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1 "The Developer": E-Commerce Consortium Limited, Registered Office: 68 Charlock Way, Guildford, Surrey, GU1 1XZ.
2 "The Customer" - A party, company or individual utilising The Developer's services.
(A) The Developer is engaged in the business of providing the following services for Customers:
(B) The Developer has expertise in the design and development of websites, and the Customer has appointed the Developer to design, develop and supply a website on the terms of this Agreement. The scope of the work covered within this agreement will be shown in a Schedule or Project Specification.
1. Definitions and interpretation
1.1 In this Agreement:
"Acceptance Criteria" has the meaning given to it in Clause 5.2;
"Acceptance Period" means the period of 10 Business Days beginning on the date of actual delivery of the Website to the Customer;
"Affiliate" means an entity that Controls, is controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement (including the Schedules) and any amendments to it from time to time;
"Business Day" means any week day, other than a bank or public holiday in England;
"Business Hours" means between 09:00 and 17:30 GMT time on a Business Day;
"Charges" means the amounts payable by the Customer to the Developer under or in relation to this Agreement (as set out the Schedule);
"Confidential Information" means:
(a) any information supplied by the Customer to the Developer (whether supplied in writing, orally or otherwise) marked as "confidential" described as "confidential" or reasonably understood to be confidential;
(b) the terms (but not the existence) of this Agreement;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and
"Controlled" will be construed accordingly);
"Customer Works" means the works and materials provided to the Developer by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;
"Defect" means a defect, error or bug or other non functional part of the website having a material adverse effect on the appearance, operation or functionality of the Website;
"Delivery Date" means the date for delivery of the Website specified in the Schedule or Project Specification.
"Design Elements" means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, incorporating the use of processes and functions to enable operation, but excluding:
(a) the Customer Works;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Schedule" means the schedule (or Project Specification) attached to this Agreement;
"Services" has the meaning given to it in Clause 3.1;
"Software Elements" means the Website excluding:
(a) the Graphical Design Elements;
(b) the Customer Works; and
(c) the Third Party Works;
"Term" means the term of this Agreement;
"Unlawful Content" has the meaning given to it in Clause 7.1;
"Website" means the website or web application to be developed by the Developer for the Customer under this Agreement;
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or reenacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The Ejusdem Generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
This Agreement will come into force on the Effective Date and will continue in force until the acceptance of the Website by the Customer in accordance with Clause 5, upon which it will terminate automatically, unless terminated earlier in accordance with Clause 14.
3. The Services
3.1 The Developer will:
(a) design and deliver the Website;
(b) incorporate the Customer Works into the Website;
(c) keep the Customer informed of the progress of the Website's development;
(d) provide the Customer with reasonable access to the Website during the Term; and
(e) optionally provide hosting and ongoing maintenance services. These will be the subject of separate agreements.
(f) optionally provide Search Engine Optimisation services. These will be the subject of separate agreements.
3.2 The Developer will use its best endeavours to perform the Services in accordance with the reasonable skill and care to be expected of a properly competent web-site designer and to timetable set out in the Schedule; however, the Developer does not guarantee that that timetable will be met.
3.3 Search Engine Optimisation
3.3.1 Prior to work being undertaken by the Developer in relation to Search Engine Optimisation the Customer will assure the Developer in writing that:
(a) It has not employed the services of another Search Engine Optimisation Company to work on the website at the same time as the Developer.
(b) It has not created any duplicate sites, duplicate content or pages, redirects or gateway pages.
(c) It has not requested or exchanged links with link farms or undertaken any spamming techniques that may prejudice the web site's ranking with search engines.
3.3.2 The Developer reserves the right to terminate its engagement by the Customer if at any time it is suspected that the target web site (i.e. the Customer's web address whose optimisation is the object of the campaign) or web pages linked thereto are involved in any practice which the Developer deems to be illegal or unethical.
3.3.3 The Developer will strive to ensure the Customer's website is optimised, for agreed & related key phrases, for Search Engine performance using some or all of the Developer's known best practices within the agreed allocated time for this task .
3.3.4 The Developer can give no guarantee to the Customer either in relation to the ranking provided by any search engine or to the duration a web address will retain its ranking nor can it guarantee or quantify any increase in traffic to the web address resulting from the optimisation campaign. If commissioned to do so, the Developer will use its best endeavours to maintain the ranking of the Customer's web address and to respond promptly to any fluctuations in the Customer's web address ranking with the major search engines.
