- In these Terms, certain words and phrases have defined meanings:
|Word or phrase||Meaning|
|Agreement||Those documents stated in the Signature Form as making up this agreement;|
|Client||The party identified as the client on the Signature Form.|
|DPA||Data Protection Act 1998;|
|Confidential Information||Trade secrets, know-how, affairs and business and other confidential information of either party. For the avoidance of doubt the software provided as part of the Website is RA’s confidential information;|
|Force Majeure||An event or events beyond the reasonable control of the party affected by such event or events;|
|Initial Period||1 Year;|
|Intellectual Property Rights||Copyright, database right, patents, registered and unregistered design rights, registered and unregistered trade marks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for any of these;|
|Interest Rate||3% above Natwest Bank’s base rate per annum;|
|RA||R.A. Photography Limited (a company registered in England, no. 1940817) trading as RA Creative Solutions unless the context indicates both parties or one party or the other;|
|Project Details Form||The document called “Project Details Form”;|
|Services||The services provided by RA to the Client under this Agreement, as described in the Project Details Form;|
|Signature Form||The document called “Signature Form”;|
|Specification||As described or identified in the Project Details Form;|
|Specific Terms||The applicable additional terms (if any) set out in the documents identified as “Specific Terms” in the Signature Form;|
|Start Date||As set out in the Schedule;|
|Terms||These Terms & Conditions;|
|Website||The website described in the Project Details Form and Specification, including the software supporting that Website and any photographs taken by RA and any graphics produced by RA to go on the website;|
|Year||A twelve calendar-month period from the Start Date and subsequent anniversaries of the Start Date;|
Interpreting this agreement
- In this Agreement:
- References to clauses are to the clauses of this Agreement;
- References to paragraphs are to the paragraphs of this Agreement;
- Headings are for ease of reference only;
- References to any gender includes any other gender and the singular includes the plural and vice versa;
- Wherever the words “including”, “include”, or “includes” or are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires;
- If there is any conflict between these Terms and any Specific Terms, these Terms shall prevail.
- All rights and remedies referred to in this Agreement are cumulative and not to the exclusion of other rights and remedies, unless expressly stated otherwise.
What forms the agreement
- This Agreement sets out all the terms agreed between the parties about the subject matter of this Agreement. It takes the place of all previous negotiations, understandings and representations.
The parties depend upon each other
- Each party shall comply with its respective obligations under this Agreement.
- If either party fails to do something that it ought to do under this Agreement (“Defaulting Party”) and that directly causes the other party to fail to do something that it ought to do under this Agreement then the Defaulting Party will not treat the other party’s failure as a breach of contract in those circumstances.
- RA shall use reasonable skill and care in providing the Services.
- Where Services are to be provided in instalments, each instalment shall constitute a separate contract, and failure by the Company to deliver any one or more instalments in accordance with these Terms, or any claim by the Client in respect of any one or more instalments, shall not entitle the Client to treat the Agreement as a whole as repudiated.
- RA warrants that it has in place all licences and consents necessary to provide the Services in accordance with the terms of this Agreement.
The Client’s obligations
- Whilst this Agreement is in force, the Client shall:
- Comply with RA’s reasonable instructions, guidelines and directions about the use of the Services, and;
- Where the Services involve RA entering the Client’s premises, allow RA to access the premises and use any space and facilities that RA reasonably requests; ensure that the premises are safe and ready for RA to use.
- Each party shall, for the Confidential Information for which it is the recipient:
- Keep the Confidential Information strictly confidential and not disclose any part of it to any person except as permitted by or as required for the performance of the its obligations under this Agreement;
- Take all reasonable steps to prevent unauthorised access to the Confidential Information;
- Not use the Confidential Information other than for the purposes set out in this Agreement.
- Each party may disclose the Confidential Information to, and allow its use in accordance with this Agreement by the following (as long as the conditions in 7.3 are met):
- Employees and officers of the recipient who require it for the recipient to perform its obligations under this Agreement;
- The recipient’s auditors and professional advisors solely for the purposes of providing professional advice.
