The definitions and rules of interpretation in this clause apply in these terms and conditions.
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. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8. A reference to writing or written includes faxes and emails.
1.9. 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.
2.1. These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's Order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
The Customer's Order constitutes an offer by the Customer to purchase the Services specified in it on these conditions; accordingly, the execution and return of the acknowledgement copy of the Order form by the Supplier, or the Supplier's commencement or execution of work pursuant to the Order, shall establish a contract for the supply and purchase of those Services on these conditions including any relevant Schedule annexed hereto. The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in the Order shall not govern the Contract.
4.1. The Supplier shall use reasonable endeavours to manage and complete the Game Plan, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Game Plan.
4.2. The Supplier shall use reasonable endeavours to meet the performance dates specified in the Game Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract (without prejudice to payment under clause 8.5).
4.3. The Supplier shall appoint the Supplier's Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Game Plan. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier's Project Manager throughout the Game Plan, but may replace him from time to time where reasonably necessary in the interests of the Supplier's business.
5.1. The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Game Plan and appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Game Plan;
(b) provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
(c) provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;
(d) provide administrative or back-end access to the Site for analysis of its content and structure;
(e) provide permission for Supplier to make changes to the Site for the purpose of optimisation;
(f) provide permission for Supplier to communicate directly with any applicable third parties connected with the Site in order to provide the Services;
(g) provide access to existing traffic statistics for the Site for the purposes of analysis and tracking;
(h) provide additional text content in electronic format for the purpose of creating additional or richer web pages where the Site is lacking in textual content;
(i) provide direct access to the Customer’s employees as may be required by the Supplier to perform their obligations under the Contract and that such communication may be recorded in audio format by both parties for the purposes of accurate record-keeping; and
(j) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
5.2. If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.3. The Customer shall not, without the prior written consent of the Supplier, at any time during the Contract to the expiry of six months after termination, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier.
5.4. Any consent given by the Supplier in accordance with condition 5.3 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 or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
6.1. At any time considered appropriate by the Supplier pursuant to the Game Plan, the Supplier shall run the Acceptance Tests.
6.2. When the Acceptance Tests have been passed, the Supplier shall provide the results of the Acceptance Tests to the Customer in writing within 14 days.
6.3. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer's sub-contractors or agents for whom the Supplier has no responsibility, the Site shall be deemed to have passed the Acceptance Tests notwithstanding such defect(s). The Supplier shall provide assistance reasonably requested by the Customer in remedying any such defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier's then current fees and prices.
6.4. The Customer shall be deemed to have accepted that the Site has passed the Acceptance Tests upon the occurrence of any of the following events:
(a) the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Supplier is ready to commence running such Acceptance Tests or retests.
7.1. The Customer's Project Manager and the Supplier's Project Manager shall meet to discuss matters relating to the Game Plan at periods to be agreed between them. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
7.2. If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier's charges arising from the change;
(c) the likely effect of the change on the Game Plan; and
(d) any other impact of the change on the terms of the Contract.
7.3. If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
7.4. If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Game Plan and any other relevant terms of the Contract to take account of the change.
8.1. The price for the Services shall be the amount agreed for the Game Plan under the Contract, which shall be paid in advance by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). As may be agreed between the parties at stages in the Game Plan, the Supplier may further invoice the Customer for additional charges together with expenses and the costs of materials (and VAT, where appropriate).
(a) Any additional charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended from time to time:
(b) the Supplier's standard daily fee rates are calculated on the basis of a seven hour day worked between 9.30 am and 5.30 pm on a Business Day;
(c) the Supplier shall be entitled to charge at an overtime rate of 100% of the normal rate for part days and for time worked outside the hours referred to in condition 8.1(a) on a pro-rata basis; and
(d) the Supplier shall invoice the Customer in advance for its additional charges for time, expenses and materials (together with VAT where appropriate) for the period concerned, calculated as provided in this condition 8.
8.2. Any fixed price agreed under the Contract excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier where reasonable to do so; and
(b) VAT, which the Supplier shall add to its invoices at the appropriate rate.
8.3. The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 7 days of receipt, and the Supplier shall not be obliged to perform under the Contract until such time.
