PREMIUM WEB DESIGN
WEB DESIGN AND DEVELOPMENT – TERMS & CONDITIONS
Please note before you read these Terms & Conditions:
These Terms and Conditions apply to the provision of Web Design and Development services. Terms and conditions for all other products and services offered can be found at terms-of-business.
These Terms and Conditions and the Purchase Order together form an agreement between Digital State Marketing Limited (DSM) trading as Digital State Consulting (DSC) (a specialist marketing agency in Cheshire) and the client. These terms apply to the exclusion of all other terms or conditions of contract Client may propose and shall not be varied unless agreed in writing, signed by DSM.
These terms and conditions were last updated on 19th August 2016 and supersede all previous Web design and development terms and conditions published and/or used by DSM. DSM may update these terms and conditions for legal or regulatory reasons, or to reflect changes in our services or business practices. We will provide notice of such changes in Section 19 below. You should regularly check Section 19 to see if any changes have been made.
DEFINITIONS AND INTERPRETATIONS
1.1 In this Agreement unless the context otherwise requires:
Client or You means the person, corporate body, unincorporated association or partnership named in the Purchase Order;
Client Deliverables means all information which DSM may reasonably require in relation to the works described in the agreed upon Purchase Order, that must be delivered by the Client to DSM in order for DSM to perform the Services;
Created Intellectual Property Rights means all Intellectual Property Rights and other rights in the Software and Specifications which arise as a result of DSM providing the Services and which are not included in DSM’ Intellectual Property Rights;
Fees means the agreed fees and rates for the Services as set out in the relevant Purchase Order;
Intellectual Property Rights means all copyright and other intellectual property rights howsoever arising and in whatever media, whether or not registered including, without limitation, patents, domain names, trademarks, service marks, database rights, trade names, logos, rights in software, rights in designs and all similar property rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world and all know-how, goodwill, business names, confidential information and the style of presentation of goods and services and all other intellectual property rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, for their full term and any extension or renewal thereof;
Purchase Order means the Client’s order and authorisation (in the form of received Permission to Proceed) for the Services to be provided by DSM as may be varied in accordance with Clause 2.2 and Clause 2.3;
Services means the services to be provided to the Client by DSM as set out in the Purchase Order and in accordance with Schedule 1 of this Agreement or work that DSM finds necessary to undertake in order to create, modify or otherwise deliver the Software or Services according to the request or initial specification of the Client;
Service Process means the processes and procedures governing the provision of the Services as set out in Schedule 1 to this Agreement;
Specification/s means descriptions, designs and functional and technical requirements for the Services and Software;
Software means any compiled computer software application or program or web-site or any other item to be prepared and delivered to the Client by DSM as set out in the Purchase Order;
Source Code means the uncompiled program code developed by DSM from which the Software is derived;
Timetable means the timetable governing the provision of the Services or the delivery of the Software as may be set out in the Purchase Order;
VAT means value added tax and any tax which may from time to time replace it, subject to the prevailing rates;
DSM’ Intellectual Property Rights means any Intellectual Property Rights owned by or in the possession of DSM which are not Created Intellectual Property Rights.
1.2 The headings in this Agreement are for ease of reference and shall not influence any interpretation of this Agreement.
1.3 Any reference in this Agreement to any provision of a statute shall (except where the context otherwise requires) be construed as a reference to that provision as amended, modified, extended or re-enacted at the relevant time and shall include any subordinate legislation, including statutory instruments or regulations made under any of the foregoing.
2.1 In consideration of the payment of the Fees, DSM shall provide the Services to the Client as set out in the Purchase Order and in accordance with the provisions of this Agreement.2.2 In the event that the Client requires any change to a Purchase Order or Specification it shall notify DSM of the change required and DSM shall provide the Client with an assessment of the impact on the Fees and other elements of the Purchase Order. The Client will notify DSM within 5 working days of its acceptance of the basis of such assessment, on receipt of which the Purchase Order shall be deemed amended accordingly and the Client will be notified of such amendment by the issue of a new Purchase Order incorporating the change request. Should the Client fail to notify DSM of its acceptance of the change request within 7 days, the request shall lapse and the Purchase Order shall continue without amendment. Any change requested to the Services by the Client during the term of any Purchase Order may result in an additional administration fee being charged to the Client, charged at DSM’ current standard rate.2.3 DSM’ performance of the Services is dependent upon the provision of the Client Deliverables by the Client. Should the Client fail to comply within any reasonable timetable for the Client Deliverables as notified by DSM in accordance with Schedule 1 to this Agreement, the Timetable may be amended by DSM at its discretion. Any amendment to the Timetable pursuant to this Clause 2.3 shall be notified to the Client and the Purchase Order shall be deemed amended accordingly.2.4 The provision of the Services shall be in accordance with the Services Process as set out in Schedule 1 to this Agreement unless agreed otherwise in writing by the parties.