- As a condition of the rights set out in clause 7.2 the party wishing to exercise the rights must:
- Ensure that any party to whom it discloses Confidential Information is under an obligation of confidentiality about such Confidential Information; and
- Procure that such persons observe the restrictions in this clause 7.
- With the exception of the Services and the Software, the restrictions in clause 7.1 do not apply to any information to the extent that it:
- Is or comes within the public domain other than through a breach of clause 7.1; or
- Is in the recipient’s possession (with full right to disclose) other than through a breach of clause 7.1; or
- Is lawfully received from a third party (with full right to disclose); or
- Is independently developed by the recipient without access to or use of the Confidential Information.
Intellectual property rights
- RA, or its licensors, own all Intellectual Property Rights in the Website. The Client shall not acquire any Intellectual Property Rights in the Website.
- RA shall indemnify the Client against any and all losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the Client (including legal expenses reasonably and properly incurred) arising out of any claim brought against the Client by any third party alleging that its Intellectual Property Rights are infringed by the use by the Client of the Website. This indemnity shall not apply in the situations identified in clauses 8.3.1 to 8.3.3.
- The Client shall indemnify RA against any and all losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by RA (including legal expenses reasonably and properly incurred) arising out of any claim brought against RA by any third party alleging that its Intellectual Property Rights are infringed by the Website, to the extent that such a claim arises out of:
- The Client’s modification of the Website;
- Use of the Website in combination with third party software or services (except such software or services as are specifically listed in this Agreement);
- Use of the Website contrary to the terms of the licence set out in the Website Design Specific Terms;
- Materials provided by the Client for use on the Website.
- Each party shall comply with its respective obligations under the DPA including:
- Implementing appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of personal data;
- Notifying the Office of the Information Commissioner of its processing of personal data.
- The parties agree that RA shall be the data processor and the Client shall be the data controller (for the purposes of the DPA) of customer data processed using the Website’s payment system.
- The Client agrees that it shall be responsible for putting in place appropriate contracts with customers purchasing goods on the Website. Such contracts shall include consents to the processing of personal data collected using the payment system.
Limits on liability
- RA’s liability to the Client for any claim for breach of contract, negligence, breach of statutory duty or under any indemnity or otherwise shall be limited as follows:
- For any claim for personal injury or death caused by the Client’s negligence, no limit shall apply;
- For the Hosting Services and Backup Services set out in the Hosting & Support Services, liability shall be limited to the total fees payable in this Agreement for Hosting Services and Backup Services in the 3 months before the claim arose;
- For any other claim, liability shall be limited to the total fees payable under this Agreement in the 12 months before the claim arose.
- RA shall not be liable for the following types of loss, whether direct, indirect or consequential, and even if RA was notified that the Client would incur any of these losses:
- Financial loss, including loss of profits, earnings, business or goodwill; business interruption;
- Expected or incidental losses; loss of sales; loss of or damage to data or software; reduction in the value of an asset;
- Any claim against the Client by a third party except where clause 8.2′
- For the Hosting Services only, any error or defect in the performance non-performance or delayed performance by RA of the Hosting Services.
- RA shall not be liable for indirect or consequential losses of any kind.
Payments and invoicing
- The Client shall pay the fees set out in the Schedule and in accordance with any payment timetable set out in the Schedule. All the prices and charges that RA quotes are exclusive of VAT and RA shall charge this in addition where it applies. The fees are exclusive of expenses unless the Schedule states otherwise.
- The Client will pay all of RA’s invoices in cleared funds within the payment period set out in the invoice, or if no payment period is set out within 30 days of the date of the invoice.
- If the Client does not pay any sum by its due date, RA shall be entitled to charge interest on the overdue amount at the Interest Rate from the due date up to the date of actual payment (whether before or after any court judgement). In addition, whilst any invoice remains overdue RA may suspend the Services until the Client pays such invoices. Where part of an invoice is subject to a bona fide dispute, the right to charge interest shall not apply to that part, and the right to suspend the Services shall not apply at all.
