This Agreement sets out the standard terms and conditions of contract in relation to the provision of Website and/or other design services and/or software and/or Website hosting as specified in our agreed schedule. It applies in place of any earlier agreement or understanding and supersedes prior correspondence. 1.
Definitions
1.1
In this Agreement the following words shall have the following meanings set against them below:
“Agreement”
means this Agreement including any Schedules attached
“Browser”
means a computer software application enabling a website’s pages to be viewed;
“CGI”
means Common Gateway Interface;
“Database”
means a software format for storing data, in this instance the content used in the Services and Supplies;
“Email”
means Electronic mail - messages, usually text, sent from one person to another via computer;
“Email”
means Electronic mail - messages, usually text, sent from one person to another via computer;
“Force Majeure”
means any cause affecting the performance of this Agreement arising from or attributable to acts, events,
omissions or accidents beyond the reasonable control of the party to perform and without limiting the generality there of shall include
the following:
a) strikes, lock-outs or other industrial action; b) civil commotion, riot, invasion, war threat or preparation for war; c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster; d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; e) the downtime of a telecommunications network; f) political interference with the normal operations of any party ; “GUI”
means Graphical User Interface;
“Hosting”
means storage of Website files on the server;
“HTML”
means Hyper text markup Language;
“Internet”
means the global network of interconnected government, commercial and academic computer systems, accessed via Nodes run by ISPs;
“ISP”
means Internet Service Provider;
“LAN”
means Local Area Network - a distributed data processing Network spanning a single site or group of co-located users and not using public telecommunication Networks;
“Network”
means generally a set of entities connected by links. In the context of computers a set of computing systems connected by data communications links via which they communicate and co-operate;
“Schedule of Works”
means a procedural plan that indicates the time and sequence of events associated with the execution of a project;
“Server”
means a computer that serves files to other computers connected to it by LANs or WANs;
“Services”
means the development of a Website including design, programming and hosting;
“Supplies”
means all data, information, programs and other materials of software which N42 provide to the Client, but does not include material which N42 obtained from the Client;
“WAN”
means Wide Area Network - a distributed data processing Network spanning multiple sites;
“Webpage”
means a constituent page of a Website that consists of text, graphics, video, sound and any other media;
“WWW”
means a Server which delivers Webpages to a computer;
1.2
Reference in this Agreement to any statute, licence or other regulation includes a reference to that statute, licence or
other regulation as re-enacted or amended from time to time.
1.3
Where the context so admits, words denoting the masculine gender shall include the feminine or the neuter and vice versa and words denoting the singular shall include
the plural and vice versa.
1.4
The clause headings are for the purpose of reference only and do not form part of this Agreement, nor do they affect the validity or enforceability of
this Agreement.
2.
Services
2.1
The Services N42 shall provide to the Client, the agreed time scales and the prices to be paid for such Services are set out on the
Schedule. - See also section 3 - 'Payment Terms and Other Charges'
2.2
Where alterations to the Services to be provided are proposed by the Client or N42 during the course of the work, these changes shall be
agreed by both parties in writing before the work proceeds and any necessary changes to the completion date agreed. - See also section 4
- 'Changes in Scope / Variation Orders'
2.3
N42 undertakes to use reasonable endeavours to abide by dates agreed for delivery of Services to the Client.
2.4
N42 will not be responsible for any delay or failure to deliver Services under this Agreement caused by circumstances beyond its control,
such as acts of God, fire, strikes, failure of subcontractors or suppliers to provide material or services required. Where such delay
occurs N42's obligations under this Agreement shall be suspended for the period of such delay
2.5
The Client undertakes to use reasonable endeavours to supply material requested by N42 and required for N42 to perform its work under this Agreement,
by the date stipulated in section '4.' of the Schedule. N42 will not be liable for losses incurred by the Client, where failure to complete the work
by the agreed date is caused by the Client's delay.
3.
Payment Terms and other charges
3.1
Unless otherwise agreed in writing, payment to N42 for the work undertaken under this Agreement, is due in accordance with N42's normal payment
terms - see also section '7.' of the Schedule. All fees are payable as per the terms of the invoice plus value added tax at prevailing rates.
