Terms & Conditions
These terms and conditions apply to the Website Services Agreement entered into by and between Jagseven Ltd whose registered office is at 38 Foxhills Close, Appleton, Warrington, Cheshire WA4 5DH (‘the Supplier’) and the Customer identified in the Website Services Agreement
1 Definitions and interpretation
|Acceptance Date||means the date upon which the Website is accepted by Customer in accordance with this Agreement;|
|Acceptance Tests||means the mutually agreed tests in accordance with this Agreement to assess whether the Website conforms with the Specification|
|Authorised Contact||means each authorised representative appointed by each of Customer and Supplier as their respective project managers, whose details are set out in clause 18 (Authorised Contacts), or as otherwise notified to the other party in writing;|
|Business Day||means a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in London for non-automated normal business;|
|Change||means any change, amendment or alteration to the Specification, the Services or this Agreement;|
|Change Control Note||means a written note which details the impact the proposed Change will have on any part of the Specification, the Services or this Agreement, fees and charges in such form as the parties agree;|
|Change Control Procedure||means the procedure for agreeing Changes as set out in this Agreement;|
|Confidential Information||means any and all confidential information (whether in verbal, written or electronic form), including technical or other information imparted in confidence or disclosed by one party to the other, or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to any person, firm, or organisation associated with that party;|
|Content||means all text, graphics, images, sound, data, software, and materials used in the Website;|
|Customer Content||means any Content provided or made available by Customer;|
|Fees||means the fees payable and other amounts payable under this Agreement for the Website and the Services, as set out in the Website Services Agreement;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire; flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;|
|Good Industry Practice||means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;|
|Intellectual Property Rights||means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, [the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case:(i) whether registered or not;
(ii) including any applications to protect or register such rights;
(iii) including all renewals and extensions of such rights or applications;
(iv) whether vested, contingent or future; and
(v) wherever existing;
|Retail Prices Index or RPI||means the All Items Retail Prices Index as published by the Office for UK Office for National Statistics;|
|Services||Means the services to be carried out by the Supplier as described in the Website Services Agreement|
|Specification||means the specification for the Website agreed between the parties and set out in the Website Services Agreement (or as otherwise agreed in accordance with the terms of this Agreement);|
|Supplier Content||means any Content developed by Supplier either before or during the term of this Agreement that is included in the Website;|
|Test Period||means the period of 7days from delivery of the Website to Customer or such longer period as set out in the Website Service Agreement;|
|Third Party Content||means any Content owned or licensed by a third party either before or during the term of this Agreement, as detailed in the Specification;|
|VAT||means:(i) value added tax as defined in the Value Added Tax Act 1994; and
(ii) any similar tax in any other jurisdiction.
|Website||means the website identified as 'the Website' in the Website Services Agreement|
In this Agreement, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 references to sub-clauses, clauses, Schedules are to sub-clauses, clauses, Schedules of this Agreement, and references to paragraphs are to paragraphs in a Schedule;
1.2.3 references to this Agreement include its Schedules;
1.2.4 references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
1.2.5 'including’ (or similar words) means including without limitation;
1.2.6 clause headings do not affect their interpretation; and
1.2.7 references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.
1.2.8 References to “you“ and “your” means the Customer described in the Website Services Agreement.
2.1 This Agreement will commence on the Commencement Date stated in the Website Services Agreement and will terminate on Completion of the Services unless agreed otherwise between the parties or terminated earlier in accordance with this Agreement.
3 Website services
3.1 The supplier shall undertake the Services in accordance with the Specification and subject to the terms of this Agreement and the Customer shall pay Supplier the Fees in accordance with the Website Services Agreement and otherwise comply with the terms of this Agreement.
3.2 Specification of Website
As defined in the Website Services Agreement.
3.3 Acceptance Testing
As defined in the Website Services Agreement
4 Fees and expenses
4.1 The Fees and expenses for the Website services are as set out in the Website Services Agreement.
4.2 The parties agree that the Fees for:
4.2.1 the Website design and development are fixed in accordance with the Website Services Agreement (subject to any Changes agreed in accordance with the Change Control Procedure); and
4.2.2 the costs for Other Services are fixed for a period of 12 months from the Commencement Date, and thereafter any increase in the Fees shall be discussed and agreed between the parties. If agreement is not reached within 14 Business Days of Supplier notifying Customer of the proposed increase, Supplier shall be entitled to increase the Fees in line with the increase (if any) in prices as identified by the Retail Prices Index from the date such Fees were last increased, provided that Supplier shall not be entitled to increase the Fees under this clause more than once every 12 months.