3.4 Hosting, Domain Names & Email
3.4.1 Hosting, Domain names and Email services are in general, but not exclusively, purchased from a partner company to which value is added. The Developer shall not be held responsible for the performance, availability or renewal of these items & services. For the terms and conditions specific to each, the Customer is referred to the terms & conditions of the partner company.
3.5 Consultancy and other Services
3.5.1 Consultancy, Project Management, Planning, Meetings, and other services not already covered will be charged for based on the Developer's prevailing hourly or daily rate for that service plus costs of any materials or other services used. Any such services to be provided by the Developer not included in the Development Fee will be agreed in advance between the Developer and Customer.
4. Customer obligations
4.1 The Customer will provide the Developer with:
(a) such co-operation as is required by the Developer (acting reasonably) to enable the performance by the Developer of its obligations under this Agreement; and
(b) all information and documents required by the Developer (acting reasonably) in connection with the provision of the Services.
5. Delivery and acceptance
5.1 The Developer will use its best endeavours to deliver the Website to the Customer for acceptance testing on or before the Delivery Date.
5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
(a) whether the Website conforms in all respects with the specification of the Website in the Schedule; and
(b) whether the Website has any Defects; (the "Acceptance Criteria").
5.3 If the Website meets the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period confirming acceptance of the Website.
5.4 If the Website does not meet the Acceptance Criteria:
(a) the Customer will send to the Developer a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria; and
(b) the Developer will have a further remedial period (of 20 Business Days) to modify the Website so that it meets the Acceptance Criteria.
7. Unlawful Content
7.1 The Customer will ensure that the Customer Works do not infringe any third party Intellectual Property Rights ("Unlawful Content").
7.2 The Customer will indemnify and will keep indemnified the Developer against all damages, losses and expenses (including legal expenses) arising as a result of any claim that the Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
8. Charges and payment
8.1 The Developer will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Schedule, or (if earlier) upon the acceptance of the Website by the Customer.
8.2 The Customer will pay the Charges to the Developer within 10 days of the date of issue of an invoice issued in accordance with Clause 8.1.
8.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise.
8.4 Charges must be paid by cheque (using such payment details as are notified by the Developer to the Customer from time to time)
8.5 If the Charges are not paid by the Customer under or in connection with this agreement for the final payment due, the Developer reserves the right to charge interest at the rate of 5% per annum above the base lending rate of The Bank of England from the due date until the date of payment.
9. Intellectual Property Rights
9.1 From the date of acceptance of the Website by the Customer, the Developer hereby assigns to the Customer with full title guarantee all Intellectual Property Rights in the Design Elements; and these rights are assigned in perpetuity together with all reversions, revivals, extensions and renewals, and this assignment includes the right for the Customer to bring proceedings for past infringement of the assigned Intellectual Property Rights.
9.3 Upon and following the termination of the Agreement, any licence or assignment granted by the Developer to the Customer will continue in full force notwithstanding termination, and this Clause 9 will continue to apply.
9.4 The Developer waives (and will ensure that its employees, assigns and subcontractors waive) any moral or other rights they may have in the Website arising under all relevant Copyright, Designs and Patents legislation and, so far as is legally possible, any equivalent rights anywhere in the world.
9.5 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of the Developer and, from the date of acceptance of the Website by the Customer, the Developer grants to the Customer a non-exclusive worldwide licence in perpetuity to use the Software Elements in connection with the Website.
9.6 The Customer is entitled to engage the services of a different Web-site developer to amend, vary, alter, delete, upgrade, develop and generally to maintain the Web-site and will not incur any costs or other liabilities from the Developer.
9.7 The Developer agrees that they possess no rights claims titles or other ownership of whatever type in the Website concept, Website name and Website copyright of the Web-site in the UK or Worldwide.
10.1 The Developer warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) that it will perform its obligations under this Agreement with reasonable care and skill and to a good professional standard;
c) that the use of the Website (excluding the Customer Works) by the Customer in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party; and
(d) The Developer warrants that the services provided under this Agreement will be provided with reasonable care and skill. During the first 30 days after delivery, any functional errors or anomalies reported and agreed to exist in the developed files, assuming running and viewing platforms and supporting infrastructure remain unchanged, shall qualify for rectification work to be carried out by the Developer without further recourse to the Customer. The Developer is not responsible for errors arising from incorrectly entered or corrupted data, usage outside of the originally intended scope (including malicious use or 'hacking') or beyond the capabilities of the technology used, malfunction of supporting hardware or software infrastructure, or any circumstances outside of the Developer's control.
