1. BASIS of Agreement
- The Statement of Work and these Conditions together make one agreement which, subject to clause 1.2, becomes binding when you have signed the Statement of Work and returned it to us. The Agreement lasts until the date we complete the Services in accordance with the Agreement or until it is terminated in accordance with its terms.
- We may withdraw the Statement of Work at any time, and if we issue a subsequent Statement of Work then the earlier Statement of Work is automatically withdrawn. The Statement of Work is only valid for 20 Business Days from the date we issue it to you. If you sign and return it to us after it has been withdrawn or after the 20 Business Day period then the Agreement does not become binding without our express written consent.
- These Conditions apply to the exclusion of any other terms you wish to impose or incorporate, or which are otherwise implied by trade, custom, practice, or course of dealing.
- If there is a conflict between the terms of the Statement of Work and these Conditions, then these Conditions shall prevail except where the conflicting terms in the Statement of Work are expressed as being special conditions, in which case such special conditions shall prevail.
2. Supply of the Services
- We will design, develop, and deliver the Deliverable and otherwise supply the Services to you in accordance with the Statement of Work in all material respects.
- We will use reasonable endeavours to meet any performance dates specified in the Statement of Work, but any such dates are estimates only and time is not be of the essence for the performance of the Services. If we have not agreed any specific performance dates, we will use our reasonable endeavours to perform the Services as soon as reasonably possible.
- We will use reasonable care and skill when we supply the Services and will endeavour to minimise delays or problems, notify you if we are aware of any significant delays or problems, endeavour to resolve issues (within our business hours) once we are aware of them, and endeavour to avoid issues reoccurring where possible.
3. What Isn’t Included in the services
- We are only responsible for the Services set out in the Statement of Work and unless expressly stated otherwise in the Statement of Work we take no responsibility for and are not liable for:
- search engine, digital store, or other similar rankings;
- the number of people that visit, download, view, access, use or otherwise utilise the Deliverable;
- the amount of money, profit, or savings (whether pecuniary or time-related) generated by or derived from the Deliverable;
- applying for, renewing, or paying fees in relation to domain names;
- obtaining licences for materials included in the Materials;
- setting up or maintaining email accounts or email addresses;
- setting up or maintaining URL forwarding or redirect services;
- setting up or maintaining hyperlinks which you are able to edit;
- services which you instruct third parties to carry out or any fees payable to such third parties;
- reviewing or maintaining your customer databases or advising on their compliance with data protection laws (or any other applicable laws, rules, or regulations);
- setting up or maintaining social network or social media pages;
- making design alterations to the Deliverable which do not adhere to the criteria set out in the Statement of Work.
- We are not responsible for ensuring that the Deliverable complies with any laws, regulations, rules, or codes with which you and/or the Deliverable are obliged to comply.
4. Customer responsibilities
- Our ability to provide the Services is dependent on your full and timely co-operation (which you agree to provide), as well as the accuracy and completeness of any design specifications provided by a third party design agency engaged by you (if any) and any information and data you provide to us. Accordingly, you will, and warrant and represent that you will:
- ensure that the Statement of Work is accurate and that the Services detailed are suitable for and satisfy your needs and expectations;
- provide us with access to, and use of, all information, data and documentation we reasonably require to perform our obligations under this Agreement and you will ensure that such information is complete and accurate in all material respects;
- before the start date for the Services, or promptly following request by us, or promptly following the need for such reasonably arising (whichever is the earlier), obtain and maintain any licences, permissions, consents, or other authorisations necessary or desirable for the Services;
- comply with any additional obligations in the Statement of Work;
- report to us in as much detail as possible any problems or issues in relation to the Deliverable or the Services, or circumstances that may reasonably give rise to such, as soon as your become aware of them;
- notify us as soon as possible of any circumstances which could impede or otherwise affect our performance of the Services, providing as much detail as possible;
- provide us with all information and assistance (including Materials) we ask for to provide the Services, including answering our questions promptly and in any event within 10 Business Days of us asking for the information or such other more urgent timescale we may request;
- ensure that all information and materials provided to us (whether by you, on your behalf, or otherwise at your direction) is not corrupt or contaminated (such as by viruses, malware, or such other (malicious or otherwise) material, code, software, file, programme, device, or thing that is potentially deleterious to or would negatively impact on, interfere with or otherwise affect the performance or operation of any hardware, software, equipment, network, or service or the user experience of such);
- ensure that all information and materials provided to us (whether by you, on your behalf, or otherwise at your direction) is backed up or copies are otherwise held by you or on your behalf;
- co-operate with us and with any competent authorities when we are performing any right or duty in relation to the Agreement;
- not access, store, distribute or transmit any material during your use of the Services (including on any Deliverable) that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates or constitutes illegal activity;
- violates import or export control laws;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or any other illegal activity; or
- promotes unlawful violence;
- not cause damage to any of the systems or networks used by us for or relating to the Services; and
- instruct and manage any third party design agency to be engaged by you or on your behalf.
