THIS AGREEMENT comprises the terms and conditions set out in this document and those of the Order Form signed by the Client which together make the binding contract between the Design Studio and the Client. This Agreement is made on the date set out in the Order Form (the Commencement Date) between Arobase Creative Ltd a company incorporated in England and Wales whose registered number is 10413302 and whose registered office is at Smarter Capital, Crowood House, Gipsy Lane, Swindon, SN2 8YY, and the Client whose details are set out in the Order Form, the parties (each a ‘party’ and together the ‘parties’):
A The Arobase Creative Limited is a multi-disciplinary design studio provides website design and development services (Design Studio).
B The parties have agreed that the Design Studio will design and develop a website for the Client on the terms of this Agreement which includes those terms contained in the Order Form signed by the Client.
THE PARTIES AGREE:
1.1 In this Agreement:
Acceptance or Accepted
means in relation to the Website (or any part of it), successful completion of the Acceptance Tests or deemed acceptance in accordance with this Agreement;
Acceptance Tests
means the tests, mutually agreed in accordance with this Agreement, to assess whether the Website conforms with the requirements of this Agreement;
Applicable Laws
means the laws of England and Wales and any other laws or regulations, regulatory policies, or statutes which apply to the provision of the Services from time to time;
Associate
means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time;
Authorised Contact
means each authorised representative appointed by each of the Client and the Design Studio as their respective project managers, whose details are set out in clause 33, or as otherwise notified to the other party in writing;
Bribery Laws
means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable United Kingdom legislation, statutory instruments and regulations in relation to bribery or corruption;
Business Day
means a day, other than a Saturday, Sunday or bank or public holiday in England;
Change
means any change, amendment or alteration to the Specification, the Project, the Services or this Agreement;
Change Control Note
means a written note which details the proposed Change and the impact that the proposed Change will have on any part of the Specification, the Project or this Agreement in the form set out in Schedule 5;
Change Control Procedure
means the procedure for agreeing Changes as set out in this Agreement;
Confidential Information
means all information of a confidential nature disclosed in whatever form by a party directly or indirectly to the other party and includes all know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind;
Content
means all text, graphics, images, video, sound, data, software, and materials used in the Website;
Control
means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls and Controlled shall be interpreted accordingly;
Client Content
means any Content owned, provided or made available to the Design Studio by the Client but excluding any InDesign files or RAW files provided by the Design Studio;
Client Requirements
means the Client’s needs as set out in the Order Form or as agreed between the parties in accordance with clause 3;
Design Studio
Arobase Creative Limited, a company incorporated in England and Wales whose registered number is 10413302 and whose registered office is at c/o Smarter Capital, Crowood House, Gipsy Lane, Swindon, SN2 8YY;
Design Studio Content
means any Content developed by the Design Studio either before or during the term of this Agreement that is included in the Website, as detailed in the Specification;
Design Studio Personnel
means any person tasked with providing the Services or otherwise performing the Design Studio’s obligations or exercising its rights under this Agreement;
Documentation
means any documentation specified in Order Form or elsewhere in this Agreement to be provided by the Design Studio for the Client;
Domain Name
means the domain name or URL for the Website and which may be identified as such in the Order Form and which shall not be provided by the Design Studio as part of the Deliverables or Services or at all whatsoever;
Fees
means the fees and other amounts payable under this Agreement including those set out in the Order Form and set out in Schedule 3;
Force Majeure
means, in respect of either party, an event or sequence of events beyond that party’s reasonable control (which could not reasonably have been anticipated and avoided by that party) preventing or delaying it from performing its obligations hereunder (but excluding strikes, lockouts or other industrial action of the affected party’s own employees or over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party);
Live
means when the Website becomes operational online on the world wide web;
Good Industry Practice
means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;
Intellectual Property Rights
means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, rights in software, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
Milestones
means the significant tasks and dates specified in the Agreement as set out in the Order Form or other applicable Schedules (if any);
Permitted Purpose
means the performance of the receiving party’s obligations and exercise of its rights under this Agreement;
Order Form
means the order form signed by the Client which sets out the Project for the design and development of a website for the Client in accordance with the Specification together with training, Documentation, and such other goods and services set out in the Order Form and as are required in the Specification to provide a fully functioning website for the Client’s use;
Project
means the project for the design and development of a website for the Client in accordance with the Specification together with training, Documentation, and such other goods and services set out in the Order Form and as are required in the Specification to provide a fully functioning website for the Client’s use;
Project Completion
means the date when the Project is to be completed in accordance with the Specification;
Project Plan
means the outline timetable and sequence of events (if any) as set out in the Order Form, as may be amended from time to time under the Change Control Procedure;
Protected Data
means Personal Data received from or on behalf of the Customer, or otherwise obtained in connection with the performance of the Supplier’s obligations under this Agreement;
Replacement Supplier
means any person who provides services to the Client of a similar nature to the Services (or any part thereof) after and/or replacing the Design Studio (and, if the context allows, may include the Client itself);
Services
means the obligations to be performed and services which are to be provided by the Design Studio as set out in the Order Form under this Agreement including, as the context permits, design and delivery of the Website;
Specification
means the specification for the Website, set out in the Order Form and agreed in accordance with clause 2;
Test Period
means the period of 30 days from the Website going Live or such longer period as set out in the Order Form;
Third Party Content
means any Content owned or licensed by a third party either before or during the term of this Agreement, as detailed in the Specification, including Third Party Software (if any);
Third Party Software
means any software programs or applications supplied to the Client and which is not proprietary to the Design Studio;
VAT
means United Kingdom value added tax;
Website
means the website described in the Order Form as well as all associated Documentation and Specifications for such website; and
1.2 In this Agreement:
1.2.1 a reference to this Agreement includes its schedules;
1.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a gender includes each other gender;
1.2.5 words in the singular include the plural and vice versa;
1.2.6 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.7 the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
1.2.8 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under this Agreement.
