Terms and Conditions
1.1 In these terms and conditions, the following terms shall have the following meanings: “Project Order” means the written project order signed by the Customer setting out the principal terms of the Project. “Project” means all services to be provided by the Company to the Customer as described in the Project Order and the Specification. “Specification” means the written specification agreed between the parties describing the Project and either attached to these terms and conditions or otherwise agreed in writing by the Company. “Completion” means the date when the Project is completed as determined by clause 6 of these terms and conditions.
1.2 The terms: “Company”, “Customer” and “Price” shall have the meanings given to them in the Project Order.
1.3 References to “in writing” include communication by electronic mail.
1.4 References in these Terms & Conditions to costs on a “time and materials” basis means costs which are charged to the Customer on a time spent basis at the Company’s then current standard hourly rate and where materials are charged at their cost price to the Company.
2. Scope of the Project
2.1 The Company shall undertake the Project in accordance with the Specification and these Terms & Conditions, and using all reasonable care and skill.
2.2 The Company will conduct the Project in accordance with the information provided to the Company by the Customer. However, should it become clear to the Company that the scope of the Project needs extended or amended from that set out in the Specification, due to improper or incomplete information provided to the Company by the Customer (including the Customer’s employees, agents or contractors), a new Specification will be prepared which may result in an increased costing for the Project. This new Specification and costing will then be binding, unless the Customer chooses to terminate the Project by written notice, not less than 14 days after receipt of the new Specification and costing.
2.3 Although the Company shall endeavour to meet any reasonable time constraints required by a Customer, time shall not be of the essence in relation to the Completion or delivery of any stage of a Project. In this respect, it is noted that the Company will rely on the prompt payment by the Customer of any deposit, fees or disbursements, and the prompt delivery of all information, content and corrections.
2.4 Where a number of design options have been produced for the Customer, only the chosen designs are licenced for use by the Customer under the terms of these Terms & Conditions. All other designs shall remain the absolute property of the Company.
3. Changes to the Project
3.1 At any time prior to Completion, the Company may in writing recommend or the Customer may in writing request changes to any part of the Specification (a “Notice of Change”).
3.2 Following receipt of a Notice of Change, the Company will give a written estimate to the Customer showing the costs of the proposed changes, including where applicable any costs for investigating a proposed change and/or preparing an estimate for that change, whether or not the proposed change is subsequently implemented.
3.3 Should the Customer wish to proceed with proposed changes, or their investigation, it will instruct the Company in writing. The new Specification and any change to the Price will then replace the previous Specification and Price and become automatically binding on the Customer.
4. Customer’s Obligations
4.1 The Customer will provide the Company with such information as it may reasonably require concerning the Customer’s operations, which may be reasonably necessary for the Company to properly scope and complete the Project.
4.2 The Customer is responsible for ensuring that all information provided to the Company is accurate and complete and acknowledges that the Company shall not be liable for any delay or defect caused by or contributed to by any inaccurate or incomplete information.
4.3 The Customer agrees to permit the Company to make reference to the Customer as one of the Company’s clients and reproduce screen shots or other description of the Project on the Company’s website or in other marketing undertaken by the Company.
5. The Price
5.1 The Price of the Project is that amount set out in the Project Order, or such amended Price resulting from:
5.1.1 changes required in the Specification of the Project resulting from incomplete or inaccurate information provided by the Customer; or
5.1.2 changes to the scope of the Project requested by the Customer, following agreement to an initial Specification (including overtime or expedited performance of the Company’s obligations);
5.1.3 cost of materials required for and included within the Project, as set out in the Specification;
5.1.4 variation in the price of materials, labour or other costs between the date of the Project Order and the date of Completion;
5.1.5 travelling expense and any other out of pocket expenses incurred by the Company in performing the Project.
5.2 All prices estimated or quoted by the Company are exclusive of VAT payable at the then current rate, unless otherwise stated.
5.3 Where the Customer requests, and the Company agrees, to perform services relating to the Project which are not covered by the Specification or otherwise part of the Price, then those services will be chargeable on a time and materials basis.