- RA shall be entitled to increase its fees once in each Year. However, RA shall limit any such increase to a percentage not greater than the percentage increase in the Retail Prices Index published by the Central Statistical Office in the preceding year.
- Neither party shall be liable to the other for any delay or failure in the performance of RA’s contractual obligations caused by Force Majeure. However, for either party to rely on this clause, it must promptly notify the other of the circumstances of the Force Majeure.
- If Force Majeure persists for 28 days or more, the party not claiming Force Majeure may give notice to the other to terminate this Agreement with effect from a date specified in the notice without penalty or other liability (except for any liability on the Client’s part to pay RA’s invoices and for work carried out but not invoiced at the date of termination).
- If either party fails to exercise a right or remedy that it has or which arises under this Agreement, such failure shall not prevent RA from exercising that right or remedy subsequently for that or any other incident.
- A waiver of any breach or provision of this Agreement shall only be effective if made in writing.
- Any notice (except for the service of court proceedings) shall be in writing and shall be delivered personally or sent by special delivery post or fax to the addresses of each party.
- Both parties addresses are on the Signature Form. If either party wants to change its address, it shall notify the other of the change in accordance with clause 15.1.
- Both parties consider that notice has been given:
- If delivered personally, upon delivery;
- If sent by post, two clear days after the date of posting;
- If sent by fax, when transmitted provided that the sender sends a copy by special delivery on the same day or the next working day.
- Any notification of change of details for the purposes of this clause 15 shall only be effective seven days after notice is given.
- The Client’s address for service must be within the UK.
- The Client shall not, for the duration of this Agreement, and for 6 months afterwards, directly or indirectly induce or attempt to induce any of RA’s employees that have been involved in this Agreement to leave its employment.
Dispute resolution procedure
- The parties agree that they shall deal with any disputes about this Agreement as follows:
- The issue in dispute shall be referred to the contact of each party (as indicated on the Signature Form) for discussion;
- If the dispute is not resolved, the managing directors (or equivalent) of each party shall discuss the issue;
- If the issue is not resolved then it shall be referred it to a mediator that the parties jointly appoint. If the parties cannot agree on the mediator, they shall ask the President of the Law Society of England and Wales to appoint a mediator.
- If the dispute is still not resolved, then the parties agree that the English Courts have exclusive jurisdiction to settle the dispute.
- Each party shall bear its own costs for elements of the dispute resolution procedure up to the involvement of the Courts under clause 17.1.4.
Duration & termination
- This Agreement takes effect the Start Date. Subject to clause 18.2, it shall continue for the Initial Period and after that shall be automatically renewed for periods of 1 Year on each anniversary of the Start Date (“Renewal Period”) until terminated in accordance with this clause 18.
- Either party can give notice to terminate this Agreement upon give not less than 3 months notice, such notice to expire no earlier than the expiry date of the Initial Period or any Renewal Period.
- Either party can terminate this Agreement immediately by serving written notice on the other party if the other party:
- Commits a material breach of an obligation under this Agreement which is not capable of remedy;
- Commits a material breach of an obligation under this Agreement which is not remedied within 28 days after receipt of a notice from the party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination;
- Enters into liquidation, is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or part of its assets, or enters into an arrangement with its creditors, or any similar situation.
- Termination of this Agreement (or of any services under it, where Specific Terms allow this) shall not affect any rights, obligations or liabilities of either party that have accrued before termination; or that are intended to continue to have effect beyond termination.
- Clauses 7, 8, 9 and 16 shall survive termination of this Agreement.
- If requested by the Client, upon terminating this Agreement, RA shall assist the Client and/or a third party with transferring the Services to a third party, provided that the Client shall pay for such assistance on a time basis at RA’s then current day rate.
- English law governs this Agreement.
- Each party warrants that it has the full power and authority to enter into this Agreement.