10.2 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11.1 Nothing in this Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party's negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
11.2 Subject to Clause 11.1, the Customer's liability to the Developer under or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) the Customer will not be liable for any:
(i) loss of profits, income or anticipated savings,
(ii) loss or corruption of any data, database or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special or consequential loss or damage;
(b) the Customer will not be liable for any losses arising out of a Force Majeure Event;
11.3 Subject to Clause 11.1, the Developer shall not be liable by reason of any representation (other than fraudulent or malicious representations or negligence), or any implied warranty, condition or other term or any duty at common law or under the express terms of this Agreement for any indirect, special or consequential loss or damage (whether loss of profit, contracts, business or goodwill or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the Developer, its employees or agents or otherwise) which arise out of or in connection with this Agreement.
12. Data protection
The Developer warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Developer on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Developer on behalf of the Customer.
13. Confidentiality and publicity
13.1 The Developer will keep confidential the Confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause 13.
13.2 The Developer will protect the confidentiality of the Confidential Information using at least reasonable security measures.
13.3 The Confidential Information may be disclosed by the Developer to its employees and professional advisers, provided that each recipient is strictly legally bound to protect the confidentiality of the Confidential Information.
13.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the Developer, and can be shown by the Developer to have been known to it, before disclosure by the Customer; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.
13.5 The Developer will not make any public disclosure relating to the subject matter of this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the Customer.
14.1 The Customer may terminate this Agreement immediately by giving written notice to the Developer if the Developer commits any breach of any term of this Agreement.
14.2 The Developer may terminate this Agreement if:
(a) the Customer has failed to make any payment due to the Developer under this Agreement by its due date; and
(b) the Customer does not remedy the default within 30 days of receipt of a notice requiring it to do so.
14.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
15. Effects of termination
15.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.13].
15.2 Termination of this Agreement will not affect either party's accrued rights (including the Developer's accrued rights to invoice for and to be paid the Charges) as at the date of termination.
15.3 Upon the termination of this Agreement:
(a) the Developer will promptly provide to the Customer an electronic copy of the Website;
(b) the Developer will provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Website to the Customer or another service provider, subject to payment of the Developer's reasonable expenses; and
(c) the Customer will be entitled to a refund of any Charges paid by the Customer to the Developer in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Developer (such amount to be calculated by the Developer using any reasonable methodology).
16.1 Any notice given under this Agreement must be in writing (whether or not described as "written notice" in this Agreement) and must be delivered by first or second class post, for the attention of the relevant person, and to the relevant address, given below (or as notified by one party to the other in accordance with this Clause).
16.2 A notice will be deemed to have been received at the relevant time where the notice sent by first or second class post, 48 hours after posting (or where such time is not within Business Hours, when Business Hours next begin after the relevant time):
16.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
16.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.5 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.7 The Customer may freely assign its rights obligations and benefits under this Agreement without the Developer's consent.
16.8 The Developer may not assign or sub-contract its rights obligations and benefits under this Agreement without first obtaining the Customer's prior written consent which shall not be unreasonably witheld.
16.9 The Developer will not, without the Customer's prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee or contractor of the Customer who has been involved in the performance of this Agreement.
16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party's power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
16.11 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party unless the Agreement has been assigned transferred or sub-contracted to a third party.
16.12 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement. Subject to Clause 11.1, each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
16.13 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. It is hereby agreed between the parties that should any dispute arise that mediation and or adjudication will be entered into by each party prior to formal legal proceedings.
Page description: E-Commerce Consortium: Web Design and E-Commerce Applications Development Company in Surrey | E-Commerce Consortium: Web Design and E-Commerce Applications Development Company in Surrey
Page summary: Web Design, Web Design Surrey, web site design surrey, Web Applications,Internet Designers Surrey, Web-Based,Ecommerce Surrey,Graphic design Surrey,Web hosting Surrey, eCommerce Solutions,Online Shop,CMS,Web Developers Surrey,Web PR, Website Surrey, Search Engine Optimisation, Guildford, Surrey