3.2
Payment to N42 will become due at the following stages of implementation:
i) 50% of total cost, payable as a non-refundable deposit and in advance of any work commencing. ii) 25% of total cost, payable on sign-off of design. iii) Final payment of 25% of total cost, payable on completion. 3.3
No Website will be placed on N42's Webserver, nor will a digital copy of the site be provided, until N42 have received the final payment.
Access to work in progress will be granted during development of the Website, however ownership of any hyper text markup language (HTML)
and graphical user interface (GUI), produced for or acquired on behalf of the Client will pass to the Client to use on the Web only once
N42 has been paid in full for all Services supplied.
3.4
N42 allow for normal day to day expenses within the prices/fees set out on the Schedule. However N42 reserve the right to charge for
reasonable out of pocket expenses, including, without limit, travel expenses to the Client's premises, where visits are necessary,
purchase of consumables, telephone charges, print-outs, couriers and any additional expenses incurred in meeting unforeseen Client
demands during the completion of the work. It is N42's policy to keep the Client informed should any substantial expenses need to
be incurred.
4.
Changes in Scope / Variation Orders
4.1
Significant requests for changes by the Client to the Content agreed upon in section '3.' of the Schedule, will trigger additional
charges based on N42's current rates. N42 cannot guarantee, in such cases, completion of the work in the Client's preferred timeframe
4.2
N42 reserve the right to raise a charge to recover costs incurred by failure on behalf of the Client, to deliver Content in an agreed,
readily intelligible format, thereby preventing N42 from placing text and images in relevant pages, as per an agreed site map, so as to
begin the authoring process. N42 cannot guarantee, once such delay has taken place, completion of the work in the Client's preferred
timeframe.
4.3
N42 also reserve the right to charge additional production costs to complete work where the Client has significantly delayed Content delivery.
This is to cover N42's higher production costs, i.e overtime payments to staff. N42 cannot guarantee, once such delay has taken place,
completion of the work in the Client's preferred timeframe.
5.
Cancellation Charges
5.1
Cancellation by the Client must be made in writing and is brought into effect by N42's receipt of such written notice. N42 reserve the right
to make a cancellation charge of 10% of the work scheduled but not yet completed, in addition to the non-refundable deposit.
5.2
In addition, N42 reserve the right to invoice the value of the work already completed by N42, regardless of the reason for cancellation.
Any software licenses purchased by N42 on behalf of the Client and as yet not invoiced and unpaid for by the Client, are responsibility
of the Client and liability for payment will pass to the Client.
6.
Intellectual Property Rights
6.1
N42 warrant that to the best of its knowledge and belief the Supplies are original to N42, however N42 cannot be, and are not, responsible
for compliance of the Supplies with laws of all jurisdictions of the world to which users of any relevant Website have access. It is the
Client's responsibility to satisfy itself of such compliance
6.2
Ownership of any hyper text markup language (HTML) programming code and graphical user interface (GUI) , produced for or acquired on behalf
of the Client will pass to the Client to use on the Web and will become the property of the Client, only once N42 has been paid in full for
all Services supplied.
6.3
Common gateway interface (CGI) programming, server side programming and any custom scripts will remain the sole property of N42
6.4
N42 grant the Client a licence to use N42's code referred to in 6.3 for the duration of this Agreement.
6.5
Notwithstanding 6.3, documents, designs, services and materials supplied by N42 may only be used in the form for the purpose defined - Web publishing.
Should the Client wish to make further or different use of such documents, designs, services or materials other than that which has been agreed (i.e.
on a CD Rom), the Client must first contact N42 and agree the cost due for such additional use. N42 reserves the right to insist on 'N42 copyright' being
communicated/'signatured' in such circumstances.
6.6
N42 asserts its moral rights in the Supplies and the Client confirms that it shall not alter, reuse or otherwise exploit or jeopardise the artistic
integrity of the Supplies without N42's prior written consent.
6.7
The Client shall ensure that any copyright notice of N42 shall not be removed or obscured on the Supplies.