2.1 This Agreement takes effect on the Commencement Date and shall terminate on Project Completion unless agreed otherwise between the parties or terminated earlier in accordance with this Agreement.
3.1 The Client Requirements and Specification shall be set out in the Order Form.
3.2 The Client shall communicate to the Design Studio any amendments it requires to the Specification.
3.3 In the event that the Client reasonably requires amendments to the Specification, the Design Studio shall amend the Specification accordingly but only to the extent that such amendments are within the scope of the Client Requirements as previously notified to the Design Studio and the Design Studio shall be entitled to charge the Client for such amendments to the Specification in accordance with clause 3.4.
3.4 If the Client’s requested amendments to the Specification change the scope of the Client Requirements as previously notified, the Design Studio shall be entitled to request a Change to any price which may have been agreed between the parties in respect of the Specification and any reasonable and necessary time extensions or alterations to the extent reasonably required to accommodate such change in scope. Any such Change shall be agreed between the parties in accordance with the Change Control Procedure. This process shall repeat until the Specification is agreed (both parties acting reasonably).
3.5 The timetable for the performance by the parties of their respective obligations under this clause 3 shall be as set in the Order Form.
4.1 The Design Studio agrees to undertake the Project, provide the Website and perform all other Services in accordance with this Agreement.
4.2 Each of the Design Studio and the Client shall comply with their respective designated responsibilities specified in this Agreement (including each relevant Schedule and the Order Form) and the Project Plan (if any) set out in the Order Form.
4.3 The Design Studio shall perform its obligations:
4.3.1 with all reasonable skill and care;
4.3.2 at the times and in the manner required in the Specification or otherwise specified in this Agreement.
4.4 The Design Studio shall provide the Website (including any Documentation) in accordance with the provisions of the Order Form.
4.5 If it is agreed that the Design Studio is to provide the Website AND/OR perform the Services by a specific date or within a fixed timescale, for which time is not of the essence, as set out in the Order Form.
4.6 A Milestone may be extended for a reasonable period upon the agreement of the parties or if any delay or stoppage is caused by any act or omission of the Client or its employees, agents or sub-contractors.
4.7 If a Milestone is extended under clause 4.6, the timetable in relation to the remaining Milestones set out in the Project Plan may be adjusted accordingly at the sole discretion of the Design Studio.
4.8 The Design Studio shall respond promptly from time to time to the Client’s reasonable requests for additional information or assistance to ensure the successful completion of the Project.
4.9 The Design Studio shall procure that all advice and recommendations given by the Design Studio Personnel shall be made in good faith and upon the basis of information provided by the Client and otherwise in accordance with Good Industry Practice.
5.1 The Client shall provide or procure for the Design Studio and/or the Design Studio Personnel:
5.1.1 any Client Content at the time and in the format required by the Specification;
5.1.2 responses to the reasonable requests of the Design Studio for relevant information, instructions and assistance, including reasonable access to and co-operation by the Client personnel; and
5.1.3 reasonable access to Client software, systems and data where strictly necessary for the purposes of this Agreement;
5.2 The Client undertakes to ensure that the computer and operating system and any other hardware or software which the Design Studio is asked by the Client to use or modify for the purposes of performing the Design Studio’s obligations is either the property of the Client or is legally licensed to the Client and that the Design Studio is authorised to use the same.
5.3 The Website is provided at the Client’s request and the Client is responsible for verifying that the Website is suitable for its own needs, including:
5.3.1 that the Client, and not the Design Studio, is responsibly solely for proof reading of any and all written content on the Website to ensure and verify that all such written content is error free;
5.3.2 any errors which the Client does not bring to the attention in a timely manner and before the Website goes Live shall be the sole responsibility of the Client;
5.3.3 the Design Studio shall not be responsible for correcting any errors in the written content of the Website which have not been brought to its attention in accordance with clause 5.3.2 and well before the Website becomes Live, operational online, under the terms of the Project;
5.3.4 the Client must make any corrections to errors which its proof reading of the Website written content has revealed in a timely manner and submit those corrections to Design Studio in a timely manner before the Website goes Live whether there is or is not a date set for the Website going Live under the terms of the Project;
5.3.5 if the Client chooses not to follow any advice of the Design Studio in regard to the creation and operation of the Website, then the Design Studio shall not be responsible for any adverse outcome resulting from the Client not following the Design Studio’s advice.
