Please note before You read these Terms & Conditions: Clauses 1 to 11 of these Terms and Conditions are general terms which apply to all Our products and services across Our Group. There are further terms which are specific to particular products and services and these are detailed in the relevant Service Schedule(s). Each Service Schedule (to the extent relevant) forms part of these Terms and Conditions.
1. Definitions and Interpretations
1.1 The following definitions and rules of interpretation shall apply to these Terms and Conditions:
Agreement an agreement between You and Us entered into in accordance with Clause 2.1 for the provision of the Services in accordance with the provided Proposal and subject to these Terms and Conditions, the relevant Service Schedule(s) and Data Processing Agreement;
Business Day a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Cancellation Fee a charge equal to 50 per cent of the remaining contractual charges under the Agreement from the point termination takes effect;
Commencement Date the date upon which the Agreement commences, as defined in Clause 2.2;
Confidential Information all confidential or proprietary information relating to the business, operations, affairs, know-how, customers, clients, suppliers, plans, proposals, reports, intentions or market opportunities of each party and their Group;
Data Protection Legislation all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;
Data Processing Agreement the data processing agreement which forms part of the Agreement between us and can be accessed here;
Deliverables the deliverables provided to You through the provision of the Services including but not limited to reports, regular meetings or conference calls, analysis, designs, audits, content, graphs, diagrams, photographs, raw video footage and any ad hoc tasks that may be requested and provided from time to time;
Force Majeure Event any event beyond the reasonable control of the relevant party including but not limited to any act of God; war; epidemic or pandemic; civil commotion; act/threat of terrorism; theft; malicious damage; strike; and in relation to Us, any failure or default of Our suppliers or sub-contractors or inability of Us to obtain essential supplies or materials;
Group in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group;
IDHL Group Company means the relevant member of the IDHL Group which is providing the Services (as detailed in the Proposal);
Intellectual Property Rights patents, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Materials the content, documentation, materials, data, information and/or any other items provided by You or on Your behalf from time to time in connection with the Services;
Order Form the document identified as the Order Form which sets out the detail of the Services to be provided to You by the relevant IDHL Group Company;
Pre-Existing Work the works, concepts, processes, tools, training guides, knowledge, items and materials either developed or procured to be developed by Us or Our personnel at any time for use in relation to Our business or any or all of Our customers generally and not specifically for the provision of the Services or Deliverables to You;
Proposal means the Order Form or Statement of Work (as applicable) identified by the creation of a unique reference number provided by Us which sets out the Services to be provided by Us;
Services the services to be provided to You by Us as set out in the Proposal;
Statement of Work the document identified as the Statement of Work which sets out the details of the Services to be provided to You by the relevant IDHL Group Company;
Supplier Materials the content, documentation, materials, data, information and/or any other item provided by Us to You or on Our behalf from time to time in connection with the Services;
We / Us / Our the IDHL Group Company providing the Services (as detailed in the Proposal);
Website each of the websites in respect of which the Services are to be performed as set out in the Proposal; and
You / Your the company who purchases the Services (as detailed in the Proposal).
1.2 In these Terms and Conditions and each Agreement:
(a) headings are inserted for convenience only and shall not affect construction or interpretation;
(b) any reference to any law or statue shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and
(c) use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.
2. Basis of Agreement
2.1 Each Proposal given by Us will be valid for a period of 1 month from the proposed starting date and will constitute an offer.
2.2 An Agreement for the supply of Services under these Terms and Conditions will be formed when You confirm in writing, either by electronic acceptance of the Proposal or by signing the Proposal by hand or commencement of the provision of the Services whichever comes first and shall continue for the period stated in the Proposal unless terminated earlier in accordance with the Agreement.
2.3 These Terms and Conditions are the only terms and conditions on which We will supply the Services to You and will apply to the exclusion of all other terms and conditions including any terms and conditions which You purport to apply, through Your standard documentation or by any other means, and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 You warrant that the individual signing on Your behalf has full capacity and authority to enter into and bind You to perform Your respective obligations under the Agreement.
2.5 You acknowledge that You are relying solely upon Your own skill and judgement and not Ours in determining the suitability, fitness (general or specific) of all Services.
2.6 Should there be any contradiction between these Terms and Conditions, the Service Schedules and the Proposal, the Proposal shall take precedence, followed by the applicable Service Schedule and then these Terms and Conditions.
