Website Development Terms and Conditions
Website Development Supplemental Terms and Conditions
1. Definitions and interpretation
1.1 In these supplemental terms:
“Acceptance Criteria” has the meaning given to it in Clause 5.2;
“Acceptance Period” means the period of 10 Business Days beginning on the date of actual delivery of the Website to the Customer;
“CRF” means a change request form issued in accordance with Clause 6;
“CRF Consideration Period” means the period of 10 Business Days following the receipt of a CRF sent by the other party;
“Change” means any change to the terms of the Agreement (including for the avoidance of doubt any change to Website specification in the Scope Statement);
“Charges” means the amounts payable by the Customer to the Company under or in relation to this Agreement (as set out in the Scope Statement);
“Confidential Information” means the Customer Confidential Information and the Company Confidential Information;
“Credit” means a credit for the Company on the Website, in the form specified in the Scope Statement;
“Customer Works” means the works and materials provided to the Company by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;
“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors; or
(b) an incompatibility between the Website and any other application, program or software (other than the Customer Works and the Third Party Works);
“Delivery Date” means the date for delivery of the Website specified in the Scope Statement;
“Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
(a) the Customer Works; and
(b) the Third Party Works;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Project Close Form” means the form completed at the conclusion of the development;
“Services” has the meaning given to it in Clause 3.1;
“Scope Statement” is the document attached as the Scope Statement to this agreement, setting out the matters agreed between the parties in advance of completing the contract;
“Software Elements” means the Website excluding:
(a) the Design Elements;
(b) the Customer Works; and
(c) the Third Party Works;
“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
“Term” means the term of this Agreement; and
“Website” means the website or web application to be developed by the Company for the Customer under this Agreement.
This Agreement will come into force on the date the Scope Statement is signed on behalf of the and will continue in force until the later of:
(a) the acceptance of the Website by the Customer in accordance with Clause 5; and
(b) the receipt by the Company of all amounts due to be paid by the Customer to the Company this Agreement, upon which it will terminate automatically, unless terminated earlier in accordance with the Contract.
3. The Services
3.1 The Company will:
(a) design, develop and deliver the Website;
(b) incorporate the Customer Works specified in the Scope Statement together with the Third Party Works, into the Website;
(c) deliver the Website and the files comprising the Website to the Customer in accordance with Clause 5, (the “Services”).
3.2 The Company will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Scope Statement; however, the Company does not guarantee that that timetable will be met.
4. Customer obligations
4.1 The Customer will provide the Company with:
(a) such co-operation as is required by the Company (acting reasonably) to enable the performance by the Company of its obligations under this Agreement; and
(b) all information and documents required by the Company (acting reasonably) in connection with the provision of the Services.
4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by the Company to enable the Company to fulfil its obligations under this Agreement.
4.3 The Customer will supply to the Company all those Customer Works that are specified in the Scope Statement.
4.4 The Customer will fulfil its obligations under Clause 4.3 in accordance with the timetable set out in the Scope Statement or, if no timetable is set out, promptly following the receipt of a written request for the relevant Customer Works from the Company. The Company shall not be in breach of this Agreement by virtue of any delay in the performance of its obligations under this Agreement arising out of a breach by the Customer of this Clause 4.4.
4.5 The Customer hereby grants to the Company a licence to copy and use the Customer Works during the Term for the purposes of fulfilling its obligations and exercising its rights under this Agreement.
5. Delivery and acceptance
5.1 The Company will use reasonable endeavours to deliver the Website to the Customer for acceptance testing on or before the Delivery Date. The Company hereby grants to the Customer a licence to use the Software Elements and Design Elements during the Acceptance Period only for the purpose of carrying out tests under this Clause 5.
5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
(a) whether the Website conforms in all material respects with the specification of the Website in the Scope Statement; and
(b) whether the Website has any Defects,
(the “Acceptance Criteria”).
5.3 If in the Customer’s reasonable opinion the Website meets the Acceptance Criteria, the Customer will send the Project Close Form to the Company during the Acceptance Period confirming acceptance of the Website.
5.4 If in the Customer’s reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to the Company a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria.
5.5 If the Company (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, the Company will have a further remedial period (of 30 Business Days) to modify the Website so that it meets the Acceptance Criteria.
5.6 The Website will be deemed to have been accepted by the Customer if:
(a) the Customer does not give any notice to the Company under either Clause 5.3 or Clause 5.4 during the Acceptance Period; or
(b) the Customer publishes the Website or uses the Website for any purpose other than testing.
6. Change control
6.1 The provisions of this Clause 6 apply to all Changes requested by a party.
6.2 Either party may request a Change at any time.
6.3 When requesting a Change, the requesting party will notify the other party and provide a CRF. The CRF will set out (as a minimum):
(a) details of the impact on the timetable for the provision of the Services;
(b) details of any Customer Works and Third Party Works that will be required as a result of the Change; and
(c) details of any variation to the Charges consequent upon the Change.