3. Fees and Payment
3.1 In consideration of the provision of the Services, the Client shall pay to DSM the agreed Fees plus VAT.3.2 The Fees for the Services shall be in accordance with the Purchase Order and may be determined on a fixed price basis, a time and materials basis or a combination of both as agreed by the parties in the relevant Purchase Order.3.3 Where the Services are subject to a deposit, such fee will be payable by the Client immediately upon signing the relevant Purchase Order. Any deposit is non-refundable.3.4 DSM shall render invoices to the Client in respect of the agreed Fees in accordance with the payment terms specified in the relevant Purchase Order. Fees shall be payable in accordance with the payment dates stipulated on the Purchase Order.3.5 If payment is not received in accordance with the payment terms specified in the Purchase Order, DSM shall be entitled, without prejudice to any other rights that it may have, to charge the Client interest accruing on the sum due to DSM at the rate of 8% over National Westminster Bank’s base rate prevailing at the time, shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments and reserves the right to suspend the provision of the Services until such time as payment is received whether or not such suspension impacts on the Timetable. Any restriction or suspension of the provision of the Services by DSM in accordance with this Clause 3.5 shall not constitute a breach of this Agreement.3.6 Should the Client materially breach the payment terms specified in the Purchase Order, DSM reserves the right to demand immediate payment of the full balance of the Fees payable under the Purchase Order in consideration of the completion of the Services or to terminate the Agreement in accordance with the provisions of Clause 9.3.3, in which case a cancellation fee will be charged to and immediately payable by the Client in accordance with Clause 18.104.22.168 The Client shall pay or reimburse to DSM (on production of such vouchers and/or other evidence as it may reasonably require) all reasonable and proper expenses incurred by DSM in connection with its provision of the Services.
3.8 All Fees for the Services are stated and payable in Sterling.
4.1 This Agreement and any Purchase Orders cannot be cancelled or terminated other than in accordance with Clauses 4.4, 4.5, 9 or 15.2 except with the express written agreement of DSM.4.2 Any request for cancellation or termination of this Agreement or any Purchase Order/s other than in accordance with Clause 9 or Clause 15.2 must be made in writing by the Client and shall only be effective with the express written agreement of DSM at its discretion.4.3 Termination of this Agreement or any Purchase Order/s in accordance with Clause 4.2 will be subject to the payment of Fees for Services performed up to the date of termination of the Agreement or Purchase Order/s as determined by DSM together with an additional cancellation fee of 50 per cent of the remaining Fees payable under the relevant Purchase Order/s in respect of administration and other costs and recoveries and phase-out expenses.4.4 Should this Agreement be terminated in accordance with Clause 3.6 or Clause 4.5, the Client will be charged a cancellation fee of 50 per cent of the remaining Fees payable under the relevant Purchase Order/s in respect of administration and other costs and recoveries and phase-out expenses.4.5 Failure of the Client to provide the Client Deliverables within 30 days of the date of the Purchase Order will constitute a material breach of the Agreement which may result in termination of the Agreement by DSM in accordance with Clause 9.3.3 or Clause 9.3.4. If the Agreement is terminated under this Clause 4.5 the Client will be charged a cancellation fee in accordance with Clause 4.4
5. Intellectual Property Rights
5.1 In consideration of the Fees (and any cancellation fees under Clauses 4.3 and 4.4 if applicable) being paid in full, DSM assigns to the Client all Created Intellectual Property Rights.5.2 DSM shall remain at all times the owner of any DSM’ Intellectual Property Rights that are used by DSM when providing the Services.5.3 The parties agree that DSM shall be entitled to use any underlying concepts or other experience that arises as a result of providing the Services to the Client.5.4 It is agreed that the Client cannot sell or otherwise dispose of the Software or Source Code as a commercial product to any third party.5.5 DSM shall not be restricted in any manner whatsoever, whether during the term of the provision of the Services or otherwise, from contracting with a third party to provide a similar service to the Services.5.6 The parties agree that the Client may request the Source Code from DSM and, subject to all Fees having been paid in full (including any cancellation fees), this will be provided with access codes or passwords and any other information required to render the source code accessible and modifiable.5.7 Subject to Clause 5.6, if the Source Code is subsequently modified by the Client or a third party, DSM reserves the right at its discretion to charge a daily rate in excess of its prevailing daily rate to rectify or otherwise modify any parts of the Software or Source Code which have been so modified.
