Terms &
Conditions.
Please read these web development terms carefully. They set out the legal rights and obligations of both parties in relation to our web development services.
Clause 01
Definitions & interpretation
In this Agreement, the following terms have the meanings set out below.
Acceptance Criteria
Has the meaning given to it in Clause 5.2.
Acceptance Period
The period of 10 Business Days beginning on the date of actual delivery of the Website to the Customer.
Agreement
The agreement between the Developer and the Customer incorporating these Web Development Terms and the Proposal, and any amendments to it from time to time.
Business Day
Any week day, other than a bank or public holiday in England.
Business Hours
Between 09:00 and 17:00 London time on a Business Day.
CCN
A change control notice issued in accordance with Clause 6.
CCN Consideration Period
The period of 7 Business Days following the receipt of a CCN sent by the other party.
Change
Any change to the terms of the Agreement, including any change to the Website specification in the Proposal.
Charges
The amounts payable by the Customer to the Developer under or in relation to the Agreement, as set out in the Proposal.
Confidential Information
The Customer Confidential Information and the Developer Confidential Information.
Credit
A credit for the Developer on the Website, in the form specified in the Proposal.
Customer
The customer for services under the Agreement as specified in the Proposal.
Customer Confidential Information
Any information disclosed by the Customer to the Developer (whether in writing, orally or otherwise) that at the time of disclosure was marked as confidential, or should reasonably have been understood to be confidential.
Customer Works
Works and materials provided to the Developer by the Customer, or by any third party on behalf of the Customer, for incorporation into the Website.
Defect
A defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website, but excluding any defect caused by an act or omission of the Customer, or an incompatibility between the Website and any third-party application or software.
Delivery Date
The date for delivery of the Website specified in the Proposal.
Design Elements
The visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video and text) together with all mark-ups and style sheets, but excluding the Customer Works and Third Party Works.
Developer
Lawrence Brendish, a sole trader, having the principal place of business at The Haven, Fore Street, Carharrack, Redruth, Cornwall TR16 5QS.
Developer Confidential Information
Any information disclosed by the Developer to the Customer during the Term that was marked as confidential, or should reasonably have been understood to be confidential.
Effective Date
The date of execution of the Proposal.
Force Majeure Event
An event outside the reasonable control of the affected party, including internet failures, hacker attacks, power failures, industrial disputes, changes to the law, disasters, fires, floods, riots, terrorist attacks and wars.
Intellectual Property Rights
All intellectual property rights wherever in the world, whether registered or unregistered, including copyright, database rights, trade secrets, trade marks, patents, and rights in designs.
Personal Data
Has the meaning given to it in the Data Protection Act 1998.
Proposal
The proposal document issued by the Developer detailing the scope of the Services and other matters relating to the Agreement.
Services
Has the meaning given to it in Clause 3.1.
Software Elements
The Website excluding the Design Elements, the Customer Works and the Third Party Works.
Third Party Works
Works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works).
Term
The term of the Agreement.
Website
The website or web application to be developed by the Developer for the Customer under the Agreement.
1.2
A reference to a statute or statutory provision includes a reference to that provision as modified, consolidated and/or re-enacted from time to time, and to any subordinate legislation made under it.
1.3
Clause headings do not affect the interpretation of the Agreement.
1.4
The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
Clause 02
Term
The Agreement will come into force on the Effective Date and will continue in force until the later of: (a) the acceptance of the Website by the Customer in accordance with Clause 5; and (b) the receipt by the Developer of all amounts due under the Agreement — upon which it will terminate automatically, unless terminated earlier in accordance with Clause 14.
Clause 03
The Services
3.1
The Developer will: (a) design, develop and deliver the Website; (b) incorporate the Customer Works and Third Party Works into the Website as specified or agreed in writing; and (c) deliver the Website and its files to the Customer in accordance with Clause 5 (the “Services”).
3.2
The Developer will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, the Developer does not guarantee that timetable will be met.
