The following definitions and rules of interpretation apply in this agreement.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
Air Sites: means microsites, typically less than 8 webpages, prepared by the Supplier on the instruction of the Customer.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9am to 5pm on any Business Day.
Change Order: means any written document which material changes the obligations or services of the Supplier under this Agreement. A Change Order can be completed by way of an exchange of emails between authorised representatives of the Supplier and Customer agreeing to such changes.
Charges: The sums payable for the Services as set out in Schedule 2.
Content: means all relevant information, documents, words, images or other content which is to be included by the Supplier on the website.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any such items specified in Schedule 1.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services including any Content provided by the Customer to the Supplier.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998 or Article 4(7) of the General Data Protection Regulations whichever is governing at the time of this Agreement.
Data Protection Laws: shall mean the Data Protection Act 1998, General Data Protection Regulations or such other legislation in force at the time of this Agreement.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: any output of the Services to be provided by the Supplier to the Customer as specified in Schedule 1 and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s equipment).
Deposit: The Supplier will invoice the Customer 50% of the overall cost and charge this as the 50% deposit that is to be paid by the Customer to the Supplier in advance of commencement of the services.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, 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.
Mandatory Policies: the Customer’s business policies listed in Schedule 3 as amended by notification to the Supplier from time to time.
Milestones: a date by which a part of the Services is to be completed, as set out in Schedule 1.
Optional Maintenance Agreement: A separate contract for maintenance and update of website related software after completion of the Services.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 or Article 4(1) of General Data Protection Regulations whichever is governing at that time and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing the Services under this agreement.
Privacy Notice: means the Notice provided by the Supplier on their website or otherwise provided to the Customer detailing the manner in which the Supplier handles Personal Data.
Processing and process: have the meaning set out in section 1(1) of the Data Protection Act 1998 or Article 4(1) of General Data Protection Regulations whichever is governing at the time.
Services: the Services as set out in Schedule 1 (including services which are incidental or ancillary to such Services).
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services in the supply of the Services including any such items specified in Schedule 1 but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
VAT: value added tax [or any equivalent tax] chargeable in the UK [or elsewhere].
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as [amended, extended or re-enacted from time to time OR it is in force as at the date of this agreement.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made [from time to time OR as at the date of this agreement under that statute or statutory provision.
1.11 A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 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.
2. Commencement And Duration
2.1 This agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with Clause 13.
2.2 The Supplier shall provide the Services to the Customer in accordance with this agreement from the date of the Agreement until such time as the Services are completed,
3. Suppliers Responsibilities
3.1 The Supplier shall use reasonable endeavours to supply the Services and deliver to the Customer in accordance with this agreement in all material aspects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in Schedule 1 but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
3.3 The Supplier shall appoint a manager for the Services [such person as identified in Schedule 1. That person shall have authority to contractually bind the Supplier on all matters relating to the Services (including by signing Change Orders). The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of this agreement, but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
4. Customers Obligations
4.1 The Customer shall:
4.1.1 co-operate with the Supplier in all matters relating to the Services;
4.1.2 appoint a manager for the Services, such person as identified in Schedule 1. That person shall have the authority to contractually to bind the Customer on matters relating to the Services (including by signing Change Orders);
4.1.3 provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in Schedule 1;
4.1.4 provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
4.1.5 inform the Supplier of all health and safety and security requirements that apply at the Customer’s premises.
4.1.6 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services in all cases before the date on which the Services are to start;
4.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
4.3 The obligation to provide the Content to the Supplier rests with the Customer. Any delay in providing the Content to the Supplier will result in a delay in the Supplier completing the Services. The Supplier accepts no responsibility for this delay.
4.4 The Supplier will not commence work on ‘Air Sites’ until the Content has been confirmed by the Customer and sent to the Supplier.
4.5 If Content is not received within three months of receipt of the Deposit, then the Supplier shall be entitled to terminate this Agreement on written notice. The Deposit is non-refundable and the Supplier shall be entitled to retain the Deposit without rebate or refund to the Customer if the Customer fails to provide the Content in accordance with Clause 4.5 or the Customer is otherwise in material breach of their obligations under this Agreement.
4.6 The Customer shall adhere to the Milestones detailed in Schedule 1 particularly in respect of the Customer providing feedback to the Supplier.
5. Non Solicitation
5.1 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.2 Any consent given by the Supplier in accordance with Clause 5.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
5.3 If the Customer breaches the terms of this clause 6, the Client will indemnify and keep indemnified, the Supplier for all costs and expenses of losing that Restricted Staff Member, which will include a payment of the equivalent of 12 months basic salary for the Restricted Staff Member.
5.4 The parties agree that each provision in this clause 5 is fair and reasonable.
6. Change Control
6.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
6.1.1 the Services;
6.1.2 the Supplier’s existing charges;
6.1.3 the timetable of the Services; and
6.1.4 any of the terms of this agreement.
