Standard Terms & Condition of Supply.
Introduction
These Standard Terms & Conditions of Supply (hereinafter the ‘Terms and Conditions’) govern those terms under which Cotswold Web Limited (hereinafter ‘the Company’) will supply Services and a Customer (hereinafter ‘the Customer’)
1.Definitions
These Terms and Conditions shall have the following definitions and meaning:
“Acceptance Criteria” has the meaning as defined in Clause 5.2 of these Terms and Conditions;
“Acceptance Date”
shall mean the end of the Acceptance Period or such other date as may be agreed in writing between the Company and the Customer;
“Acceptance Period” means a period of 10 Business Days beginning the first Business Day following the Delivery Date;
“Acceptance Test” means a set of tests as set out in the Schedules and undertaken by the Company in conjunction with the Customer;
“Business Day”
means any weekday excluding Saturdays, Sundays, UK Bank Holidays and UK Public Holiday;
“Business Hours” means between 09:00 and 17:30 GMT or BST during a Business Day;
“Charges” means the amounts payable by the Customer to the Company and as prescribed by the Quotation;
“Confidential Information” means any information supplied by the Company to the Customer (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood by the Company to be confidential;
“Customer Works” means the software, works and materials as defined within the Quotation and provided to the Company by the Customer or by any third party acting for or on behalf of the Customer for incorporation into the Delivered Software by the Company and that are freely provided to the Company by the Customer or by any third-party agent acting on behalf of the Customer;
“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Delivered Software but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents or sub-contractors;
(b) an incompatibility between the Delivered Software Services and any other application, program or software (other than the Customer Works and the Third-Party Works).
“Delivered Software” means those websites, software applications, software integrations systems and or hosting services designed, written complied and provide by the Company to the Customer and as described in the Quotation, the Schedules and any other supporting information referenced by the Company within the Quotation;
“Delivery Date” means the date for the delivery of the Delivered Software Services by the Company to the Customer as specified in the Quotation or as may be varied from time to time in written agreement between the Company and the Customer;
“Effective Date”
means the date on which the Company provides written confirmation to the Customer that the Company has accepted the Customers written instructions to order the Delivered Software under the terms of these Terms & Conditions;
“Force Majeure Event”
means an event, or a series of related events, that is outside the reasonable control of the Company (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);
“Open Source Software”
shall mean any software that is either freely or commercially to the Company and which maybe included by the Company and at the sole discretion of the Company within the Delivered Software;
“Personal Data” means data relating to a living individual who can be identified from that data, or from that data and other information which is in the possession of, or is likely to come into the possession of, the data controller;
“Quotation”
means those commercial document that are provided by the Company for the Customer and that describe the functionality, price payment Schedules and any other relevant information that relates to the Delivered Software;
“Schedules”
means the various schedules documents, diagrams and various other supporting information attached to the Quotation by the Company;
“Services” has meaning as defined in Clause 3.1 of these Terms and Conditions;
“Third-Party Works” means any software, works and materials the Intellectual Property Rights of which are owned either in whole or part by a third party but specifically excluding the Customer;
“Unlawful Content” has the meaning given to it in Clause 7.1;
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In these Term and Conditions a reference to a statute or statutory provision or regulation includes a reference to that statute or statutory provision or regulation as modified, consolidated and/or re-enacted from time to time.
1.3 The Clause headings in these Terms & Conditions do not affect the interpretation of these Terms and Conditions.
2. Term
These Terms & Conditions will come into force on the Effective Date and will continue in force until the acceptance of the Delivered Software by the Customer in accordance with Clause 5, excluding the provisions or Clauses 7, 8, 9, 10, 11, 12, 13 and 14 which will remain in force and in perpetuity.
3. The Services
3.1 The Company will:
(a) commission, provide and deliver to the Customer the Delivered Software as described in the Quotation and Schedules;
(b) incorporate the appropriate Customer Works and Third-Party Works into the Delivered Software as described in the Quotation and Schedules; and
(c) during the Term keep the Customer informed of the progress of the Delivered Software as described in the Quotation and Schedules.
3.2 The Company will use all reasonable endeavours to perform the Services in accordance with the delivery timetable set out in the Quotation and the Schedules; however, the Company does not guarantee those delivery timetables.
4. Customer obligations
4.1 The Customer will at all times during the Term provide the Company with:
(a) all such co-operation as is reasonably required by the Company to freely enable the performance by the Company of its obligations prescribed by these Terms and Conditions; and
(b) all reasonable information and or documentation required by the Company in connection with the provision of the Services.