4.3 The Customer agrees to pay the fees for all work carried out whether the Services are wholly or partly completed.
4.3.1 If the Agreement is terminated part way through a project stage or if the work for website development or Other Services is not concluded then the Supplier will still charge for the time and expenses incurred by the Supplier and the Customer will have to pay the Supplier’s charges and expenses.
5 Taxes and duties
5.1 All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable [which shall be paid in addition by Customer at the rate and in the manner] for the time being prescribed by law.
6 Invoicing and payment
6.1 Supplier shall invoice Customer for all sums due under this Agreement as specified in the Website Services Agreement if earlier.
6.2 Customer shall pay such sums in full within 14 days from the date of invoice or on the due date for payment specified in the Website Services Agreement, if earlier.
6.3 Amounts payable to the Supplier under this Agreement shall be paid into the Supplier’s bank account by electronic funds transfer unless otherwise notified by Supplier to Customer in writing in accordance with this Agreement:
7.1 Where sums due hereunder are not paid in full by the due date, the Supplier may, without limiting its other rights, charge interest on such sums at rate of 3% above base rate of Barclays from time to time in force.
7.2 Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.
8 Supply obligations
8.1 Each of the Supplier and the Customer shall comply with their respective designated responsibilities specified in the Website Services Agreement.
8.2 The Supplier shall provide the Services:
8.2.1 at the times and in the manner required in the Specification or otherwise specified in this Agreement;
8.3 Supplier shall respond promptly from time to time to Customer’s reasonable requests for additional information or assistance to ensure the successful completion of the Services.
9 Customer obligations
9.1 The Customer shall:
9.1.1 provide accurate and complete Customer Content to the Supplier at the time and in the format required by the Specification to enable Supplier to develop the Website and to provide the Other Services;
9.1.2 respond promptly from time to time to the reasonable requests of Supplier for relevant information, instructions and assistance, including reasonable access to and cooperation by Customer personnel, to ensure the successful completion of the Project.
9.1.3 Pay the Fees as they fall due.
10 Acceptance Tests
10.1 The parties shall work together to agree within the timeframes set out in the Project Plan a set of Acceptance Tests which shall be sufficient to test whether or not the Website has the facilities and functions specified in, and perform in accordance with, the Specification or other agreed test standards, with such agreement not to be unreasonably withheld or delayed.
10.2 The Customer shall perform the Acceptance Tests within the Test Period. Supplier shall be given reasonable notice of and be entitled to attend the Acceptance Tests.
10.3 If the Website being tested performs in accordance with the agreed Specification or other agreed test standards and meet the agreed testing criteria for the Acceptance Tests, it shall be deemed to have passed the Acceptance Tests. If the Website fails to pass the Acceptance Tests, the Customer shall cooperate with the Supplier in identifying in what respects the Website failed to conform to the Specification or otherwise failed to pass the Acceptance Tests. The Website shall not be deemed to have failed the Acceptance Tests by reason of any failure to provide any facility or function not specified in the Specification or other agreed test standards.
10.4 If the Supplier is unable to remedy any failure of the Website so that it conforms with the Specification within a further test period agreed by the parties ('Extended Test Period'), then:
10.4.1 The Customer shall be entitled forthwith to terminate the Website development without further liability to Supplier;
provided that in the case of a minor non-conformity with the Specification or other agreed test standards, the Customer shall not unreasonably delay in its Acceptance of the Website so long as Supplier uses its reasonable endeavours in accordance with Good Industry Practice to rectify such non-conformity as soon as possible. For the purposes of this sub-clause, ’minor non-conformity’ means a cosmetic defect or a failure of the Website to conform with the Specification but which does not have a material effect on any specified functionality.
10.5 A written statement of Acceptance will be promptly issued by Customer when the relevant Website has passed all the Acceptance Tests
10.6 Except for where the Customer has terminated the Website development as stated above, the Customer’s Acceptance of the Website shall occur at the earliest of:
10.6.1 The Customer providing written Acceptance of the Website to the Supplier;
10.6.2 the Website passing the Acceptance Tests in accordance with this clause;
10.6.3 the Website being used in a live environment or in commercial use; and
11.1 Supplier warrants and represents to the Customer that:
11.1.1 Supplier has the right, power and authority to enter into this Agreement, and to perform the Services;
11.1.2 it has all rights and licences to provide the Supplier Content;
11.1.3 the Website (excluding any Customer Content or Third Party Content does not:
(a) infringe the Intellectual Property Rights of any third party;
(b) contain Content which is fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or otherwise contrary to law;
(c) contain any viruses or other harmful or intrusive programs or other code.