3. The Services
3.1 We warrant that the Services will be provided with reasonable skill and care.
3.2 We will use reasonable endeavours to perform the Services in accordance with any timescales specified in the Proposal and/or relevant Service Schedule. Any delivery dates given by Us are estimates only and time for performance will not be of the essence.
3.3 You acknowledge that Our performance of the Services is dependent upon You providing such information, access and feedback as We may reasonably require from time to time. Without prejudice to any other terms of the Agreement, should You not provide information or feedback within 7 days of any such request, You acknowledge that this may affect Our ability to provide the Services and You shall not be entitled to any refund or credit note in the event that We are prevented from providing the Services.
3.4 Our provision of the Services is dependent on the assumptions and other information contained in the Proposal, these Terms and Conditions and each relevant Service Schedule. You are responsible for ensuring that the details on the Proposal are correct.
3.5 We will supply such additional services as are agreed in writing by the parties from time to time (Additional Services). In consideration for the supply of the Additional Services You will pay Us the charges as agreed by the parties in writing or, where no specific charges have been agreed prior to commencement of performance of the Additional Services, in accordance with Our then current applicable pricing.
4. Your Responsibilities
4.1 You will promptly provide Us, on request, with all information, assistance, access, Materials and resources that We may reasonably require in connection with the Services and maintain complete, up to date, reproducible and accurate copies of all data, programs and electronic records held by You where appropriate to the relevant Services.
4.2 You will ensure that all information which You provide to Us is accurate, adequate and complete.
4.3 You may only use the Services and any related software and/or documentation provided by Us in accordance with the Agreement and for lawful and proper purposes which include complying with all applicable laws and regulations.
4.4 You shall be responsible for ensuring that You notify Us of any regulations, rules, guidance and other requirements which apply to You and the sector in which You operate but You shall at all times remain responsible for compliance with the same.
4.5 You shall have all consents, licences, authorisations, certificates and permits (whether statutory, regulatory, contractual or otherwise and in any relevant jurisdiction) to perform Your obligations under the Agreement.
4.6 Any delay and/or breach of Our obligations under the Agreement caused by Your failure or delay in performing any of Your obligations under the Agreement shall be Your responsibility. In each case that You fail or delay in performing any of Your obligations under the Agreement the date for performance will be extended by a period which is equal to at least the period of Your delay and We will continue to invoice and You will continue to pay the charges.
4.7 You will perform any customer dependencies specified in the Agreement or as reasonably requested by Us from time to time.
4.8 If You fail to perform any of the customer dependencies by the relevant date agreed, We will not be held responsible for any impact that this may have on the Services, the date for performance of any of Our obligations which relate to and/or are dependent on such performance by You will be extended by a period reasonably determined by Us to reflect the period of Your delay.
4.9 If the supply of the Services is delayed as a result of any delay by You, We will be entitled to recover all additional costs and expenses that We reasonably incur as a result of that delay.
4.10 You shall indemnify Us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Us arising out of or in connection with any failure by You to: enter into or any breach by You of any third party licence terms where We have notified You that such third party licence is necessary in connection with the Services (including any failure or delay in performing, or negligent performance or non-performance of, any of those third party licence terms); and/or ensure that You have all consents, licences, authorisations, approvals, permissions, certificates and permits in order to ensure that our use of the Materials is in full compliance with all applicable laws and without any infringement of any third party’s Intellectual Property Rights.
5. Charges and Payment
5.1 The charges shall be set out in the Proposal. You will pay the charges in accordance with the payment terms as set out in the relevant Service Schedule and the Proposal. Any invoice queries and/or disputes must be raised within 10 Business Days of the date of the applicable invoice.
5.2 All sums payable by You under the Agreement are expressed exclusive of value added tax and any other additional taxes that may be payable from time to time, which shall also be paid by You at the prevailing rate.
5.3 Save as otherwise expressly provided in the Agreement or required by law, all payments to be made by You to Us will be made in full and cleared funds, in pounds sterling to the bank account nominated by Us from time to time and without any set-off or any deduction or withholding including on account of any counter-claim.
