Standard Terms & Conditions
Terms & Conditions of Business of Mywebedge Ltd (“The Company”)
1. Definitions
Inthese Standard Terms & Conditions where the context otherwiserequires the following expressions shall have the following meanings.
“Change Request” a written request by the Customer for a change to the IT System.
“ConfidentialInformation” shall include, but not necessarily be limited to, allinformation which is not publicly known including the business,finances, technology (including without limitation any third partySoftware, the Software the IT Systems and the Documentation) tradesecrets, and any other commercially sensitive information of eitherparty regardless of its nature.
“Contract” the contract betweenthe Company and the Customer for the provision of the Services whichincludes these Terms & Conditions, Order Forms, signed Agreementsand the Company’s service literature.
“Customer” the sole trader,individual, partnership, organisation or body corporate who enters intothis Contract with the Company as detailed on the Order Form, Agreementor schedule hereto.
“Documentation” the documentation set out in Schedule 1.
“Specification” the Company’s specification appearing at Schedule 1 for the software and/or IT system.
“IntellectualProperty Rights” all copyright and other intellectual property rights,howsoever arising and in whatever media, whether or not registered,including (without limitation) patents, trade marks, service marks,trade names, registered design and any applications for the protectionor registration of these rights and all renewals and extensions thereofthroughout the world.
“IT System” collectively the Specified Equipment and the Software.
“Licence” the licence granted by the Developer to the Customer pursuant to Clause 7.
“Payment Schedule” the payment schedule set out in Schedule 2.
“Price” the price for the provision of the Services, the Licence and the Documentation set out in Schedule 2.
“Project” the development, delivery and testing of the Software and other IT systems and Specified Equipment.
“Rates” the rates set out in Schedule 2.
“Services”the software development, procurement, consulting, maintenance, supporttraining and computer programming services required to produce theSoftware and/or IT Systems for the Customer as set out in Schedule 1.
“Software”the software being developed or customised by the Company for theCustomer, details of which are set out in Schedule 1, including anyenhancements and modifications made.
“Specified Equipment” theconfiguration of computer(s) and ancillary equipment, includingoperating systems and system software on which the Software is tofunction as specified in Schedule 1.
2. The Project
2.1The Company shall provide the Customer with the Services as detailed inthe Schedule 1; and carry out any other Services agreed by the partiesin accordance with its standard operating business hours currently 9amto 5pm weekdays save for public holidays. Out of hours work can bearranged if agreed in writing.
2.2 The Company shall license the Software to the Customer in accordance with Clause 7.
3. The Customer’s Obligations
The Customer shall:
3.1Make available to the Company, free of charge, such computer facilities(including but not limited to unhindered access to the SpecifiedEquipment), technical and other information in respect of the ITSystems office and secretarial services as are required to enable theCompany to carry out its obligations under this Contract.
3.2 Take all reasonable precautions to protect the health and safety of the Company, its servants or agents.
3.3Ensure that its employees and other independent contractors co-operatereasonably with the Company and its employees in carrying out theServices.
3.4 Ensure that the Specified Equipment is availableand operated by the Customer in accordance with the Company’sspecification therefore and that all of the Customer’s employees areproperly trained and authorised in respect of the same.
3.5Promptly furnish the Company with such information and documents as itmay reasonably request for the proper performance of its obligationsunder this Contract.
3.6 Ensure that its representative is available as reasonably required by the Contract.
3.7Ensure that its servants and agents shall not alter, move or attachanything to, repair or adjust the Specified Equipment or any partthereof without the prior written consent of the Company.
4. Change Control
4.1If Customer identifies a requirement for a change, a Change Requestwill be sent to the Company detailing the change requirements. Thereceipt of the Change Request by the Company will constitute a requestto the Company to state in writing the effect such a change shall haveon the Services. The Company shall use all reasonable endeavours tosupply the necessary details within fourteen working days from receiptof the Change Request or such other period as may be agreed.
4.2Where a change to the Price is required, the rates used as the basisfor the additional cost for the Change Request shall be the Rates asdetailed in Schedule 2. The parties will then decide whether or not toimplement the change. If the change is implemented, the amendedServices and/or shall then become the contractual Services for thepurpose of this Contract.