- Any dates that RA quotes for supply and completion of the Services are estimates only. Time shall not be of the essence for performance of the Services.
- The parties both agree that to vary this Agreement, each shall need to sign a written, not electronic, document.
- Persons who are not a party to this Agreement shall not have any rights under this Agreement.
- This Agreement shall not constitute or imply any partnership, joint venture, agency or other relationship between the parties other than independent contractors.
- Neither party may assign or transfer any part of this Agreement without first obtaining RA’s consent (such consent not to be unreasonably withheld or delayed).
- RA shall be entitled to subcontract any of its obligations under this Agreement but shall remain responsible at all times for the acts and omissions of any subcontractors as if RA had itself performed those acts and omissions.
- If any part of this Agreement is found to be invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
Website Design Specific Terms
1.1. In these Specific Terms, certain words and phrases have defined meanings:
|WORD OR PHRASE||MEANING|
|Acceptance Tests||Testing to determine whether the Website complies with the Specification.|
|Design Services||The designing, developing and delivery of the Website and related services as described in paragraph 2.|
1.2. Words and phrases that have capital initial letters but which are not defined in these Specific Terms are defined elsewhere in the Agreement.
- Design services
2.1. RA shall use all reasonable skill and care to carry out the following services:
2.1.1. Design, creation and development of the Website;
2.1.2. Delivery and installation of the Website (which shall be deemed to have occurred when RA informs the Client that the Website is ready for Acceptance Tests).
- Website licence & use of software
3.1. From the date on which the Client accepts the Website (pursuant to paragraph 4), RA grants the Client a perpetual, non-exclusive, worldwide and royalty-free licence to use and modify the Website for the Client’s internal business purposes.
3.2. The Client acknowledges that RA has produced the Website with the intention of using the software supporting the Website for other Clients. The Client agrees that it shall not use the source code for the software for anything other than maintaining that software. For the avoidance of doubt, the Client shall not licence or otherwise commercially exploit the software.
3.3. The Client acknowledges that the Website comprises complex and extensive computer instructions and code. RA therefore cannot, and do not, warrant that the operation of the Website shall be uninterrupted or entirely error free.
- Payment system element of the website
4.1. RA shall provide the payment system for the Website using a subcontractor. Actual payments made on the Website by the Client’s customers shall be transferred by the subcontractor to a bank account nominated by the Client.
- Acceptance testing
5.1. The Client shall undertake such Acceptance Tests in respect of Website when delivered as the Client deems necessary or desirable. The criteria for acceptance of Website shall be its material compliance with the Specification.
5.2. The Client shall perform the Acceptance Tests within 1 calendar month of RA delivering the Website to the Client. RA is entitled to attend the Acceptance Tests and see the results of those Acceptance Tests.
5.3. If the Client rejects the Website (or any material part of it), it shall detail the reasons for such rejection and the Client shall rectify the errors with the Website and re-submit the Website for acceptance within a reasonable time, during which time RA will minimise any impact to the Website’s accessibility by whatever means are reasonably necessary including:
5.3.1. Providing of fixes, work-arounds, updates or new releases;
5.3.2. Providing of complete and accurate release notes for those fixes updates or new releases;
5.3.3. Keeping an up-to-date record of all problem reports notified by the Client, the action RA has taken and the status of that problem report (open, closed or under change control) and making a copy of that record available to the Client on request.
5.4. The Website will be deemed accepted by the Client upon the earlier of the following:
5.4.1. If RA has not heard from the Client about the Acceptance Tests within 1 calendar month of delivery;
5.4.2. The Website passing the Acceptance Tests;
5.4.3. The Client stating acceptance of the Website in an email or letter to RA; or
5.4.4. The Client putting the Website into operational or business use.
5.5. Any defects or shortcomings in the Website notified to us after the Acceptance Tests shall be dealt with as part of the services provided under the Hosting & Support Specific Terms.