Clause 04
Customer obligations
4.1
The Customer will provide the Developer with: (a) such co-operation as is reasonably required to enable the Developer to perform its obligations; and (b) all information and documents reasonably required in connection with the Services.
4.2
The Customer will be responsible for procuring any third party co-operation reasonably required by the Developer.
4.3
The Customer will supply all Customer Works specified in the Proposal.
4.4
The Customer will fulfil its obligations under Clause 4.3 in accordance with the timetable in the Proposal, or promptly upon written request from the Developer. The Developer shall not be in breach by reason of any delay arising from the Customer's failure to comply.
4.5
The Customer hereby grants to the Developer a licence to copy and use the Customer Works during the Term for the purposes of fulfilling its obligations under the Agreement.
Clause 05
Delivery & acceptance
5.1
The Developer will use reasonable endeavours to deliver the Website to the Customer for acceptance testing on or before the Delivery Date. The Developer grants to the Customer a licence to use the Software Elements and Design Elements during the Acceptance Period solely for the purpose of carrying out tests under this Clause 5.
5.2
During the Acceptance Period, the Customer will carry out acceptance tests to determine: (a) whether the Website conforms in all material respects with the specification in the Proposal; and (b) whether the Website has any Defects (the “Acceptance Criteria”).
5.3
If in the Customer's reasonable opinion the Website meets the Acceptance Criteria, the Customer will send the Developer a written notice during the Acceptance Period confirming acceptance.
5.4
If in the Customer's reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send the Developer a written notice setting out in detail the respects in which the Website falls short.
5.5
If the Developer (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, the Developer will have a further remedial period of 30 Business Days to modify the Website.
5.6
The Website will be deemed accepted by the Customer if: (a) the Customer gives no notice under Clause 5.3 or 5.4 during the Acceptance Period; or (b) the Customer publishes or uses the Website for any purpose other than testing.
Clause 06
Change control
6.1–6.2
Either party may request a Change at any time. The provisions of this Clause apply to all Changes requested by either party.
6.3
A requesting party will provide a CCN setting out: (a) the impact on the timetable; (b) any Customer Works or Third Party Works required; and (c) any variation to the Charges.
6.4–6.5
The other party will respond within the CCN Consideration Period. Either party may accept, reject, request further information about, or request amendments to a CCN.
6.6–6.7
A CCN takes effect only once both parties have confirmed agreement in writing or by signature. Until then, the proposed Change has no effect.
Clause 07
Unlawful content
7.1
The Customer must ensure that the Customer Works will not: (a) infringe any person's Intellectual Property Rights or other legal rights; (b) breach any laws or regulations; or (c) give rise to a cause of action against any person, in each case under any applicable law.
7.2
Any breach of Clause 7.1 will be deemed a material breach of the Agreement for the purposes of Clause 14.
7.3
The Customer indemnifies and undertakes to keep indemnified the Developer against any and all damages, liabilities, costs, losses and expenses (including legal expenses) arising out of any breach by the Customer of Clause 7.1.
Clause 08
Charges & payment
8.1
The Developer will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Proposal, or (if earlier) upon acceptance of the Website.
8.2
The Customer will pay the Charges within 7 days of the date of the relevant invoice.
8.4
Charges must be paid by bank transfer or by cheque, using such payment details as are notified by the Developer from time to time.
8.5
If the Customer does not pay any amount properly due, the Developer may: (a) charge interest on the overdue amount at 8% per year above the base rate of HSBC Bank Plc (accruing daily, compounded quarterly); or (b) claim interest and statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
8.6
Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal, unless otherwise agreed.
8.7
Once a deposit is paid and work completed, the Customer is obliged to pay the balance in full. The Developer will contact clients by email and telephone to remind them of outstanding payments.
If accounts are not settled and the Developer has not been contacted regarding any delay, access to the related website may be denied and web pages removed. Unresolved non-payment may be referred to the Small Claims Court and can result in county court judgements (CCJs) being recorded against the client's credit rating. Following consistent non-payment, the Developer's solicitors may seek payment through legal procedures including court summons.