5.8 If the Client becomes aware of any infringement or threatened infringement of any of the DSM’ Intellectual Property Rights or of any action detrimental to any of such rights, the Client shall immediately notify DSM giving full particulars of such matters and the Client shall make no comment or admission to any third party in respect of such matter.
6. Delivery and Acceptance
6.1 The Client acknowledges that on delivery, the Software shall not necessarily be error-free and it shall not be entitled to reject the Software due to any minor or immaterial non-conformance with the Specification.6.2 The Client shall be solely liable and responsible for ensuring that the Software complies with the Specification or requirements and shall undertake all necessary tests to verify such compliance.6.3 The Client shall test the Software within 96 hours of receipt and DSM shall correct any defects identified in accordance with the process set out in Schedule 1.6.4 Following the Client’s acceptance of the Software pursuant to Schedule 1, DSM shall not be obliged to correct any defects in the Software that the Client may subsequently identify unless the Services include an ongoing maintenance contract in respect of the Software.
7. Warranties and Indemnities
7.1 Each party warrants to the other that it has full power and authority to grant the rights to the other party as provided in the Agreement.7.2 DSM’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort (including negligence) or contract or otherwise shall not exceed the amount invoiced by DSM to Client hereunder.7.3 DSM shall not be liable to Client for any consequential loss or damage.7.4 When instructions or advice are given or received orally by DSM, it shall have no liability to Client for any misunderstanding or misrepresentation which may arise in relation thereto except in relation to fraudulent misrepresentations.7.5 DSM shall have no liability to Client in respect of the Materials.7.6 DSM’s liability shall be limited to using reasonable skill and care in the supply of the Work. In particular DSM shall not, except in the case of gross negligence and willful or deliberate act, be liable for:
Any loss or damage caused by it being given access to Client’s computer systems (which shall only be required where necessary) including without limitation any remote servers to which it has access or stores data or any unauthorised access to or use of the same including without limitation for any misuse of any passwords, logins or accounts of Client.
Any interference in or modification of the Work or Client’s web site by Client or any third party or the consequences thereof, remedy of which shall be as a Change.
7.7 DSM shall not be liable in any way for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings) or any special or indirect or consequential losses, howsoever caused, whether or not such losses were within the contemplation of the parties at the commencement of the Agreement, suffered or incurred by the Client arising out of or in connection with the Client’s use of the Services provided pursuant to the Agreement or any other matter under the Agreement.
7.8 The obligations set out in this Clause 7 shall survive variation, renewal, termination or expiry of the Agreement.
8.Exclusion of Liability
8.1 Nothing in this clause shall exclude or limit either party’s liability for fraud or negligent misrepresentation or for personal injury or death resulting from the negligence of either party or its agents or employees.
9.Term and Termination
9.1 This Agreement shall come into force on the date on which it is signed by the parties and shall continue in full force and effect unless terminated in accordance with its provisions or, subject to Clause 9.2, by either party giving to the other party at least one month’s written notice of its intention to terminate the Agreement.9.2 This Agreement cannot be terminated other than in accordance with Clause 4, Clause 9.3 or Clause 15.2 until all Purchase Orders issued under it have been fulfilled.9.3 Without prejudice to either party’s other rights and remedies, either party may terminate the Agreement by immediate written notice to the other in the event that the other party:
9.3.1 is subject to bankruptcy or liquidation proceedings (other than a voluntary liquidation for the purpose of reconstruction or amalgamation), is determined to be insolvent or otherwise is unable to meet its financial obligations, or has a receiver or administrator appointed over all or any material part of its assets; or
9.3.2 commits a material breach of any provision of the Agreement, provided that in the case of any such material breach that is capable of remedy, termination shall only occur if the breach shall not have been remedied within thirty days of the other party having been given notice in writing specifying the nature of the breach and requiring it to be remedied. Any restriction or suspension of the Services by DSM in accordance with Clause 3.5 shall not constitute a breach of this Agreement; or
9.3.3 commits a material breach of any provision of the Agreement which has been previously breached once and then remedied.
9.4 Termination of this Agreement by either party in accordance with Clause 9.3 shall serve to terminate all Purchase Orders issued under it.
9.5 Termination of this Agreement shall be without prejudice to any existing rights and/or claims that a party may have against the other party, and shall not relieve the other party from fulfilling its obligations accrued prior to such termination.
