Mays Digital terms of service

1. Interpretation and Definition: The following expression shall have the following meanings:

“Company” means Mays Digital Limited, whose address is at Forum House, Stirling Road, Chichester, West Sussex, PO19 7DN

“The Client” means the client specified in the proposal and/or agreement.

“Code” means all computer programming code (both object and source, unless otherwise specified), as modified or enhanced from time to time by the Company, including, without limitation, all interfaces, navigational devices, menus, menu structures or arrangements, icons, help, operational instructions. script, commands, syntax HTML, design, templates, and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content whether created or licensed from third parties by the Company including without limitation, any Intellectual Property Rights in such material;

“Content” means all text, graphics, animation, audio and/or digital video components and all other components of the Deliverables and the selection  and arrangement thereof, other than the Code whether created by the Company or provided by the Client for purposes of developing the Deliverables, including without limitation any Intellectual Property Rights therein;

“Deliverables” means all Code [other than source code], Content and other online materials to be produced by the Company hereunder as more fully described in the Work Statement including all documentation such as logic manuals, flow charts, principles of operation, technical manuals and other written materials that relate to the object code, provided however, that documentation does not include end-user instructions, manuals or other operating documentation or materials;

“Final Project Acceptance Form” means a document signed and dated by the Client confirming that the work has been completed and tested and either delivered to their satisfaction (accepting the project as a whole) or not delivered to their satisfaction (rejecting the project as a whole or certain Deliverables);

“Intellectual Property Rights” means any patent, copyright, trademark and design rights (in either case registered or unregistered) format rights, topography rights, trade secrets, moral right, right of attribution or integrity right to confidentiality know-how or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction (including, without limitation, all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals);

“Pre-existing Work” means any pre-existing original works of authorship contained in the Content as identified in the Work Statement;

“Web Site” means the Client’s World Wide Web site to be developed by the Company pursuant to this Agreement;

“The Proposal and/or agreement” means the written proposal and/or agreement for the performance of website design services.

“The Professional Services” means the website design or development services or any other professional services as detailed in the Company’s proposal and/or agreement or any other professional services as may from time to time be amended by the written agreement of the parties. The Company shall provide the professional services subject to the terms and conditions set out herein.  Changes to these terms and conditions will be effective only if agreed by the Company and the client in a written document setting forth the modification and, as applicable, any resultant changes to the delivery timetable, fees (and/or commissions if appropriate) and payment terms. The client shall co-operate with the Company to such an extent as is reasonable in its performance of its obligations under this Contract including;

a) providing to the Company any further information which the Company may reasonably require; and
b) making available such reasonable facilities and personnel as may be requested from time to time by the Company for the execution of the professional services hereunder.

“Work Statement” means the Work Statement set out in the Schedule hereto, as revised by the parties from time to time, containing (i) a description of the Deliverables (including Specifications) to be delivered, and any services to be performed, including the hosting of the Web Site, by the Company for Client, (ii) a Budget and (iii) a Work Programme.  The Work Statement may also include provisions for written and/or oral progress reports by the Company, detailed functional and technical specifications and standards for all services and Deliverables, including quality standards, documentation standards, lists of any special equipment to be procured by the Company or provided by the Client for use in performance of the work, test plans and scripts, and such other terms and conditions as may be mutually agreed by the parties;

“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol; and
“Work Programme” means the timetable for the development of the Deliverables as set out in the Schedule.

These terms and conditions shall be exhaustive of the rights, obligations and liabilities of each party, whether such rights obligations and liabilities arise in respect of or in consequence of a breach of contract or statutory duty or a tortuous or negligent act or omission which gives rise to a remedy at common law.

2. Appointment: The contract is formed when the order is accepted by us by way of a written letter of engagement or signed agreement, signed by both the Company and the Client.

3. “Acceptance” means the acceptance of the proposal and/or agreement or the placement of an order and includes the acceptance of these terms and conditions which shall apply between the Company and the Client.  No terms or conditions stipulated or referred to by the Client in any form whatsoever shall in any respect vary or add to these terms and conditions unless otherwise agreed by us in writing.  These terms and conditions shall apply as the binding and entire contract and or Agreement between us and shall be exhaustive of the rights, obligations and liabilities of each party, whether such rights obligations and liabilities arise in respect of or in consequence of a breach of contract or statutory duty or a tortuous or negligent act or omission which gives rise to a remedy at common law and are to be read in conjunction with the particulars of any proposal and/or agreement documentation.