4.3 The Company shall not implement any material or significant changes unless instructed to do so by the Customer.
5. Acceptance
5.1The Customer shall accept the Software and IT Systems immediately uponreceipt of the signed Certificate of Completion from the Company
5.2If at any time the Customer shall commence live running of the whole orany part of the Software then the Customer shall be deemed to haveaccepted the Software and IT Systems.
6. The Company’s Obligations
6.1The Company shall use its best endeavours to ensure that it and itsservants, agents and sub-contractors take all reasonable precautions inperformance of the Services and to ensure that no known viruses forwhich detection and antidote software is generally available are codedor introduced into the Software.
6.2 If the Company wishes to usematerial (in any medium) owned by third parties as part of theSoftware, he shall obtain at the Customer’s expense from those thirdparties such written assignments, releases, waivers, permissions andlicences as necessary to permit such use and to enable the Customer toexploit any program containing that material in the Software in allpresent and future media. The Company shall deliver copies of anydocumentation relevant to third party clearances to the Customer uponwritten request. Products supplied by the Company are sold subject tothe manufacturers warranty only and liability therefore is limited tothe terms of such warranty.
7. Licence
7.1 Onpayment in full of the Price, the Company grants to the Customer anon-exclusive, perpetual, non-transferrable right to use the Softwareand the Documentation on any processor owned by the Customer.
7.2The Customer may not disclose or make available the Software to anyentity nor permit others to use it except the Customer’s employees andagents who may use it only on the Customer’s behalf within the limitsof this licence and who have agreed to such terms.
8. Proprietary Rights
8.1 The Intellectual Property Rights in the Software and the Documentation shall be and remain vested in the Company.
8.2If The Customer’s use or possession of the Software or any part of theSoftware in accordance with this Agreement, is held by a Court ofcompetent jurisdiction to constitute an infringement of a third party’sIntellectual Property Rights, then the Company shall use all reasonableendeavours to:
8.2.1 procure for the Customer the right to continue using the Software or the infringing part; or
8.2.2modify or replace the Software (or part thereof) without detractingfrom the overall performance of the Software, so as to avoid theinfringement.
8.3 If the remedies set out in Clause 8.2 above arenot in the Company’s opinion reasonably available, then the Customershall return the Software which is the subject of the intellectualproperty claim and the Company shall refund to the Customer thecorresponding portion of the Price, as normally depreciated.
9. Charges and Expenses
9.1In consideration of the Company carrying out the Project, the Customershall pay to the Company the Price which shall be invoiced to theCustomer in the specified proportions set out in Schedule 2 and subjectto Clause 9.4.
9.2 In consideration of any or further work orattendance required by the Customer of the Company not referred to inSchedule 1, the Customer shall pay to the Company the amounts invoicedby the Company to the Customer based on the Rates set out in Schedule 2.
9.3The Customer shall also pay to the Company all reasonable travellingand other out of pocket expenses incurred in the course of the Projectsubject to a maximum amount of £200 per day in addition to all travelcosts.
9.4 Payment of sums due by the Customer to the Companyshall be made within fourteen days of the receipt of an invoice fromthe Company. If payment of any sum due to the Company is delayed inaddition to its other rights under the Contract, the Company shall beentitled to charge interest thereon of 10% above Barclays Bank Plc baserate until payment, such interest to accrue both before and after anymonetary Judgment of any Court.
10. Liability and Insurance
10.1The Company will indemnify the Customer for direct damage to tangibleproperty caused by the negligence of its employees in connection withthe performance of their duties under this Contract or by defects inany product supplied pursuant to this Contract. The Company’s totalliability under this Clause shall be limited to £1,000 for any oneevent or series of connected events.
10.2 Save in respect ofclaims for death or personal injury arising from the Company’snegligence, in no event will the Company be liable for any damageresulting from loss of data or use, lost profits, loss of anticipatedsavings, loss of business nor for any damage that are an indirect orsecondary consequence of any act or omission of the Company whethersuch damage was reasonably foreseeable or actually foreseen.
