These terms and Conditions shall govern every Order and shall form part of the Contract between ourselves. The headings in these terms and Conditions are for convenience only and do not form part of the contract.
"the Parties" shall mean yourselves and ourselves together
"the Product" shall mean the product that we have agreed to develop for you
"the Specifications" shall mean the agreed Specifications for the Product
"the Final Version" shall mean the final version of the Product prepared in accordance with the Specifications and ready for installation on the Internet
"the Equipment" shall mean the equipment specified in the Specifications
"the Fee" shall mean the agreed fee for the work
"Bug" shall mean any fault, error or malfunction in software which materially affects the operation of that software when used on the Equipment
"Virus" shall mean a self replicating computer program which is designed to cause or which is likely to cause damage to the user's files and / or annoyance to the user
"Assets" shall mean source materials that are proposed to be incorporated into the Product at any time during its development which are provided by you to us
"Intellectual Property" shall mean Copyright, Design Right, Registered Designs, Trademarks, Patents and Confidential Information, Ideas and Moral Rights and all other rights whatsoever of a like nature world wide whether those rights are registered or not.
The development of the Product shall take place as follows:
2.1 Design Phase
2.1.1 During this phase, we shall design and program a prototype ("the Prototype") of the Product in accordance with the Specifications on the date that we have agreed
2.1.2 Upon delivery of the Prototype we shall agree in writing any changes required to the Prototype and we shall inform you of the date of delivery of the Final Version.
2.2 Final Phase
2.2.1 During this Phase, we shall design, program and deliver the Final Version onthe date agreed at paragraph 2.1.2
2.2.2 We reserve the right to charge further fees in addition to the Fee for amendments requested by you under Clause 2.2.1 to the Prototype which go beyond the Specification ("the AdditionalFees"). Additional Fees will not be charged without prior written notice.
You agree that you will:
3.1. provide us on request with the Assets in the format that we request to enable us to carry out our obligations under this Agreement;
3.2. cooperate with us in the development and production of the Product
4.1. You agree to pay us the following sums:
4.1.1 The percentage of the Fee which is set out in the order form to which these conditionsare attached on signature of this Agreement.
4.1.2 The balance of the Fee together with any Additional Fees in accordance with Clause 2.2.2 on delivery of the Final Version which payment shall be due within 30 days of the date of our invoice to you.
4.2. In addition to making the payments described in Clause 4.1, you agree to reimburse our reasonable expenses incurred:
4.2.1 in sending urgent documents and materials to you by Courier in connection with this Agreement;
4.2.2 in visiting sites outside London (including reasonable subsistence and overnight accommodation costs) where it is necessary to do so for the purposes of carrying out our obligations under this Agreement;
4.2.3 in purchasing DAT tapes, floppy discs and CD - ROM blanks or other magnetic and / or optical media, in the rental of a server or registration of your domain name for the purposes of this Agreement.
which costs shall be paid within 14 days of receipt of our invoice.
4.3. All sums quoted and payable under this Agreement are exclusive of VAT which will be added where appropriate
4.4 Any overdue payment is subject to interest at the rate applicable to High Court judgment debts from time to time and you will also be liable to reimburse us on an indemnity basis in respect of all legal costs and disbursements incurred (whether or not proceedings have commenced) in connection with recovery. Failure to raise an invoice in respect of interest shall not be deemed to constitute a waiver of our rights to recover interest.
5.1 All Intellectual Property Rights of whatever nature in material devised by us including in all software code written by us and ouremployees will vest in and belong to us. You will do anything which we may reasonably require in order effectively to vest such rights in us or to evidence the same.
5.2 We hereby grant a non exclusive royalty free license to you to use the Intellectual Property for the purposes of this agreement throughout the world which license shall take effect on receipt by us of all payments due under this Agreement.