4. Commencement: Is the date as stipulated in the proposal and/or agreement.

5. Validity: This proposal and/or agreement is open for acceptance within 60 days from the date of proposal and/or agreement.

6. Lead in periods:  If appropriate, these are as stated within our proposal and/or agreement.

7. Notices: All notices and communications shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by prepaid recorded delivery post or sent by email to the intended recipient as the address and / or email address stated in this contract or to such other address or email as that party may specify to the other in writing.  Notices sent by email shall be deemed received the first business day following such delivery of sending and notices which have been posted as above shall be deemed received on the second business day following posting.

8. Notice Period: We require a minimum of 5 working days formal notice to commence the professional services.   If, subsequent to the giving of such notice the Client has not provided the requested information for the professional services to commence, we shall require a further written notice from the Client.This notice period may be subject to any lead in period as clause 6 above.

9. Scope of Services: The Company shall author, design, create, develop, test and produce the Deliverables, and host the Web Site, in accordance with the Work Statement for the purpose of establishing and hosting the Web Site. At any time during the term of this Agreement, the Client may request additional services to be performed by the Company in connection with the Web Site, including any updates or upgrades. Such additional work shall be agreed upon in writing by the parties and shall service as an addition or revision to the Work Statement, shall be subject to the terms of this Agreement and become effective upon execution, by authorised representatives of both parties, of a written statement of the revision. The Company agrees to use commercially reasonable efforts to complete the Deliverables in a timely manner according to the Work Programme but the obligations with respect to meeting the Work Programme are subject to delays caused by unforeseen circumstances, by any voluntary action of the Client or of any third parties beyond the control of the Company.  The Company agrees to notify the Client promptly of any event coming to its attention that may affect the Company’s ability to meet the requirements of the Work Statement, or that is likely to cause any material delay in delivery of the Deliverables.  The Company shall not be in breach of this Agreement as a result of a reasonable delay in delivering the Deliverables occurring for any reason. Changes in the Work Statement shall become effective only upon written agreement of the parties.  The Company shall accept any reasonable change requests made by the Client that reduce the cost of performance; provided, however, that an equitable adjustment in compensation is made for the out of pocket costs of any performance or preparation already undertaken, and that the total reduction shall not be more than 50% of the amount originally agreed to by the parties. The Company shall make reasonable efforts to accommodate (but shall not be required to accept) any change requests made by the Client that increase the cost or magnitude of performance, provided that the proposed changes are reasonable in scope and the Client establishes a commensurate increase in compensation.

10. Clients Obligations: The Client agrees to:

i)        give us such information, advice and assistance relating to the professional services as we may reasonably require within sufficient time to enable us to perform the professional services in accordance with the proposal and/or agreement.

ii)        indemnify us against all claims, actions, losses, damages, costs and expenses incurred by us arising from or due to the negligence of the Client its servants or agents.

iii)       The Client shall obtain the domain name unless it is specifically agreed that this will be obtained by the Company, furnish information requested by the Company, provide adequate access to personnel of the Client, and maintain the accessibility and operability of the Web Site to the extent reasonably necessary for the Company to fulfill its responsibilities under this Agreement. Any delays attributable to the Client’s failure to respond to reasonable requests by the Company will extend any and all deadlines for an amount of time equal to the Client’s delay. The Client reserves the right to make any necessary equipment or software upgrades, changes or modifications.

iv)       The Client shall maintain such rights in the property and any third party software during the Term as necessary to carry out the purposes of this Agreement, as described elsewhere within these terms and conditions.

11. Services Relating to Hosting: In connection with hosting the Web Site the Company shall:

i)provide all facilities, equipment, online staff and services necessary to host, operate, manage and maintain the Web Site in accordance with the terms of this Agreement and all applicable laws and regulations;

ii)        configure, install, house, maintain, monitor and operate all computer equipment, server, software, network equipment and other components thereof, in a commercially reasonable manner designed to maximise the reliability and security thereof;

iii)       use reasonable efforts to protect the Web Site from unauthorised interruptions, viruses and outside attacks (including, without limitation, by installing appropriate firewalls, backup systems and other protective devices);

iv)       use reasonable efforts to maximise the online accessibility of the Web Site to users of the World Wide Web;

v)       use reasonable efforts to promote and market the Web Site;