5.4 If payment is not received in accordance with the payment terms specified in the Proposal or relevant Service Schedule, We shall be entitled, without prejudice to any other rights or remedies available to Us, to suspend the provision of the Services and restrict Your use of the Services until such time as payment is received. Any suspension of the Services pursuant to this Clause will extend the term set out in the Proposal by the number of months during which the Services were suspended. In the event that it is necessary to suspend the provision of the Services by three months or more pursuant to this Clause, We reserve the right to cancel the Agreement without notice and the Cancellation Fee shall apply.
5.5 Any changes to the Services requested by You during the term of the Agreement and agreed by Us in writing may result in additional charges being charged to You and the time for performing the Services to be extended.
6. Intellectual Property Rights
6.1 Subject to the Service Schedules and Clause 6.2, all Intellectual Property Rights which come into existence as a result of the performance by Us of the Services will be Our property.
6.2 The Intellectual Property Rights in any Materials which exist at the Commencement Date will be and remain Your property or the relevant licensor (as appropriate).
6.3 Without prejudice to any other rights granted under the Agreement, You will, and will procure that all relevant licensors will, grant to Us a non‑assignable, non‑exclusive, world-wide, royalty free licence to use the Intellectual Property Rights in the Materials in connection with the performance of the Services during the term; such right will include the right to grant sub‑licences to any third parties used by Us in connection with the provision of the Services on terms no wider than the terms granted to Us under this Clause 6.3.
6.4 We will grant to You a non‑assignable, non‑exclusive, world-wide, royalty free licence to use Our Intellectual Property Rights solely in connection with the performance of the Services or for Your internal purposes.
6.5 We may at any time refer to You in Our marketing and advertising communications and use work created for You under the Agreement in case studies.
6.6 Save as set out in Clauses 6.1 to 6.4 and as provided in the relevant Service Schedule, neither party will receive any rights in respect of the Intellectual Property Rights of the other party.
6.7 You warrant that the Materials shall not infringe any Intellectual Property Rights of any third party, any applicable laws, codes or guidelines and/or contain anything which is defamatory, fraudulent, likely to cause deception or which is in any other way misleading, illegal or likely to cause offence.
6.8 We reserve the right to remove Materials from any relevant Services and/or documentation where We reasonably suspect that such Materials do not comply with Clause 6.7.
6.9 Each party shall immediately give written notice to the other party of any actual, threatened or suspected infringement of any party's Intellectual Property Rights or the Intellectual Property Rights of a third party in connection with the Agreement.
7.1 Neither party seeks to limit or exclude in any way its liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; or for any other matter or liability which cannot be lawfully limited or excluded. Each provision of these Terms and Conditions shall be read as subject to this Clause 7 and no provision of any Agreement is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
7.2 Subject at all times to Clauses 7.1 and 7.3, Our maximum liability to You arising under or in connection with an Agreement or its subject matter or formation (whether arising from breach of contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise) shall be limited in each year to a sum equal to 125% of the charges actually paid by You to Us under the Agreement in question in the year in which the event giving rise to the liability occurred. For the purposes of this clause “year” shall mean a twelve month period during the term of the Agreement commencing on the date the Agreement is formed as per clause 2.2 and each anniversary thereof.
7.3 We shall not be liable (whether under the terms of any Agreement or otherwise) for: loss of business; loss of use; loss of profit; loss of anticipated profit; loss of contracts; loss of revenues; loss or damage to goodwill or brand; loss of anticipated savings; loss of data or use of data; damage to reputation; and/or any consequential, special or indirect loss or damage in any case, regardless of whether or not We were aware or had been made aware (or ought reasonably to have been aware) at the time of the relevant Agreement being formed of the risk that such loss or damage might occur.
7.4 All warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Agreement.
7.5 We shall not be liable for any failure or delay in complying with any of Our obligations under any Agreement in the event that the failure or delay in question is attributable to any Force Majeure Event.
8. Data Protection
8.1 Both parties warrant to the other that they are compliant with the Data Protection Legislation and the terms set out in the Data Processing Agreement.
9.1 Either party is permitted to terminate the Agreement on not less than one month’s prior written notice, which shall begin to take effect at the end of the month in which it is served. Where You exercise this provision, You will incur a Cancellation Fee which shall be payable in accordance with the payment terms of the applicable Service Schedule. Where the Services being provided include a website development retainer this termination right shall be at Our sole discretion.