5.3 You hereby grant to us a non exclusive royalty free license to use the Assets for the purposes of this Agreement.
5.4 You hereby warrant that you have obtained all necessary rights, permissions and licenses for the use of the Assets supplied to us and you hereby agree to indemnify us fully and defend at your own expense us against all costs and losses whatsoever incurred by us our employees servants or agents as a result of any claim made against us or any of them for infringement of any Intellectual Property Rights in the Assets.
5.5 In addition and without prejudice to Clause 5.4 you hereby warrant that all material that you supply to us is free of all defamatory matter or other legal restriction and that you shall fully indemnify and defendat your own expense us against all costs and losses whatsoever incurred by us our employees servants or agents as a result of any claim made against us or any of them in any jurisdiction in the world as a direct or indirect result of the breach of this clause.
5.6 We undertake to each other that we will keep secret and confidential the terms of this Agreement and any information regarding either of us in connection with this Agreement or in connection with the business of either of us and in connection with the Product ("the Information") and shall only disclose the Information or any part thereof (except to our own employees and then only on a need to know basis) with the other's prior written consent PROVIDED THAT this Clause shall not extend to information which was rightfully in either of our possession priorto the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this clause).
5.7 We shall be credited on the Product as its designer and developer in such a manner as we will agree.
We reserve the right to use the Product for the purposes of our own advertising
On receipt of the Final Version, you agree to arrange for the collection of all Assets. If these are not collected within 1 month of delivery of the Final Version, we reserve the right to destroy them
You undertake that you will not during the period commencing on the date of this Agreement and terminating 12 months from the date of the delivery of the Final Version, entice, solicit or engage any person who was an employee or a consultant or otherwise engaged by us during such period and who had dealings with you and whilst we both consider this restriction to be reasonable we agree that if a court of competent jurisdiction considers that the restriction is invalid but would have been valid if either the period or its scope were reduced then the restriction shall continue to apply but with such restriction or restrictions necessary to enable its validity
9.1 If at any stage you decide not to proceed further with the production of the Product you shall in any event be liable to pay us 100% of the Fee together with all sums due under this Agreement
9.2 Our liability for any loss or damage consequential or otherwise and howsoever caused whether in tort (to include without limitation for negligence) or contract or otherwise shall not exceed the amount invoiced by us to you in respect of the Agreement.
9.3 When instructions or advice are received orally by us, we shall have no liability to you for any misunderstanding or misrepresentation which may arise in relation thereto whether on your part or on our part.
9.4 If, on your instructions, this Agreement (or any other document relating thereto) is signed by or an invoice is submitted to any person, firm or company who is expressly held out as your agent, then you shall be treated for all purposes as the contracting party.
9.5 All software created by us will be checked for Viruses using state of the art software and we accept no responsibility for and bear no liability for any Virus discovered subsequent to delivery of the Final Version.
9.6 We recommend that all software created by us is checked for Bugs and we will do this provided that this is specifically agreed with us in the Specification but accepts no responsibility for any Bug discovered after delivery of the Final Version.
9.7 If either of us is effected by any circumstances beyond our reasonable control (including but without limitation any strike, lockout or other form of industrial action ("Force Majeure") that party shall forthwith notify the other of the nature and extent thereof. Neither of us shall be liable to the other for delay in performance, or non - performance of any of either party's obligations under this Agreement when due to any Force Majeure of which that party has notified the other and the time for performance of that obligation shall be extended accordingly.
Neither of us shall assign the benefit or burden of this Agreement without the prior written consent of the other Party.
11.1 This Agreement constitutes the whole and only agreement between us and supersedes and extinguishes any other agreement whether written or oral.
11.2 If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that shall not affect the legality or validity or enforceabilityof any other provision of this Agreement.
11.3 No forbearance, delay or indulgence by either of us in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
11.4 The UK shall be the place of first publication of any material on the Internet.
11.5 This Agreement shall be governed by and construed In accordance with English law and the parties submit to the non exclusive Jurisdiction of the English Courts.