vi)       use reasonable efforts to collect such information from users of the Web Site as the Client may reasonably request (including at a minimum, and without limitation, the name, address, telephone number, e-mail address, facsimile number and usage information of each user); provided, however, that the Company may provide users of the Web Site with a means to elect to maintain the privacy and confidentiality of their information (and, for users making such an election, the Client hereby agrees to use such user information solely for internal purposes and not for any direct marketing purpose);

vii)      guide users of the Web Site to proper software for viewing and working with content as necessary;

viii)      inform the Client of any disruptions caused by unruly visitors to the Web Site; and

ix)       provide the Client with reasonable technical support via telephone and e-mail in connection with the use of the Web Site and co-operate with the Client in directing customer support inquiries to the appropriate party.

12. Delivery and Acceptance of Deliverables: We shall use all reasonable endeavours to deliver the Deliverables at the times and in the manner specified in the Work Statement provided that such dates shall not be binding and failure to comply with such dates shall not constitute a breach of contract and in no case shall be grounds for rejecting the website design or development and professional services or otherwise rescind the Contract.

The procedure for acceptance of any Deliverable shall be as follows:

i)        The Client shall have the time shown in the Work Statement to inspect and test each such Deliverable when received. Upon completion of such testing, the Client shall issue to the Company a Final Project Acceptance Form indicating acceptance or rejection of the Deliverables (provided that, in any event unless the Client has notified the Company of its rejection of any Deliverables within seven (7) days following delivery thereof, the same shall conclusively be deemed accepted).

ii)        The Client may only reject Deliverables for material failure to comply with the applicable Specifications. In the event of rejection, the Client shall give its reasons for rejection to the Company in reasonable detail.  The Company shall then have the time allotted in the Work Statement to use commercially reasonable efforts to correct any deficiencies or non-conformities from the applicable Specifications and resubmit the rejected items as promptly as reasonably possible until the Deliverables are accepted; provided, however, that upon the third and subsequent rejection the Company or Client may terminate this Agreement by thirty (30) days’ notice unless the Deliverables are accepted during the notice period.

iii)       Upon acceptance of the Deliverables by the Client, the Specifications for such Deliverables shall automatically be deemed to be amended to conform to the Deliverables as accepted by the Client.

13. Hosting: The Client shall be responsible for the maintenance, renewal, control and editorial content of the Web Site. The Company will not be responsible for reviewing the test, graphics, animation, audio and/or digital video components prior to uploading such content onto the Web Site. The Company shall not be required to upload new content or alterations to existing content provided by the Client more often than twice per calendar month during the Term.  The Client shall ensure that the content shall be and remain fully compatible with the Web Site; provided, however, upon request from the Client, and at the Client’s sole expense, the Company shall make commercially reasonable efforts to assist the Client in resolving any content related compatibility problem.

The Company shall be responsible for all aspects of hosting, operation, and maintenance of the Web Site in accordance with the specifications set forth on the Work Statement.

The Client shall be solely responsible for collecting any and all required sales, use and value added taxes and other governmental charges and duties from users of the Web Site.

The Company may publish credits, disclaimers or other materials on the Web Site as the Company reasonably deems appropriate. In addition, the Company shall have the right to review the Web Site from time to time and remove or edit content which, in its sole discretion, the Company considers offensive, libellous, obscene or otherwise unlawful or objectionable (including without limitation, hyperlinks, framed content or meta tags which the Company considers potentially infringing of third party intellectual property rights); provided, however, that the Company shall attempt to contact the Client prior to removing or editing such content. The parties will attempt to meet in good faith to resolve any such issues. If the parties are unable to resolve such issues or the Company is unable to contact Client, after using reasonable efforts, the Company may remove such content in its reasonable discretion.

14. Fee Structure: These are as described in our proposal and/or agreement.  Payment of the relevant fees, as detailed in our proposal and/or agreement, are due in respect of all days worked (or scheduled to work, but deferred or cancelled by the Client giving less than 5 working days written notice). Unless otherwise agreed, travelling time in excess of 2 hours per day shall be charged for on an hourly basis.  We will work to the Clients hours when at the Clients premises. Overtime will be charged pro rata at the fees listed in our proposal and/or agreement for additional hours worked Monday to Friday.  Hours worked on a Saturday shall be charged at the fees as listed in our proposal and/or agreement plus an additional 50%. Hours worked on a Sunday shall be charged at the fees as listed in our proposal and/or agreement plus an additional 100%. The cost of delays attributable to the Client including, but without limitation, failing to carry out agreed actions or not providing necessary information or services, or failing to give proper notice to terminate or cancel as detailed herein will be charged at our standard fee rates applicable at the time.

