Phase8 - Terms & Conditions

Definitions
1. In this schedule the following words and expressions have the following meanings:
  1. Acceptance Tests
    the acceptance tests to be implemented by you in accordance with clause 5c.
  2. Actual Delivery Date
    the actual date that the Website and Website Documentation are delivered by us in accordance with the provisions of this agreement.
  3. Business Day
    a day on which clearing banks are usually open in the City of London.
  4. Charges
    the charges to be levied by us in respect of the Website in accordance with clause 6.
  5. Commencement Date
    The day after you have placed an order in accordance with our quotation and paid 40% of the Charges to us and we have accepted your order.
  6. Completion
    when the Website meets the Requirements and Completion shall be construed accordingly.
  7. Completion Date
    the date specified in our quotation, as revised in accordance with this agreement, by which that part of the Website to which the term relates is to be Completed.
  8. Confidential Information
    any information in any form concerning the business, accounts, finances, research projects, discount policy, pricing policy, future business strategy, marketing, tenders, price sensitive information, employees, current and planned products, intellectual property and tradesecrets and any other plans or strategy of ours or yours.
  9. Customer Material
    The material for inclusion in the Website to be provided by you as specified in our quotation.
  10. Deliverables
    the Website, the Graphic Design, the Namesco Software, the Third Party Software as is required by the context.
  11. Delivery Address
    the address for the delivery of the Website and Website Documentation specified in our quotation.
  12. Detailed Specification
    the written specification for the Website including, without limitation, the information set out in our quotation and the modifications to be prepared by us and as the same may be altered from time to time pursuant to clause 7.
  13. Equipment
    the hardware identified in our quotation..
  14. Expert
    a person appointed under clause 13c.
  15. First Repeat Acceptance Tests
    as defined in clause 5d.
  16. Graphic Design
    The design of the screens of the Website and graphic material to be included on the screens to be designed by us in accordance with our quotation.
  17. Intellectual Property
    patents, patent applications, copyright, registered design, trade marks, trade mark applications, trade names, moral rights under Sections 77 80 and 84 of the Copyright Designs and Patents Act 1977 or knowhow, including without limitation, other similar industrial or commercial rights.
  18. Intellectual Property Infringement
    infringement of the Intellectual Property of a third party.
  19. Namesco Software
    the computer programs developed and designed by us which are identified in the Detailed Specification.
  20. New Release
    any improved modified or corrected version of the Namesco Software from time to time issued by us.
  21. Object Code
    the actual machine language which the computer executes.
  22. Relevant Event
    a dispute or difference as to the construction or effect of this agreement or the rights duties or liabilities of the parties hereunder or any matter or event connected with or arising out of this agreement.
  23. Requirement Specification
    the written statement prepared by you and agreed by us which sets out your requirements for the website and "Requirements" shall be construed accordingly.
  24. Second Repeat Acceptance
    as defined in clause 5e.
  25. Source Code
    computer programs in a traditional form normally used by humans for reading, writing or modifying programs.
  26. Stages
    the numbered-stages for the implementation of the Website described in our quotation.
  27. Term
    the period from the Commencement Date until the Completion Date for the Website set out in our quotation or until prior termination in accordance with this agreement.
  28. Test Data
    test data suitable to assess whether the Website meets the Requirements and the results you expect to obtain from the operation of the Website on such test data.
  29. Third Party Software
    the software of a third party to be incorporated into the Website which is identified in our quotation.
  30. Timetable
    the timetable specifying the dates for the completion of each of the Stages of the Website set out in a our quotation as the same may be altered from time to time pursuant to clauses 3c, 3g or 7c.
  31. Website Documentation
    the documentation in respect of the Website identified in our quotation.
  32. Website
    the website in Object Code to be designed and written by us pursuant to our quotation.
2. All references to a statutory provision include references to:
  1. any statutory modification, consolidation or re-enactment of it, whether before or after the date of this agreement, for the time being in force;
  2. ii all statutory instruments or orders made pursuant to it; and any statutory provision of which that statutory provision is a re-enactment or modification.
3. Words denoting the singular include the plural and vice versa; words denoting any gender include all genders; and words denoting persons include corporations, partnerships, other unincorporated bodies and all other legal entities and vice versa.
4. Unless otherwise stated, a reference to a clause, party or a schedule is a reference to respectively a clause in or a party or schedule to this agreement.
  The clause headings are inserted for ease of reference only and do not affect the construction of this agreement.