5.4 The Client shall respond to Design Studio communications in a timely manner, co-operate fully with the Design Studio in the performance of this Agreement in a timely manner, and the Client shall meet all its obligations under this Agreement in a timely manner.
5.5 In addition to any other material breach of this Agreement, a persistent breach of clause 5.4 shall be a material breach of this Agreement.
5.6 In accordance with clause the provisions of clause 30.1.1, if the Client is in material breach of clause 5.4 and, if that breach is capable of remedy, the Client fails to remedy the breach within one calendar month and/or the Project is delayed and/or hindered for a period of one calendar month or more because of the Client’s breach of this Agreement, then the Design Studio may terminate this Agreement with immediate effect and the balance of all Fees payable under this Agreement shall become due and the Client shall pay those Fees, in full, in accordance with clause 11 of this Agreement.
6.1 Except as otherwise expressly stated, time shall not be of the essence in respect of the Design Studio’s obligations under this Agreement.
7.1 This clause 7 shall apply where Acceptance Tests of the Website are to be conducted in accordance with the Agreement, the Order Form, or any other relevant Schedule. The timing of the parties’ respective obligations under this clause shall be as set out in the Order Form. The parties will work together to agree a set of Acceptance Tests which shall be sufficient to test whether or not the Website, after it has gone Live, has the facilities and functions specified in, and performs in accordance with, the Specification or other agreed test standards, with such agreement not to be unreasonably withheld or delayed.
7.2 The Client and the Design Studio shall perform the Acceptance Tests within the Test Period.
7.3 If the Website being tested performs in accordance with the agreed Specification or other agreed test standards and meets the agreed testing criteria for the Acceptance Tests, it shall be deemed to have passed the Acceptance Tests. If the Website fails to pass the Acceptance Tests, the Client shall cooperate with the Design Studio in identifying in what respects the Website failed to conform to the Specification or otherwise failed to pass the Acceptance Tests. The Website shall not be deemed to have failed the Acceptance Tests by reason of any failure to provide any facility or function not specified in the Specification or other agreed test standards.
7.4 If, after the Test Period, the Design Studio is unable to remedy any significant failure of the Website so that it conforms with the Specification within a further test period of 30 days (Extended Test Period), then:
7.4.1 the Design Studio and Client shall agree a second Extended Test Period of 30 days sufficient to give the Design Studio a reasonable period of time to remedy any significant failure of the Website so that it conforms to the Specification;
7.4.2 if the Design Studio is unable to remedy the particular significant failure of the Website for which an Extended Test Period and a second Extended Test Period under the provisions of clauses 7.4 and 7.4.1, then the Client shall be entitled immediately to reject the Website,
provided that in the case of a minor non-conformity with the Specification or other agreed test standards, the Client shall not unreasonably delay in its Acceptance of the Website, and shall not be entitled to reject the Website so long as the Design Studio uses its reasonable endeavours in accordance with Good Industry Practice to rectify such non-conformity as soon as possible. For the purposes of this clause, ‘minor non-conformity’ means a cosmetic defect or a failure of the Website to conform with the Specification but which does not have a material effect on any specified functionality.
7.5 A written statement of Acceptance shall be promptly issued by the Client when the Website has passed all the Acceptance Tests.
7.6 Except for where the Client has rejected the Website in accordance with the provisions above, the Client’s Acceptance of the Website shall occur at the earliest of:
7.6.1 the Client providing written Acceptance of the Website to the Design Studio;
7.6.2 the Website being used in a live environment, online, or in commercial use (other than during the Testing Period);
7.6.3 the expiry of the Test Period and of the Extended Test Period (if any) and of the second Extended Test Period (if any) in circumstances where the Client has failed to provide written Acceptance of the Website and where the Website meets objectively the agreed testing criteria for the Acceptance Tests under the provisions of clauses 7.3 and 7.4;
The Client shall pay the Design Studio the Fees, payments and expenses as set out in Schedule 3 and the Order Form.
9.1The parties agree that the Fees for the Website design and development are fixed in accordance with those set out in Schedule 3 and the Order Form (subject to any Changes agreed in accordance with the Change Control Procedure).
All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by the Client at the rate and in the manner for the time being prescribed by Applicable Laws.
11.1 The Design Studio shall invoice the Client electronically to the email address notified by the Client in writing to the Design Studio as set out in the Order Form for all sums due under this Agreement in accordance with the terms set out in the Order Form and in Schedule 3.
11.2 The Client shall pay such sums in full within one calendar month from receipt of the invoice or on the due date for payment specified in the Order Form, if earlier.
12.1 Where sums due under this Agreement are not paid in full by the due date, the Design Studio may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of Bank of England from time to time in force.