15. Fee/Price Variations: Any fee or price variation shall become due for payment to us in accordance with the terms for payment herein.

16. Expenses: Unless otherwise agreed, all expenses, costs, subsistence and travel incurred by us in the performance of the professional services shall be charged extra at cost and shall become payable in accordance with the terms of payment as set out herein.

17. Standard Payment Terms
Where specifically agreed, a deposit payment is to accompany the order.  The remaining order value, or where no deposit payment is required, the entire order value, is to be received upon presentation of our invoices which shall be raised to allow payment as follows:

Upon completion of the initial meeting with the Client.

Upon delivery and presentation of the Client’s completed website.

In the event of late payment for whatever reason and without prejudice to any other rights or remedies, we have the right to:

a.  Suspend any further performance of the service for such period as we feel fit and/or;

b.  Charge interest on all overdue accounts from the date payment was due (as set out above) until actually made at 3% above the Bank of England Base Rate during the period in which interest is payable and/or;

c.   Withhold the issuing of any relevant documentation due to the Client

All documentation and information supplied by us shall remain our property until full payment of our order value is received.

We are unable to accept any of our monies being ‘set-off’, or withheld as retentions.

18. Hosting Fees: The Client shall pay to the Company the yearly fee, as quoted by the Company, for hosting the Web Site in accordance with the terms and conditions of this Agreement.
i)   The Company may at any time change the price of hosting, provided 3 months’ written notice is supplied to the Client.  Where payment has already been made for a specified period, no further payment or reimbursement shall be due and new fees shall take effect from the next payment due.  The Company reserves the right to continue charging the Client old rates where new rates are higher.

ii)   The Client may change their hosting requirements at any time.  In the event that such requirements are changed, the Company shall adjust the fees due accordingly.

iii)  All fees payable by the Client to the Company shall be paid in full, without set off or deduction.  The Company reserves the right to suspend or terminate hosting services if fees are not paid on or before the due date.

19. Compensation: If the Company quotes an unqualified and unconditioned price for Deliverables or particular services in the Work Statement, the amount quoted shall be deemed a fixed price. Unless the Work Statement provides for progress payments, deferral of payment after completion or some other form of payment schedule, the Client shall pay the full amount of the fixed price associated with the Deliverables and shall begin making payments for the Company’s hosting services upon delivery of final Deliverables.

With respect to Deliverables, and other services for which the parties determine that payment on a fixed price basis is not appropriate, the Work Statement may provide for payment on the basis of time and materials, determined according to the hourly rates set for the Company’s employees by skill level in the schedule of rates to be agreed to by the parties and attached hereto. The parties may agree on a maximum aggregate amount for particular services or Deliverables. The Company shall use all commercially reasonable efforts to complete the specified services and/or Deliverables for no more than such aggregate amount. Should the Company determine at any time that it may be necessary to exceed such aggregate amount the Company shall provide a written notice to the Client, indicating the estimated cost to complete the pertinent services and/or Deliverables. Following receipt of such estimate, the Client shall immediately instruct the Company in writing to (i) halt work with respect to such services and/or Deliverables, (ii) continue on a time and material basis, or (iii) suspend work pending further negotiation of a fixed price for completion.

All hosting services to be provided by the Company under Clause 13 of this Agreement shall be paid for by the Client in accordance with the Hosting Fees section of the Work Statement.

20. Errors or Discrepancies: The client shall be responsible for the accuracy of any information submitted to us.  Our proposal and/or agreement is based on the information provided to us at the time of meeting with the client and when preparing the website design.  Should any errors or discrepancies become evident which affects our order value we reserve the right to make any adjustments to it and we accept no liability whatsoever for any errors or discrepancies in the contents of our website development plan or estimates due to such errors or discrepancies of the Client.

21. No employment: Nothing in this contract shall render or be deemed to render us an employee or agent of the Client or the Client an employee or agent of ours.