6.2 If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
6.3 If the Customer wishes to make a change to the Services:
6.3.1 it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
6.3.2 the Supplier shall, as soon as reasonably practicable after receiving sufficient information provide a draft Change Order to the Customer which may include, as appropriate, any variation in Charges.
6.4 If the parties:
6.4.1 agree to a Change Order, they shall sign it (or confirm express agreement in writing by some other agreed manner) and that Change Order shall amend this agreement; or
6.4.2 are unable to agree a Change Order, then the parties may elect to continue with the Services in the manner provided for prior to the Change Order or if the party who proposed the Change Order believes it is not possible to continue with the Agreement they may terminate the Agreement by providing not less than 1 month’s written notice. If the Customer elects to terminate the Agreement then the Customer shall pay all Charges payable to the Supplier under this Agreement.
6.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Clause 6.3 on a time and materials basis at the Supplier’s daily rates specified in Schedule 2.
7. Charges And Payment
7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges set out in Schedule 2 or otherwise payable under this Agreement.
7.2 Where the Charges are calculated on an hourly rate or day-rate basis:
7.2.1 the Supplier’s standard daily fee rates for each individual person as set out in Schedule 2 are calculated on the basis of an seven-hour day, worked during Business Hours;
7.2.2 the Supplier shall be entitled to charge an overtime rate of 50% of the standard daily fee rate set out in Schedule 2 on a pro-rata basis for any time worked by individuals whom it engages on the Services outside Business Hours or outside Business Days; and
7.2.3 the Supplier shall ensure that every individual whom it engages on the Services completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
7.3 The Charges exclude the following which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
7.3.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services; and
7.3.2 the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services as such items and their cost are approved by the Customer in advance from time to time.
7.4 The Supplier shall invoice the Customer for the Charges at the intervals specified in Schedule 2. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month.
7.5 The Customer shall pay each invoice submitted to it by the Supplier within 28 days of receipt to a bank account nominated in writing by the Supplier from time to time.
7.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
7.6.1 the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount; and
7.6.2 the Supplier may suspend all or part of the Services until payment has been made in full.
7.7 All sums payable to the Supplier under this agreement:
7.7.1 are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
7.7.2 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.8 In some circumstances, the Supplier may receive commission or other payments from third parties as a consequence of the Services provided by the Supplier to the Customer. The Customer acknowledges that the Supplier is entitled to receive some commission where appropriate and that the receipt of such commission by the Supplier shall not have any impact or bearing on the fees which the Customer is liable to pay the Supplier. The Customer shall not be entitled to any set-off or any other reduction in the Customer fees by virtue of any commission payments received by the Supplier.
8. Intellectual Property Rights
8.1 In relation to the Deliverables:
8.1.1 the Supplier and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Customer Materials;
8.1.2 the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
8.1.3 the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 9.1(b)
188.8.131.52 to its Affiliates and customers; and
184.108.40.206 subject to their entering into appropriate confidentiality undertakings, to third parties for the purpose of the Customer’s receipt of services similar to the Services.
8.1.4 Upon payment of all Charges payable to the Supplier under this Agreement, ownership of the Deliverables (including but not limited to any Website developed by the Supplier for the Customer) shall transfer to the Customer. Until such time as full payment is made by the Customer to the Supplier, ownership of the Deliverables shall remain with the Supplier and the Customer shall not reproduce or otherwise utilise any Deliverable without the prior written consent of the Supplier.
8.2 In relation to the Customer Materials (which shall include any Content provided by the Customer to the Supplier), the Customer:
8.2.1 and its licensors shall retain ownership of all IPRs in the Customer Materials; and
8.2.2 grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.
8.3 The Customer:
8.3.1 warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party and
8.3.2 shall keep the Supplier indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Supplier as a result of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
8.4 If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this Clause 8, the Indemnified Party shall:
8.4.1 notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 9.3(b) or Clause 9.4(b) (as applicable), (IPRs Claim);
8.4.2 allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld
8.4.3 provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Supplier of the Indemnified Party’s costs so incurred; and
8.4.4 not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
9. Compliance With Laws And Policies
9.1 In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws
9.2 Changes to the Services required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in Clause 6.
10. Data Protection And Data Processing
10.1 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Laws, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
10.2 The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
10.3 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
10.4 The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
10.4.1 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
10.4.1.1 the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
10.4.1.2 the nature of the data to be protected
10.4.2 take reasonable steps to ensure compliance with those measures.