12.2 Interest shall apply from the due date for payment until actual payment in full, whether before or after judgment.
12.3 Notwithstanding any interest payable by the Client under clauses 12.1 and 12.2, if the Client’s bank fails to pay on the Client’s behalf any amount agreed under a direct debit to the Design Studio, in accordance with the terms and conditions set out in the Order Form, the Client will pay to the Design Studio on demand for each such failure the sum set out in the Order Form as liquidated damages.
12.4 The liquidated damages payments set out in the Order Form and in clause 12.3 do not impose a detriment on the Client which is disproportionate to the legitimate interests of Design Studio in the enforcement of the obligations of the Client to the Design Studio to pay on time in accordance with clause 6 of this Agreement and are without prejudice to the Client’s obligation to fulfil its obligations under this Agreement if it is reasonably able to do so.
Amounts payable to the Design Studio under this Agreement shall be paid into the bank account set out in the Order Form by electronic funds transfer unless otherwise notified by the Design Studio to the Client in writing in accordance with this Agreement.
14.1 The Design Studio warrants to the Client that:
14.1.1 the Design Studio has the right, power and authority to enter into this Agreement and grant to the Client the rights contemplated in this Agreement, to supply the Website and perform the Services;
14.1.2 it has all rights and licences to provide the Design Studio Content and any Third Party Content (which has been agreed in the Specification that the Design Studio shall license);
14.1.3 the Website, (excluding any Client Content or Third Party Content) does not:
(a) infringe the Intellectual Property Rights of any third party;
(b) contain Content which is fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to Applicable Laws;
(c) contain any viruses or other harmful or intrusive programs or other code.
14.1.4 any Services shall be performed:
(a) by suitably qualified and competent personnel who shall exercise all due skill and care and all due diligence in the execution thereof;
(b) in compliance with the Service Levels;
(c) in accordance with Good Industry Practice;
(d) so as to conform with all Applicable Laws;
(e) in such a way as not to cause any fault or malfunction in any related software, equipment or system of the Client; and
(f) in such a way as not to cause any interruption to the business processes of the Client (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner).
14.2 Any warranties given by the Design Studio in the Agreement (or any Schedules) with respect to the performance of the Website shall be subject to the Client using the Website properly in compliance with this Agreement and the Documentation, and shall not apply to the extent that:
14.2.1 the Client has failed to install any update, fix or improvement necessary for the proper performance of the Website or which has previously been recommended or provided to the Client; or
14.2.2 the defect or error is wholly caused by any equipment or Third Party Software used in connection with the Website (save to the extent that the Design Studio requested or required the use of such Third Party Software); or
14.2.3 the defect or error is wholly caused by any Client Content used in connection with the Website.
14.3 The Client warrants and represents to the Design Studio that:
14.3.1 the Client has the right, power and authority to enter into this Agreement and to grant to the Design Studio the rights contemplated in this Agreement, and to receive the Website and the Services;
14.3.2 it has all rights and licences to provide the Client Content and any Third Party Content (which it has been agreed in the Specification that the Client shall license) and to grant all necessary licences to the Design Studio to develop the Website and to provide the Services;
14.3.3 any Client Content shall not:
(a) be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic;
(b) infringe the Intellectual Property Rights of any third party; or
(c) contain any viruses or other harmful or intrusive programs or other code.
14.4 The Design Studio does not warrant or represent that the Website shall be:
14.4.1 uninterrupted or error free;
14.4.2 compatible with other software or equipment (except for such software or equipment as set out in the Order Form).
15.1The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 15.
15.2 Subject to clauses 15.5 and 15.6, the Supplier’s total liability shall not exceed the sum of the Fees due under this Agreement.
15.3Subject to clauses 15.5 and 15.6, the Supplier shall not be liable for consequential, indirect or special losses.
15.4 Subject to clauses 15.5 and 15.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
15.4.1 loss of profit;
15.4.2 loss of data;
15.4.3 loss of use;
15.4.4 loss of production;
15.4.5 loss of contract;
15.4.6 loss of opportunity;
15.4.7 loss of savings, discount or rebate (whether actual or anticipated);
15.4.8 harm to reputation or loss of goodwill.
15.5 The limitations of liability set out in clauses 15.2 to 15.4 shall not apply in respect of any indemnities given by either party under this Agreement.
15.6 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
15.6.1 death or personal injury caused by negligence;
15.6.2 fraud or fraudulent misrepresentation;
15.6.3 any other losses which cannot be excluded or limited by Applicable Law;
15.6.4 any losses caused by wilful misconduct.
16.1 The Design Studio must for the duration of this Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement.
16.2The Design Studio undertakes that it shall not do, or omit to do, anything to vitiate either in whole or in part any of the insurance cover that it is obliged to have and maintain under this clause.
