host
As part of the Services and unless the CLIENT notifies the
DEVELOPER otherwise, the DEVELOPER shall host the Website on
the DEVELOPER’s standard hosting terms to be attached to the
DEVELOPER’s Brief.
OPTION D – CLIENT to host
The CLIENT shall host the Website and shall take full responsibility
for the operation and accessibility of the Website. The DEVELOPER
agrees to give the CLIENT all reasonable assistance in uploading
the Website onto the CLIENT’s server.
The Parties acknowledge a duty not during the Project or after
Completion to disclose without the other’s prior written permission
any information concerning the other’s business, its business plans,
customers or associated companies or resulting from studies or
surveys commissioned by the CLIENT (“Confidential
Information”).
In particular, during the Project and after Completion, the
DEVELOPER acknowledges its responsibility to treat in complete
confidence all the marketing, sales and other information and
statistics relating to the CLIENT’s business with which the CLIENT
may supply the DEVELOPER in the course of the Project.
Any Confidential Information given by the CLIENT to the
DEVELOPER shall be returned to the CLIENT at the end of the
Project, if the CLIENT requests.
The DEVELOPER shall impose these obligations in respect of
Confidential Information on its own personnel and obtain written
assurances from any third parties to whom Confidential Information
has to be disclosed in order to enable the DEVELOPER to carry out
its obligations.
This clause shall not prevent:
Should either Party or its employees sustain any loss or liability,
costs (including legal costs) or damages as a result of the other’s
breach of these Conditions, the Party in breach shall indemnify the
other in full save in respect of consequential loss.
NEGOTIABLE CLAUSES
OPTION A – DEVELOPER taking full responsibility for clearance
· The DEVELOPER warrants to the CLIENT that having taken such
legal advice and undertaken such searches as the DEVELOPER
considers reasonably necessary, to the best of its knowledge and
belief any creative work or work on Software produced by the
DEVELOPER on the Project will be original to its authors, has not
been previously published in any form in the UK, will not infringe
the copyright of any third party and will not contain anything
obscene, blasphemous, libellous or otherwise unlawful other than
as communication to the CLIENT, except that:
OPTION B – CLIENT and DEVELOPER sharing responsibility for
clearance
· The DEVELOPER warrants that having taken such legal advice or
other advice in respect of the Website as the Parties consider
necessary and having undertaken such trade mark searches,
domain name searches and other enquiries as the Parties may
agree should be undertaken, the publication of the Website shall, to
the best of the DEVELOPER’s knowledge and belief not infringe any
third party rights or be in any other way contrary to law other than
as contained in any legal advice provided to the DEVELOPER and
communicated to the CLIENT.
· The CLIENT accepts full legal responsibility in respect of any aspect
of the Website approved by it for publication and will indemnify the
DEVELOPER in respect of any loss or liability, costs (including legal
costs) or damages incurred as a result of the CLIENT’s publication
of the Website.
OPTION C – Client taking full responsibility for clearance
· Except where the DEVELOPER has breached these Conditions, the
CLIENT accepts full legal responsibility for publication of the
Website on the Internet and will carry out a full audit of the
Website before publishing or authorising the DEVELOPER or ISP to
publish it on the Internet and the CLIENT will indemnify the
DEVELOPER in respect of any loss or liability, costs (including legal
costs) or damages incurred as a result of such publication save in
respect of consequential loss.
Negotiable additional clauses for all options:
· For the avoidance of doubt any costs incurred in taking legal or
other advice and undertaking trade mark or other searches and
enquiries as the Parties may agree should be undertaken shall be
paid by the CLIENT subject to prior written approval of such costs
by the CLIENT.
· In addition, the CLIENT warrants to the DEVELOPER that it will
comply with the terms of all third party licences notified in writing
to it by the DEVELOPER as required for the operation of the
Website and the CLIENT will indemnify the DEVELOPER in respect
of any loss or liability, costs (including legal costs) or damages
incurred as a result of such publication save in respect of
consequential loss.