10.Consequences of Termination
10.1 Upon termination or expiry of this Agreement or any Purchase Order issued under it, however arising:
10.1.1 DSM shall cease to provide the Services to the Client;
10.1.2 subject to payment of outstanding Fees in accordance with Clause 10.1.3 and Clause 4.3 where applicable, DSM shall deliver to the Client the Source Code in its then current state;
10.1.3 the Client shall immediately pay to DSM all outstanding Fees for Services performed up to the date of termination as determined by DSM; and
10.2 All provisions of the Agreement which in order to give effect to their meaning need to survive its termination shall remain in full force and effect after termination.
11.Suspension of Services
11.1 DSM may immediately and without notice suspend the provision of the Services to the Client without compensation or recourse in the event that:11.1.1 it is required to do so in order to comply with a legal order or request from an emergency service, governmental or other competent authority; or11.1.2 it is taking this action in accordance with Clause 3.5.
12.Changes to the Agreement
12.1 Any waiver, amendment or variation of any provision of these terms shall be effective only if in writing and agreed by the parties.
13.1 Save as otherwise provided in this Agreement, any notice given under this Agreement shall be in writing. References in this Agreement to “in writing” will generally be in the form of email which must be sent to the email address as the relevant party designates.13.2 Any notice shall be deemed to have been served 24 hours after transmission as delivered by email.
14.1 The Client may not assign or grant any sub-licences of any or all of its rights under the Agreement without the prior written consent of DSM.14.2 DSM reserves the right to assign or otherwise transfer all or any of its rights under the Agreement at any time provided that such assignment shall not relieve DSM of any of its obligations under the Agreement.
15.1 Neither party shall be liable to the other for any failure under the Agreement if and to the extent that such failure is due to force majeure which shall mean in relation to either party any circumstances beyond the reasonable control of the party concerned, including but not limited to war, acts of God, riot, terrorism, earthquake, accidents, explosion, fire, floods, abnormal weather conditions, any act or omission of Government or other agencies, failure of technical or electrical facilities not within such party’s reasonable control, failure or shortage of fuel, power or materials, industrial action or trade disputes (except where such relates to employees or agents of the relevant party) or delay by suppliers.15.2 The party affected by such a force majeure event shall as soon as reasonably practicable notify the other party in writing. In the event that the force majeure event so notified continues so as to prevent the performance of the Agreement for a period of two months or more after such notice then either party shall have the right to terminate the Agreement without liability for breach of contract and the clauses of the Agreement relating to the consequences of termination shall thereupon take effect.
16.1 Notwithstanding Clause 16.2, each party shall keep any information relating to the private business affairs of the other party confidential and will keep all such information secure and protected against theft, damage, loss or unauthorised access and will not disclose any such information to any other person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority. Each party undertakes to procure that its employees and agents are aware of and are bound by the provisions of this clause, and the obligations of this clause shall survive the variation, renewal or termination of the Agreement, but shall cease to apply to any information which has come into the public domain through no fault of the recipient.16.2 The Client hereby gives permission to DSM to use its name, logo and broad project outline data for the sole purpose of inclusion in DSM’ marketing materials and sales materials (including online sources). The Client may withdraw this permission at any time by giving thirty days’ written notice.
17.1 Notwithstanding that any one or more clauses of the Agreement may prove to be illegal, invalid or unenforceable, the remaining clauses shall continue in full force and effect.17.2 The Agreement and any other documents referred to herein shall constitute the entire agreement between the parties for the provision of the Services and supersede all previous agreements, arrangements and undertakings between the parties.17.3 The sections of the Agreement headed Limitation of Liability, Indemnity and Governing Law shall survive the termination of the Agreement.17.4 The failure to exercise or delay in exercising any right shall not constitute a waiver of the right or remedy or a waiver of other rights or remedies by any party, and no course of conduct or acquiescence shall constitute such a waiver other than a notice to that effect given to the other party specifying the right in question.17.5 Except in the case of any permitted assignment of this Agreement pursuant to Clause 14, a person who is not party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any clause of the Agreement.17.6 Nothing in the Agreement is intended to or shall operate to create an association, partnership or joint venture between the parties.
18.1 The Agreement shall in all respects be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of those countries in respect of any matter arising from or in connection with the Agreement.
CHANGES TO TERMS AND CONDITIONS
These terms and conditions were published on 19th August 2016 and replace with immediate effect the terms and conditions previously published on 7th October 2013. Changes were made to the name for re branding.
1 The Services Process
The processes detailed below shall govern the provision of the Services for each of the Purchase Orders under this Agreement.