- You are wholly responsible for the accuracy and completeness of the Materials used in the Deliverable in accordance with clause 14.
- If any act or omission of yours (or your officers, employees, contractors, subcontractors or agents) or failure by you to perform any relevant obligation (“Your Default“) prevents or restricts us performing our obligations under this Agreement then:
- without limiting or affecting any other right or remedy available to us, we may suspend the Services until you remedy Your Default, and we may rely on Your Default to relieve us from the performance of any of our obligations in to the extent Your Default prevents or delays our performance of any of our obligations;
- we will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from the our failure or delay to perform any of our obligations further to this clause 4.3; and
- you will reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
- In the event that Your Default is material or otherwise subsists for longer than 10 Business Days, we may in our sole discretion elect whether or not to re-commence the Services. If we do re-commence the Services, we may charge you additional fees and costs in relation to the time spent re-commencing the Services and for any other resultant work that may be required to continue the Services. You acknowledge and accept that any delay in providing the Services may result in issues of compatibility or ongoing viability of the platform or software utilised in relation to the Services, and we shall be entitled to charge to you any costs or fees associated in recommencing the Services and any resultant work required to properly perform the Services (in our reasonable opinion), including work required to be able to perform them in an expedient manner and in line with up to date technical requirements or specifications which are necessary or desirable for the performance of the Services or the benefit of the Deliverables as we may reasonably determine in our sole discretion.
- We can interrupt, postpone, delay, limit, or curtail the Services where it is reasonable for us to do so and where:
- we must take action to comply with any applicable law or regulation;
- we need to carry out maintenance, inspection, servicing, repair, renewal, or replacement of the services or the systems or networks used to provide the Services; and/or
- there is an error in any of the systems, platforms, software or hardware utilised or required in relation to the Deliverable or performance of the Services.
and we will not be liable for any loss, damage, cost, or expense that you incur as a result of any interruption, postponement, delay, limit, or curtailment of the Services allowed under this clause 4.5 and the Charges will not be reduced.
- We are not obliged to give you advance warning of interruptions referred to in clause 4.5.
5. Development and acceptance of site
- We will develop the Deliverable for use on a range of devices, platforms and operating systems that are set out in the Statement of Work and, if no such devices or operating systems are detailed any web developments (such as the Website) shall be developed for and tested for use in the latest version of Google Chrome, Safari, and Mozilla Firefox on such desktop and mobile platforms as we may determine in our sole discretion. Any Application developments for use on the iOS operating system shall be developed and tested for use on the most recent version of the iOS operating system released on the most recent versions of such iOS devices as we may determine in our sole discretion. Any Android developments shall be developed and tested for use on such versions of the Android operating system on such recent devices (released for purchase by consumers within the last 12 months and as are currently available) as we may determine in our sole discretion.
- Once we have completed the design and development of the Deliverable in accordance with the appropriate phase of the timetable set out in the Statement of Work, we will run the Acceptance Tests. The procedure set out in this clause 5 will be repeated in respect of the phases indicated in the Statement of Work and any further development works we agree.
- The Acceptance Tests will test compliance of the Deliverable with the Deliverable Specification. The form and detail of such tests is set out in the Statement of Work or, if no such tests are detailed, shall be as otherwise agreed by us with you.
- Acceptance of the Deliverable occurs when the Deliverable has passed the Acceptance Tests. We will notify you when the tests have been passed and provide the results of the Acceptance Tests in writing.
- If any failure to pass the Acceptance Tests results from a defect which is caused by your act or omission, or by one of your sub-contractors or agents (Non-Supplier Defect), the Deliverable shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. We will endeavour to provide assistance you reasonably request to remedy any Non-Supplier Defect by supplying additional services or products. You will pay us in full for all such additional services and products at our then current fees and prices.
