1.1 In these conditions the following words shall, save where the context otherwise requires, have the following meanings:
Charges – means the charges as set out in the Contract;
Company – means Ambos Digital Ltd, company number 7900690, whose registered office is at 89 South Ferry Quay, Liverpool, L3 4EW;
Confidential Information - means all business, technical, financial or other information created or exchanged between the parties in the course of the Project including the existence of the Project;
Content - means all text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials featured, displayed or used or to be featured, displayed or used in or in relation to the Website;
Contract - the Terms of Engagement Letter from the Company to the Customer setting out the nature of the Services, the Specification and the Charges and which incorporates these terms and conditions;
Customer - means you, the person(s), firm, company or partnership with whom the Company enters into the Contract and for whom the Company has agreed to provide the Services in accordance with these conditions;
Document - includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
Customer Content - means the Content provided to the Company by the Customer for use in accordance with the Contract;
Intellectual Property Rights - means any and all patents, trade marks, rights in domain names, rights in designs, copyrights and database rights (whether registered or not and any applications to register or rights to apply for registration of any of the foregoing) rights in confidential information and all other intellectual property rights of a similar or corresponding character which may subsist now or in the future in any part of the world;
Milestones – the milestone dates referred to in the Contract;
Services – means the services to be provided by the Company under the Contract;
Specification - means the specification set out in the Contract;
Web Pages - means the pages of the Website containing the Content described in the Specification;
VAT – means value added tax chargeable under English law for the time being and any similar additional tax.
Website - means the website to be designed by the Company for the Customer; and
Website Design - means the graphical, technical and navigational design as described in the Specification.
1.2 In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these conditions headings will not affect the construction of these conditions.
2 APPLICATION OF TERMS
2.1 The Customer indicates acceptance of these terms and conditions by entering into the Contract with the Company.
2.2 Subject to any variation under condition 3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.3 No terms or conditions endorsed upon, delivered with or contained in documents supplied or delivered by the Customer will form part of the Contract simply as a result of such document being referred to in the Contract.
2.4 These conditions apply to all of the Services and any variation to these conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. Nothing in this condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.5 These conditions shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
3 SUPPLY OF SERVICES
3.1 In consideration of the payment by the Customer of the Charges the Company shall perform the Services from the date of the Contract.
3.2 The Company shall use reasonable endeavours to provide the Services to the Customer, in accordance in all material respects with the Contract.
3.3 The Company shall use reasonable endeavours to meet the Milestones specified in the Contract but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 The Customer shall:
3.4.1 co-operate with the Company in all matters relating to the Services; and
3.4.2 provide to the Company, in a timely manner, deliver the Customer Content to the Company in the agreed format, use reasonable efforts to ensure that it is correct and update it when required to do so pursuant to the Contract and other information as the Company may require and ensure that it is accurate in all material respects.
3.4 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
3.5 At each of the Milestones referred to in the Contract, the Customer shall indicate that it is satisfied with the Services performed to date by signing and returning the:
3.5.1 Approval of Proof Form; and
3.5.2 Design Sign Off Form.
3.6 The Customer may indicate in the Approval of Proof Form and the Design Sign Off Form that it wishes the Company to make changes to the Website, the Web Pages or the Website Design.
3.7 The Company shall use all reasonable endeavours to comply with any requests for variations made by the Customer pursuant to condition 3.6. If the Company gives written notice to the Customer agreeing to perform a variation upon the terms already agreed between the parties, the Contract shall be deemed automatically to have been amended so as to include the variation and thereafter the Company shall perform the Contract upon the basis of such amended terms.
3.8 Staff of the company are assigned to the Customer on the mutual understanding that neither party will offer employment to, nor employ, the staff of the other who have been involved during the assignment, or dealing with the Customer, within twelve months unless written consent has been obtained from either party. If such consent is given either party reserves the right to bill an appropriate fee of 24% of the annual salary on
4 SUPPLY OF SERVICES
4.1 In consideration of the provision of the Services by the Company, the Customer shall pay the Charges as set out in the Contract.
4.2 The Charges contained in the Contract exclude VAT, which the Company shall add to its invoice at the appropriate rate.
4.3 The Customer shall pay the Charges in instalments as detailed in the Contract. The first instalment shall be made on the date of the Contract and the remaining payments shall be made by direct debit to the Company’s bank account [NUMBER] on the dates set out in the Contract.