9.2 Either party may, on written notice to the other party, terminate the Agreement if the other:
(a) materially breaches any term of the Agreement and fails to remedy such breach (if capable of remedy) within 30 days of being asked to do so in writing. For the avoidance of doubt, any failure to meet performance targets or similar by Us, will not constitute a material breach and will not entitle You to terminate the Agreement; or
(b) makes any voluntary arrangement with its creditors, becomes subject to an administration order, goes into liquidation or has a resolution for its winding-up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party); or anything analogous to any of the events listed above under the law of any jurisdiction occurs in relation to the other party or if the other party ceases or threatens to cease to carry on business (a) or is or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
9.3 Without prejudice to its other rights and remedies under or in connection with the Agreement, We may terminate the Agreement at any time in the event that You fail to pay any invoice within thirty calendar days of the due date for payment.
9.4 Termination or expiry of any Agreement shall not affect the continuing in force or coming into force of any provision of an Agreement which, whether expressly or by implication is to survive termination or expiry.
9.5 Upon termination or expiry of an Agreement however arising:
(a) We shall cease to provide the Services to You;
(b) You shall immediately cease to use Our Intellectual Property Rights and any of Our other rights of relating to the Services unless otherwise agreed in accordance with the Service Schedules;
(c) You shall immediately pay all outstanding charges under the Agreement up to the date of termination and any Cancellation Fee where applicable; and
(d) You shall immediately deliver and return to Us all material and information supplied by Us pursuant to the Agreement.
9.6 All provisions of these Terms and Conditions which in order to give effect to their meaning need to survive its termination shall remain in full force and effect after termination.
10.1 Each party will, subject to Clause 10.2:
(a) only use the other party's Confidential Information for the purpose of performing its obligations and exercising its rights under the Agreement;
(b) keep the other party's Confidential Information secret, safe and secure; and
(c) not disclose the other party's Confidential Information to any other person.
10.2 Each party may disclose the other party's Confidential Information:
(a) to the extent required by law or any court of competent jurisdiction or the rules of any governmental or regulatory body; and
(b) to those of its officers, directors, employees and professional advisers and, in Our case, Our agents and sub-contractors, who need access to that Confidential Information.
10.3 Without prejudice to Your other obligations under this Clause You agree not to provide any of Our Confidential Information to any entity which may be deemed a competitor in the provision of any services similar to the Services provided under this Agreement. Any pitch or proposal document provided to You and ideas contained or provided to You by Us as part of the pitch process shall be deemed Our Confidential Information.
10.4 The terms of this Clause 10 shall supersede the obligations set out in any non-disclosure agreement entered into by the parties prior to the Agreement and such non-disclosure agreement shall be deemed terminated on the parties entering into the Agreement.
11.1 Notices. Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand, pre-paid first-class post or other next working day delivery service at its registered office or sent by email to the address specified by each party in writing from time to time. Any notice sent to Us by You, shall be made for the attention of the General Counsel. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting and if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 11 business hours means 8.30am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.2 Contractors. The parties are with respect to each other independent contractors and nothing in these Terms and Conditions or any Agreement and no actions taken by the parties under any these Terms and Conditions or any Agreement shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.
11.3 Entire Agreement. The Agreement sets out all of the terms that have been agreed between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Subject to clause 7.1, each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
11.4 Variation. Save only to the extent as may be specifically provided for otherwise under these Terms and Conditions, no variation or amendment of any Agreement shall be binding unless made in writing and signed by one of Our directors.
11.5 Non Solicitation. You agree that You will not without Our prior written consent directly or indirectly, and whether alone or in conjunction with, or on behalf of, any other person during the term of this Agreement or for a period of 12 months following the termination or expiry of the Agreement solicit or entice, or endeavour to solicit or entice, away from Us any person employed by Us and whose role either wholly or partly relates to the supply of the Services or the performance of the Agreement.
11.6 Assignment. You may not assign or transfer any of Your rights and/or obligations under any Agreement without Our prior written consent. We may assign or transfer any or all of Our rights and/or obligations under any Agreement on notice to You.
11.7 Sub-contracting. We may sub-contract the performance of any of Our obligations under any Agreement without Your prior consent but shall remain primarily liable to You for the acts and omissions of any of Our sub-contractors as if those were the acts or omissions of Us under the applicable Agreement.