6.8
Where the Client is licensed with computer software, under this Agreement such licence shall be of object code version of the software only and
the Client shall not reverse engineer or decompile such software save as permitted under EU directive 91/250.
6.9
Intellectual property rights in any authorised improvements to the Supplies made by the Client shall be licensed on an exclusive basis to N42,
where such improvements are non-severable from the Supplies and on a non-exclusive basis for severable improvements. The Client will keep N42
informed of such improvements.
6.10
Where N42 supply Supplies to the Client on removable media , N42 retain ownership of this removable media and all data and programmes held on it.
No hire of the removable media shall occur.
6.11
The termination of this Agreement shall not affect the provisions of this clause which shall continue thereafter.
7.
Acceptance of Services and Supplies
7.1
The Client will confirm acceptance of the Services and Supplies, in writing, within 14 days of completion.
7.2
Where the Client does not confirm in writing acceptance of the Services and Supplies within 14 days of delivery to the Client, the Services and
Supplies are deemed accepted by the Client at the earlier of either the expiry of such 14 day period or the Client's first live use. Where the
Services and Supplies are rejected by the Client, whether in whole or in part, N42 shall endeavour to correct the Services and Supplies to
ensure compliance with this Agreement.
8.
Website Hosting
8.1
N42 will not publish the Client site until payment has been made for Website hosting at the rate specified in the Schedule.
8.2
N42 reserve the right to review hosting fees, on the anniversary of the publication of the Website and shall notify the
Client in writing of any increase or decrease in such fees and such increase or decrease shall take effect from the date
specified in such notification.
8.3
Hosting charges will be payable for the minimum period of 12 months, not withstanding any earlier termination of this contract. The Client,
if renting Web server space, can choose to notify N42 of their intent to terminate giving 3 months written notice.
8.4
N42 cannot guarantee uninterrupted hosting of client Websites due to the need for essential network maintenance/powerouts. N42 will
endeavour to keep such 'downtime' to a minimum but guarantee at least 99.5% availability.
8.5
The scheduled maintenance period is from 4am to 7am on a Tuesday, when any maintenance work is required it will be scheduled, where possible,
in this period, although in many cases the maintenance is completed without affecting service
8.6
If N42 fails to meet the above guaranteed performance target as set out in 8.4 during any calendar month, the Client will be refunded,
on request in writing, an amount equal to their hosting fee for that calendar month.Any down-time that the site is unavailable due to
essential maintenance is included in the availability calculations above. The times are all calculated on a calendar month.
8.7
N42 reserves the right to suspend Service if at any time the Client fails to make payment of any agreed costs until such a time as
outstanding payment is made.
9.
Warranties
9.1
N42 confirm that to the best of their knowledge and belief at the date of supply that the Supplies is not obscene,
blasphemous or defamatory and does not infringe any English law or regulation and does not adversely reflect on the Client's public
perception or image.
9.2
The Client agrees that to the best of its knowledge and belief any material provided by the Client for the Website or other work to be
undertaken by N42 under this Agreement is not obscene, blasphemous or defamatory and does not infringe any English law or regulation and
does not adversely reflect on N42's public perception or image.
10.
Indemnity and Limitation of Liability
10.1
The Client agrees that it shall indemnify N42 against all claims, demands, losses, damage, costs or expenses incurred by N42 as a result of
breach by the Client of any provision of this Agreement, law or regulation and as a result of any third party legal action or threatened
action in relation to material which the Client has supplied to N42 or incorporated with the Supplies or through N42's involvement with the
Client under this Agreement. The Client shall be responsible for ensuring all registrations and formalities are complied with in relation to
any Website N42 prepare for the Client, including without limitation, registration of trade marks and under data protection laws.
10.2
Save as provided above, the Client agrees N42's liability for breach of this Agreement or any other liability of N42 to the Client shall be
limited to the annual total value of the contract and that all implied terms, conditions or other legal provisions are hereby excluded; save
that neither party shall exclude or limit its liability to the other for death or personal injury caused by negligence. N42 agrees that the
exclusion and limitation of liability in this clause is reasonable, reflects the respective financial positions of the parties and that the
price agreed reflects the position on liability. In no event shall N42 be liable to the Client for indirect, financial, consequential loss,
loss of profit, revenue or goodwill.