10.3Except as provided above in the case of personal injury, death anddamage to tangible property, the Company’s maximum liability to theCustomer under this Contract or otherwise for any cause whatsoever(whether in the form of additional cost of remedial services orotherwise) will be for direct costs and damages only and will belimited to a sum equivalent to the price paid to the Company for theServices that are the subject of the Customer’s claim.
10.4 Theparties acknowledge and agree that the limitations contained in thisClause 10 are reasonable in the light of all of the circumstancesparticularly in respect of the size and nature of the Company comparedwith the size and nature of the Customer.
10.5 The Customer’sstatutory rights as a consumer (if any) are not affected. All liabilitythat is not expressly assumed in this Contract is excluded. Theselimitations will apply regardless of the form of action, whether understatute, in contract or tort including negligence or any other form ofaction. For the purposes of this Clause 10, the “Company” includes itsemployees, sub-contractors and suppliers who shall all have the benefitof the limits and exclusions of liability set out above in terms of theContracts (Rights of Third Parties) Act 1999. Nothing in this Agreementshall exclude or limit liability for fraudulent misrepresentations.
11. Termination
11.1This Contract shall continue until completion of the Services unlessthe Contract is terminated in accordance with any of the provisions ofthis Clause 11 or any other clause of this Contract
11.2 Either party shall be entitled to terminate this Contract forthwith at any time by written notice to the other party if;
11.2.1the other party commits a breach of any of the terms of this Contractand (if the breach is capable of remedy) fails to remedy the breachwithin 30 days after receipt of notice in writing to do so; or
11.2.2the other party becomes subject to an Administration Order, a Receiveror Administrative Receiver or similar appointment, or if anencumbrancer takes possession of any of the other party’s property orassets, the other party enters into an agreement or composition withits creditors, ceases or threatens to cease to carry on business,becomes insolvent or ceases to be able to pay its debts as they falldue.
11.3 Any termination of the Licence or this Contract(howsoever occasioned) shall not affect any accrued rights orliabilities of either party nor shall it affect the coming into forceor the continuance in
force of any provision hereof which isexpressly or by implication intended to come into or continue in forceon or after such termination.
12. Confidentiality
12.1Both during this Contract and after its termination, the parties shalltreat as confidential and shall procure that its personnel and each ofthem treat as confidential and shall not (and shall procure that theirpersonnel and each of them does not) other than in the proper provisionof the Services required to fulfil the Project, use or disclose to anyperson, firm or company, any Confidential Information belonging to theother party or its clients, suppliers or customers, not permit its useor disclosure.
12.2 The provisions of this Clause 12.1 shall not apply where Confidential Information is divulged to:
12.2.1 either party’s own employees and then only to those employees who need to know the same;
12.2.2either party’s auditors, an officer of Inland Revenue, an officer of HMCustoms & Excise, a Court of competent jurisdiction, governmentalbody or applicable regulatory authority and any other persons or bodieshaving a right, duty or obligation to know the business of the otherparty and then only in pursuance of such right, duty or obligation.
12.3Both parties undertake to ensure that persons and bodies referred to inClause 12.2 are made aware before the disclosure of any part of theConfidential Information that the same is confidential and that theyowe a duty of confidence to the other party.
12.4 Each party tothis Contract shall promptly notify the other party if it becomes awareof any breach of confidence by any person to whom it divulges all orany part of the Confidential Information and shall give the other partyall reasonable assistance in connection with these proceedings whichthe other party may institute against such person for breach ofconfidence.
12.5 The provisions of this Clause shall survive thetermination of this Contract but the restrictions contained in Clause12.1 shall cease to apply to any information which may come into thepublic domain otherwise than through unauthorised disclosure.
12.6Nothing in this Clause 12 shall prevent the Company from exploiting anyinventions or software that it develops during the term of thisContract.