11.8 Third Party Rights. Any IDHL Group Company shall be entitled to rely upon the benefit of any Agreement and to enforce any Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999. Subject to the foregoing, a person who is not a party to an Agreement shall have no right to enforce any term of that Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.9 Severability. If any provision of these Terms and Conditions or of any Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
11.10 Waiver. The failure to exercise or delay in exercising any right or remedy under these Terms and Conditions or any Agreement shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies. No single or partial exercise of any right or remedy under these Terms and Conditions or any Agreement shall prevent any further exercise of the right or remedy or any other right or remedy.
11.11 Governing law and Jurisdiction. The Agreement shall be governed by English law and the English courts shall have exclusive jurisdiction.
Website Development Service Schedule
1.1 The definitions in the Terms and Conditions shall apply to this Service Schedule. In addition, the following words and expressions shall have the following meanings:
Acceptance Certificate a written acknowledgement from You that the Website Development Deliverables satisfy the relevant Acceptance Criteria and have been accepted by You;
Acceptance Tests Our standard technical and functional testing of Website Development Deliverables in accordance with the Acceptance Criteria notified to You in writing from time to time plus any specific tests agreed by the parties;
Acceptance Criteria (a) for Our standard technical and functional test, Our standard test criteria for the relevant Website Development Deliverables provided to You within a reasonable period from Your request; and (b) for any specific tests agreed by the parties in the relevant Statement of Work, any additional or alternative test criteria agreed in writing between the parties;
Completion Date the date on which the Website passes the Acceptance Tests;
Defect a major error, fault or defect affecting any element or part of the Website Development Deliverables which causes that element or part to fail to materially comply with the Acceptance Criteria and which arises through Our default. Cosmetic errors, faults and/or defects which do not affect the performance of the Website Development Deliverables shall not constitute a defect and/or any breach of the Agreement;
Delivery Date the target date for the Website Development Deliverables to be delivered and, where relevant, ready for the Acceptance Tests as notified to You by Us in writing;
Hosting Services the hosting services to be provided by Us to You as set out in the relevant Statement of Work and/or otherwise agreed by the parties in writing;
Hosting Start Date the date on which We are deemed to commence the provision of the Hosting Services which shall be on the earlier of: (a) the Completion Date; or (b) one calendar month after the Website has been entered onto the QA Server by Us, unless otherwise agreed in writing by You and Us;
Licensed Software software, toolkits and/or technology licensed, developed and/or to be developed by Us including the structure and architecture of the software, toolkits or technology and the underlying source code but excluding any Third Party Software;
QA Server the server on which the Website is hosted for completion of Acceptance Tests;
Software the Licensed Software and the Third Party Software as set out in the Statement of Work;
Specification the written specification for the Website Development Deliverables;
Support Hours 8:30am to 5:00pm on any Business Day;
Support Services the support services to be provided to You as set out in the relevant Statement of Work and/or otherwise agreed by the parties in writing.
Third Party Software software, toolkits and/or technology owned by a third party;
Warranty Period the 90 day period (or any other period as agreed between the parties in writing and which may incur an additional charge) starting on and including the Completion Date;
Website Development Deliverables the output from the Website Development Services agreed between the parties and set out in the relevant Statement of Work;
Website Development Services such web development, intranet development, extranet development, back office integration, consultancy, e-marketing and/or other services (excluding Hosting Services and/or Support Services) to be provided by Us to You as set out in the relevant Statement of Work and/or as otherwise agreed by the parties in writing.
2. Website Development Services
The provisions of this Section 2 shall govern the provision of any Website Development Services to be provided by Us to You as set out in the Statement of Work (where applicable).
(a) To the extent that We provide You with Licensed Software under the Agreement, We grant to You a perpetual, non-exclusive licence to use the source code version of the Licensed Software.
(b) On expiry or termination of the Agreement (except where We terminate in accordance with Clause 9.2a of the Terms and Conditions) and subject to received payment of all sums due to Us by You, We will provide to You with an electronic copy of the source code and subject to the payment of any expenses We reasonably incur, provide such assistance as is reasonably requested by You in transferring the Website and/or hosting of the Website to You or another service provider who shall be permitted to manage the source code in the Website.