Clause 09
Intellectual Property Rights
9.1
From the date of acceptance, the Developer assigns to the Customer all Intellectual Property Rights in the Design Elements, for the whole term of such rights including all reversions, revivals, extensions and renewals, together with the right to bring proceedings for past infringement.
9.2
All Intellectual Property Rights in the Software Elements remain the property of the Developer. From the date of acceptance, the Developer grants the Customer a non-exclusive worldwide licence to use the Software Elements in connection with the Website. The Customer must not sell, resell, rent, lease, distribute or redistribute the Software Elements; use them in connection with any other website or software; or alter or adapt them.
9.3
Third Party Works will be supplied or sub-licensed in accordance with the relevant licensor's terms, or on terms notified by the Developer to the Customer.
9.4
All assignments and licences granted by the Developer are subject to payment of all amounts owing in full and on time. Where the Customer owes any amount and fails to pay within 14 days of written notice, the Developer may immediately revert assignments and terminate licences by written notice.
9.5
Subject to Clause 9.4, licences granted by the Developer to the Customer continue notwithstanding termination of the Agreement.
9.6
The Developer may include a credit and link to the Developer's website on each page of the Website. The Customer will retain any such credit and link in any adapted version of the Website, and will only remove it at the Developer's request.
9.7
The Customer grants to the Developer a non-exclusive worldwide licence to use the Website for the purpose of marketing the Developer's services to third parties.
Clause 10
Warranties
10.1
The Customer warrants that it has the legal right and authority to enter into and perform its obligations under the Agreement.
10.2
The Developer warrants: (a) that it has the legal right and authority to enter into and perform its obligations; (b) that it will perform the Services with reasonable care and skill; (c) that the Website (excluding Customer Works and Third Party Works) will not infringe any person's Intellectual Property Rights under English law; and (d) that the Website will operate without any Defects upon the date of acceptance.
10.3
If the Customer demonstrates that the Website suffers from any Defect during the 60 days following acceptance, the Developer will, for no additional charge, carry out any work necessary to remedy that Defect.
10.4
The Website is designed to work with the web browser and server technologies specified in the Proposal. The Developer does not warrant that the Website will work with any other technologies.
10.5
The Developer does not purport to provide legal advice under the Agreement and does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer.
10.6
All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms will be implied into the Agreement.
Clause 11
Limitations & exclusions of liability
11.1
Nothing in the Agreement will limit or exclude liability for: (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; (c) any liability that cannot be limited under applicable law; or (d) any liability that cannot be excluded under applicable law.
11.2
The limitations and exclusions in this Clause govern all liabilities arising under the Agreement, including liabilities in contract, in tort (including negligence) and for breach of statutory duty.
11.3
The Developer will not be liable for any loss of profits, income, revenue, use, production or anticipated savings.
11.4
The Developer will not be liable for any loss of business, contracts or commercial opportunities.
11.5
The Developer will not be liable for any loss of or damage to goodwill or reputation.
11.6
The Developer will not be liable for any loss or corruption of any data, database or software.
11.7
The Developer will not be liable for any special, indirect or consequential loss or damage.
11.8
The Developer will not be liable for any losses arising out of a Force Majeure Event.
Clause 12
Data protection
12.1
The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Developer under the Agreement.
12.2
The Developer warrants that: (a) it will act only on instructions from the Customer in relation to the processing of any Personal Data; and (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing and against loss or corruption of Personal Data processed on behalf of the Customer.
Clause 13
Confidentiality & publicity
13.1–13.2
Each party will keep the other's Confidential Information confidential, not disclose it to any third party (save as expressly permitted by this Clause), and protect it with at least the same degree of care it uses for its own confidential information.
13.3
Confidential Information may be disclosed to a party's officers, employees, agents, insurers and professional advisers, provided the recipient is bound in writing to maintain its confidentiality.
