TERMS AND CONDITIONS OF AGREEMENT
THIS AGREEMENT IS BETWEEN
1. NewNet Software Limited (Registered Number: 08638492), whose registered office is at 86-90 Paul Street, London EC2A 4NE ("NewNet Software"); and
2. The Client as defined below ("the Client").
The parties have agreed that NewNet Software will provide the Client with IT design and development and other relevant services on the terms and conditions set out below.
I. WEBSITE DESIGN AND DEVELOPMENT
A) SCOPE OF THE PROJECT
NewNet Software will:
1. Liaise with the Client in developing the look and feel of the Website, Product and the agreed Service Proposal;
2. Design, develop and deliver the Website in accordance with the agreed Proposal;
3. Provide the relevant Services as agreed; and
4. Provide at the request of the Client, Maintenance and Support Services.
B) CLIENT RESPONSIBILITIES
The Client acknowledges that NewNet Software's ability to provide the agreed Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), together with the accuracy and completeness of any information and data the Client provides to NewNet Software. Accordingly, the Client will provide NewNet Software with access to and use of all relevant information, data and documentation as reasonably required by NewNet Software, to ensure the acceptable quality of performance by NewNet Software of its obligations under this agreement.
The Client will be responsible for the accuracy and completeness of the content Materials on the Website in accordance with the agreed Proposal.
NewNet software can provide website content, royalty free images, and specialist onsite photography for still photos and videos.
C) DEVELOPMENT AND ACCEPTANCE OF WEBSITE
Once NewNet Software has completed the full consultation with the Client pursuant to the above clauses, NewNet Software will provide the Client with the relevant Proposal. The Client will indicate its approval of the Proposal by making an advance payment of a 30% (or negotiable) deposit of the total charges relating to the Services, as stated in the Proposal. For the avoidance of doubt, such deposit is non-refundable.
Once the Client has approved the Proposal, NewNet Software will develop and produce the required Specification for the approval of the Client.
The Client will have a period of 10 business (working) days in which to consider the Specification and to submit written comments to NewNet Software. The parties will discuss any proposed amendments and will use their reasonable endeavours to agree the form of the Specification within 5 business (working) days. For the avoidance of doubt, if the proposed changes are material changes and affect the cost of development, NewNet Software will provide the Client with revised Service and Delivery Charges.
Where the Client fails to provide comments in accordance with the agreed terms and conditions, NewNet Software will, in its complete discretion, invoice the Client for any work done to date. Such invoices will be payable by the Client on receipt.
Once NewNet Software has completed the design and development of the Website, in accordance with the Proposal and the Specification, it will run the necessary Acceptance Tests.
The Acceptance Tests will test the compliance of the Website with the Website Specification.
Acceptance of the Website will occur when the Website has fully passed the required Acceptance Tests. NewNet Software will notify the Client, as soon as practical, when the tests have been passed and will confirm the results of the Acceptance Tests to the Client in writing.
Where there is any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client or by one of the Client's sub-contractors or agents for which NewNet Software has no responsibility ("Non-NewNet Software Defects"), the Website will be deemed to have passed the Acceptance Tests notwithstanding such Non-NewNet Software Defect. NewNet Software will provide assistance, as reasonably requested by the Client, in remedying any Non-NewNet Software Defects by supplying additional services or products. If so requested, the Client will pay NewNet Software in full for all such additional services and products provided, at NewNet Software's then current fees and prices.
Acceptance of the Website will be deemed to have taken place upon the happening of any of the following events:
D) THIRD PARTY PRODUCTS
The third party Products will be supplied in accordance with the relevant third party suppliers' standard terms and NewNet Software will use its reasonable endeavours to pass on to the Client any such manufacturers guarantees.
Any third party Charges are included in the relevant Charges payable section as stated herein.
E) SUPPORT SERVICES
In the event that the Client will become aware of a Fault, the Client will submit a Fault Report to NewNet Software with immediate effect.
The Client will ensure that the Fault Report comprises details of:
NewNet Software will thereupon promptly investigate the reported Fault to identify whether it is due to an error of NewNet Software or otherwise. Where the error and defect is due to the equipment or software not provided by NewNet Software, NewNet Software will notify the Client who will then obtain the necessary support from an alternative provider. Where the Fault is due to an error in the NewNet Software Product, NewNet Software will provide the necessary Support Services.