(c) Subject to Section 2.1(b) above, You may not disclose or make available the Licensed Software to any entity nor permit others to use it except Your employees and agents who may use it only on Your behalf and for the purposes expressly set out in the Agreement.
(d) Ownership of Intellectual Property Rights for Licensed Software is retained by Us and is not transferred to You.
(e) The licence granted at Section 2.1(a) is subject to the following obligations and restrictions:
(i) You will not modify, alter, adapt, make error corrections to or in any way interfere with Licensed Software or merge it with or incorporate it into other data, programs or systems or attempt to do any of these things;
(ii) save to the extent expressly permitted by law, You will not decompile, reverse engineer, decode or disassemble Licensed Software or translate it into any other computer language or attempt to do any of these things;
(iii) You will not remove or alter any copyright notices or similar proprietary devices, including any electronic watermarks or other identifiers, that may be incorporated in Licensed Software;
(iv) Licensed Software will not be used by more users than any maximum limits set out in the Statement of Work;
(v) save as provided in Sections 2.1(a) and 2.1(b), You will not permit any other person to use Licensed Software nor will You use the Licensed Software for the benefit of any other person; and
(vi) You will not (and will not attempt to) assign, novate, sub-license, rent, lease, sell, pledge, charge, transfer or otherwise dispose of or grant rights over or out of the licence granted at Section 2.1(a).
(f) You will notify Us as soon as You become aware of any unauthorised use of the Software by any person.
(g) Where Third Party Software is to be supplied to You by Us such Third Party Software shall be supplied in accordance with the relevant licensor's standard terms. The licence fee(s) for such Third Party Software shall be as set out in the Statement of Work.
(h) Except as expressly set out in the Statement of Work, upgrades, updates, new releases and/or new versions (Updates) to any deliverables arising out of or in connection with the Services and/or Software are not included within the charges detailed in the Statement of Work. We may make Updates available to You from time to time which You may choose to receive at the prevailing charges for such Update at the relevant time.
(i) You acknowledge that it is Your responsibility to ensure that Your website(s) complies with all applicable accessibly related legislation including the Equality Act 2010 and, where relevant, the Americans with Disabilities Act 1990 and the California Consumer Privacy Act 2018.
2.2 Acceptance Testing
(a) We will use reasonable endeavours to ensure that the Website Development Deliverables are ready for the Acceptance Tests by the Delivery Date. You must promptly undertake any tasks required of You relating to Acceptance Tests.
(b) Following delivery of the Website Development Deliverables, the parties will carry out the Acceptance Tests. We will notify You in advance of the date(s) on which the Acceptance Tests shall be undertaken.
(c) The Acceptance Tests for each element of the Website Development Deliverables will be recorded as successful where the relevant Acceptance Criteria for that element of the Website Development Deliverables are met.
(d) If any of the Acceptance Tests are not recorded as successful (in whole or in part) We will use reasonable endeavours to remedy any Defects within a period to be agreed between us and the parties will repeat the Acceptance Tests up to a maximum of three times, where necessary.
(e) Within 10 Business Days of an Acceptance Test being recorded as successful, You must issue Us with an Acceptance Certificate or notify Us in writing of any Defects or other failure(s) of the relevant Developed Web Deliverable(s) to comply with the Acceptance Tests. You will be deemed to have accepted and signed off the relevant Website Development Deliverables if You fail to issue Us with an Acceptance Certificate or notify Us of any Defects within this time period or earlier where the Website Development Deliverables (or any part of them) are put into operational use or used in a live environment (other than for testing or rehearsal purposes) by You before the relevant Acceptance Tests are recorded as successful.
(f) If an Acceptance Test for any element of the Website Development Deliverables are recorded as unsuccessful on the third retest then You will, within 5 Business Days of the relevant Acceptance Tests being recorded as unsuccessful:
(i) give written notice that You wish to accept the Website Development Deliverables; or
(ii) reject the relevant Website Development Deliverable(s) by giving written notice to Us, and, once You have returned to Us the relevant Developed Web Deliverable(s) along with all relevant documentation, equipment, materials and Confidential Information, receive a partial pro rata refund of the charges relating to such Developed Web Deliverable(s) (provided that You have returned all such items to Us within 5 Business Days of such written notice).