11.1.4 the Services do not and shall not infringe the Intellectual Property Rights of any third party;
11.2 The Customer acknowledges that the Supplier is not liable for any loss or damage incurred by the Customer to the extent that this results from any failure by the Customer to discharge its obligations under this Agreement.
11.3 The Customer warrants and represents to Supplier that:
11.3.1 Customer has the right, power and authority to enter into this Agreement and grant to the Supplier the rights contemplated in this Agreement, and to receive the Services;
11.3.2 it has all rights and licences to provide the Customer Content (and any Third Party Content (which it has been agreed in the Specification that Customer will license) and to grant all necessary licences to the Supplier to develop the Website and to provide the Services;
11.3.3 any Customer Content will not:
(a) be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;
(b) infringe the Intellectual Property Rights of any third party; or
(c) contain any viruses or other harmful or intrusive programs or other code.
11.4 All other warranties and representations as to the Website, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
11.5 Any warranties given by Supplier shall be subject to Customer using the Website in compliance with this Agreement and any documentation supplied with it.
12 Intellectual Property Rights
12.1 In consideration of the Fees payable under this Agreement and the parties' mutual obligations under this Agreement the Supplier assigns to the Customer the Supplier’s Intellectual Property Rights in the Content, Specification, user documentation and all other materials created by the Supplier exclusively for Customer for the Website pursuant to this Agreement.
12.2 Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
12.3 Without limitation to the above sub-clause:
12.3.1 all Customer Content shall remain the property of Customer or its licensors, and Customer grants to Supplier a non-exclusive, non-transferrable, royalty-free licence of such of Customer’s Intellectual Property Rights in the Customer Content as are necessary for Supplier to fulfil its obligations under this Agreement; and
12.3.2 except for any Content created or obtained by the Supplier exclusively for the Customer for the Website, all Supplier Content and Third Party Content shall remain the property of Supplier or its licensors (as the case may be) and, subject to the Customer’s compliance with the terms of this Agreement including payment of all Fees, the Supplier grants to Customer a non-exclusive, non-transferrable, royalty-free licence (or sub-licence (as the case may be)) of such of Supplier’s Intellectual Property Rights in the Supplier Content as are necessary for Customer to fulfil its obligations under this Agreement and to enable Customer to make use of the Website and the Services, which licence or sub-licence:
(a) in the case of software, shall be a licence of object code only unless otherwise expressly provided;
(b) in the case of Third Party Content it shall be on such terms as Supplier may grant in accordance with the terms between Supplier and the Third Party Content owner; and
(c) shall be to the extent and for the purpose only of using and maintaining the Website.
12.4 Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the Website or otherwise in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.
13 Intellectual Property Rights indemnity
13.1 The Customer shall indemnify and keep indemnified, and hold harmless, the Supplier against all claims, losses damages, costs and expenses incurred by the Supplier as a result of or in connection with any action, demand or claim that use or possession of any Customer Content infringes the Intellectual Property Rights of any third party.
14 Limits on liability
14.1 Subject to the following sub clauses, the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement shall be subject to an overall limit of one and a half times the total amounts payable over a 12 month period under this Agreement (being the 12 months period immediately prior to the date that the claim was notified to the Supplier).
14.2 The above limits on liability shall apply in respect of any indemnities provided by either party under this Agreement, except for a party's liability for a breach of their obligations under clause 16 (Confidential Information.)
14.3 The Supplier's liability to the Customer in contract, tort (including negligence), for misrepresentation (whether innocent or negligent), for breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits, business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever, even if foreseeable or if Supplier has been advised of the possibility of such damage.
14.4 The parties agree that the limitations on liability in this Agreement are fundamental to the Agreement and are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement. The Customer acknowledges that the Supplier would not provide the Website to Customer without such limitations.
14.5 Notwithstanding the above neither party excludes or limits any liability for:
14.5.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
14.5.2 fraud or fraudulent misrepresentation; or
14.5.3 any 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
14.5.4 The Customer’ s liability to pay the Fees
14.5.5 any other liability to the extent the same cannot be excluded or limited by law.
15 Force Majeure
15.1 A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
15.1.1 promptly notifies the other of the Force Majeure event and its expected duration, and
15.1.2 uses reasonable endeavours to minimise the effects of that event.