10.5 It is acknowledged that, as a consequence of the Services provided by the Supplier to the Customer, the Supplier may receive Personal Data relating to the Customer’s Clients, prospective Clients or other users of the Customer’s website. The Customer shall be solely responsible for ensuring that Clients of the Customer are notified regarding the provisions of the Supplier’s Privacy Notice and that the Customer ensures that they have provided an appropriate notice to the Customer’s Clients setting out the Customer’s lawful basis on which Personal Data will be retained in accordance with the Data Protection Laws.
10.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 10.
10.7 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
10.8 The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractors’ contract:
10.8.1 is on terms which are substantially the same as those set out in this agreement; and
10.8.2 terminates automatically on termination of this agreement for any reason.
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12. Limitation Of Liability
12.1 Nothing in this agreement shall limit or exclude the Supplier’s liability for:
12.1.1 death or personal injury caused by its negligence;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.2 Subject to Clause 12.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
12.2.1 loss of profits;
12.2.2 loss of sales or business;
12.2.3 loss of agreements or contracts;
12.2.4 loss of anticipated savings;
12.2.5 loss of or damage to goodwill;
12.2.6 loss of use or corruption of software, data or information; and
12.2.7 any indirect or consequential loss
12.3 Subject to Clause 12.1 and Clause 12.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to 50% of the Charges paid by the Customer under this agreement and shall never exceed the sum of £25,000.
13.1 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:
13.1.1 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;
13.1.2 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
13.1.3 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.1.4 the other party commences negotiations with all or any class 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 any of its creditors;
13.1.5 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 that other party (being a company) [other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
13.1.6 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);
13.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.1.8 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;
13.1.9 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  days;
13.1.10 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 13.1(c) to Clause 13 .1(i) (inclusive); or
13.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14. Consequences Of Termination
14.1 On termination or expiry of this agreement:
14.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
14.1.2 the Customer shall, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
14.1.3 the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
14.1.4 the following clauses shall continue in force: Clause 1 (Interpretation), Clause 5 (Non-solicitation), Clause 8 (Intellectual property rights), Clause 10 (Data Protection), Clause 11 (Confidentiality), Clause 12 (Limitation of liability), Clause 14 (Consequences of termination), Clause 18 (Waiver), Clause 22 (Severance), Clause 24 (Conflict), Clause 28 (Governing law) and Clause 29 (Jurisdiction).
14.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15. Force Majeure
15.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation
15.1.1 acts of God, flood, drought, earthquake or other natural disaster;
15.1.2 epidemic or pandemic;
15.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
15.1.4 nuclear, chemical or biological contamination or sonic boom;
15.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
15.1.6 collapse of buildings, fire, explosion or accident; and
15.1.7 any labour or trade dispute, strikes, industrial action or lockouts; and
15.1.8 non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
15.1.9 interruption or failure of utility service.
15.2 Provided it has complied with Clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
15.4 The Affected Party shall:
15.4.1 as soon as reasonably practicable after the start of the Force Majeure Event notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
15.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 8 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 2 weeks’ written notice to the Affected Party.
15.6 If the Force Majeure Event prevails for a continuous period of more than 3 months, either party may terminate this agreement by giving 14 days’ written notice to the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
16. Assignment And Other Dealings
16.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
16.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
17.1 Subject to Clause 6, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
18.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
19. Third Party Hosting
19.1 Third party hosting can and may be used by the Supplier, a list of the applicable third-party hosts are detailed in Schedule 3.
20. Self Hosting
20.1 The Supplier agrees to allow the Customer to self-host and further agrees not to charge for maintenance or hosting if the Customer chooses to self-host.
20.2 Customers are expected to set up SSL and other appropriate security measures.
20.3 When the Supplier is hosting, the Supplier agrees to maintain a staging server which will in turn allow a copy of the site to be available for future development work, pre-live deployment testing and approval before deployment to the Customer. Should the Customer choose to self-host, this clause (20.3) does not apply.
20.4 Should self-hosting be the Customer’s preferred option, the Supplier’s price (as detailed in Schedule 2) does not include setting up the Website on the Customers server.
20.5 In order to protect the security of the Supplier’s system, the Supplier will not provide any File Transfer Protocol (FTP) or root access to their servers. Any changes required by the Customer after co mpletion of the Services will be quoted for by the Supplier separately and such additional changes will only be provided to the Customer upon agreement of the additional quotation.
21. Rights And Remedies
21.1 The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 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.
22.2 If one party gives notice to the other of the possibility that 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. Entire Agreement
23.1 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.
23.2 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.
24.1 If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
25. No Partnership Or Agency
25.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26. Third Party Rights
26.1 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
27.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
27.1.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
27.1.2 emailed to the Supplier at firstname.lastname@example.org
27.2 Any notice shall be deemed to have been received:
27.2.1 if delivered by hand, on signature of a delivery receipt
27.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
27.2.3 if sent by email, at 9.00 am on the next Business Day after transmission.
27.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
28 Governing Law
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.
This agreement has been entered into on the date stated at the beginning of it.