2.3 Warranty Period
(a) During the Warranty Period and subject to Section 2.3(c) of this Service Schedule, We will use reasonable endeavours to remedy any Defects in the relevant Developed Web Deliverable(s) which are notified by You to Us in writing. If We are unable to remedy a Defect after 3 consecutive attempts, We may replace the relevant Developed Web Deliverable or part of it.
(b) Our liability will not extend beyond the recourse specification in Section 2.3(a).
(c) Our obligations at Section 2.3(a) of this Service Schedule will not apply if and to the extent that:
(i) You have failed to comply with any of Your obligations under the Agreement;
(ii) the Website Development Deliverables (or any of them or any part of them) have been: (i) altered, modified by any person other than Us; (ii) subject to misuse, neglect or accident; (iii) used other than in accordance with Our recommendations; or (iv) used in conjunction with any hardware or software other than as approved or recommended in writing by Us.
(d) Save as set out in Section 2.3(a) of this Service Schedule, We make no warranty that the Website Development Deliverables will: be error free, uninterrupted or able to resist any software virus or other damaging code.
2.4 Changes to Website Development Services
(a) Both parties may request in writing changes to the scope of the Website Development Services and/or Specification (a Change) at any time.
(b) If a Change is requested in accordance with Section 2.4(a) above, We will inform You in writing of the impact of such Change on the Services (including timescales for performance and delivery), the charges and/or the Agreement (a Change Control Note).
(c) No Change will be effective unless and until the Change Control Note is agreed in writing, at which point We will implement the agreed Changes and You will perform any obligations imposed on You in accordance with the terms of the Change Control Note or (if applicable) the relevant provisions of the Agreement, including the payment of any increase to the relevant charges detailed in the Statement of Work.
(d) Until such time as a Change is agreed in writing, each party will continue to perform its obligations under the Agreement in compliance with the terms of the Agreement without taking account of the requested Change.
(a) You may request a suspension of the Website Development Services at any time provided that such suspension will be granted in Our absolute discretion and will be subject to You paying Our costs and expenses arising out of such suspension.
(b) We may suspend the Website Development Services at any time if We believe You are failing to provide any information and approvals required by Us in order to undertake the Website Development Services and in such circumstances You will be liable to Us for all costs and expenses incurred by Us arising out of such suspension including but not limited to the start-up costs for recommencing provision of the Website Development Services.
2.6 Invoicing and Payment
(a) We will be entitled to issue an invoice to You for charges relating to Website Development Services on or around the start of each calendar month in respect of Website Development Services provided in the previous calendar month.
(b) You will pay all invoices for Website Development Services within 7 days from the date of the invoice or such other period as set out in the Proposal.
(c) We will be entitled to invoice for a deposit which shall amount to 30% (or such other percentage as set out in the Statement of Work) of the contractual value agreed between the parties and shall be paid in accordance with Section (b) above.
3. Support Services
The provisions of this Section 3 shall govern the provision of any Support Services to be provided by Us to You as set out in the Statement of Work (where applicable).
3.1 Our Obligations
(a) With effect from the date set out in the Statement of Work or, in the absence of such date being specified in the Statement of Work, such date as notified by Us to You in writing and subject to Sections 3.3(a) and (b) We will supply the Support Services to You in accordance with the Statement of Work.
(b) We will allocate a severity level to each error, fault, request or defect which You inform Us about in accordance with Section 3.1(c).
(c) We will use reasonable endeavours to provide an initial response in respect of, and to fix, each Defect which You inform Us about in accordance with the timescales set out in the relevant Statement of Work. On initial response We will make reasonable endeavours to either resolving an issue or giving an action plan and options to resolve the Defect.
(d) From time to time We may require You to install software and/or hardware repairs, corrections, adjustments, bug-fixes, workarounds, patches, modifications, additions and/or enhancements (a Service Error Correction), whether or not in respect of a Defect which You inform Us about. If We supply a Service Error Correction to You for installation, You will install that Service Error Correction within 5 Business Days from and including the date of supply.
(e) You accept that We will not take instructions from anyone who is not stated by You as being sufficiently authorised to instruct Us.
3.2 Your Obligations
(a) If You discover a Defect, You will contact Us via Our support desk (accessed via the telephone number, email address or website form provided to You) during Support Hours, promptly and in any event within no more than 3 Business Days of discovery, and will inform Us of the nature of the error, fault or Defect and will provide Us with all such additional information including examples where possible.
