Active Internet Marketing – Terms & Conditions – Web Design and Development
- In the Contract, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day (other than Saturday, Sunday or public holiday in England) when the banks in London are open for their full range of normal business;
“Client” means the person, company, firm or body engaging the Service Provider to perform the Services;
“Code” means all computer programming code (both object and source, unless otherwise specified), as modified or enhanced from time to time by the Service Provider, including without limitation, all interfaces, navigational devices, menus, menu structures or arrangements, icons, help, operational instructions, scripts, commands, syntax expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content whether created or licenced from third parties by the Service Provider including, without limitation, any Intellectual Property Rights;
“Confidential Information” means in relation to either party any information which is disclosed to that party by the other party (whether or not developed by the other) including, without limitation (a) the preparation and Specifications of the Deliverables, (b) pre-existing or new information that relates to all ideas, designs, methods, discoveries, improvements, products or other results of consulting services, (c) trade secrets, (d) product data, (e) proprietary rights, (f) business and financial affairs, (g) product developments, and (h) customer and employee information;
“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 Service Provider or provided by the Client for purposes of developing the Website, including without limitation any Intellectual Property Rights therein;
“Contract” means the Terms and Conditions, as may be amended from time to time, concerning the performance of the Services, together with any Proposal(s);
“Deliverables” means all Code other than source code, Content and other online materials to be produced by the Service Provider as more fully described in the Work Statement including all documentation such as logic manuals, flow charts, principles of operation, technical 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);
“Fee(s)” means the total fees payable to the Service Provider for the Services and as set out in the Proposal(s) together with any fees arising as a result of a change to the Services;
“First Project Milestone” means the first project milestone that must be achieved in accordance with the Specification and Work Statement;
“Final Project Milestone” means the final project milestone that must be achieved in accordance with the Specification and Work Statement in order to achieve completion of the Services;
“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);
“Proposal(s)” means the proposal, or proposals, presented to the Client by the Service Provider setting out the Services required and which may be amended from time to time in accordance with clause 3.5;
“Pre-existing Work” means any pre-existing original works of authorship owned by the Client and contained in the Content as identified in the Work Statement;
“Preliminary Payment” means initial deposit payable to the Service Provider by the Client on commencement of the Contract in respect of the provision of the Services and which equates to 35% of the total Fees (unless otherwise set-out in the Proposal);
“Second Instalment” means the second instalment of fees which represents 35% of the total Fees due and which is payable on completion of the First Project Milestone in accordance with the provisions of clause 4 (in all cases, unless otherwise set out in the Proposal);
“Services” means the programming and related technical services, including designing, developing, creating, testing and delivering the Client’s Website and certain other programming materials as described herein and as set out in any Specification annexed to the Proposal(s);
“Service Provider” means Ampco (UK) Ltd trading as Active Internet Marketing a company registered in England and Wales under company registration number 07330000 whose registered office is at 136-140 Bedford Road, Kempton, Bedfordshire, MK42 8BH and who carries on business of providing the Services;
“Specifications” means the requirements for the development of the Website, including operational and functional capabilities and performance as detailed in the Proposal;
“Terms and Conditions” means these terms and conditions as may be amended from time to time in accordance with clause 2.6;
“Third Instalment” means the third and final instalment of Fees, constituting 30% of the overall Fees, and which is payable on completion of the Final Project Milestone in accordance with the provisions outlined in clause 4 (in all cases unless otherwise set out in the Proposal);
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended from time to time;
“Website” means the Client’s Website to be developed by the Service Provider in accordance with the Services pursuant to the Contract;
“Work Statement” means the work statement as set out in, or annexed to, the Proposal(s) containing a description of the Deliverables (including any Specifications) and detailing the Services to be performed; and
“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol.
- The Terms and Conditions are to be read in conjunction with, and form part of, the Proposal. The Client acknowledges and agrees that by accepting the Proposal and/or making payment of the Preliminary Payment and/or by accepting delivery of the Services, that the Fees and the Terms and Conditions are deemed accepted.