NewNet Software will provide the following Support Services to the Client during Business Hours in respect of the NewNet Software. Where Support Services are provided outside of Business Hours, NewNet Software has the option to charge the Client at its current rates:
The Support Services will not include the diagnosis and rectification of a fault arising from:
F) CHARGES AND PAYMENT
The Client will pay 30% (or negotiable) of the total Charges relating to the Services as a non-refundable deposit, on the approval of the Proposal.
The Client will pay any charges relating to the registering of the Domain Name and Hosting Services, yearly in advance (for start-up businesses).
Thereafter, NewNet Software will issue a monthly invoice in respect of the Charges, and the Client will pay to NewNet Software the Charges set out in NewNet Software's invoice within 14 calendar days of the date of NewNet Software's invoice.
All Charges are exclusive of VAT.
Where the Client fails to pay any amount payable by it under this agreement, NewNet Software will be entitled to but not obliged, to charge the Client interest on the overdue amount, payable by the Client forthwith on demand, from the invoice due date, up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Barclays Bank plc. Such interest will accrue on a daily basis and be compounded quarterly. NewNet Software reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
NewNet Software will perform the Services and the Support Services with reasonable care and skill.
NewNet Software warrants that the Website will perform substantially in accordance with the Website Specification for a period of 3 months from the date of Acceptance by the Client. Where the Website does not so perform, then NewNet Software will, for no additional charge, ensure that the Website substantially complies with the Specification.
This agreement sets out the full extent of NewNet Software's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
LIMITATION OF REMEDIES AND LIABILITY
Nothing in this agreement will operate to exclude or limit NewNet Software's liability for:
NewNet Software will not be liable to the Client for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
NewNet Software's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed 100% of the total Charges payable by the Client to NewNet Software under this agreement in that calendar year.
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in the Documentation and in the Website (including the content of the Website and the Website Software), but excluding the Materials, arising in connection with this agreement, will be the property of NewNet Software and NewNet Software hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purposes of operating the Website.
The Client will indemnify NewNet Software against all damages, losses and expenses arising as a result of any action or claim where the Materials infringe Intellectual Property Rights of a third party.
NewNet Software will indemnify the Client against all damages, losses and expenses arising as a result of any action or claim where the Website infringes any Intellectual Property Rights of a third party in the UK other than infringements.
The indemnities are subject to the following provisos:
The indemnities may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
NewNet Software will upon request and at the cost of the Client, update the Website with Materials provided from time to time by the Client. The Client will ensure that Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights).
NewNet Software will include only appropriate and relevant Materials on the Website. The Client recognises that NewNet Software has no control over any content placed on the Website by Visitors and does not purport to monitor the content of the Website. NewNet Software reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content. NewNet Software will notify the Client promptly if it becomes aware of any allegation that the content on the Website may be Inappropriate Content.
The Client will indemnify NewNet Software against all damages, losses and expenses arising as a result of any action or claim where the Materials constitute Inappropriate Content.
NewNet Software may include the statement "Designed by NewNet Software Limited" on the home page of the Website in a format to be agreed with the Client.
NewNet Software warrants that to the extent it processes any Personal Data on behalf of the Client:
II. APPLICATIONS DEVELOPMENT
All Software applications developed by NewNet Software have all Intellectual Property Rights in the Documentation and in the Website (including in the content of the Website and the Website Software), but excluding the Materials, arising in connection with this agreement will be the property of NewNet Software and NewNet Software hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purposes of operating the Website.
A) User Sign up Obligations
The Client user is required to sign up for a user account by providing all required information in order to access or use the Services. Where the Client user represents an organisation and they wish to use the Services for corporate internal use, NewNet Software recommend that the Client, and all other users from the Client organisation, sign up for user accounts by providing their corporate contact information. In particular, NewNet Software recommends that the Client uses their corporate email address. The Client User agrees to: a) provide true, accurate, current and complete information about themself as prompted by the sign up process; and b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. Where any information provided by the Client user is deemed untrue, inaccurate, outdated, or incomplete, or if NewNet Software has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, NewNet Software may terminate the Client user account and refuse current or future use of any or all of the Services.