17.1 In consideration of the full amount of the Fees payable under this Agreement, and only after the Client has paid to the Design Studio the full amount of all Fees and monies due to the Design Studio under this Agreement, the Design Studio assigns to the Client the Design Studio’s Intellectual Property Rights in the Content, Specification, user documentation (including the Documentation) and all other materials created or obtained by the Design Studio exclusively for the Client for the Website pursuant to this Agreement, provided that:
17.1.1 all Client Content shall remain the property of the Client or its licensors, and the Client grants to the Design Studio a non-exclusive, non-transferrable, royalty-free licence of such of the Client’s Intellectual Property Rights in the Client Content as is necessary for the Design Studio to fulfil its obligations under this Agreement and as is necessary in order for the Design Studio to advertise, on its own website and on social media channels and otherwise, the goods and services provided under the Project by the Design Studio;
17.1.2 the Client shall grant to the Design Studio a non-exclusive, non-transferrable, royalty-free licence (or sublicence ( as the case may be) of the Design Studio’s Intellectual Property Rights in the Content, Specification, user documentation (including the Documentation) and all other materials created or obtained by the Design Studio exclusively for the Client for the Website pursuant to this Agreement which have been assigned to the Client by the Design Studio necessary in order for the Design Studio to advertise, on its own website, on social media channels and otherwise, the goods and services provided under the Project by the Design Studio;
17.1.3 except for any Content created or obtained, and supplied to the Client, by the Design Studio exclusively for the Client for the Website, all Design Studio Content and Third Party Content shall remain the property of the Design Studio or its licensors (as the case may be) and, subject to the Client’s compliance with the terms of this Agreement including payment of all Fees, the Design Studio grants to the Client a non-exclusive, non-transferable, royalty-free licence (or sublicence (as the case may be)) of such of the Design Studio’s Intellectual Property Rights in the Design Studio Content and of such of the Third Party Content as is necessary for the Client to fulfil its obligations under this Agreement and to enable the Client to make use of the Website and the Services, which licence or sublicence:
(a) in the case of software, shall be a licence of object code only unless otherwise expressly provided;
(b) in the case of Third Party Content it shall be on such terms as the Design Studio may grant in accordance with the terms between the Design Studio and the Third Party Content owner; and
(c) shall be to the extent and for the purpose only of using and maintaining the Website.
17.2 The Client shall be responsible, solely, for acquiring the Domain Name for the Website. The Design Studio shall not provide the Domain Name to the Client as part of this Agreement nor shall the Design Studio assist the Client to register the Domain Name as part of this Agreement.
17.3Except as expressly agreed in this clause 17, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
17.4Subject to the foregoing, the Design Studio shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the Client’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.
18.1The Design Studio shall indemnify, keep indemnified and hold harmless the Client from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Client as a result of or in connection with any action, demand or claim that use or possession of the Website (excluding any Client Content), infringes the Intellectual Property Rights of any third party (Design Studio IPR Claim), provided that the Design Studio shall have no such liability if the Client:
18.1.1 does not notify the Design Studio in writing setting out full details of any Design Studio IPR Claim of which it has notice as soon as is reasonably possible;
18.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant Design Studio IPR Claim without the prior written consent of the Design Studio (which shall not be unreasonably withheld or delayed);
18.1.3 does not let the Design Studio at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Design Studio IPR Claim; or
18.1.4 does not, at the Design Studio’s request and own expense, give the Design Studio all reasonable assistance in the circumstances described above.
18.2 The Client shall indemnify, keep indemnified and hold harmless the Design Studio from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Design Studio as a result of or in connection with any action, demand or claim that use or possession of any of the Client Content infringes the Intellectual Property Rights of any third party (Client IPR Claim), provided that the Client shall have no such liability if the Design Studio:
18.2.1 does not notify the Client in writing setting out full details of any Client IPR Claim of which it has notice as soon as reasonably possible;
18.2.2 makes any admission of liability or agrees any settlement or compromise of the relevant Client IPR Claim without the prior written consent of the Client (which shall not be unreasonably withheld or delayed);
18.2.3 does not let the Client, at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Client IPR Claim; or
18.2.4 does not, at the Client’s request and cost give the Client all reasonable assistance in the circumstances described above.
18.3 If any Client IPR Claim is made or is reasonably likely to be made against the Design Studio, the Client shall promptly and at its own expense either:
18.3.1 procure for the Design Studio the right to continue using the Client Content to enable it to provide the Website; or
18.3.2 modify or replace the infringing part of Client Content so as to avoid the infringement or alleged infringement.
18.4 The indemnity given by the Client above shall not apply to any infringement arising from any modification to Client Content made by the Design Studio or any employee, agent or supplier of the Design Studio without the authorisation of the Client or in breach of this Agreement.
19.1All amendments or variations or other changes to the Project, the Specification, the Services or this Agreement shall be made in accordance with the following Change Control Procedure. Either party may submit at any time a request for Change to the other party.
19.2Where the Design Studio originates a Change, it shall provide with the Change request, a Change Control Note.
19.3 Where the Client originates a proposed Change, it shall provide the Design Studio with such information (as is within the Client’s reasonable possession or control) which the Design Studio reasonably considers is relevant to such Change or may assist the Design Studio in the preparation of the Change Control Note. The Design Studio shall provide the Client with a Change Control Note within ten Business Days of receiving the request for a Change (or such other period as may be agreed between the parties).