4.2 The Customer will be solely responsible (unless agreed in the Quotation) in respect the procurement of any third-party co-operation which is reasonably requested in writing by the Company to enable the Company to fulfil its obligations under this Terms and Conditions.
5. Delivery and acceptance
5.1 The Company will use all reasonable endeavours to provide to the Customer the Delivered Software on or before the Delivery Date.
5.2 During the Acceptance Period, the Customer will carry out Acceptance Tests to determine:
(a) whether the Delivered Software conform in all material respects with the specification for the Delivered Software as described in the Quotation and the Schedules; and
(b) whether the Delivered Software has any Defects;
(hereinafter the “Acceptance Criteria”).
5.3 If the Delivered Software meets the Acceptance Criteria, the Customer will send to the Company a written notice during the Acceptance Period confirming acceptance of the Delivered Software.
5.4 If the Delivered Software does not meet the Acceptance Criteria:
(a) the Customer will send to the Company a written notice during the Acceptance Period setting out in detail all any the respects in which the Delivered Software does not meet the Acceptance Criteria in the opinion of the Customer; and
(b) in respect to the provisions of Clause 5.4(a) the Company will have a further remedial period of 20 Business Days to modify the Delivered Software so that it meets the Acceptance Criteria.
5.5 The Delivered Software will be deemed to have been accepted by the Customer if:
(a) the Customer does not give any notice to the Company under either Clause 5.3 or Clause 5.4 by the end of the Acceptance Period; or
(b) the Customer publishes or uses the Developed Software for any purpose other than the Customer testing the Developed Software.
6. Customer Works & Third-Party Works
6.1 All Customer Works and Third-Party Works will be appropriately licensed by or to the Customer under the relevant licensor’s standard terms and conditions or on licence terms notified in writing by the Customer to the Company and in all cases before the Effective Date.
6.2 Any licence fees for any Customer Works or Third-Party Works are specifically not included in the Quotation (unless specifically agreed in writing otherwise by the Company and the Customer).
7. Unlawful Content
7.1 The Customer will ensure that the Customer Works and Third-Party Works do not infringe any applicable laws, regulations or third party rights (“Unlawful Content”).
7.2 The Customer will indemnify and will keep indemnified the Company against all damages, losses and expenses (including all and any legal expenses) arising as a result of any claim that the Customer Works and or Third-Party Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
8. Charges and payment
8.1 The Company will issue invoices for all Charges to the Customer on the relevant dates as set out in the Quotation or as maybe be varied in written agreement between the Company and the Customer.
8.2 The Customer will pay the Charges to the Company within 15 days of the date of issue of any invoice issued in accordance with Clause 8.1.
8.3 All Charges stated in the Quotation or in relation to these Terms & Conditions are stated by the Company exclusive of VAT or applicable sales taxes and at the prevailing rate.
8.5 If the Customer does not pay any amount properly due to the Company under or in connection with these Terms and Conditions, the Company may charge the Customer interest on the overdue amount at the rate of 5% per year above the prevailing base rate of the Bank of England, such interest will accrue daily until the date of actual payment.
9. Intellectual Property Rights
9.1 All copyright and other Intellectual Property Rights in the Delivered Software (excluding the Customer Works and the Third-Party Works) will in perpetuity remain the sole property of the Company from the Effective Date.
9.2 The Company grants to the Customer a non-exclusive worldwide licence of such Intellectual Property Rights for the purposes of:
(a) the operation and use of the Delivered Software by the Customer in relation to their business only;
subject always to the other clauses in these Terms and Conditions.
9.4 In the case where the Delivered Software is a website, the Company may include a copywrite statement together with a link to the Company's website on each page of the website in a position and in a form to be agreed in writing between the Company and the Customer.
9.5 The Customer will retain any such credit and link in any adapted version of the website, and the Customer will (and will only) remove any such credit and link from the website with the written agreement of the Company.
10. Warranties
10.1 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under these Terms & Conditions.
10.2 The Company warrants to the Customer:
(a) that it will perform its obligations under these Terms and Conditions with reasonable care and skill;
(b) that the use of the Delivered Software (including the Customer Works and Third-Party Works) by the Customer in accordance with the terms of these Terms and Conditions will not infringe the Intellectual Property Rights of any third party;
(c) the that the use of the Delivered Software (including the Customer Works and Third-Party Work) by the Customer in accordance with the terms of these Terms and Conditions will not infringe the Intellectual Property Rights of the Company; and
(d) that the Delivered Software will continue to operate without any Defects for a period of 30 days from the Acceptance Date and if the Delivered Software does not so operate, the Company will, for no additional charge, carry out any work necessary to ensure that the Delivered Software operates without any Defects during this 30 day period.