6. Payment provisions
6.1 Upon the date of signing the Project Order, the Company shall invoice the Customer up to 50% of the Price. This invoice shall be paid within 7 days of presentation, and the Company shall be entitled to withhold commencement of the Project until it is paid.
6.2 Following Completion, the Company shall invoice the Customer for the balance of the Price, provided always that the Company may request interim payment of any amount of the balance, as it may determine, prior to Completion.
6.3 The Company may invoice the Customer for any disbursements and require payment from the Customer prior to such costs being incurred.
6.4 The Customer shall pay each of the Company’s invoices within 7 days of the date of invoice issue.
6.5 The Company reserves the right to charge the Customer interest, calculated daily, in respect of the late payment of any sum due under these terms and conditions at the rate of 4% above the base rate of Barclays Bank Plc from the date due until the date paid.
6.6 Notwithstanding the above, the Company has the right in respect of the late payment of any sum due under these Terms & Conditions to cease, as applicable, all work relating to the Project or the Ongoing Support, including any hosting. Where the Project involves production of a site on the world wide web, the Company shall be permitted to remove the site from the internet if an invoice remains unpaid after 60 days from date of issue.
7. Testing and Completion
7.1. The Company shall notify the Customer when the Project (or any stage of it) is ready for final testing (“Notice”). Upon receipt of the Notice the Customer shall be entitled, within 14 days of the Notice, to test the Project for performance in accordance with the terms of the Specification.
7.2. In the event of any defects being raised by the Customer during the testing period then the Company shall be allowed a reasonable time to remedy such defects and then issue another Notice.
7.3. The Project shall be deemed to be completed and accepted by the Customer upon the date that the Customer confirms in writing to the Company that it accepts the Project or 14 days after the Notice issued by the Company, whichever shall be the earlier.
7.4. The Company shall not be liable to the Customer for any problems or defects arising with the Project that should or could have reasonably been ascertained by the Customer carrying out reasonably comprehensive tests during the test period.
8. Ownership rights in the Project
8.1. Subject to complying with these Terms & Conditions, the Customer is granted a non-exclusive, royalty free license to make use for its own benefit and not for commercial resale or transfer to any third party, the Project.
8.2. The ownership of the copyright, design right and all other intellectual property and proprietary rights in all computer programs, source codes, documentation and other materials developed or provided by the Company in connection with the Project will remain vested in and otherwise become the property of the Company.
8.3. The Customer acknowledges that the Company may resell the functional, operational, technical or visual aspects of a Project to third parties without recourse or remuneration to the Customer.
8.4. In the event that new inventions, designs or processes evolve in performance of or as a result of the development of the Project, the same shall be the absolute property of the Company.
8.5. The Customer shall indemnify the Company against all liabilities, costs and expenses which the Company may incur as a result of any content, information or images provided by the Customer which infringe or allegedly infringe the copyright, patent rights or other proprietary rights of any third party.
9. Limitation and liability
9.1. The obligations of the Company expressly set out in these Terms & Conditions are to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to services or products provided in connection with the Project including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of the Project, or any part of it.
9.2. The Customer is responsible for the consequences of any use of the Project and its content. The Customer recognises that images requested by the Customer may be purchased or licensed from third parties at the Customer’s own cost and responsibility.
9.3. The Company will not be liable for any direct, indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, whether arising under contract, tort (including negligence) or otherwise including without limitation loss of production, errors in or loss of or corruption to data loss of profits or of contacts, loss of operation time and loss of goodwill or anticipated savings.
9.4. In any event, in connection with a claim in relation to the provision of a Project:
9.4.1 any claim must be submitted by the Customer within 7 days of receipt by the Customer of the Project or the specific the goods or services relating to the Project; and
9.4.2 the Company’s total liability (whether in contract, tort, including negligence, or otherwise) shall not exceed the Price.
