The definitions and rules of interpretation in this clause apply in these terms and conditions.
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Consumer: an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
Contract: the Customer's Order and the Supplier's acceptance of it under condition 3.
Customer: the person, firm or company who purchases Services from the Supplier.
Customer's Project Manager: the Customer's manager for the Game Plan appointed in accordance with clause 5.1(a).
Deliverables: all products and materials developed by the Supplier in relation to the Game Plan in any media, including, without limitation, computer programs, data, diagrams, websites, search engine optimisation web pages and techniques, reports and specifications (including drafts).
Game Plan: the proposal, as agreed between the parties, to give effect to the Contract, setting out the estimated timetable and responsibilities for the provision of the Services by the Supplier in accordance with the Contract, and the aims of the Customer under the Contract. A copy of any Game Plan created under the agreement (once these terms have been executed) is annexed at Schedule 2.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
Order: As identified in condition 3, and which is to be annexed to Schedule 1 of these terms once executed.
Personal Data: has the meaning given in the Data Protection Act 1998.
SEO Pages: the web pages developed by Supplier under this agreement containing content, links, tagging and other search engine optimisation techniques in order to increase the ranking and prominence of the Site in the result pages of search engines, which for the avoidance of doubt includes site pages, landing pages, and blog posts.
Services: the services to be provided by the Supplier under the Contract, as specified in the Order.
Site Specification: the software specification and content description for the Site under this agreement.
Supplier: Lollipop Local Ltd, registered under company number 07413626, whose registered address is Estuary House, 37 Clarence Street, Southend-on-Sea, Essex SS1 1BH, trading as ‘Lollipop’.
Supplier's Project Manager: the Supplier's manager for the Game Plan, appointed in accordance with condition 4.3.
Trader: a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
(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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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
(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.
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
(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.
(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).
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.
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.
(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.
(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.
(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.
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).
Please be aware that our services do not cover legal advice, and so although your website(s) may require the inclusion of policy terms (such as Business, Cookie, Privacy, Acceptable Use, and EULA) we do not provide these as a part of our service and independent legal advice should be sought.