10.3 The Customer acknowledges that the Company has designed the Delivered Software to work with those web browser technologies specified in the Schedules, and the Company does not warrant that the Delivered Software will work with any other web browser technology.
10.4 The Customer further acknowledges that the Company does not purport to provide any legal advice under these Terms and Conditions or in relation to the Delivered Software and the Company does not warrant that the Delivered Software will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
10.5 All of the parties' liabilities and obligations in respect of the subject matter of these Terms and Conditions are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.
11. Limitations and exclusions of liability
11.1 Nothing in these Terms and Conditions will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
11.2 The limitations and exclusions of liability set out in this Clause 11 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 11.1;
(b) govern all liabilities arising under these Terms and Conditions or in relation to the subject matter of these Terms and Conditions, including all liabilities arising in contract and/or in tort; and
(c) will not limit or exclude the liability of the Customer under the indemnities set out in these Terms and Conditions.
11.3 The Company will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
11.4 The Company will not be liable for any loss of business, contracts or commercial opportunities.
11.5 The Company will not be liable for any loss of or damage to goodwill or reputation.
11.6 The Company will not be liable in respect of any loss or corruption of any data, database or software.
11.7 The Company will not be liable in respect of any special, indirect or consequential loss or damage.
11.8 The Company will not be liable for any losses arising out of a Force Majeure Event.
11.9 The Company's liability in relation to any event or series of related events will not exceed the total amount paid and payable by the Customer to the Company under these Terms and Conditions during the three month period immediately preceding the event or events giving rise to such claim.
11.10 The Company's aggregate liability under these Terms and Conditions will not exceed the total amount paid by the Customer to the Company under these Terms and Conditions.
12. Data protection
12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under these Terms and Conditions.
12.2 The Company warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.
13. Confidentiality
13.1 The Customer will keep confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause 13.
13.2 The Customer will protect the confidentiality of any Confidential Information using at least reasonable security measures.
13.3 The Confidential Information may be disclosed by the Customer to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
13.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of these Terms and Conditions);
(b) is known to the Customer, and can be shown by the Customer to have been known to it, before disclosure by the Company; or
(c) is required to be disclosed by law, or by an order (binding upon the Company) of a governmental authority, a regulatory body or stock exchange.
14. General
14.1 Any notice given under these Terms and Conditions must be in writing and must be delivered personally, sent by first class post, sent by fax or sent by email, for the attention of the relevant person at the Company or the Customer, and to the relevant address, fax number or email address or as notified by one party to the other in accordance with this Clause.
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by post, 48 hours after posting; and
(c) where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of these Terms and Conditions will be waived except with the express written consent of the party not in breach.
14.4 If a Clause in these Term and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of these Terms and Conditions will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in these Terms and Conditions will constitute a partnership, agency relationship or contract of employment between the parties.
14.6 These Terms and Conditions may not be varied except by a written document signed by or on behalf of each of the parties.
14.7 Each party may freely assign its rights and obligations under these Terms and Conditions without the other party's consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in these Term and Conditions, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in these Terms and Conditions or any rights or obligations under these Terms and Conditions.
14.8 The Company may subcontract any of its obligations under these Terms and Conditions to any third party, subject to obtaining the Customer prior written consent (not to be unreasonably withheld or delayed).
14.9 Neither party will, without the other party's prior written consent engage, employ or otherwise solicit for employment any employee or contractor of the other party who has been involved in the performance of these Terms and Conditions.
14.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under these Terms and Conditions.
14.11 These Terms and Conditions are made for the benefit of the parties, and are not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to these Terms & Conditions are not subject to the consent of any third party.
14.12 These Terms and Conditions constitutes the entire agreement and understanding of the parties in relation to the subject matter of these Terms and Conditions, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of these Terms and Conditions. Subject to Clause 11.1 above, each party acknowledges that no representations or promises not expressly contained in these Terms and Conditions have been made by or on behalf of the other party.
14.13 These Terms and Conditions will be governed by and construed in accordance with the Laws of England and Wales.
Version 3.1 Dated 10 May 2014