9.5. The Customer warrants and undertakes that:
9.5.1 any information, specifications or materials given to the Company will not infringe any intellectual property or other rights of any third party and comply with the requirements of the Data Protection Act 1988 (as amended) and all other laws and regulations of any jurisdiction where it is intended to use the information or the Project or from where it may be accessed; and
9.5.2 it shall supply accurate replies, information and specifications in response to all the Company’s enquiries and requests in respect of the Project; and
9.5.3 it shall use the Project and any part of it only for legal and moral purposes and in accordance with the laws and regulations of any jurisdiction where it is intended to use the Project or from where it may be accessed, and not for resale to any third party without the written consent of the Company.
9.6 The Customer shall indemnify the Developer fully against all liabilities, costs and expenses which the Developer may incur as a result of any breach of clause 9.5 and in relation to any work done in accordance with the Customer’s instructions.
10.1. For the purposes of this clause 10 “Confidential Information” means all information (whether commercial, financial, technical or otherwise) relating to the disclosing party, its sub-contractors, its customers and suppliers, disclosed to or otherwise obtained by the recipient party under or in connection with the Project and which is designated as being confidential or which is by its nature is clearly confidential.
10.2. Each party undertakes in respect of Confidential Information of which it is the recipient to treat such information as confidential, not without the disclosing party’s prior written consent to communicate or disclose any part of such information to any person except only to those employees, agents, sub-contractors and other suppliers on a need to know basis who are directly involved in the Project.
11.1. The Customer acknowledges that the costs of the Project to the Company are not linear, in so far as a significant proportion of the Company’s time is expended in the initial phases of the Project, including significant time and expense expended by the Company in creating any preparatory work, pitch materials and project planning, all of which are included within the Price charged to the Customer.
11.2. The Customer can cancel the Project by notice in writing to the Company upon payment as follows:
11.2.1. if the Customer wishes to cancel the Project within the first week of the Project, the Customer shall pay 50% of the Price (or, in the event that such amount has already been paid to the Company, it shall be retained by the Company);
11.2.2. if the Customer cancels the project between the first week of the project and prior to Completion, the Customer shall pay to the Company a proportionate part of the Price, determined by the Company (in its discretion, acting reasonably) according to the time and material costs incurred by the Company in relation to the total work required to achieve Completion of the Project.
11.3. The Company may terminate this agreement if the Customer commits any breach of these Terms & Conditions and fails to remedy such breach (where capable of remedy) within thirty days after receiving written notice requiring it so to do, or if it becomes bankrupt, insolvent or suffers any action likely to lead to such event.
11.4. Termination of a Project will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed or implied to continue notwithstanding expiry or termination of a Project.
11.5. Electronic data may be erased from memory, and lithographic or other work effaced immediately following Completion, unless written arrangements are made to the contrary, whereupon a storage fee may be charged to the Customer. The Company shall be entitled to destroy any other materials supplied to it by or on behalf of the Customer upon the earlier of 12 months after they come into the Company’s possession or one month after written notice has been given by the Company to the Customer.
12. Force majeure
12.1 Neither party will be liable for any delay in performing or failure to perform any of its obligations in relation to the Project caused by events beyond its reasonable control.
13. Whole agreement and waiver
13.1. The Project Order, Specification and these Terms & Conditions and any Schedule(s) attached hereto (or otherwise in writing provided by the Company to the Customer from the date of Project Order) shall together constitute the complete and exclusive statement of the contract between the parties relating to the Project and shall supersede all previous communications or representations.
13.2. Except as otherwise permitted by these Terms & Conditions, no change to them will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
13.3. A waiver by either party of a breach or default of any of the provisions of these Terms & Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.
13.4. These Terms & Conditions are agreed between the parties to be reasonable but if any clause or part thereof of these Terms & Conditions shall become or shall be declared by any court of competent jurisdiction to be invalid or Gain Momentum Marketing Ltd Registered Office: 1 North Road, Hoddesdon, Hertfordshire EN11 8JF Company Reg. No. 08175106 VAT Reg. No. 236067413 unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other clause or part thereof all of which shall remain in full force and effect.
14. Governing law
14.1. These Terms & Conditions will be construed in accordance with and governed by the law of England and each party agrees to submit to the exclusive jurisdiction of the courts of England.