13. Interpretation
13.1 In this Contract unless the context otherwise requires:
13.1.1 words importing the singular number include the plural number and vice versa;
13.1.2 words importing persons include firms, companies and corporations and vice versa;
13.1.3 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Contract;
13.1.4 reference to any schedule to this Contract to numbered paragraphs relate to the numbered paragraphs of that schedule;
13.1.5 the headings to the clauses, schedules and paragraphs of this Contract will not affect the interpretation;
13.1.6any reference to an enactment includes reference to that enactment asamended or replaced from time to time and to any subordinatelegislation or byelaw made under that enactment;
13.1.7 anyobligation on any party not to do or omit to do anything is to includean obligation not to allow that thing to be done or omitted to be done;
13.1.8 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
13.2In the case of conflict or ambiguity between any provision contained inthe body of these Terms & Conditions and any provision contained inany schedule, the provision in the body of these Terms & Conditionsshall take precedence.
14. Agency, Partnership
ThisContract shall not constitute or imply any partnership, joint venture,agency fiduciary relationship or other relationship between the partiesother than the contractual relationship expressly provided for in thisContract.
15. Amendments
This Contract may not bereleased, discharged, supplemented, interpreted, amended, varied ormodified in any manner except by an instrument in writing signed by aduly authorised officer or representative of each of the parties.
16. Assignment
16.1This Contract is personal to the parties and, subject to Clause 16.2below, neither this Contract nor any rights, licences or obligationsunder it may be assigned by either party without the prior writtenapproval of the other party.
16.2 Notwithstanding the foregoing,either party may assign this Contract to any acquirer of all or ofsubstantially all of such party’s equity, securities, assets orbusiness relating to the subject matter of this Contract or to anyentity controlled by, that controls, or is under common control with aparty to this Contract. Any attempted assignment in violation of thisclause will be void and without effect.
17. Entire Agreement
17.1This Contract supersedes all prior agreements, arrangements andundertakings between the parties and constitutes the entire agreementbetween the parties relating to the subject matter of this ContractHowever, the obligations of the parties under any pre-existingnon-disclosure agreement shall remain in full force and effect insofaras there is no conflict between the same. The parties confirm that theyhave not entered into this Contact on the basis of any representationsthat is not expressly incorporated into this Contract.
18. Force Majeure
Notwithstandinganything else contained in this Contract, the Company shall not beliable for any delay in performing its obligations under this Contractif such delay is caused by circumstances beyond its reasonable control(including without limitation any delay caused by any act or omissionof any other party). Subject to the Company so delaying promptlynotifying the Customer of the reasons for the delay, the performance ofthe Company’s obligations shall be suspended during the period that thesaid circumstances persist and the Company shall be granted anextension of time for performance equal to the period of the delay.Save where such delay is caused by the act or omission of the Customer(in which event the rights, remedies and liabilities of the Companyshall be those conferred and imposed by the other terms of thisContractor by law):
18.1 any costs arising from such delay shall be borne by the party incurring the same;
18.2either party may, if such delay continues for more than 10 weeks,terminate this Contract forthwith giving notice in writing to the otherby reason of such termination save that the Customer shall pay theCompany a reasonable sum in respect of any work carried out by it priorto such termination and for that purpose the Company may deduct suchsum from any amounts previously paid by the Customer under thisContract (the balance (if any) of which shall be refunded to theCustomer whether paid by way of deposit or otherwise).
19. Notices
All notices under this Contract shall be in writing and shall be deemed to have been duly given:
19.1 when delivered, if delivered by hand during normal business hours of the recipient; or
19.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
19.3 in the second business day following mailing, if mailed by national ordinary mail, postage pre-paid;
in each case addressed to the most recent address or facsimile number notified to the other party.
20. Schedules
The provisions of Schedules 1- 2 shall form part of this Contract as if set out here.
21. Severance
Ifany provision of this Contract is prohibited by law or judged by aCourt to be unlawful, void or unenforceable the provision shall, to theextent required, be severed from this Contract and rendered ineffectiveas far as possible without modifying the remaining provisions of thisContract and shall not in any way affect any other circumstances of orthe validity or enforcement of this Contract.
22. Successors and Assignees
22.1This Contract shall be binding upon and inure to the benefit of theparties and their respective successors and permitted assignees andreferences to the party in this Contract shall include its successorsand permitted assignees.