· Both the CLIENT and DEVELOPER shall comply with any applicable laws and other rules and regulations, such as data protection legislation, gaming, betting, lotteries, amusements, financial services, telecommunications and broadcasting etc. whether on a statutory or self-regulatory basis and to co-operate with each other in order to ensure such compliance, including keeping the other informed as soon as they become aware of any potential relevant issue.
· In addition to clause 11 above, the CLIENT shall be responsible for
briefing the DEVELOPER about its data protection requirements in
respect of the Website and shall provide the DEVELOPER with all
such materials and information as is needed to ensure that the
design of the Website is compliant with relevant data protection
laws and regulations, for example, by providing on-line privacy
policies to be included in the Website.
· The DEVELOPER shall take adequate security measures in its
processing of any data on behalf of the CLIENT and shall adhere to
the CLIENT’s privacy policy.
· The CLIENT warrants to the DEVELOPER that “CLIENT Content”
(source materials that may be incorporated into the Website which
are provided by the CLIENT) is free of all defamatory matter,
inaccuracies or legal restriction, including advertising regulations. In
this regard, the CLIENT hereby agrees to indemnify the DEVELOPER
against all costs and losses whatsoever incurred by the
DEVELOPER, its employees or sub-contractors as a result of any
claim made against us or any of them in any jurisdiction in the
world for infringement of any Intellectual Property Rights in Client
Content, defamation or any other action as a result of breach of this
warranty.
· On receipt of the final version of the Website the DEVELOPER shall
deliver the Client Content to the CLIENT, except as the DEVELOPER
reasonably needs to retain for maintenance or archive purposes,
security and usage rights.
· The CLIENT and DEVELOPER undertake that they shall not for the
period of [6 months] after Completion or termination of this project,
whichever is the later, entice, solicit or engage any person who was
an employee or consultant or otherwise engaged by the other
during such period and who had dealings with them. Whilst the
CLIENT and DEVELOPER consider this restriction to be reasonable
we both agree that if a court of competent jurisdiction considers
that such restriction is invalid but would have been valid if either
the period or its scope thereof were reduced then such restriction
shall continue to apply but with such restriction or restrictions
shall continue to apply but with such restriction or restrictions
necessary to enable its validity.
· In addition, the DEVELOPER undertakes not to work on a similar
project for a “Direct Competitor” of the CLIENT for a period of [6
months] after Completion without prior written consent of the
CLIENT. For these purposes, a Direct Competitor of the CLIENT
shall mean any of the following companies, their subsidiaries or
associates:
[CLIENT to list major competitors. NB: To ensure that
the restriction is reasonable, you may want to specify which
particular products or services of your competitors this clause
applies to]
PROFESSIONAL INDEMNITY
Without limiting its liability to indemnify the CLIENT, the DEVELOPER
shall have in force and maintain at its own cost such insurance policies
with reputable insurers as will give the DEVELOPER (and/or its
subcontractors) cover in a sum of not less that [£ ] in respect of all
of its potential liabilities and obligations to the CLIENT under these
Conditions, covering direct and indirect losses unless otherwise agreed
in writing with the CLIENT up to at least [£5 million]. The DEVELOPER
shall provide proof of such policies to the CLIENT on written request.
· If at any stage the CLIENT decides not to proceed further with the production of the Website it must let the DEVELOPER know as soon as possible so that it can minimise the disruption caused. If the CLIENT cancels the Project, then the CLIENT shall be liable to pay the DEVELOPER for all work done to and including the date of cancellation and any costs that it has already committed to on the Website (such as by booking subcontractors, buying materials necessary for the Website and booking time for personnel and subcontractors which cannot be easily transferred to other clients etc) so far as they are unrecoverable. Any advance payment that the CLIENT has paid to the DEVELOPER for work on the Website shall be refundable after the DEVELOPER has set-off any of the above costs payable by the CLIENT on cancellation against any unused part of such payment. Thereafter, Completion will be deemed effective, so that the Rights provisions contained in clause 7 above shall take effect with respect to any Rights in work done to the date of Completion.