- Acceptance of the Deliverable shall be deemed to have taken place upon the occurrence of any of the following events:
- you use any part of the Deliverable for any revenue-earning purposes, to provide any services to third parties, or in any way other than for test purposes;
- you unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of five Business Days from the date on which we are ready to commence running such Acceptance Tests or retests;
- five Business Days expires from the completion of the Acceptance Tests, unless you notify us in writing of any failure of the Deliverable to pass the Acceptance Tests; or
- you confirm that the Acceptance Tests have been passed.
6. CHANGES TO THE SERVICES
- Any request to change the scope of the Services shall be processed in accordance with this clause 6.
- We will charge extra for any work we do which is not part of the Services or as otherwise set out in the Statement of Work (“Additional Work“).
- If you wish us to carry out any Additional Work then we will discuss any changes to this Agreement, including in relation to timescale, resultant additional charges, and additional conditions that may apply to our performance of the Additional Work. After such discussion, you will provide us with a written request for Additional Work proposed but, if no such written request is received then the Additional Work will not proceed.
- Following your request, we may confirm to you in writing the effect and implications of the Additional Work, including the price for the Additional Work and additional resultant charges, the details of the Additional Work (including any specifications and user facilities), the timetable for implementation together with proposals for acceptance of the Additional Work, the impact of the Additional Work on other aspects of the Agreement (including Charges, contractual documentation, and staff resources), details of the Additional Work (including any specifications and user facilities) together with any additional conditions that may apply to our performance of the Additional Work (“Additional Work Scope“).
- We do not have to provide you with an Additional Work Scope or carry out any Additional Work where an Additional Work Scope has not been agreed between us. In particular, we may not provide you with an Additional Work Scope where we believe that the work you request will cause compatibility issues, has no commercial merit, and/or will not be possible or it will not be viable to support longer term.
- The Additional Work Scope shall be valid for a period of 20 Business Days unless expressly stated otherwise.
- If you accept the Additional Work Scope we will carry out the Additional Work on the terms of the Agreement as amended by the Additional Work Scope. If you do not approve the Additional Work Scope within the period set out at clause 6.6, we will not be obliged to carry out the Additional Work. We do not have to carry out any Additional Work if you are in breach or default of any of your obligations under this Agreement or any other agreement with us and our performance of the Additional Work may be conditional on your rectification of such breaches or defaults, including settlement of any amounts due and outstanding to us.
- If you accept the Additional Work Scope, you should sign and return it to us. You will be considered to have accepted the Additional Work Scope following return of the signed Additional Work Scope or if you have otherwise confirmed your acceptance of such to us in writing (such as by email). Once the Additional Work Scope has been accepted and agreed by both of us, we will perform the Additional Work on the terms agreed.
- We may change the Services and the Agreement to reflect changes in relevant laws and regulatory requirements and change the Services to implement minor technical adjustments and improvements (which will not affect your use of the Deliverable) but, if we do so, we will notify you and explain the effects of these changes before the changes take effect.
- In addition we may make more significant changes to these terms or the product, but if we do so we will notify you and you may then contact us to terminate the Agreement before the changes take effect.
- The Acceptance Tests in relation to the Additional Work shall, insofar as reasonably possible, reflect those set out in the Statement of Work or Additional Work Scope so that they test compliance of Additional Work with the specification agreed. If the Acceptance Tests set out in the Statement of Work or the Additional Work Scope are inappropriate to test the Additional Work (as determined by us, acting reasonably) then they shall instead be as otherwise agreed by us with you. In the event of contradiction between the Acceptance Tests detailed in the Statement of Work and the Additional Work Scope, those detailed in the Additional Work Scope shall prevail.
7. Project management
- Each party shall appoint a project manager who will provide professional and prompt liaison with the other party and have the necessary expertise and authority to commit the relevant party.
- Your project manager shall be available to discuss matters in relation to the Services as we may reasonably request (which may, for example, be on a weekly or other regular basis).
- You confirm that we are entitled to rely and act on any information and instructions given to us or our representatives by persons acting or held out as acting on your behalf as if such information or instructions had come from you.
- We will make available to you all such software programs of third parties proprietary to the Deliverable under the standard licence terms provided by the relevant third parties, and you agree to be bound to the relevant third parties by such licence terms. Any licence fee or other such similar arrangements shall be as set out in the Statement of Work or shall otherwise be included in the Charges payable under clause 10.1.