4.4 If the Customer fails to make a stage payment as agreed when it falls due, and has not remedied this breach within five working days, the stage payment facility will cease and the full balance will fall due for payment as debt immediately.
4.5 Time for payment shall be of the essence of the Contract.
4.6 All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.6 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
4.7 The Company may, without prejudice to any other rights it may have, set off any liability of the Customer to the Company against any liability of the Company to the Customer.
4.8 The Company may also invoice the customer for any additional services which the Company performs which fall outside the scope of the Services (the “Additional Services”). The Company shall calculate its charges for the Additional Services on an hourly basis in accordance with the number of hours spent performing the Additional Services at the Company’s charging rates in force from time to time. The Company shall charge on a time and materials basis for performing the Additional Services. The Company shall invoice the Customer separately for the Additional Services. The Customer shall pay the Company’s invoices for the Additional Services within 14 days by cheque or bank transfer to the Company’s bank account [NUMBER].
INTELLECTUAL PROPERTY RIGHTS
5.1 The Customer grants to the Company a royalty-free, world-wide, non-exclusive licence to use the Customer Content for the purposes of the Project.
5.2 The Company assigns all right, title and interest (including all intellectual property rights) in the Website Design and the Web Pages to the Customer with full title guarantee.
5.3 The Company assigns all right title and interest (including all intellectual property rights) in the parts of the Content designed by the Company in the course of the Project to the Customer with full title guarantee.
5.4 The Company shall at the request of the Customer from time to time do all things and execute all documents the Customer may reasonably require to give effect to the assignments in conditions 5.2 and 5.3.
5.5 Except as expressly set out in condition 5.1 the Contract does not transfer or grant to the Company any right, title or interest in any intellectual property rights in or to the Customer Content.
6.1 The Company hereby agrees:
6.1.1 all works created by the Company in the course of the Project will, unless otherwise stated in the Contract, be original work and not subject to any intellectual property or other rights of any third party;
6.1.2 the Customer’s use and operation of the Website Design, Web Pages or the Content delivered by the Company in accordance with the terms of the Contract shall not infringe the intellectual property rights of any third party; and
6.1.3 all services provided to the Customer by the Company shall be provided in a timely and orderly fashion by skilled and experienced personnel acting with all due care and skill and in accordance with professional standards current in the website design industry.
6.2 The Customer warrants and represents to the Company that, so far as the Customer is aware, the Company’s use of the Customer Content in accordance with the terms of the Contract will not infringe the Intellectual Property Rights of any third party.
6.3 Save as expressly set out in the Contract all representations, warranties, terms and conditions, whether oral or written, express or implied by law, custom, statute or otherwise and including but not limited to satisfactory quality or fitness for any particular purpose are excluded, save for the statutorily implied terms as to title.
7 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
7.1 The Customer agrees to indemnify the Company against any and all liability, loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Company or by a third party whether direct, indirect or consequential arising out of any dispute or contractual, tortious or other claims or proceedings brought by a third party alleging infringement of his intellectual property rights by the Website Design, the Web Pages or the Content as delivered by the Company provided that this indemnity shall not apply to any infringement of the third party’s intellectual property rights arising as a direct result of any negligence on the part of the Company.
8.1 During the term of the Contract, the following obligations shall apply to the party disclosing confidential information (the “Disclosing Party”) to the other party (the “Receiving Party”).
8.2 Subject to condition 8.3, the Receiving Party:
8.2.1 may not use any confidential information for any purpose other than the performance of his obligations under the Contract;
8.2.2 may not disclose any confidential information to any person except with the prior written consent of the Disclosing Party; and
8.2.3 shall make every effort to prevent the use or disclosure of the confidential information.
8.3 The obligations of confidence referred to in all provisions of this condition shall not apply to any confidential information that:
8.3.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to the receipt of such confidential information or other information by the said party;
8.3.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
8.3.3 is required to be disclosed by any applicable law or regulation;
8.3.4 is received in good faith by the recipient party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to the Contract in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
8.4 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this condition the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this condition in addition to any damages or other remedies to which he may be entitled.
8.5 The obligations of the parties under all provisions of this condition shall survive the expiry or the termination of the Contract for whatever reason.
9.1 The Company shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer, even if the loss is reasonably foreseeable or the Company has been advised of the possibility of the Customer incurring it.