Our obligations
1. Our quotation will be prepared on the basis of the Requirements Specification and is subject to the following terms and conditions. The placing of an order with us is to be deemed to be your acceptance of such terms and conditions. No contract will come into being until we have accepted your order and you have paid us 40% of the total sum quoted which shall not be refundable.
2. In consideration of the payment by you of the Charges to be levied by us in accordance with clause 6 and subject our the terms and conditions, we shall:
  1. design and write the Website for use with the Equipment to fulfil the Requirements Specification;
  2. design and write the Website Documentation for use in association with the Website;
  3. achieve Completion of the Website and Website Documentation by the Completion Date.

Detailed Specification
1. Immediately after the Commencement Date we will commence in collaboration with you the preparation of the Detailed Specification to achieve the Requirements.
2. We will use all reasonable endeavours to complete the preparation of the Detailed Specification by the date set out in our quotation or as soon as possible after that date.
3. If you require an amendment to the Detailed Specification to take account of any application, function or performance criteria not specified in the Requirements Specification, the parties will agree a reasonable revision to the Timetable, the Charges and the Completion Date.
4. Immediately upon completion of the Detailed Specification we will submit it to you for approval.
5. You will within five Business Days of receipt of the Detailed Specification by notice served upon us, either approve it or respond to us with such comments and/or requests for amendment as you reasonably judge appropriate.
6. If you fail to approve the Detailed Specification or respond with comments and/or requests for amendment within the period specified in clause 3e., you will be deemed to have approved the Detailed Specification.
7. We will take account of all reasonable comments and/or requests for amendment received from you pursuant to clause 3e., at which time the parties will agree a reasonable variation in the Timetable and we will incorporate the comments and/or requests in a revised version of the Detailed Specification to be prepared and delivered to you as soon as is reasonably possible.
8. The process described in clauses 3d. to 3g. will be repeated until such time as you will have approved, or will be deemed to have approved or the Expert has approved, the Detailed Specification.

Writing of the Website and Website Documentation
1. Immediately upon the approval by you of the Detailed Specification we will commence writing the Website and the Website Documentation upon the basis of and in compliance with the Detailed Specification.
2. We will use all reasonable endeavours to complete the writing of the Website and Website Documentation and to deliver them to the Delivery Address by the date set out in the Timetable or as soon as reasonably possible after that date. The Website and Website Documentation will be delivered notwithstanding any modifications requested by you which are outstanding.
3. On or before the dates set out in the Timetable you will submit to us the Customer Material and the Test Data.
4. You warrant to us that you are entitled to use the Client Material on the Website and that using the Client Material is not in breach of the Intellectual Property of any third party or is otherwise illegal.

Testing and acceptance of Website
1. We will by notice to you within five Business Days of receipt of the Test Data either approve or reject it. We will only be entitled to reject the Test Data upon the basis that, and by detailing the manner in which, it requires the Website to operate in a manner not provided for by the Detailed Specification. We will be deemed not to have approved the Test Data if we fail to approve it within five Business Days of receipt and such failure will be deemed to be a Relevant Event. The Expert will determine whether we will be deemed to have approved the Test Data.
2. You will immediately upon receipt of our rejection of the Test Data pursuant to clause 5a make all such alterations to the Test Data as will in the circumstances be reasonably necessary and will resubmit the altered Test Data for approval by us. The provisions of clauses 5a. and 5b. will apply in the same manner with appropriate changes for context until such time as we approve, or are deemed to approve, the Test Data.
3. You will implement the Acceptance Tests within five (5) Business Days of your receipt of our notification that the Website is complete.
4. If the Website fails the Acceptance Tests then we will implement, free of charge, such alterations or modifications to the Website and the Website Documentation as we in the circumstances reasonably judge necessary and in sufficient time to make possible the repetition of the Acceptance Tests by you in the presence of our employees as soon as is reasonably practical (the "First Repeat Acceptance Tests").
5. If the Website fails the First Repeat Acceptance Tests then you may at your option require us by written notice to immediately implement such further alterations or modifications to the Website and Website Documentation free of charge as we will reasonably judge necessary to enable the Website to pass repeat Acceptance Tests (the "Second Repeat Acceptance Tests"). The Second Repeat Acceptance Tests will be carried out by you in the presence of our employees as soon as is reasonably practical. If we have not completed such alterations or modifications to the Website within a reasonable period after you notify us that the Website failed the First Report Acceptance Tests or if the Website fails the Second Repeat Acceptance Tests then you will be entitled to either:
  1. accept the Website subject to such refund of the Charges as we and you agree. If we fail to agree such refund within seven Business Days then you may refer the matter for settlement in accordance with the disputes procedure set out in clause 13 or
  2. subject to clause 5f terminate this agreement by written notice to us.
6. Notwithstanding clause 5e ii., you will not be entitled to terminate this agreement during the first year of the Term by reason of the application of clause 5f. to a modification.
7. We will provide you with all such assistance and advice as you will from time to time reasonably require in the process of testing the Website pursuant to clause 5.
8. You shall commence testing the Website as soon as is reasonably practicable after receipt of the assistance and advice to be supplied under clause 5g..