- You may not make adaptations or variations of the Application without our consent, and will not disassemble, decompile, reverse translate, or in any other manner decode the software in the Application or Website except as permitted by law.
9. SUPPORT SERVICES
- Unless the Statement of Work states otherwise, we will provide any Support Services from the day after Acceptance but shall not be obliged to provide any Support Services until you have paid the Charges in relation thereto.
- We may sub-contract the provision of the support and maintenance services to any other person but shall not be liable for any failure to provide or for any defective or delayed provision of the Support Services by any subcontractor.
- We will not be liable for any error or problem with the Deliverable that arises out of the operation, hosting, maintenance, or support of the Deliverable by any person other than us or our sub-contractors. If we investigate an error or problem which occurred as a result of anyone other than our (or our subcontractors’) actions we may charge you an additional, reasonable sum for the investigation based on our standard time costs and on any costs, time, administration or other expenses incurred by us.
- The Support Services operate from 09:00 to 17:00 GMT, Monday to Friday but excluding public and bank holidays in the United Kingdom (“Core Hours“) and we reserve the right to change the Core Hours by giving you five Business Days’ notice in writing. We will endeavour to ensure that support is available by telephone or email during Core Hours in respect of providing advice in relation to the Deliverable and providing general customer services in relation to such.
- During the term in which the Support Services are to be provided, you will not without our prior written approval allow any person other than us (or our subcontractors) to modify, repair or maintain any part of the Deliverable.
- You will co-operate with us in any manner we reasonably require to carry out the Support Services, including provision of information and data, making available suitably qualified employees and contractors of yours and will, subject to us complying with your normal security requirements, provide access to your systems.
- You will comply, as soon as reasonably practicable, with our reasonable requests for information or assistance.
- We may suspend the Support Services without notice (if giving notice is not reasonably practicable) where:
- the Support Services or the Deliverable are being used in breach of this Agreement;
- you do not co-operate with us or our subcontractor’s investigation of any issue, problem, or your breach of this Agreement;
- we or our sub-contractor reasonably believes that the suspension of the Support Services is necessary to protect your, our, or our sub-contractor’s systems or networks or those of other clients of ours;
- suspension is required by applicable law or is compelled by a competent authority.
10. Charges and payment
- We will issue a monthly VAT invoice in respect of the Charges, and you will pay the Charges set out such invoice within 14 days of the date of such invoice.
- All Charges are exclusive of VAT; you will pay to us such additional amounts in respect of VAT at the same time as payment is due for the supply of Services.
- If you fail to make any payment under this agreement by the due date for payment, then, without limiting our remedies under clause 16, you will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
- In the event that we incur any costs, damages, liabilities, or losses (including any administrative, time costs, legal costs or disbursements) as a result of any act or omission by you or your officers, employees, agents, contractors or subcontractors, you providing us with incomplete, inaccurate, or misleading instructions, information or materials then we may charge such to you in addition to the Charges.
- You will pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (other than as may be required by law).
- In relation to Support Services and other ongoing services we reserve the right to increase our Charges on an annual basis with effect from each anniversary of the date of the Agreement in line with the percentage increase in the Retail Prices Index in the preceding 12 month period, such increase taking effect on the first anniversary of the date of the Agreement.
- You will be liable to pay the Charges in the event that any estimated deadline or timescale is not met.
- If you do not pay us when you should, whether under this Agreement or any other agreement with us, we may:
- stop providing the Services (and any other services we are providing to you (or for you) whether under this Agreement or otherwise) until you pay any amounts which are overdue and until you pay any interest on such overdue amounts; and
- stop you from being able to access any interface, system, platform or similar that enables access, use, and management of your Deliverable or associated services until you pay any amounts which are overdue and until you pay any interest on such overdue amounts.
- You and we warrant to one another that it has full power and authority to enter into and perform this agreement.
- We will endeavour to perform the Services with reasonable care and skill and in a reliable and professional manner by personnel with appropriate skills, qualifications, and experience, and warrant that the Deliverable will perform substantially in accordance with the Deliverable Specification for a period of three months from Acceptance. If the Deliverable does not so perform, we will, for no additional charge, carry out any work necessary in order to ensure that the Deliverable substantially complies with the Deliverable Specification.