Stage 1 – Proposal
1.1 DSM shall provide an initial proposal document to the Client which may include a fee quotation for the preparation of a Specification.1.2 The Client shall evaluate the proposal in 1.2 above and accept or reject such proposal without unreasonable delay. If the Client elects to accept such proposal, DSM shall prepare a Purchase Order pursuant to the proposal and such Purchase Order will be agreed by the Client via the permission to proceed procedure and attached at Schedule 1 to this Agreement.
Stage 2 – Preparation
2.1 Following receipt of the signed Purchase Order as set out in 1.2, DSM shall notify the Client of the Client Deliverables and the estimated timetable for delivery thereof.2.2 DSM shall evaluate the information and may undertake further investigation of the Client’s requirements as it considers necessary for the performance of the Services, including but not limited to a meeting or further discussion with the Client.2.3 DSM shall provide to the Client a Specification for the Software.2.4 The Client will review the Specification and shall promptly (and in any event within 3 working days of receipt of such Specification) notify DSM if it requires any amendment to the Specification in accordance with its instructions provided at 2.2 of this Schedule 1.2.5 Any changes requested to the Specification by the Client which were not communicated to DSM in accordance with 2.1 and 2.2 of this Schedule 1 may, at the discretion of DSM, incur additional fees which will be discussed with the Client prior to commencement of such changes. In the event that the Client does not agree to such additional fees, DSM shall not be obliged to make the changes requested under this paragraph 22.214.171.124 The Client shall notify DSM that it has approved the Specification without unreasonable delay.
Stage 3 – Design
3.1 Subject to receipt of the Client Deliverables, DSM shall deliver to the Client a design concept in respect of which the Client shall promptly, and in any event within 5 working days of receipt, notify DSM of any amendments required.3.2 DSM shall perform a maximum of two rounds of amendments to the design concepts.3.3 Following such amendments the Client shall promptly notify DSM of its acceptance and approval of the relevant design, such approval not to be unreasonably withheld.
Stage 4 – Content
4.1 DSM shall notify the Client of the remaining Client Deliverables, where applicable, and the timetable for delivery thereof and the Client shall hereto deliver.
Stage 5 – Development
5.1 DSM shall develop the structure and functionality of the Software in accordance with the Specification.5.2 Where applicable and subject to receipt of the Client Deliverables pursuant to paragraph 4, DSM shall populate the Software (in the event that this service is included in the Services).
Stage 6 – Testing and Acceptance
6.1 DSM shall test the Software in accordance with the Specification prior to delivery to the Client.6.2 DSM shall deliver the Software to the Client and the Client shall test the Software and shall notify DSM within 7 working days of receipt of the Software of any failure in the performance of the Software. Notification shall be in writing in the format determined by DSM.6.3 Upon receipt of a notification pursuant to paragraph 6.2, DSM shall correct the defects and shall re-deliver the Software to the Client for final testing and acceptance by the Client. Acceptance of the Software by the Client shall be in writing and shall not be unreasonably withheld.6.4 In the event that written acceptance is not provided by the Client within 7 working days of the re-delivery of the Software for final testing pursuant to Clause 6.3, the Software shall be deemed accepted by the Client unless the client has provided to DSM in writing any reasonable cause as to why the Software should not be accepted.
Stage 7 – Maintenance
7.1 Where the Services incorporate an ongoing maintenance contract, DSM shall for the duration of the maintenance contract provide the following services to the Client:
7.1.1 A Help Desk available between the hours of 9 am to 5 pm (UK time) on normal UK business days for the Client to report any error in the Software
7.1.2 DSM shall endeavour to respond within 4 business hours to replicate the reported error in the Software
7.1.3 DSM shall categorise the error and take action as follows:
Category A – a major error rendering much of the Software inoperable: DSM shall immediately commence rectification work within normal business hours
Category B – the Software is working but the error is causing major inconvenience: DSM shall commence rectification work within 24 hours of error categorisation
Category C – a minor error in the Software: DSM shall commence rectification work within 5 business days of error categorisation
7.1.4 DSM shall provide further assistance to the Client in respect of the following matters, subject to the availability of a maximum number of hours per month as specified in paragraph 7.1.5:
Client training in respect of the Software
Automatic forwarding of error emails
Quotations for additional work at the request of the Client
7.1.5 The maximum number of hours available each month for the services pursuant to paragraph 7.1.4 will be 33.3 per cent of the monthly maintenance fee as specified in the Purchase Order divided by the prevailing hourly rate in force from time to time
7.1.6 The Client agrees that any assistance provided pursuant to paragraph 7.1.4 that is in excess of the available hours of assistance specified in paragraph 7.1.5 shall be charged to the Client at the prevailing hourly rate and shall be payable by the Client immediately upon receipt of invoice.