19.4 The recipient of a Change request shall act reasonably and in good faith in deciding whether to accept or decline it in its sole discretion, but in any event shall do so within ten Business Days of receipt of the Change request (or such later time as may be agreed between the parties) indicating acceptance of the Change, or setting out in full its reasons for declining.
19.5Where the Client and the Design Studio agree to implement a Change, the costs of implementing a Change shall be paid in accordance with the provisions of Schedule 3 in addition to the amounts due for providing the Website or the Services (as the case may be) as set out in the Change Control Note, except where the parties (acting reasonably) agree in writing that the Change is attributable to some act or default of the Design Studio or Design Studio Personnel in which case the Change shall be at the Design Studio’s expense.
19.6 The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so by them both executing the Change Control Note or otherwise agree to do so in writing.
20.1A party shall not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
20.1.1 promptly notifies the other of the Force Majeure event and its expected duration, and
20.1.2 uses reasonable endeavours to minimise the effects of that event.
20.2 If, due to Force Majeure, a party:
20.2.1 is unable to perform a material obligation, or
20.2.2 is delayed in or prevented from performing its obligations for a continuous period of more than three months,
the other party may, within a further ten Business Days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.
21.1The Design Studio shall ensure that it has sufficient, suitable, experienced and appropriately qualified Design Studio Personnel to perform this Agreement.
21.2The Design Studio and the Client acknowledge and agree that the Design Studio Personnel are not employees of the Client, nor shall anything in this Agreement deem them to be employees of the Client.
22.1The Client shall have the right to cancel the Project or any part of the Project if it has not yet been, in the case of goods, commissioned for, and in the case of services, performed for, the Client.
22.2 Subject to any exercise of the Design Studio’s discretion under clause 22.3, if the Client chooses to cancel the Project under clause 22.1, then the Client shall pay to the Design Studio all Fees payable under this Agreement.
22.3 Entirely at the discretion of the Design Studio, the Design Studio may, instead of requiring the Client to pay all Fees due under this Agreement, require the Client, in relation to a Project cancelled or part-cancelled under clause 22.1, to pay for:
22.3.1 in respect of any goods forming part of the Project, that part of the Fees which relate to the goods within the Project which at the time of cancellation have been commissioned for the Client; and
22.3.2 in respect of any goods forming part of the Project, the costs of materials which the Design Studio has purchased to undertake the Project; and
22.3.3 in respect of any services forming part of the Project, that part of the Fees that relate to the services which, at the time of cancellation have been paid for or contractually committed by the Design Studio.
22.4 Entirely at the discretion of the Design Studio, the Design Studio may choose to agree with the Client an amount in lieu of the Fees payable under clause 22.2 that the Client shall pay upon the Client’s cancellation of the Project or any part of the Project under clause 21.1.
23.1 For the purposes of this clause 23 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and guidance published under it.
23.2 The Design Studio shall ensure that it and each person referred to in clauses 23.2.1 to 23.2.3 (inclusive) does not, by any act or omission, place the Client in breach of any Bribery Laws. The Design Studio shall comply with all applicable Bribery Laws in connection with the performance of the Services and this Agreement, ensure that it has in place adequate procedures to prevent any breach of this clause 23 and ensure that:
23.2.1 all of its Design Studio Personnel, Sub-contractors or other member of its supply chain;
23.2.2 all others associated with the Design Studio; and
23.2.3 each person employed by or acting for or on behalf of any of those persons referred to in clauses 23.2.1 and/or 23.2.2, involved in performing the Services or with this Agreement so comply.
23.3 Without limitation to clause 23.2, the Design Studio shall not in connection with the performance of the Services and/or this Agreement make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
23.4 The Design Studio shall immediately notify the Client as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 23.
24.1 The Design Studio undertakes, warrants and represents that:
24.1.1 neither the Design Studio nor any of its Design Studio Personnel, Sub-contractors or any other member of its supply chain has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
24.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
24.1.3 it shall notify the Client immediately in writing if it becomes aware or has reason to believe that it, or any of its Design Studio Personnel, Sub-contractors or any other member of its supply chain has breached or potentially breached any of the Design Studio’s obligations under this clause 24. Such notice must set out full details of the circumstances concerning the breach or potential breach of Design Studio’s obligations.
25.1 Each of the parties shall comply with their respective obligations, and may exercise their respective rights and remedies, set out in Schedule 4.
25.2 Unless otherwise expressly stated in this Agreement, the Design Studio’s obligations and the Client’s rights and remedies under this clause 25 are cumulative with, and additional to, any other provisions of this Agreement.
25.3 This clause 25 and Schedule 5 shall survive termination or expiry of this Agreement.
26.1 The Design Studio shall be responsible for taking reasonable and prudent measures in accordance with Good Industry Practice to safeguard the security of the Website and the Client Content, including any Protected Data or Confidential Information in its possession, including but not limited to maintaining appropriate firewalls, encryption and anti-virus protection.