- The warranty set out in this clause 11.2 shall not apply to the extent that any failure of the Deliverable to perform substantially in accordance with the Deliverable Specification is caused by any Materials or any act or omission of yours or your officers, employees, contractors, subcontractors or agents or the act or omission of any third party.
- Without limitation, there is no implied or express representation that the Deliverable will operate in conjunction with any hardware or software items other than those set out in the Statement of Work or these terms, or that the Deliverable will operate uninterrupted or error free.
- This agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
12. Limitation of remedies and liability
- Nothing in this agreement shall operate to exclude or limit our liability for:
- death or personal injury caused by our negligence; or
- any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- fraud; or
- any other liability which cannot be excluded or limited under applicable law.
- We will not be liable to you for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
- Subject to clause 12.1, our aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Charges payable by you under this Agreement in that calendar year.
- You shall indemnify us from and against all losses, damages, costs, expenses (including professional advisors’ costs and disbursements, legal costs, and disbursements (including for the avoidance of doubt any court or similar fees) incurred in connection with or arising out of:
- any action or claim:
- that the Materials or content placed on the Deliverable by any person other than us constitutes Inappropriate Content;
- made against us by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of your (or your employees’, agents’, contractors’ or subcontractors’) breach, negligent performance or failure or delay in performance of the Agreement;
- your breach of any warranty;
- your breach of the terms of any licence of third party software or other third party intellectual property rights utilised in relation to the Deliverable;
- your breach or negligent performance or non-performance of the Agreement; and
- the enforcement of the Agreement (including but not exclusive to the collection of any amount payable to us that is due and outstanding).
- any action or claim:
13. Intellectual property rights
- All Intellectual Property Rights in the Deliverable (including in the content of the Deliverable and the software for the Deliverable (other than any third party software)), but excluding the Materials, arising in connection with this agreement is and will remain our property, and we, subject to completion of the Services and settlement of all Charges due to us (other than any fees in relation to the Support Services or onward development following completion of the Deliverable) grant you a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Deliverable in relation to your business.
- Your acquire no right in or to the Intellectual Property Rights, any software of or proprietary to us or any operating manuals, user instruction manuals, technical literature, and all other related materials (digital or otherwise), other than on the terms of this Agreement and we shall at all times own all copies of all or any part of the Deliverables.
- You will use reasonable endeavours to prevent any infringement of our Intellectual Property Rights in the Deliverable (including ensuring that the terms of any digital store or device do not conflict with any of the terms of ownership detailed in this Agreement) and shall promptly report to us any such infringement that comes to your attention.
- You will not:
- sub-licence, assign, or otherwise transfer the rights granted in clause 13.4;
- make use of, alter, amend, copy, or disclose to any third party any of our Intellectual Property (including for the avoidance of doubt any scripts or coding);
- give access to the software in the Deliverable licensed to you under the terms of this Agreement through any network of computers to users who are not your employees or agents;
- disassemble, decompile, reverse translate, or in any other manner decode the software in the Deliverable, except as permitted by law.
- You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
- The Supplier shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Deliverable infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 13.5.
- The indemnities in clause 12.4.1, clause 13.5, clause 13.6 and clause 14.4 are subject to the following conditions:
- the indemnified party promptly notifies the indemnifier in writing of the claim;
- the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
- the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
- the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
- The indemnities in clause 13.5, clause 13.6, clause 14.4 and clause 14.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party or to the extent that such an action or claim arises out of any act or omission of the indemnified party or their officers, employees, agents, contractors, or sub-contractors or any breach by the indemnified party of the terms of this agreement.
- We may include any of the work done for you, including any Deliverables and their contents (at any time and any part thereof), and Materials, in a portfolio or such other advertising and marketing materials and we consider fit, and the you grants us an irrevocable, unlimited, royalty-free licence of the foregoing for such purpose.
14. Deliverable content
- We shall not be liable to you for any loss or damage to information, data, or materials within your control or otherwise maintained on systems or platforms outside of our control or on systems of which we have not been provided full and accurate specification or any loss or damage cause by any issues (including issues of compatibility) on those systems or platforms.
- You will ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite hatred (racial or otherwise) or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content“).
- You acknowledge that we have no control over any content placed on the Deliverable by visitors/users of the Deliverable or other third parties not acting at our express request and does not purport to monitor the content of the Deliverable. We may remove content from the Deliverable where we reasonably suspect such content is Inappropriate Content and will notify you promptly if we become aware of any allegation that any content on the Deliverable may be Inappropriate Content.