6.4 The other party will consider any proposed Change and respond to any CRF within the CRF Consideration Period.
6.5 Either party may:
(a) accept or reject a CRF issued by the other party;
(b) request further information concerning any aspect of a CRF issued by the other party; and/or
(c) request amendments to a CRF issued by the other party.
6.6 Following agreement of a CRF, each party will confirm its agreement to the CRF by:
(a) signing a copy of the CRF and sending the signed CRF to the other party; or
(b) otherwise sending its written acceptance of the CRF to the other party.
6.7 Until a CRF recording a proposed Change has been signed or agreed in writing by each party, the proposed Change will not take effect.
7. Unlawful content
7.1 The Customer must ensure that the Customer Works will not:
(a) infringe any person’s Intellectual Property Rights or other legal rights;
(b) breach any laws or regulations; or
(c) give rise to a cause of action against any person,
in each case under any applicable law.
7.2 Any breach by the Customer of Clause 7.1 will be deemed to be a material breach of the Agreement.
7.3 The Customer hereby indemnifies and undertakes to keep indemnified the Company against any and all damages, liabilities, cost, losses and expenses (including legal expenses) suffered or incurred by the Company and arising out of any breach or alleged breach by the Customer of Clause 7.1.
8. Charges and payment
8.1 The Company will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Scope Statement, or (if earlier) upon the acceptance of the Website by the Customer.
8.2 Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Scope Statement (unless the parties agree otherwise).
9. Intellectual Property Rights
9.1 From the date of acceptance of the Website by the Customer, the Company hereby assigns to the Customer all its Intellectual Property Rights in the Design Elements. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.
9.2 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of the Company and, from the date of acceptance of the Website by the Customer, the Company grants to the Customer a non-exclusive worldwide licence to use the Software Elements in connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not:
(a) sell, resell, rent, lease, supply, distribute or redistribute the Software Elements;
(b) use the Software Elements in connection with any website, web application, script, computer program or software (other than the Website); or
(c) alter or adapt or edit the Software Elements, and the Customer may only sub-license the rights licensed under this Clause for the limited purposes, and subject to the express restrictions, specified in this Clause.
9.3 The Third Party Works will be (at the option of the Company):
(a) supplied in accordance with the relevant licensor’s standard terms for online use;
(b) supplied on licence terms notified by the Company to the Customer;
(c) sub-licensed by the Company to the Customer on terms notified by the Company to the Customer; and/or
(d) sub-licensed by the Company to the Customer on the basis of a non-exclusive, worldwide, royalty-free licence to use the Third Party Works in connection with the Website.
9.4 Notwithstanding any other provision of the Agreement, the assignments and licences granted by the Company under this Agreement are subject to the payment by the Customer of all amounts owing to the Company in full and on time. In the event that the Customer owes any amount to the Company and fails to pay that amount to the Company within 14 days of receiving a notice:
(a) requiring it to do so; and
(b) specifying that the assignment will revert and the licences will terminate if the amount remains unpaid,
then the Company may immediately revert the assignments and terminate the licences granted by the Company under this Agreement by giving written notice of reversion and termination to the Customer.
9.5 Subject to Clause 9.4, upon and following the termination of the Agreement, any licences granted by
the Company to the Customer under this Clause 9 will continue notwithstanding termination.
9.6 The Company may include the Credit together with a link to the Company’s website on each page of the Website in a position and in a form to be determined by the Company acting reasonably. The Customer will retain any such Credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such Credit and link from the Website at the Company’s request.
9.7 The Customer grants to the Company a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing the Company’s services to third parties.
10.1 The Company warrants to the Customer:
(a) that the Website (excluding the Customer Works and Third Party Works) will not infringe any person’s Intellectual Property Rights under English law; and
(b) that the Website will operate without any Defects upon the date of acceptance of the Website.
10.2 If the Customer demonstrates to the Company that the Website suffers from any Defect during the period of 30 days following the date of acceptance, the Company will, for no additional charge, carry out any work necessary in order to remedy the Defect, providing that, in the sole determination of the Company, the Defect has not been caused by the Customer.
10.3 The Customer acknowledges that the Company will design the Website to work with the web browser and server technologies specified in the Scope Statement, and the Company does not warrant that the Website will work with any other web browser or server technologies.
10.4 The Customer further acknowledges that the Company does not purport to provide any legal advice under this Agreement or in relation to the Website and the Company does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
11. Data protection
The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact
disclose to the Company under this Agreement.
The Company may terminate this Agreement at any time by giving at least 30 days written notice to the Customer.
13. Effects of termination
13.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.3, 9.2 to 9.7, 10.3 and 15.
13.2 Termination of this Agreement will not affect either party’s accrued rights (including the Company’s accrued rights invoice for and to be paid the Charges) as at the date of termination.
13.3 The Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Company.