(a) Without prejudice to Section 3.2(a), the Support Services will not be provided to the extent that the Defect is caused or exacerbated by a virus or Your failure to implement any Service Error Correction, recommendation or advice provided by Us and/or comply with any part of this Agreement, misuse, neglect, damage or accident on Your part or any third party to permitted to access Your systems.
(b) For the avoidance of doubt, the Support Services do not include the provision of error, fault or Defect correction which You do not inform Us about in accordance with Section 3.2(a) and/or that cannot be replicated or where Our physical attendance is required at any of Your physical premises.
3.4 Invoicing and Payment
(a) We will be entitled to issue an invoice to You for the annual charges relating to Support Services in advance of the Commencement Date.
(b) You will pay all invoices for Support Services within 7 days from the date of the invoice.
Where either party wishes to terminate the Support Services they must provide the other with a minimum of 6 months’ prior notice in writing.
The provisions of this Section 4 shall govern the provision of any Hosting Services to be provided by Us to You as set out in the Statement of Work (where applicable).
4.1 Hosting Start Date
We will be deemed to have commenced provision of the Hosting Services on the Hosting Start Date.
(a) We will be entitled to suspend the supply of any Hosting Services (in whole or in part) immediately without notice if:
(i) We are required to do so to ensure compliance with applicable law or by any applicable governmental or regulatory body;
(ii) We reasonably believe that the Services are being used in breach of the Agreement;
(iii) if part of all of the Services is subject to an attack or virus;
(iv) if an unauthorised person acquires access to the Services or any part of them;
(v) there is a planned outage for operational, Support Services and/or maintenance reasons;
(vi) We consider that such suspension is necessary for ad hoc and unscheduled maintenance; or
(vii) if any charges are overdue by more than thirty days from the relevant due date.
(b) Where We have suspended services due to non-payment and We have not received payment for a period of 30 calendar days from the date payment was due We may terminate the Agreement.
(c) You agree that if the Hosting Services are reinstated after a suspension for non-payment, You will pay a reasonable reinstatement fee.
(a) We do not guarantee that the Hosting Services will be uninterrupted, error‑free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of Your privacy, Confidential Information and property.
(b) We do not provide any warranties unless expressly stated in the Agreement. You are solely responsible for the suitability of the Services chosen. Any Services that We are not contractually obligated to provide but that We may perform for You at Your request and without any additional charge are provided on an ‘as is’ basis.
(c) We will provide support only to Your administrative or technical contacts listed on Your account. We will not provide support directly to Your end users.
(d) You may be using the Services to help You comply with various regulatory requirements. You shall be responsible for understanding the regulatory requirements applicable to Your business and for selecting and using the Services in a manner that complies with the applicable requirements.
4.4 Your Obligations
(a) You will use reasonable security precautions including encrypting all data transmitted to or from, or stored on, servers or storage devices that have been provided by Us and that You use.
(b) You must cooperate with Us and Our subcontractors reasonable investigation of any error, Default and any suspected breach of the Agreement.
(c) You are responsible for keeping Your account permissions, billing, and other account information up to date and providing Us with any changes to such information promptly.
4.5 Hosting Services Updates
(a) We are constantly upgrading facilities relating to the Hosting Services and in order for You to benefit from this, You agree that We may relocate Your servers, make changes to the provision of the Hosting Services, URLs and Your IP addresses and may establish new procedures for the use of the Services.
(b) We may also make changes to DNS records and zones servers as We deem necessary for the operation of the shared network infrastructure. In each case, We will give You reasonable advance notice and use all reasonable endeavours to minimise the effect that such change will have on Your use of the Services.
4.6 Hosting Services Charges
In the event that any of Our third party hosting or license providers increase the fee they charge Us for Your use of the Hosting Services and/or any license, We will increase Your charges by the same percentage amount, provided We notify You in writing at least sixty days before the effective date of the price increase, where possible.
4.7 Invoicing and Payment
We will be entitled to issue an invoice to You for charges relating to Hosting Services on or around the start of each year in respect of Hosting Services to be provided in that year. You will pay all invoices for Hosting Services within 7 days from the date of the invoice.
Where a party wishes to terminate the Hosting Services it must provide the other with a minimum of 6 months’ prior written notice.