15.2 If, due to Force Majeure, a party:
15.2.1 is unable to perform a material obligation, or
15.2.2 is delayed in or prevented from performing its obligations for a continuous period of more than 90 days,
the other party may, within a further ten days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.
16 Confidential Information
16.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
16.2 Each party undertakes to:
16.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (including Supplier personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
16.2.2 to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
16.3 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
16.4 The provisions of this clause shall not apply to information which:
16.4.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
16.4.2 is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
16.4.3 is independently developed by the recipient, without access to or use of such information; or
16.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
16.5 The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.
17.1 Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:
17.1.1 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
17.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
17.2 The Customer may by notice in writing to the Supplier terminate this Agreement if the Supplier fails to comply with a material non conformity of the Specification provided always that the Customer must give the Supplier a minimum period of 21 days to remedy any failure of the Website so that it conforms with the Specification
17.3 The Customer may without prejudice to its other rights and remedies by notice in writing to Supplier immediately terminate this Agreement if the Supplier ceases or threatens to cease carrying on business in the United Kingdom.
17.4 Either party for convenience may terminate this Agreement on not less than 30 days prior written notice to the other, such notice will not to be served by the Customer for the Supplier before the Supplier is paid for all work carried out and all sums due under this Agreement.
17.5 In the event of termination of this Agreement for any reason, each party shall within seven days of such termination return (or, at the other party’s option, destroy) all the other party's Confidential Information in its possession or under its control and all copies of such information.
18 Authorised Contacts
18.1 For the purposes of this Agreement Supplier's Authorised Contact is:
18.1.1 Name: Fergus Wiseman
18.1.2 Position: Project Manager
18.1.3 Address: 38 Foxhills Close, Appleton, Warrington, WA4 5DH
18.1.4 Telephone: 01925 398752
19 Change control
19.1 All Changes to the Project, the Specification and this Agreement shall take place in accordance with the following Change Control Procedure. Either party may submit at any time a request for Change to the other party.
19.2 Where Supplier originates a Change, it shall provide a written Change Control Note.
19.3 Where Customer originates a proposed Change, it shall provide Supplier with such information (as is within Customer’s reasonable possession or control) which Supplier reasonably considers is relevant to such Change or may assist Supplier in the preparation of a Change Control Note. Supplier will provide Customer within 14 days of receiving the request for a Change (or such other period as may be agreed between the parties) with a Change Control Note.
19.4 The recipient of a Change request shall act reasonably and in good faith in deciding whether to accept or decline it in its sole discretion, but in any event do so within 14 days of receipt of the Change request (or such later time as may be agreed) indicating acceptance of the change, or setting out in full its reasons for declining.
19.5 Where Customer and Supplier agree to implement a Change, the costs of implementing a Change shall be paid in addition to the amounts due for providing the Website, relevant deliverables or allocation of resources associated with the Change (if any) as set out in the Change Control Note, except where the parties (acting reasonably) agree in writing that the Change is attributable to some act or default of Supplier, in which case the Change shall be at Supplier’s expense.
19.6 The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so by them both executing the Change Control Note or otherwise agree to do so in writing.
20 Dispute resolution
20.1 If there is a dispute between the parties in relation to any matter under this Agreement, the parties’ respective Authorised Contacts shall meet to try to resolve any such dispute and if they fail to do so with a reasonable time the matter in dispute shall be referred to a senior manager of Supplier and Customer respectively, for them to try to resolve the matter in dispute, failing which the provisions of clause 24 (Governing Law and Jurisdiction) shall apply.
21 Compliance with law
21.1 Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives.
22 Entire agreement
22.1 This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
23.1 Time of delivery of the Website or other performance of the parties’ obligations is not of the essence under this Agreement.
23.2 Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
23.3 Provisions which by their terms or intent are to survive termination of this Agreement will do so.
23.4 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
23.5 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
23.6 No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other's prior written consent or except as expressly permitted in this Agreement.
23.7 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
23.8 If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
23.9 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
23.10 All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
23.11 Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
23.12 Notices under this Agreement must be in writing and sent to the other party's Authorised Contact at the address specified in clause 18 for the Supplier and at the head of the Website Services Agreement for the Customer (Authorised Contacts).
24 Governing law and jurisdiction
This Agreement is governed by the law of England and Wales. All disputes under this Agreement not otherwise resolved by the parties in accordance with the process set out in clause 20 (Dispute resolution) shall be subject to the exclusive jurisdiction of the courts of England and Wales.