· Without prejudice to any other rights and remedies, either the
CLIENT or the DEVELOPER may by written notice to the other party
terminate this Website Project with immediate effect following the
occurrence of one or more of the following events:
· If the CLIENT decides that it does not want to engage the
DEVELOPER to create the Website after it has drawn up the
DEVELOPER’s Proposal; or
· If the other Party has committed any breach of any material
term of these Conditions and (if the breach is capable of
remedy) has failed to remedy such breach within [28] days
of receipt of written notice specifying the breach and
requiring remedy; or
· If the other Party fails to pay any sum due to the other
Party within 28 days of receipt of an invoice; or
· If the other Party has a receiver appointed over all or a
substantial part of its assets, or is the subject of any petition
for winding up or issues any notice in connection with the
passing of any resolution by its shareholders for its windingup
or is otherwise the subject of proceedings for bankruptcy
or enters into a voluntary arrangement or is otherwise
unable to pay its debts as they fall due, or otherwise ceases
trading.
· On termination (except by non-engagement of the DEVELOPER):
- For the purposes of the transfer of Rights in the Website to
the CLIENT, the Project shall be treated as if Completion had
taken place so that the CLIENT shall be assigned or licensed
Rights in any part of the Website already created on the same
basis as set out in clause 7 above;
-
the CLIENT shall pay to the DEVELOPER any sums outstanding
in respect of its work on the Project, except that the CLIENT
shall be entitled to set-off against such sums any costs, any
loss or liability, costs (including legal costs) or damages
incurred as a result of any breach by the DEVELOPER of these
Conditions;
- The DEVELOPER will give the CLIENT all reasonable cooperation
in transferring, subject to the approval of third
parties where required, all materials, contracts and
arrangements relating to the Website, unless otherwise agreed
in writing with the CLIENT.
· For the avoidance of doubt, any termination shall be without
prejudice to the provisions of clause 9 (Confidentiality) and to any
other obligations of a continuing nature or any other rights to all
other rights that either Party may have under these Conditions or
otherwise.
If either of us is affected by any circumstances beyond our reasonable control (including but without limitation any act of God, war or military action, terrorism, sanction, strike, fire, natural disaster (“Force Majeure”)) it shall forthwith notify the other party of the nature and extent thereof. Neither of us shall be liable to the other for delay in performance, or non-performance of any of its obligations under this agreement when due to any Force Majeure of which it has notified the other and the time for performance of that obligation shall be extended accordingly.
Neither of us shall assign the benefit or burden of this agreement without the other’s prior written consent (not to be unreasonably withheld) [except the CLIENT which shall at any time be able to assign the benefit of this agreement to [ ].
· Unless the Parties agree otherwise, no litigation in respect of any dispute between them shall proceed unless and until the Parties have used their best endeavours amicably to settle the dispute through non-binding confidential mediation. Mediation shall take place in England with a Mediator appointed by the Centre for Dispute Resolution and the costs of any such mediation process shall be shared equally between the Parties.
· Nothing in this Agreement shall be deemed to constitute a
partnership between the CLIENT and the DEVELOPER and neither
of us shall do or suffer to be done anything whereby it may be
represented as the other’s partner.
· Where the DEVELOPER deals with any third party in relation to
this Project, it does so as principal and not as the agent of the
CLIENT.
· If at any time any provision of this agreement is or becomes
illegal, invalid or unenforceable in any respect, that shall not
affect the legality or validity or enforceability of any other
provision of this agreement.
· No forbearance, delay or indulgence by either of us in enforcing
the provisions of this agreement shall prejudice or restrict the
rights of that party nor shall any waiver of rights operate as a
waiver of any subsequent breach of this agreement.
· The United Kingdom shall be considered the place of first
publication of any material on the Internet.
· The Conditions may only be varied by written agreement between
us.
· This agreement shall be governed by and construed In
accordance with English law and the parties submit to the nonexclusive
jurisdiction of the English Courts.
Term and clause containing definition