8.4. Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the prevailing base lending rate of the Bank of England from time to time in force, accruing and being compounded on a daily basis until payment is made, whether before or after any judgment; and
(b) suspend all Services until payment has been made in full.
8.5. Time for payment shall be of the essence of the Contract.
8.6. All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.7. The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
9.1. All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract for any reason, this licence will automatically terminate.
9.2. The Customer acknowledges that the Customer's use of rights in the Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9.3. The Customer grants the Supplier a limited, non-exclusive, non-transferable, revocable and worldwide licence to access and use the name, logo, company name and trademark of the Customer, in addition to any other Intellectual Property Rights, for which they hold a licence or sub-licence, as applicable, to provide the Services to the Customer in accordance with this agreement.
10.1. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
10.2. All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
10.3. Without prejudice to the above, the Customer shall 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 racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”) and the Customer shall fully indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content or infringe the Intellectual Property Rights of a third party.
10.4. The Customer acknowledges that the Supplier has no control over any content placed on the Site by visitors and that the Supplier does not purport to monitor the content of the Site, however the Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content.
10.5. The Supplier may include the statement “Designed by Lollipop Local Ltd” on the home page of the Site in a form to be agreed.
10.6. The Customer permits the Supplier access to Personal Data, but acknowledges that the Supplier is not its Data Controller and indemnifies the Supplier accordingly. Out of good will, to the extent it processes any Personal Data on behalf of the Customer, the Supplier confirms:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
10.7. The Customer warrants that they have complied with the relevant data protection laws and regulations within their jurisdiction, and fully indemnifies the Supplier for any liability arising therefrom.
10.8. This condition 10 shall survive termination of the Contract, howsoever arising.
11.1. In entering into the Contract, the Customer warrants to the Supplier that:
(a) they do so as a Trader and not as a Consumer; and
(i) that this agreement and the Contract are consequently beyond the scope of any regulations applying to consumer contracts;
(b) they fully indemnify the Supplier from any liability should the Customer be held:
(i) to be a Consumer; and
(ii) not to be a Trader
by operation of law, act of government, the authority of a court of competent jurisdiction, or otherwise.
11.2. The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
11.3. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.4. Nothing in these conditions excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
11.5. Subject to condition 11.3 and condition 11.4:
(a) the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
12.1. Without prejudice to any other right or remedy available to it, the Supplier may terminate the Contract at any time giving the Customer fourteen days’ written notice; or
12.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract on three months’ written notice without liability to the other if:
(a) 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;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) 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;
(d) 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;
(e) 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 its creditors 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;
(f) 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 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;
(g) 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;
(h) 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;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) 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;
(k) 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 condition 12.2(d) to condition 12.2(j) (inclusive);
(l) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
12.3. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12.4. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
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.
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1. 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.
16.2. 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.
17.1. 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.
17.2. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18.1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
21.1. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by fax to its main fax number; or
(c) sent by email to the email address provided in the Game Plan.
21.2. Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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;
(c) if sent by fax or email, at 9.00 am on the next Business Day after transmission.
21.3. 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. For the purposes of this clause, "writing" shall not include email.
22.1. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (a ‘Dispute’) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (‘Dispute Notice’), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute;
(b) if the parties are for any reason unable to resolve the Dispute within 28 days of service of the Dispute Notice, the parties will attempt to settle the Dispute by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 35 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (‘ADRN’) to the other party to the Dispute, requesting a mediation. A copy of the ADRN should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 28 days after the date of the ADRN.
22.2. If the Dispute is not resolved within 28 days after service of the ADRN, either party fails to participate or ceases to participate in the mediation before the expiry of that 28 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with this agreement. No party may commence any proceedings in relation to the whole or part of the Dispute until 28 days after service of the ADRN, provided that the right to issue proceedings is not prejudiced by a delay.
If the Customer is a limited company or LLP, and is agreeing to these terms by their signature as director or member, in so agreeing they guarantee to personally pay or cause to be paid any fees (including disbursements) arising under the Contract should the limited company or LLP for which they are director or member be unable to or refuse to pay, in addition to any interest arising on those fees and/or disbursements and all costs of recovery of the debt.
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are 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 arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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