6.1. RA warrants that:
6.1.1. The Website will, when properly operated on the hardware set out in the Specification, perform and function in all material respects in accordance with the Specification;
6.1.2. All work undertaken by or on behalf of RA in the performance of the Design Services will be undertaken using all reasonable skill and care, by suitably qualified persons.
6.2. The Client acknowledges that RA cannot and does not warrant that the operation of the Website shall be uninterrupted or entirely error free.
Hosting & Support Specific Terms
1.1. In these Specific Terms, certain words and phrases have defined meanings:
|WORD OR PHRASE||MEANING|
|Hosting Fees||The element of the fees that the Client pays for the Hosting Services, as identified in the Project Details Form;|
|Hosting Services||The services described in paragraph 2 of these Specific Terms;|
|Problem||A fault or error with the Hosting Services, not with any other element of the Services (including the Website itself, or with the internet);|
|Resources||The resources that RA shall use to host the Website, as set out in the Specification;|
|Service Levels||The service levels set out in the Appendix to these Specific Terms;|
|Support Services||The services described in paragraph [ ] of these Specific Terms;|
1.2. Words and phrases that have capital initial letters but which are not defined in these Specific Terms are defined elsewhere in the Agreement.
- Hosting services
2.1. RA shall use the Resources to provide the Hosting Services.
2.2. RA shall do what it reasonably can to host the Website 24 hours a day but cannot guarantee continuous, uninterrupted use especially where RA has to carry out routine maintenance, repairs, reconfigurations or upgrades or in circumstances beyond RA’s reasonable control (or the reasonable control of its subcontractors). In the event of network downtime RA shall only be liable for up to one month’s Hosting Fees (or where service credits apply to the downtime, for the value of those service credits) but will not otherwise be liable for failing to provide the Service.
2.3. If any regulatory or government authority asks to inspect the content of the Resources, the Client agrees that RA can permit inspection.
2.4. Although the Services in general may not be error-free, the Client agrees that minor errors will not mean that RA breaks this Agreement. In the event that the Client notifies RA in writing of a material error which substantially affects its use of the Services, RA shall do what it reasonably can to remedy the error.
2.5. RA does not warrant that the Hosting Services will be free from viruses, RA will regularly check for the presence of viruses.
2.6. RA is not liable to the Client if there is any unauthorised access to the Client’s Website or Resources unless the access was caused by RA’s gross negligence.
- Backup and recovery services
3.1. RA shall back up the Resources once per day and shall provide a copy of the latest-version of the Resources to the Client (on CD-rom or DVD) once per calendar month.
3.2. The Client acknowledges that that if the Website needs to be recovered (that is, restored from a backup), this can take up to 24 hours. Recovery from a CD-rom/DVD provided to the Client will be its nature take longer and RA cannot agree to recovery in this way within any specific time.
- Client responsibilities & acknowledgements
4.1. The Client shall provide and maintain its own equipment, software and communications lines, including any public lines required by the Client to access the Website.
4.2. All internet use is subject to security vulnerabilities and RA acknowledges that a security breach could be disastrous for the Client. The Client agrees that it will observe reasonable security standards.
4.3. Services are provided subject to the Client’s proper use and the Client undertakes that its use of the Services will not:
4.3.1. Be in breach of this Agreement and any applicable laws, codes or regulations including the Data Protection Act 1998;
4.3.2. Involve theft, fraud, drug-trafficking, money-laundering and/or terrorism;
4.3.3. Incite violence, sadism, cruelty or racial hatred;
4.3.4. Facilitate prostitution or paedophilia;
4.3.5. Be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;
4.3.6. Introduce intentionally or knowingly into the Service any virus or other contaminating program or fail to use an up to date virus-scanning program on all material downloaded from the Services;
4.3.7. Be used to send unsolicited e-mails (“spam”);
4.3.8. Disclose the Client’s login names, passwords and other confidential information relating to its access to the Services;
4.3.9. “Spoof” other computer networks and users.