22. Restrictive Covenants: Both parties agree that they will not during the term of this contract and for a period of 1 year from the expiry of this contract, without the others prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director, consultant or independent Company of the other.  Whilst the above restrictions are considered by the parties to be reasonable in all the circumstances, it is agreed that if, taken together they are adjudged to go beyond what is reasonable in all the circumstances for Company’s protection but would be judged reasonable if part or parts of the wording of them were deleted or its period reduced or an area defined they shall apply with such words deleted or with such modifications as may be necessary to make it valid and effective.

23. Rights in Content and Software: All Deliverables and other items and materials delivered by the Company to the Client hereunder, and all Intellectual Property Rights associated with any of the foregoing, shall be owned exclusively by the Company, and no right, title or interest in or to any of the same other than the license granted to the Client pursuant to this clause is granted, transferred or assigned to the Client by this Agreement or any Work Statement.  At the Company’s expense, the Client shall: (a) co-operate with the Company in its efforts to obtain available protection for the Deliverables under domestic laws and to secure such certifications registrations, or licenses as may be appropriate for the better protection of the same in the United Kingdom; and (b) take such further action as the Company may reasonably request (including, without limitation, execution of affidavits and other documents) to effect, perfect or confirm the Company’s ownership interests as set forth in this clause. The Client may make one (1) archival or backup copy of the Deliverables.  The Client shall not make any other copies of any Deliverables, without the written permission of the Company.

The Client’s logos, trademarks, trade names, copyright materials and the Client’s Pre-existing Work remain the Client’s sole property.  The Company agrees that the service mark [e.g., “Client’s Web Site,”] uniform resource locator (“URL”) [e.g., “www.Client.com”] and the IP numeric equivalent will be obtained by and remain the sole property of the Client.  The Company agrees to identify the Client’s trademarks, copyrights and other Intellectual Property Rights in the Web Site by including appropriate symbols and notices as reasonably requested by the Client.

Subject to the terms andconditions of this Agreement, each party hereby grants the other a non-exclusive, non-transferable (except with written permission from the other), non-sub-licensable, worldwide license to use, reproduce and/or modify the others property, as described in this Agreement, solely in connection with the operation of the Web Site.

All rights in and to the Deliverables and any other items and materials delivered by the Company to the Client which are not expressly granted to the Client under this clause are reserved to the Company. Without limiting the generality of the foregoing, the Client shall not, and shall not assist, authorise or encourage any third party to:

i)   use or transmit any Deliverables on or to any other web site or network not owned by the Company,
ii)   reverse engineer, decompile, disassemble any Deliverables or otherwise attempt to discover any Source Code or trade secrets related to any Deliverables;
iii)  distribute, license, rent, sell, lease or otherwise transfer any Deliverables;
iv)  modify or create derivative works based on any Deliverables; or
v)  remove, obscure or alter any notice of copyright, trademark or other proprietary notices present on or in any Deliverables.

24. Cancellation: Should the Client cancel the order with us we shall be immediately entitled to payment for:

i)   100% of our fees if cancellation takes place within 5 working days or less of the date of commencement
ii)   90% of our fees if cancellation takes place within 8 working days or less of the date of commencement
iii)  75% of our fees if cancellation takes place within 10 working days or less of the date of commencement
iv)  50% of our fee if cancellation takes place within 15 working days or less of the date of commencement

We also reserve the right to levy reasonable cancellation charges, including but not limited to, any administration costs, procurement costs, loss of contract and loss of profit, against the Client and these shall fall due for payment immediately.

25. Delay & Abortive visits: Our price is based on being able to complete the website design, development and professional services in the agreed number of hours over the period as detailed in our proposal and/or agreement.  If we are prevented by the actions or non-actions of the client, their agents, subcontractors representatives, or authorized 3rd parties, from working through to completion, as agreed we reserve the right to recover any costs incurred by way of delay.

26. Delays: We reserve the right to charge costs associated with any delay caused through the sole fault of the Client. We shall then require, from the Client, a further written notice in accordance with our notice period pursuant to clause 8 above.

27. Prevention or Frustration: If this contract becomes impossible to perform or is otherwise frustrated the Client shall be liable to pay us all costs, expenses, overheads and any loss of profit which we incur as a result of such frustration or impossibility of performance.

28. Force Majeure: Except for the Clients obligations to pay us, neither party shall be liable for any delay or failure to perform its obligations if such failure or delay is due to causes beyond its reasonable control (including any delay caused by an act or default of the other party).