10.3
The termination of this Agreement shall not affect the provisions of this clause which shall continue thereafter.
11.
Force Majeure
11.1
No failure or omission by either party to carry out or observe any of the stipulations, conditions or obligations to be performed thereunder
shall except as herein expressly agreed to the contrary, give rise to any claim against such party or be deemed to be a breach of contract
if such failure or omission arises from a cause reasonably beyond the control of such party.
11.2
If the force majeure lasts 30 days or more the parties hereto shall consult and agree upon a course of action, which may include termination
of all or part of this Agreement
12.
Confidential Information
12.1
Any information about N42 or the Client or about N42's products or the Client's products or financial or business information shall be treated as
confidential, used only for the purpose of performance of obligations under this Agreement and not disclosed save as permitted under this Agreement,
without limit as to time. Provided that information in the public domain, otherwise than through the default of the other party shall not be deemed
confidential under this clause.
12.2
The Client furthermore agrees to keep all information provided by N42 in relation to N42's business confidential during the continuance of this
Agreement and for a period of 12 months from the date of termination.
12.3
The termination of this Agreement will not affect this clause.
12.4
N42 shall be entitled to make reference to the relationship with the Client in it's publicity material.
12.5
Where the Client has signed a confidentiality agreement with N42, this shall continue without limit as to time in addition to the
provisions in this clause.
13.
Termination
13.1
This Agreement shall continue until either performance of the work contracted for set out in the Schedule, or where an on-going work
commitment is signed may be terminated on 3 months' notice from either party to the other given at any time to expire on the anniversary
of signature of this Agreement or any subsequent anniversary of such date save as provided below.
13.2
Where one party is in breach of this Agreement the other may serve written notice to terminate the Agreement forthwith, save that where
the breach can be remedied 30 days notice to remedy shall first be given and where remedied such termination will not take effect.
13.3
Either party may terminate this Agreement forthwith by written notice where the other goes into liquidation or is declared bankrupt
or otherwise is unable to pay its debts as they fall due.
13.4
On termination by the Client for breach or bankruptcy, N42 shall send to the Client, in accordance with the Client's reasonable directions,
any Supplies relating to the Website (where relevant) then in N42's possession or control and the licence to use the Supplies shall continue
without limit as to time. On termination by N42 or by the Client on 3 months' notice as provided above, all the Client's rights to use the
Supplies shall cease and the Client shall retain no copies thereof.
14.
General
14.1
No variation of this Agreement will be valid unless agreed in writing by both parties.
14.2
The Client may not assign this Agreement without N42's prior written consent.
14.3
This Agreement sets out the entire agreement between the Client and N42 save for any confidentiality agreement between the parties
or other documents referred to in the Schedule.
14.4
All representations, warranties or other assurances made by or on behalf of N42 to the Client other than as set out in this
Agreement do not form part of this Agreement nor shall they be legally enforceable or actionable.
14.5
If any provision of this Agreement is found to be invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions of this Agreement. all of which shall remain in full force and effect.
14.6
No forbearance or delay by N42 in enforcing rights under this Agreement will prejudice or restrict rights and no waiver
of any breach of such rights or waiver of the rights will be deemed to be a waiver of any other right or of any later breach.
14.7
Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture or the relationship
of partnership and agent or employer and employee.
14.8
All notices shall be in writing and sent to the address of the recipient set out in the Schedule. or such other address
as the recipient may designate by notice given in accordance with this provision. Any notice may be delivered personally
by first class prepaid letter or facsimile transmission (confirmed by first class post) and shall be deemed to have been
served if by personal delivery when delivered, if by first class post 48 hours after posting and if by facsimile transmission
when dispatched (with successful transmission report).
14.9
This Agreement shall be governed by English law and both parties submit to the non-exclusive jurisdiction of the English
courts in relation to any dispute under this Agreement.
Netro42 Limited. Registered in England and Wales No. 03104226, VAT Reg. No. 681505338
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