B) Organisation Accounts and Administrators
Where the Client signs up for an account for their organisation, they may specify one or more administrators. The administrators will have the right to configure the Services based on the Client's requirements and manage end users in their organisation's account. Where the organisation account is created and configured on the Client's behalf by a third party, it is likely that such third party has assumed administrator role for the Client organisation. It is the responsibility of the Client to make sure that they enter into a suitable agreement with such third party, specifying such party's roles and restrictions as an administrator of their organisation's account.
The Client is responsible for i) ensuring confidentiality of their organisation's account password, ii) appointing competent individuals as administrators for managing their organisation's account, and iii) ensuring that all activities that occur in connection with their organisation's account comply with this Agreement. The Client understands that NewNet Software is not responsible for account administration and internal management of the Services for the Client.
The Client is responsible for taking necessary steps for ensuring that their organisation does not lose control of the administrator accounts. The Client may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to firstname.lastname@example.org, provided that the process is acceptable to NewNet Software. In the absence of any specified administrator account recovery process, NewNet Software may provide control of an administrator account to an individual providing proof, satisfactory to NewNet Software demonstrating authorisation to act on behalf of the organisation. The Client agrees not to hold NewNet Software liable for the consequences of any action taken by NewNet Software in good faith in this regard.
IV. MAINTENANCE AND SUPPORT
A) The Parties have agreed the detailed Website Maintenance Specification as defined in the specific Document and Schedule of this Agreement.
Any amendments proposed to this Website Maintenance Specification must be made in writing and delivered to the other party. Either party is entitled to request a meeting to discuss such amendments.
Where such proposed amendments incur additional expense, NewNet Software is entitled to seek further payment from the Client to cover such expense.
The Client will pay the agreed Maintenance Fees to NewNet Software as detailed in Schedule One at the agreed intervals. NewNet Software will invoice the Client who will pay the invoice, including Value Added Tax, (VAT) at the prevailing rate according to the terms of payment detailed on the invoice.
NewNet Software will require regular and timely payment where the Website Maintenance involves ongoing work over a considerable period of time. Such payments will be made in accordance with the Maintenance Charges as defined in Schedule One of this Agreement, or if not specified in Schedule One, to be agreed in writing by the parties prior to the commencement of the Website Maintenance.
All payments to NewNet Software will be paid within 30 calendar days after the receipt of NewNet Software's invoice for such payment.
NewNet Software will be entitled to renegotiate the ongoing Maintenance Fees prior to the expiry of the Initial Term of this Agreement in order to allow for any increase in the Fees after the expiry of the Initial Term.
NewNet Software will give the Client at least 60 calendar days notice prior to the expiry of the Initial Term of their intention to renegotiate the Fees. NewNet Software will provide full details to the Client at the time of the notice.
The Client will pay the expenses incurred by NewNet Software during the Website Maintenance, including travel to the offices of the Client where required, the purchase of computer consumables required for the Website Maintenance and such other reasonable expenses directly related to the Website Maintenance.
NewNet Software will inform the Client in writing in advance if significant expenses not covered during the Website Maintenance.
NewNet Software will deliver the completed Website Maintenance to the Client by way of Compact Disc, (CD) or such other data storage method as selected by NewNet Software.
B) SOFTWARE UPDATES/UPGRADES.
(a) "Updates" means bug fixes and/or fixes of minor errors in the Software that are incorporated in a new release of the Software. The change from version X.01 to version X.02 or the change of version X.10 to X.20 will be considered an Update. NewNet Software will make available all Updates for the Client's Covered Products to the Client, either by making them available at a NewNet Software website or as otherwise specified by NewNet Software.
(b) "Upgrades" means enhancements and/or new functionalities in the Software that are incorporated in a new release of the Software. The change from version 1.X to version 2.X will be considered an Upgrade. NewNet Software will make available all Upgrades for the Client's Covered Products the Client, either by making them available at a NewNet Software website or as otherwise specified by NewNet Software.
(c) Provided the Covered Products are then in effect, the Client may download and install one copy of each Update and/or Upgrade for each Covered Product. Updates and Upgrades are licensed under the same terms and conditions that governs the corresponding Covered Product and are deemed part of the Covered Product.
(d) Installation of Updates and/or Upgrades. Where NewNet Software or Distributor installs Updates for the Client, the NewNet Software or Distributor may charge installation fees for such service.
V. GOVERNING LAW AND JURISDICTION
This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the Laws of England.
The parties irrevocably agree that the Courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement. This agreement has been entered into on the date stated at the beginning of this agreement.