29. General Liability:Due to circumstances outside of our control we shall not be liable for any delay or for any consequence of any delay in the completion of the work if such delay shall be due to illness of any member of Company, fire, strike, lockout, dispute with personnel, flood, accident, delay in transport, shortage of fuel, default of any sub-Company, inability to obtain material and/or labour, embargo, act or demand or requirement of any government or any government department or local authority, or as a consequence of war or of hostilities (whether war be declared or not), or any other cause whatsoever beyond our reasonable control.

If any such delay occurs then (unless the cause thereof shall frustrate or render impossible or illegal the performance of this contract or shall otherwise discharge the same) our period for performing our obligations shall be extended by such period (not limited to the length of the delay) as we may reasonably require to complete the performance of our obligations.

We do not exclude any direct liability (if any) to the client for breach of this contract, any legislation, or statutory duty or in tort.  However, we shall not be liable whether by way of indemnity, breach of contract or statutory duty or in tort (including negligence) for any loss of profit, loss of use, loss of contract or contracts, or for any financial or economic loss or for any indirect or consequential loss or damage whatsoever.

In the event of any breach of our express obligations under these Terms and Conditions the remedies of the Client will be limited to damages, which in any event, shall not exceed the fees and expenses paid by the Client for the website development and professional services.
Any property including both hardware and software supplied to us by or on behalf of the Client shall be held and worked upon by us at the Client’s risk.  We shall not be liable for any loss or damage to any such property.

30. Literature and Representations:Any marketing literature is presented by us in good faith as a guide to represent the web design, development and professional services offered and does not form a part of this contract.

Any employees or agents are not authorised to make any representation concerning the professional services unless confirmed by us in writing.  In entering into the contract the Client acknowledges that it does not rely on and waives any claim for breach of any such representations, which are not confirmed.

31. Representations, Warranties, Limitations and Indemnity: The following representations and warranties are provided solely for the benefit of the parties to this Agreement, and no other person or entity.

i)   The Company warrants that (i) the Deliverables and software it creates or licenses to the Client shall perform reasonably as stated in the Specifications and (ii) it will perform all work called for in the Work Statement in compliance with applicable law.

ii)   The Company warrants that any part of the Client’s Web site and content developed solely by the Company:

will be original and will not infringe on any patent, copyright, trade secret or other proprietary rights of others; and

will not be defamatory to any third party or violate any third parties rights of privacy or publicity.

iii)  The Client warrants that no part of the Web Site, including all related materials and Content provided by the Client in the production of the Deliverables:
a.       infringes on any Intellectual Property Rights of others; or
b.       is defamatory to any third party or violates any third parties rights of privacy or publicity.
iv)  The Client warrants that it is the owner of all rights in, or has obtained any written permission necessary to authorise the Company’s use pursuant to this Agreement of, any part of the Web Site, materials and content provided by the Client.
v)  The Client shall be solely responsible for the adequacy and accuracy of all Content, information and data provided to the Company. The Client shall review the accuracy of all Content, information and data once the Company has included the same in the Web Site. The Client shall be solely responsible for the Content and information within the Web Site, and shall be responsible for all changes to the content of the Web Site accordingly.  The Company shall not be responsible for screening, policing, editing, or monitoring any content, or additional materials added by the Client or any third party to any Deliverable or included services. If notified of allegedly infringing, defamatory, damaging, obscene, illegal or offensive material, the Company’s sole obligation will be to inform Client of such allegations.

vi)  The Client shall defend, indemnify and hold the Company harmless from all liability and expenses (including, but not limited to attorneys fees) arising from such claim unless said liability is due gross negligence or a wilful default by the Company in carrying out its obligations under this Agreement.
vii) The Company will not create or change any pages of the Web Site or the content therein without the Client’s written authorisation, which shall be sent to the Company pursuant to clause 7.

viii) Each party has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights described herein to the other party.
ix)  The Company does not warrant any Deliverable or included services against failure of performance due to failure of computer hardware or communication systems for whatever reason other than the Company’s default.  Except as specifically provided in this Clause, the Company hereby disclaims and the Client hereby waives all other warranties, express or implied, with respect to the Deliverables and all services provided hereunder, arising by law or otherwise, including without limitation:
a.       any implied warranty of merchantability, fitness for a particular purpose non-infringement or arising from course of dealing, course of performance or usage of trade; and
b.       any obligation, liability, right, remedy, claim in tort, notwithstanding any fault, negligence, strict liability or product liability of the Company (whether active, passive or imputed).