- We may include the statement “Designed by Big Bite Creative” or words to a similar effect on the home page or such other landing page, screen, or display as we may reasonably determine of the Deliverable in such manner as we may reasonably consider to be appropriate.
15. Data protection
- You warrant that you will comply with all applicable requirements of all applicable data protection legislation and regulations. This clause 15 is in addition to, and does not relieve, remove or replace, obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of applicable data protection legislation and regulations, if we process any personal data on your behalf then you are the data controller and we are the data processor (where data controller and data processor have the meanings as defined in applicable data protection legislation and regulations), and that the personal data may be transferred or stored outside the EEA or the country where you are located in order to carry out our obligations under this Agreement.
- Without prejudice to the generality of clause 15.1, you will:
- ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data (as defined in applicable data protection legislation and regulations) to us for the duration and purposes of the Agreement;
- provide all assistance and co-operation as we may reasonably require and do all such acts matters and things as we may reasonably request in relation to our duties and obligations under all applicable data protection legislation and regulations.
- You consent to us appointing such third-party processor of personal data under the Agreement as we reasonably consider appropriate. We will remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 15.4.
- Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise) in any Intellectual Property Rights in any data.
- Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
- the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
- the other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1.3 to clause 16.1.8 (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- any warranty given by the other party in clause 11 of this agreement is found to be untrue or misleading.
- On termination of this agreement by us under clause 16.1, all licences granted by us under this agreement shall terminate immediately.
- On expiry or termination of this agreement otherwise than on termination by us under clause 16.1, we shall promptly return all Materials to you, and shall provide to you an electronic copy of the Deliverable (including all content on the Deliverable).
- On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
17. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including without limitation acts of God, natural disaster, power outages or electrical disruption, or non-performance by suppliers or subcontractors or act, omission, failure or error of any third party or its equipment (including software and technology). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.
- Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
- Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
- The obligations set out in this clause 18 shall not apply to Confidential Information which the receiving party can demonstrate:
- is or has become publicly known other than through breach of this clause 18; or
- was in possession of the receiving party prior to disclosure by the other party; or
- was received by the receiving party from an independent third party who has full right of disclosure; or
- was independently developed by the receiving party; or
- was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
- The obligations of confidentiality in this clause 18 shall not be affected by the expiry or termination of this agreement.
- All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
- Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by email to the address specified in the Statement of Work (if any).
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- 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 or at the time recorded by the delivery service.
- if sent by email, at 9.00 am on the next Business Day after transmission.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
- This agreement constitutes the entire agreement 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.
- 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21. Variation, WAIVER, and RIGHTS
- Unless it expressly states otherwise, this agreement does not give rise to rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of this agreement and the rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
- No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Governing law AND JURISDICTION
- This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
The following definitions and rules of interpretation apply in this agreement.
the acceptance or deemed acceptance of the Deliverable by the Customer pursuant to clause 5.
the tests to be carried out on the Deliverable pursuant to clause 5 and (if applicable) clause 6.11.
has the meaning given to it in clause 6.1.
“Additional Work Scope“
has the meaning given to it in clause 6.4
the application software developed pursuant to the Statement of Work.
a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
the charges in respect of the Services set out in the Statement of Work, together with any charges arising from any changes or any matters in addition thereto.
all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
the deliverables set out in the Statement of Work to be produced by us for you, such as the Website or the Application.
the software for the Deliverable commissioned by the Customer as may be specified in the Statement of Work.
the specification for the Deliverable set out in the Statement of Work or as may otherwise be agreed in writing by us with you.
“Intellectual Property Rights“
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
the content provided to the Supplier by or on behalf of the Customer from time to time for incorporation in the Deliverable or in relation to the performance of the Services.
those defects described in clause 5.5.
the services to be provided pursuant to this agreement as set out in the Statement of Work, such as design and development services or the Support Services.
the support and maintenance services set out in the Statement of Work.
“Statement of Work“
the statement of work detailing the Services to be provided, including (if applicable) the Deliverable Specification.
the website in relation to which the Services are to be provided pursuant to the Statement of Work.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website or application for access by a visitor to or user thereof.
- Writing or written includes email.
- “Big Bite”, “we”, “us”, and “our” means Big Bite Creative Limited (company number 07642287) and references to “you” or “your” means the party identified in the Statement of Work as our client.