22.2 In this Contract references to a party include references to a person:
22.2.1who for the time being is entitled by assignment, novation orotherwise) to that party’s rights under this Contract (or any interestin those rights); or
22.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and,in particular, those references include a person to whom those rights(or any interest in those rights) are transferred or pass as a resultof a merger, division, reconstruction or other reorganisation involvingthat party. For this purpose, references to a party’s rights under thisContract include any similar rights to which another person becomesentitled as a result of a novation of this Contract.
23. Waiver
Nodelay, neglect or forbearance on the part of either party in enforcingagainst the other party any term or condition of this Contract shalleither be or be deemed to be a waiver or in any way prejudice any rightof that party under this Contract. No right, power or remedy in thisContract conferred upon or reserved for either party is exclusive ofany other right, power or remedy available to that party.
24. Time
TheCompany will use all reasonable endeavours to achieve completion of theServices in accordance with the time specified in Schedule 1 but eachdate and time appearing in the said Schedule is to be treated as anestimated only and time shall not be of the essence in respect of thewhole or any part of the Services.
25. Sub-Contracting
TheCompany may perform any or all of its obligations under this Contractthrough agents or sub-contractors, provided that the Company shallremain liable for such performance and shall indemnify the Customeragainst any loss or damage suffered by the Customer arising from anyact or omission of such agents or sub-contractors but subject to thelimitations set out in this Contract.
26. Third Parties
Theparties confirm their intent (subject to Clause 10.5) not to confer anyrights on any third parties by virtue of this Contract and accordinglythe Contracts (Rights of Third Parties) Act 1999 shall not apply tothis Contract.
27. Proper Law and Jurisdiction
27.1This Contract and all matters arising from it and any dispute referredto below shall be governed by and construed in accordance with the lawof England and Wales.
27.2 Each party recognises that the otherparty’s business relies upon the protection of its IntellectualProperty Rights (“IPR”) and that in the event of a breach or threatenedbreach of IPR the other party will be caused irreparable damage andsuch other party may therefore be entitled to injunctive or otherequitable relief in order to prevent a breach or threatened breach ofits IPR.
27.3 With respect to all other dispute which are not IPRrelated pursuant to Clauses 27.1 and 27.2 above and its special rulesthe following procedures in Clauses 27.3 to 27.6 shall apply. Wherethere is a dispute the aggrieved party shall notify the other party inwriting of the nature of the dispute with as much detail as possibleabout the deficient performance of the other party. A representativefrom senior management of each of the parties (“representatives”) shallmeet in person or communicate by telephone within 5 business days ofthe date of the written notification in order to reach an agreementabout the nature of the deficiency and the corrective action to betaken by the respective parties. The representatives shall produce areport about the nature of the dispute in detail to their respectiveboards and if no agreement is reached on corrective action, then arepresentative of each party shall meet in person or communicate bytelephone to facilitate an agreement within 5 business days of awritten notice by one to the other. If the dispute cannot be resolvedat board level within a further 5 business days, or if the agreementupon completion dates in any written plan of corrective action areexceeded, either party may seek its legal remedies as provided below.
27.4If the parties cannot resolve a dispute in accordance with theprocedure in Clause 27.3 above then they shall, with the assistance ofthe Centre for Alternative Dispute Resolution, seek to resolve thedispute or difference amicably by using an Alternative DisputeResolution (“ADR”) procedure acceptable to both parties before pursuingany other remedies available to them. If either party fails or refusesto agree to or participate in the ADR procedure or if in any event thedispute or difference is not resolved to the satisfaction of bothparties within 30 days after it has arisen, the matter shall be settledin accordance with the procedure below.
27.5 If the partiescannot resolve the dispute by the procedures set out above, the partiesshall irrevocably submit to the exclusive jurisdiction of the Courts ofEngland and Wales for the purposes of hearing and determining anydispute arising out of this Contract.
27.6 While the disputeresolution procedure above is in progress and any party has anobligation to make a payment to another party or to allow a credit inrespect of such payment, the sum relating to the matter in disputeshall be paid into an interest bearing deposit account to be held inthe names of the relevant parties at a clearing bank and such paymentshall be a good discharge of the parties’ payment obligations underthis Contract. Following resolution of the dispute, whether bymediation or legal proceedings, the sum held in such account and anyinterest accrued shall be payable as determined in accordance with themediation or legal proceedings.