32. Patents, Licence, Copyright and Intellectual Property Rights (The Client): The Client warrants that any document, product, information or instruction furnished or given by them shall not cause us to infringe any letter patent, registered design trade mark or intellectual property rights in the execution of the professional services and shall indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in settlement of any claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of the Client’s information. The Client shall maintain on all copies of a Deliverable the copyright notices, confidentiality legends, patent markings and other labels (singularly or collectively “Proprietary Rights Notices”) in the exact forms reasonably specified in written notices by the Company. Client shall not remove or alter any copyright or other Proprietary Rights Notices placed by the Company.

33. Assignment: The Client shall not be entitled to assign the benefits under this contract.

34. Waiver: Failure of any party to insist upon strict performance of any provisions of this contract or the failure of any party to exercise any right or remedy to which it is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this contract.  No waiver of any of the provisions of this contract shall be effective unless it is expressly stated to be such and signed by all the parties to this contract.

35. Confidentiality: In the course of the professional services, it may be necessary for the parties to have access to information that is confidential to the other (“Confidential Information”).  Confidential Information shall not include:

Which is, at the time of disclosure, in the public knowledge, or which after disclosure, becomes part of the public knowledge, except by breach of this contract;
Which was in the receiving party’s possession (as reflected in written records) at the time of disclosure by the disclosing party; and which was not acquired, directly or indirectly, from the disclosing party;

Which the receiving party can demonstrate; by written documents, resulted from its own research and development, independent of disclosure from the disclosing party;

Which the party receiving the information already possesses or which it obtains or originates independently in circumstances in which that party is free to disclose it; or which either party is obliged to disclose to comply with any requirement of the law.

The parties agree both during this contract and for a period of two years after termination of this contract, to hold each other’s Confidential Information in confidence.  The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any other purpose related to this contract.

Each party agrees to use its reasonable endeavours to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of the provisions of this contract.

The Client agrees that any information received pursuant to this contract shall be deemed subject to the non-disclosure obligations set forth herein.

36. Term and Termination: This Agreement will remain in effect through the period of time during which the parties agree that the Company will host the Web Site, as described in the Work Statement.

Either party shall have the right, exercisable by giving not less than 1 months’ written notice to the other at any time prior to the expiry of the period specified in this clause (or any further period for which this Agreement has been extended pursuant to this pursuant to this provision) to extend this Agreement for a further period to be agreed between the parties.
Either party may terminate this Agreement after the Website has been developed and commissioned by giving to the other not less than 3 months’ written notice, to expire on or at any time after 3 months from the expiry of the initial 3 months’ notice period

37. Effects of Termination: Upon the termination of this Agreement for any reason:

any sum owing by the Client to the Company under any of the provisions of this Agreement shall be immediately payable and the Client will pay the Company for all unpaid invoices and uncompensated staff time and expenses up to the date of termination; provided, however, that if the Deliverables are being provided on a fixed price billing basis, all staff time and expenses shall be paid as if on a time and material billing basis;

each party shall forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other party any documents in its possession or control which contain or record any Confidential Information;

any provision of this Agreement which is expressed to continue in force after termination shall continue in full force and effect; and

subject as provided in this clause, and except in respect of any accrued rights, neither party shall be under any further obligation to the other.

38. Insolvency of the Client: This clause applies if:

The Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction; or

An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Client; or

The Client ceases or threatens to cease to carry on business; or

We reasonably apprehend that any of the events mentioned above is about to occur in relation to the Client and we notify the Client accordingly

If this clause applies then without prejudice to any other right or remedy available to us we shall be entitled to cancel the contract or suspend any further professional services under the contract without any liability to the Client and if the professional services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous Agreement or arrangement to the contrary.

39. Data Protection: Both parties agree to comply with all applicable data protection legislation, including but not limited to the Data Protection Act 1998 and any subsequent amendments thereto.

40. Unenforceable or illegal terms: If any provision of these terms and conditions is held to be unenforceable or illegal, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of these terms and conditions and the remainder shall not  be affected.

41. Consumer Rights:  Nothing in these terms and conditions shall affect your statutory rights as a consumer.

42. Disputes: Any dispute between the parties to this contract shall be referred to the exclusive jurisdiction of the English Courts.

43. Law Applicable: This contract shall in all respects be subject to and construed in accordance with English law.