4.4. The Client acknowledges and agrees that RA or its subcontractor may suspend the Hosting Services without telling the Client and without liability if:
4.4.1. RA or its subcontractor believe that the Services are being used in violation of the Rules;
4.4.2. the Client does not cooperate with RA’s investigation of any suspected violation of the Agreement;
4.4.3. there is an attack on the Resources or other event for which RA or its subcontractor reasonably believes that the suspension of Services is necessary to protect RA’s subcontractors’ network or its other customers; or
4.4.4. if required by law or regulation.
4.5. The Client acknowledges that in the course of providing the Services, RA will be required to electronically reproduce the Client’s Website by making transitory electronic copies.
4.6. The Client agrees to reimburse RA for the costs and expenses of RA (or the subcontractor that provides the Hosting Services on its behalf) arising from any breach of this Agreement or the breach of a third party’s rights by the Client or the Client’s customer’s or user’s content, data or equipment.
- Acceptable use policy
5.1. The Client shall comply with the Acceptable Use Policy of RA’s subcontractor for the Hosting Services. As at the Start Date, this is the Acceptable Use Policy of Rackspace Managed Hosting Limited (“Policy”) and is enclosed as part of this Agreement.
5.2. RA’s subcontractor may issue a replacement Policy from time to time and this shall apply in place of the enclosed Policy from the date on which the Client receives the replacement Policy. In the absence on any evidence to the contrary, this date shall be deemed to be the date on which RA sends the replacement Policy.
- Domain names
6.1. For the purposes of the Hosting Services, the Website shall be hosted at www.theworks.co.uk The Client acknowledges that this Agreement does not affect the ownership of any rights in that domain name, and that the allocation of that domain name to the Client is handled by the Client’s own subcontractor.
6.2. The following shall apply to any domain names that RA allocates to the Client during the term of this Agreement unless specifically agreed otherwise:
6.2.1. The Client shall acquire no rights in any domain names that RA provides to the Client. The Client’s right and ability to use such domain names shall terminate upon termination of the Hosting Services or the Agreement.
6.2.2. RA reserves the right to change any IP Addresses provided to the Client at any time, however RA shall endeavour to give reasonable notice of the change and shall use reasonable endeavours to reduce disruption to the Client resulting from such changes.
6.2.3. IP Addresses are allocated according to RIPE rules and policies (www.ripe.net) and must be returned on termination of the Hosting Services or the Agreement, or when the criteria for their allocation are no longer valid. The Client acknowledges that its contact details may be published in connection with any domain name allocation in the RIPE database.
- Support services
7.1. RA shall use all reasonable endeavours to resolve Problems in accordance with the Service Levels.
7.2. The Service Levels apply to the Support Services.
- Hyperlink checking
8.1. RA shall allocate a suitably qualified RA employee or subcontractor for 4 hours per calendar month to check that the hyperlinks on the Website are working correctly, and to check that images are displaying correctly.
- Ending the hosting, support and maintenance services
9.1. After 12 months, RA shall be entitled to terminate the Hosting Services element of the Services by giving no less than 30 days written notice.
Service Levels for Hosting Services
The service levels below shall apply during the hours 9am to 5.30pm Monday to Friday, excluding UK public holidays (“Service Hours”).
The Client shall report Problems to RA in accordance with paragraph 7 of these Specific Terms. After receiving a report of a Problem, RA shall use all reasonable endeavours to identify the cause of the Problem within 2 hours (“Response Target”). Time begins when RA receives a report of the Problem from the Client.
Where RA receives a Problem later than 3.30pm during the Service Hours, the Response Target shall pause at 5.30pm and shall continue at 9am the following working day. For example (by way of illustration only), if RA receives report of a Problem at 4.30pm, the Response Target shall expire at 10am the following working day.
Having identified the cause of the Problem, RA shall promptly inform the Client of the Problem and discuss and agree on the resolution of the Problem, and any costs associated with resolving the Problem. Agreement may be either confirmed by exchange of emails, or in writing signed by both parties.