9.2 This condition 9 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
9.2.1 any breach of the Contract;
9.2.2 any use made by the Customer of the Services or any part of them; and
9.2.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.4 Nothing in these Conditions limits or excludes the liability of the Company:
9.4.1 for death or personal injury resulting from negligence or;
9.4.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company; or
9.5 Subject to condition 9.3 and condition 9.4
9.5.1 the Company shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5.2 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, 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.
10.1 A party (the “Initiating Party”) may terminate the Contract with immediate effect by written notice to the other party (the “Breaching Party”) on or at any time after the occurrence of one or more of the events specified in condition 10.2.
10.2 The events are:
10.2.1 the Breaching Party committing a material breach of these conditions and failing to remedy the breach within 30 days starting on the day after receipt of notice from the Initiating Party giving details of the breach and requiring the Breaching Party to remedy it;
10.2.2 the Breaching Party passing a resolution for winding up, a court of competent jurisdiction making an order for the Breaching Party’s winding up or the presentation of a petition for the Breaching Party’s winding up that is not dismissed within seven days, in each case other than for the purposes of solvent amalgamation or reconstruction in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Breaching Party’s obligations under the Contract;
10.2.3 the making of an administration order in relation to the Breaching Party or the appointment of a receiver over, or an encumbrancer taking possession of or selling any asset of, the Breaching Party; or
10.2.4 the Breaching Party making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.
10.3 An act or omission by a person who controls, is under common control with, or is controlled by a party that would be a breach of the Contract on the party’s part if it were an act or omission of the party shall be deemed to be a breach of the Contract by the party.
10.4 Termination of the Contract for whatever reason shall not affect either:
10.4.1 the accrued rights and liabilities of the parties arising in any way out of the Contract as at the date of termination and in particular but without limitation the right to recover damages against the other, or
10.4.2 any provisions expressed to survive the Contract, which shall remain in full force and effect.
11 FORCE MAJEURE The Company shall have no 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 Company 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 subcontractors.
12 DATA PROTECTION
12.1 Unless indicated otherwise by the Customer, the Customer hereby agrees to allow the Company to collect and process data and information regarding the Customer’s use of the Services and to provide this to sub-contractors and/or companies affiliated with the Company for the purposes of marketing the Company’s services, or other related services, or for any other purpose connected with the Contract. In particular, but without limitation, if the Service is provided to the Customer following a third party referral, the Customer agrees that the Company may provide them with such reasonable information as they request regarding the installation of the Service and the Company’s provision of the same to the Customer. The Company will provide the Customer on request with details of all such information held by the Company, and will modify any information that the Customer advises is incorrect.
12.2 Subject to and in accordance with the relevant data protection legislation, the Customer hereby consents to allow the Company to collect data regarding the Company’s use of the Services and to provide such data to any governmental or regulatory body for the Company’s compliance with any applicable laws and regulations.
12.3 Each party shall for the duration of any Agreement governed by these Terms and Conditions comply with the provisions of the Data Protection Act 1998, (including the data protection principles set out in that Act) and any similar or analogous laws, regulatory requirements or codes of practice governing the use, storage or transmission of personal data and shall not permit anything to be done which might cause or otherwise result in a breach by either party of the same.
12.4 The Company possesses the right to communicate with the Customer regularly via, but not limited to, electronic means.
12.5 The Company may, from time to time, send the Customer information relating to the services of other companies that the Company feels may be of interest to the Customer. If the Customer does not want to receive such information, it is to inform the Company in writing.
12.6 The Company has the right to deny customer support to the Customer if the Customer fails to demonstrate to the Company representative upon receipt of a phone call or e-mail by the Company that they are indeed the Customer and therefore authorised to request that changes be made on the account. The Customer acknowledges that it may not always be possible for the Company to guarantee that breaches will not occur and therefore agrees to cooperate with the Company’s staff in its requests for Customer authentication.
13.1 The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Company requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.3 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
13.4 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
13.5 Nothing in this condition shall limit or exclude any liability for fraud.
13.6 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.7 The Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.8 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
13.9 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.10 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.11 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
13.12 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.
14.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post:
14.1.1 in case of communications to the Company to its registered office; or
14.1.2 in the case of the communications to the Customer to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Customer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on the day of delivery.
14.3 Communications addressed to the Company shall be marked for the attention of a director.
14.4 A notice required to be given under or in connection with these conditions shall not be validly served if sent by e-mail.