WEB SMART MEDIA LIMITED TERMS & CONDITIONS FOR WEBSITE DESIGN & DEVELOPMENT
‘Supplier’ is Web Smart Media – ‘Customer’ is the website client
1.1 In any WEB SMART MEDIA Design & Development Agreement, unless the context required otherwise, the following words have the following meanings:
1.2 - A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 - References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
2. Scope of the Project
2.1 The Supplier shall:
3. Customer Responsibilities
3.1 - The Customer acknowledges and accepts that the Supplier's ability to provide the Services is dependent upon the full and timely cooperation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data that the Customer provides to the Supplier. Accordingly, the Customer shall provide:
3.2 - The Customer shall be responsible for the accuracy and completeness of the Materials on the Site.
4. Development and Acceptance of Site
4.1 - Acceptance of the Site shall be deemed to have taken place upon the occurrence of the earlier of any of the following events:
5. Search Engine Optimization (SEO) Services
5.1 – SEO work will begin on the date upon which the new website is made live on Customers domain name, the Company will promote the Website; and promotion of the Website may include the provision of some or all of the following Services:
5.2 - At regular monthly intervals during the Term, the Company will provide the Customer with reports about the Services provided in relation to the Website.
5.3 - The Customer acknowledges that:
6. Third Party Products
6.1 - The Supplier shall provide the 3rd Party Products in accordance with the relevant licensor's standard terms.
6.2 - Subject to clause 6.3 the one-off licence fee for the Customer’s use of the 3rd Party Products incorporated within the design of the Site is included in the Charges.
6.3 - The Customer acknowledges and accepts that:
7. Project Management
7.1 - Each Party shall appoint a project manager who shall:
7.2 - Each Party’s project manager shall meet and/or communicate at such intervals agreed between the Parties and/or as set out in the Specification.
8. Charges and Payment
8.1 - The Charges for the Services are as set out in the Quotation Particulars.
8.2 - The Supplier shall issue a VAT invoice in respect of the Charges in accordance with the Payment Schedule.
8.3 - The Customer shall pay to the Supplier the Charges set out in the Supplier's invoice within thirty (30) calendar days of the date of the Supplier's invoice.
8.4 - All Charges are exclusive of VAT.
8.5 - If the Customer fails to pay any amount payable by it under this Agreement, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of three percent (4%) per annum above the base rate for the time being of TSB. Such interest shall accrue on a daily basis and be compounded quarterly.
9.1 - Each Party warrants to the other that it has full power and authority to enter into and perform this Agreement.
9.2 - The Supplier warrants that it shall perform the Services with reasonable care and skill.
9.3 - Subject to Clause 9.4 below, the Supplier warrants that the Site will perform substantially in accordance with the Site Specification for a period of sixty (60) calendar days from the date of Acceptance (the “Warranty Period”). During the Warranty Period, if the Site does not perform in accordance with the Site Specification, the Supplier shall, for no additional charge, carry out such work that is necessary to ensure that the Site substantially complies with the Site Specification.
9.4 - The warranty set out in Clause 9.3 above, shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials.
9.5 - This Agreement sets out the full extent of the Supplier's 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 (whether by statute or otherwise) are hereby expressly excluded.
10. Limitation of Liability
10.1 - Nothing in this Agreement shall, or shall be deemed to, exclude or limit either Party’s liability in respect of:
10.2 - Subject to Clauses 10.1 above and 10.3 below, each Party's aggregate liability pursuant to or in connection with this Agreement shall in no event exceed one hundred percent (100%) of the Charges paid or payable under this Agreement.
10.3 - Neither Party shall be liable for:
11. Intellectual Property Rights
11.1 - All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Materials, arising in connection with this Agreement shall be the property of the Supplier. The Supplier hereby grants the Customer a royalty free, non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site for its internal business purposes only.
11.2 - Subject to Clauses 11.4 and 11.5 below, the Supplier shall indemnify the Customer against any final award of damages by a court against the Customer in respect of a claim that the Site infringes the Intellectual Property Rights of a third party.
11.3 - The Customer shall indemnify the Supplier 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.
11.4 - The indemnity provided by the Supplier in Clause 11.2 above shall not apply to the Third Party Products.
10.5 - The indemnities provided in Clauses 11.2 and 11.3 are subject to the indemnified Party:
11.6 - The indemnities in Clauses 11.2 and 11.3 above 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
11.7 - In the event that the Supplier is wound up or ceases to remain on the register at Companies House (except in the course of a group re-organisation) then the Intellectual Property Rights in the Site shall transfer to the Customer together with a right to a copy of the Site in electric form.
12. Term and Termination
12.1 - This Agreement shall commence on the date the Particulars were signed and dated and shall continue until terminated in accordance with the provisions of Clause 12.2 or 12.3 below.
12.2 - With regard to Support the Agreement shall commence on the date that the Particulars were signed and dated and shall continue for an initial period stated in the Particulars or 12 months if not stated and shall automatically renew for periods of 12 months thereafter until terminated by either party giving to the other not less than three months’ notice.
12.3 - Either Party may terminate this Agreement immediately at any time by written notice to the other Party if:
12.4 - On termination of this Agreement pursuant to Clause 03 above:
13. Change Control Procedure
All Changes shall be processed in accordance with the Change Control Procedure.
13.1 - The Supplier and the Customer shall discuss any change to this Agreement (a “Change”) proposed by the other and such discussion shall result in either:
If neither the Customer nor the Supplier wishes to submit a request or recommendation, the proposal for the Change will not proceed.
13.2 - Where a written request for a Change is received from the Customer, the Supplier shall confirm the following details of the Change, including amendments (if required) to the:
13.3 - The Customer shall:
13.4 - Once signed by the Customer, in accordance with paragraph 13.3 of this clause 13:
14. Force Majeure
14.1 - Neither Party:
14.2 - A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 - The affected Party shall take reasonable steps to mitigate the effects of the Force Majeure Event
15.1 - 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.
15.2 - 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.
15.3 - The obligations set out in this Clause 15 shall not apply to Confidential Information which the receiving Party can demonstrate:
15.4 - The obligations of confidentiality in this Clause 15 shall not be affected by the expiry or termination of this Agreement.
16.1 - A notice given under this Agreement:
16.2 - The addresses for service of notice are:
16.3 - A notice is deemed to have been received:
16.4 - To prove service, it is sufficient to prove that the:
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
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.
19.1 - The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. No person who is not a Party to this Agreement (including any employee, officer, agent, representative or subcontractor of either Party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Parties which agreement must refer to this Clause.
19.2 - Nothing in this Agreement shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the Parties and no employee of either Party shall be deemed to be or have become an employee of the other Party.
19.3 - This Agreement sets out the entire agreement between the Parties in relation to its subject matter and overrides any prior correspondence or representations. All warranties and conditions not set out in this Agreement whether implied by statute or otherwise are excluded to the extent permitted by law. Neither Party shall have any claim against the other for any misrepresentation unless such misrepresentation was made fraudulently.
19.4 - Any variation to this Agreement must be in writing and signed by a duly authorised representative of each of the Parties to this Agreement.
19.5 - The waiver by either Party of any breach of this Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision. Any waiver of any breach of this Agreement shall be in writing
19.6 - If any provision of this Agreement is ruled to be invalid for any reason, that invalidity will not affect the rest of this Agreement which will remain valid and enforceable in all respects.
20. Governing Law and Jurisdiction
20.1 - This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of Scotland.
20.2 - The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).