13.4
Confidentiality obligations do not apply to information that is publicly known (other than through a breach of confidence), was already in the recipient's possession prior to disclosure, or is received from an independent third party with the right to disclose it.
13.5
Nothing restricts a party from disclosing Confidential Information required by law or by a governmental authority, stock exchange or regulatory body, provided that (where permitted) prompt written notice is given to the other party.
13.6
The Customer will not make any public disclosure relating to the subject matter of the Agreement (including press releases, announcements or marketing materials) without the prior written consent of the Developer.
Clause 14
Termination
14.1
The Developer may terminate the Agreement at any time by giving at least 30 days' written notice to the Customer.
14.2
Either party may terminate immediately by written notice if the other party: (a) commits a material breach that is either not remediable, or remains unremedied 30 days after written notice requiring remedy; or (b) fails to pay any amount due in full and on time.
14.3
Either party may terminate immediately if the other party: is dissolved; ceases to conduct all or substantially all of its business; is or becomes unable to pay its debts; is declared insolvent; makes any arrangement with creditors; has a receiver, administrator or liquidator appointed; or (in the case of an individual) dies, becomes incapable of managing their affairs, or is the subject of bankruptcy proceedings.
Clause 15
Effects of termination
15.1
Upon termination all provisions of the Agreement will cease to have effect, save that the following Clauses will survive: 1, 7.3, 8.5, 9.2 to 9.7, 10.3, 11, 13.1 to 13.5, 15 and 16.3 to 16.13.
15.2
Termination will not affect either party's accrued rights as at the date of termination.
15.3
If terminated under Clause 14.1, or by the Customer under Clause 14.2 or 14.3: (a) the Developer will promptly provide an electronic copy of the Website to the Customer; and (b) the Customer will be entitled to a refund of Charges paid in respect of Services not yet performed.
15.4
Save as provided in Clause 15.3(b), the Customer will not be entitled to any refund of Charges on termination.
Clause 16
General
16.1
Any notice given under the Agreement must be in writing and delivered personally, sent by recorded post, or sent by fax or email to: The Developer: FutureStore, The Haven, Fore Street, Carharrack, Redruth, Cornwall TR16 5QS. The Customer: the address and email set out in the Proposal.
16.2
A notice will be deemed received: (a) if delivered personally, at time of delivery; (b) if sent by recorded post, 48 hours after posting; (c) if sent by fax or email, at the time of transmission (providing written evidence of transmission is retained).
16.3
No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
16.4
If any Clause is determined to be unlawful or unenforceable, the other Clauses will continue in effect. If the Clause would be lawful if part of it were deleted, that part will be deemed deleted.
16.5
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.6
The Agreement may not be varied except through the Change control procedure in Clause 6, or by a written document signed by or on behalf of each of the parties.
16.7
The Developer may freely assign any or all of its contractual rights and/or obligations under the Agreement to any third party. The Customer may not assign, transfer, charge, licence or otherwise deal in the Agreement or any of its contractual rights without the prior written consent of the Developer.
16.8
The Developer may subcontract any of its obligations under the Agreement to any third party without the Customer's consent.
16.9
The Customer will not, without the Developer's prior written consent, during the term of the Agreement or within 6 months after its termination, engage, employ or solicit for employment any employee or contractor of the Developer who has been involved in the performance of the Agreement.
16.10
Each party agrees to execute any documents and do any things reasonably within its power that are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
16.11
The Agreement is made for the benefit of the parties only and is not intended to benefit or be enforceable by any third party.
16.12
The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements, arrangements and understandings between the parties.
16.13
The Agreement will be governed by and construed in accordance with the laws of England and Wales. The courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
16.14
Website Optimisation. Due to external factors such as changes to the way search engines rank websites, the Developer cannot offer any guarantees regarding search engine positions. The Developer cannot accept liability for any change in rankings or drop in position due to changes in search engine algorithms or ranking factors.
Any questions
about the terms?
Ring us and we'll talk through anything that isn't clear. Plain English, no jargon.