26.2 To the extent that any Client Content is lost or damaged due to any act or omission of the Design Studio, the Design Studio shall take such steps to restore the relevant Client Content as is commercially reasonable in the circumstances.
26.3 The Design Studio shall not be responsible for any loss or damage to Client Content to the extent that such loss or damage was caused by the Client or a third party (other than a Design Studio subcontractor or representative).
26.4 The provisions of this clause 26 are in addition, and without prejudice, to the Design Studio’s additional obligations pursuant to clause 25.
27.1Each party agrees that during the term of this Agreement and for a period of five years following termination of this Agreement, it shall use the other party’s Confidential Information only for the Permitted Purpose and that it shall not disclose the other party’s Confidential Information except in accordance provisions of this Agreement and with this clause 27.
27.2 Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or other representatives who need to know the other party’s Confidential Information for the Permitted Purpose, provided that it shall ensure that each of its employees, officers, advisers, agents or other representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 27 as if it were a party.
27.3 Each party may disclose the other party’s Confidential Information to the extent required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
27.4 The obligations under this clause shall survive the variation, expiry or termination of this Agreement.
27.5 The Client shall indemnify and keep indemnified and hold harmless the other party from and against any losses, damages, liability, costs (including legal fees) and expenses which the other party may incur or suffer as a result of or arising from any breach of the obligations under this clause 27.
27.6 To the extent that any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent that such disclosure or use does not conflict with any of clause 25.
Except as required by any Applicable Laws, by any court or by any governmental, regulatory or supervisory authority or body of competent jurisdiction or except as expressly agreed by the parties, no announcement or disclosure relating to or in connection with this Agreement or any matters contained in it shall be issued by or on behalf of a party without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) during the term of this Agreement.
29.1The Design Studio shall keep accurate, up-to-date and complete records relating to the provision of the Services.
30.1Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:
30.1.1 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within one calendar month after receiving written notice requiring it to remedy that breach; or
30.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes subject to a moratorium under Part A1 of the Insolvency Act 1986 or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or becomes subject to a restructuring plan under Part 26A of the Companies Act 2006 or a scheme of arrangement under Part 26 of the Companies Act 2006 or any analogous event occurs in any applicable jurisdiction.
30.2 The Client may without prejudice to its other rights and remedies by notice in writing to the Design Studio immediately terminate this Agreement:
30.2.1 if the Design Studio ceases or threatens to cease carrying on business in the United Kingdom; or
30.2.2 if the Design Studio or any of its Associates undergo a change of Control that is in the Client’s reasonable opinion likely to have a material adverse effect on the Client or the provision of the Website or the Services.
30.3 A party may by notice in writing terminate this Agreement if permitted to do so under the Agreement.
30.4 In the event of termination of this Agreement for any reason, and without prejudice to any additional obligations under clause 25, each party shall:
30.4.1 within seven days of such termination return (or, at the other party’s option, destroy) all the other party’s Confidential Information in its possession or under its control and all copies of such information; and
30.4.2 perform their respective obligations with respect to exit management as set out in this Agreement.
30.5 In the event that the Design Studio reasonably believes that the Client has behaved in a way that in the reasonable opinion of the Design Studio is abusive or threatening towards the Design Studio and/or the Design Studio Personnel, then the Design Studio may terminate this Agreement immediately and the Client shall pay all Fees due to the Design Studio under this Agreement within 30 calendar days in accordance with clause 30.3.
30.6 Termination of this Agreement for whatever reason shall not operate to affect any provisions that are expressly, or by implication, intended by the parties to survive termination.
31.1Within three working days of the expiry or termination of this Agreement, the Design Studio shall return to the Client all Client Content together with all other materials and assets and other information provided to the Design Studio.
32.1Notices under this Agreement must be in writing and sent to the other party’s at the address specified in the Order Form (or such other applicable address for service in any other Schedules or agreed by the parties from time to time in writing). Notices may be given, and shall be deemed received if correctly addressed:
32.1.1 by first-class post: two Business Days after posting;
32.1.2 by airmail: seven Business Days after posting;
32.1.3 by hand: on delivery;
32.1.4 by email: on receipt of a read return mail from the correct address within 24 hours from delivery if no notice of delivery failure is received.
33.1For the purposes of this Agreement, the Design Studio’s Authorised Contact is set out in the Order Form.
33.2 For the purposes of this Agreement Client’s Authorised Contact is set out in the Order Form.
Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
35.1This Agreement including the Order Form constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
35.2 Each party acknowledges that it has not entered into this Agreement, including the Order Form, in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement including the Order Form. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement including the Order Form.
35.3 Nothing in this Agreement purports to limit or exclude any liability for fraud.
36.1The Design Studio may at any time assign, subcontract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice to the Client.
36.2 The Client shall not assign, subcontract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without the Design Studio’s prior written consent.
Each party shall, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
39.1If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
39.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives shall comply with all Applicable Laws, provided that neither party shall be liable for any breach of this clause 40 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).