Charges
1. We will levy the Charges by the submission of invoices in accordance with clause 6b.iii, in respect of the Website on the dates and for the amounts set out in the our quotation.
2. Where the Charges are stated in the our quotation to be an estimate:
  1. the estimate shall give full details of the basis on which it has been prepared;
  2. if it appears to us that the estimate will be exceeded we shall immediately notify you and shall not carry out any work in excess of the estimate without your written approval of a revised estimate; and
  3. we shall use our best endeavours to complete the Website within the estimate.
3. Each invoice will be sent to you at the Delivery Address. You will pay the Charges within twenty (20) Business Days of the date of an invoice.
4. The Charges will be inclusive of the travel accommodation and subsistence expenses incurred by our staff in attending at the Delivery Address.

Modifications
1. You will be entitled at any time prior to the Actual Delivery Date to request us in writing to modify the design of the Website.
2. You will provide us with full particulars of any requested modification and such further information as we will reasonably require.
3. Within ten Business Days of receipt of a request pursuant to clause 7a. we will inform you in writing of the alterations to the Detailed Specification, Timetable and Charges that we reasonably judge necessary as a result of the request. We shall be entitled to make a reasonable charge for the cost of preparing details of the alterations to the Detailed Specification, Timetable and Charges, provided the basis of such Charges have first been agreed by you.
4. If you notify us that you will proceed with the modification then the Timetable and Charges will be amended in the manner indicated by us pursuant to clause 7b.
5. If we modify the whole or any part of the Website in accordance with this clause we will make all appropriate related modifications to respectively the Detailed Specification and the Website Documentation

Intellectual Property rights and title
1. The copyright and all other Intellectual Property and Confidential Information in the Namesco Software will remain in our ownership.
2. We grant you a perpetual non exclusive royalty free licence to use the Namesco Software for all purposes of and associated with your business including (without limitation) a licence to make Enhancements to the Namesco Software if we are unable or unwilling to do so.
3. We assign to you with full title guarantee the copyright in the Object Code and the Source Code of the Website, other than Namesco Software and Third Party Software, and the website Documentation as and when written or created throughout the world for the full period of copyright, including all renewals and extensions, in so far as we are able to do so, with effect from the completion of the Website and the Website Documentation.
4. You must indemnify us and keep us indemnified against all and any losses, claims, damages, costs, charges, expenses and other liabilities which we may sustain or incur arising out of or in connection with any breach by you of clause 4d.

Support
1. We will provide you with email and telephone support for your use of the Website without charge to the extent that we in our discretion believe is reasonably necessary.

Copies for you
1. We will during the Term forward to you up to date back up text of the Website and the Website Documentation on the first day of each month commencing on the Actual Delivery Date unless no changes have been made since the last copies were delivered to you.

Moral Rights
1. We will procure that all rights under sections 77, 80 and 84 Copyright Design and Patents Act 1988 relating to the Graphic Design and the Website Documentation are waived in writing by the persons entitled to them.

Warranties
1. We warrant that:
  1. we will develop the Website using reasonable care and skill;
  2. any goods supplied will be of satisfactory quality and fit for their intended purpose;
  3. our title to and property in the Deliverables is free and unencumbered; and
  4. he Website and Website Documentation will conform to the Detailed Specification in all material respects.
2. We will upon receipt of a notice alleging a breach of the warranty set out at clause 12a. use our best endeavours to remedy the breach of such warranty free of charge as soon as possible.

Disputes
1. If either party considers there to be in existence a Relevant Event they will immediately give notice of it to the other party.
2. Immediately upon receipt of a notice under clause 13a. the parties will use reasonable endeavours to resolve the Relevant Event and record any agreement reached between them in writing.
3. If the parties have not reached an agreement in writing to resolve the Relevant Event within ten (10) Business Days of the service of the notice under clause 13a. hereof either of them may referred it to such Expert as they will jointly nominate.
4. If we and you fail to nominate an Expert within fifteen (15) Business Days of the service of the notice under clause 13a. then the Expert will be nominated at the request of either party by the President for the time being of the Institute of Arbitration.
5. The Expert, whether appointed under clause 13c or 13d, will act as an expert whose decision (which will be in writing) will, except in the case of manifest error, be final and binding upon both parties. At the request of either party the Expert will give reasons in writing for his decision.

Phase8 - Creative Design & Marketing

Terms & Conditions