No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
42.1No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
42.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
42.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
Any amount that the Design Studio owes to the Client under this Agreement or otherwise, whether now or at any time in the future, whether it is liquidated or not and whether it is actual or contingent, may be set off from any amount due to the Design Studio from the Client under this Agreement or otherwise. Any exercise by the Design Studio of its rights under this clause shall not prejudice any other right or remedy available to it.
Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
45.1If any dispute arises between the parties out of or in connection with this Agreement, the matter shall be referred to the Authorised Contacts of each party who shall use their reasonable endeavours to resolve it.
45.2 If the dispute is not resolved within 14 days of the referral being made under clause 45.1, the parties may resolve the matter through mediation in accordance with the London Court of International Arbitration Mediation Rules.
45.3 Either party may issue formal legal proceedings or commence arbitration at any time whether or not the steps referred to in clauses 45.1 and 45.2 have been completed.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter is governed by and shall be construed in accordance with the laws of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any disputes and claims which may arise out of, or in connection with, this Agreement.
The Design Studio shall ensure that the Website and the Services meet the Client Requirements as set out in the Order Form and in accordance with clause 3 in all material respects.
The Specification for the Website being developed is set out in the Order Form
The following provisions shall apply to Fees and payments under this Agreement:
1.1 The Client shall pay the following Fees and expenses as set out below:
1.1.1 an up front payment of 50% of the Fees on Projects where the Fees are over £500;
1.1.2 an up front payment of 100% of the Fees on Projects where the Fees are under £500;
1.1.3all up front payments are non-refundable and required to secure any project.
1.2 Any and all of the balance on Fees due after any up front Fees have been paid shall be settled in one of three ways depending on the scope of works agreed in the Order Form, and the exact way of settlement shall be specified in the Order Form and may include one of the following:
(a) the remainder of the Fee due on completion of Project (before items are supplied); or
(b) the remainder of the Fee split across agreed Project checkpoints as set out in the Order Form (for example, for the Website the Design Studio may take a payment after the design phase and another payment before the Website goes Live online); or
(c) the remainder of the Fee split evenly to be paid monthly over 6 or 12 months via Direct Debit.
1.3 Unless otherwise agreed by the parties in the Order Form or elsewhere, expressly, in writing, until all the Fees, and all sums, payable under this Agreement are paid in full to the Design Studio by the Client, the Design Studio shall be under no obligation to supply the Client with any files, including those required to make the Website Live, online, which form part of the goods and/or services of the Project.
1.4 Where the Client and the Design Studio agree to implement a Change under the provisions of clause 19.5, the Customer shall pay the Fees as set out in the Order Form.
Arobase Creative Details: Arobase Creative Ltd, a company registered in England and Wales with company number 10413302 and registered address c/o Smarter Capital, Crowood House, Gipsy Lane, Swindon, SN2 8YY
1.1 In this Schedule:
Applicable law
means applicable law of the United Kingdom (or of a part of the United Kingdom);
Controller
has the meaning given in applicable Data Protection Laws from time to time;
Data Protection Laws
means all applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement or supplement any such laws;
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and
(e) [all guidance, guidelines and codes of practice issued by any relevant Data Protection Supervisory Authority relating to such Data Protection Laws (in each case whether or not legally binding);]
Data Protection Supervisory Authority
means any regulator, authority or body responsible for administering Data Protection Laws;
Data Subject
has the meaning given in applicable Data Protection Laws from time to time;
GDPR
means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
International Organisation
has the meaning given in applicable Data Protection Laws from time to time;
Personal Data
has the meaning given in applicable Data Protection Laws from time to time;
Personal Data Breach
has the meaning given in applicable Data Protection Laws from time to time;
Processing
has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);
Processing End Date
means in respect of any Protected Data, the earlier of:
(a) the end of the provision of the relevant Services related to the processing of such Protected Data; or
(b) once processing by the Supplier of such Protected Data is no longer required for the purpose of the Supplier’s performance of its relevant obligations under this Agreement;
Processor
has the meaning given in applicable Data Protection Laws from time to time;
Protected Data
means Personal Data received from or on behalf of the Customer, or otherwise obtained in connection with the performance of the Supplier’s obligations under this Agreement; and
Sub-Processor
means any Processor engaged by the Supplier (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data.
Processing of the Protected Data by Arobase Creative Ltd under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Part B of the schedule.
1. Subject-matter of processing:
The processing is needed in order to ensure that the Processor can effectively deliver the contract to provide the goods and services to the Client.
2. Duration of the processing:
For the duration of the contract the personal data will be held and, beyond that, it will only be held with the express permission of the data subject.
3. Nature and purpose of the processing:
The nature of the processing means any operation such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of data (whether or not by automated means). The purpose is to allow us to perform our contract as a design agency.
4. Type of Personal Data:
Name, address, date of birth, NI number, telephone number, pay, images, biometric data.
5. Categories of Data Subjects:
The owners and employees of the company or organisation for whom we are performing the contract.
6. Specific processing instructions:
Gathering and use of personal data to allow the Design Studio to perform the contract with the Client.
1. The Design Studio shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
1.1. In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Design Studio shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.