- The Proposal provided to the Client constitutes an offer by the Service Provider to provide the Services in accordance with the Terms and Conditions.
- A Proposal submitted by the Service Provider shall remain open for acceptance by the Client for a period of 21 days from the date of issue of the Proposal (the “Acceptance Period”), after which it shall be automatically withdrawn unless it is revoked by the Service Provider prior to the expiry of the Acceptance Period.
- By accepting the Proposal in accordance with clause 2.3, the Client is deemed to accept the Fees and the Services that are to be provided by the Service Provider as outlined in the Proposal. The Client is responsible for ensuring that the terms of the Proposal are complete and accurate.
- The Terms and Conditions apply to the Contract to the exclusion of any other terms and conditions that the Client may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealings.
- Except as set out in the Terms and Conditions, no variation to Terms and Conditions shall be effective unless it is in writing and signed by both parties (or by each of their authorised representatives).
- SCOPE AND SERVICES
- The Service Provider shall author, design, create, develop, test and produce the Website in accordance with the Proposal for the purpose of establishing the Website. At any time during the term of the Contract, the Client may request additional Services to be performed by the Service Provider in connection with the Website, including any updates or upgrades. Such additional work shall be agreed in writing by the parties and shall service as an addition or revision to the original Proposal and be subject to the terms of the Contract.
- The Service Provider shall be responsible for the quality of the Services and shall ensure that all work is performed with reasonable care and, without limitation, is wholly responsible for ensuring that anyone authorised by it to perform all, or any part of, the Services, shall do so competently and with reasonable care.
- The Service Provider agrees to use commercially reasonable efforts to complete the Website in a timely manner according to the Proposal and any Specification annexed thereto. Any performance dates specified between the parties from time to time and as set out in the Contract shall be estimates only and time shall not be of the essence for performance of the same.
- Notwithstanding clause 3.2 and clause 3.3, if the Service Provider’s obligations with respect to completing the Services are subject to delays caused by any unforeseen circumstances, by any voluntary action of the Client, or due to the actions of any third parties beyond the control of the Service Provider, the Service Provider agrees to notify the Client promptly of any event coming to its attention that may affect the Service Provider’s ability to meet the requirements of the Services, or that is likely to cause any material delay in delivery of the Website. The Service Provider shall not be in breach of the Contract as a result of a delay in delivering the Website that is not due to a fault of its own.
- Changes to the Services, or any subsequent additional Services, shall become effective upon the Client accepting a revised Proposal. The Service Provider 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 10% of the amount originally agreed between the parties. The Service Provider 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 of the Services, provided that the proposed changes are reasonable in scope and the Client establishes a commensurate increase in compensation and revised performance date (if any).
- PRICE AND PAYMENT
- The Fees for the Services are as set out in the Proposal and specified in any invoices submitted by the Service Provider to the Client. The Service Provider shall keep the Client fully informed of any, and all, sums due in relation to the Services.
- Immediately prior to the commencement of the Contract, the Client will be required to make the Preliminary Payment to the Service Provider, as detailed in the Proposal, to the account details and in any manner specified in clause 4.11 below. The Second Instalment and Third Instalment will be paid in accordance with clauses 4.4 to 4.6 below.
- In the event that the Client makes payment in respect of the Preliminary Payment by way of cheque, the Client acknowledges that the Service Provider will not commence the Services until such funds are showing as cleared funds in the Service Provider’s account.
- The Second Instalment must be paid by the Client when the First Project Milestone, as set out in any Specification, has been achieved and has subsequently been agreed and approved by the Client in accordance with clause 7.
- The Third Instalment must be paid by the Client when the Final Project Milestone, as defined in the Specification, has been achieved. The Service Provider’s decision as to when the Final Project Milestone has been achieved will be final and binding on the Client and the Client must pay the Third Instalment in full and final settlement of the then outstanding Fees to the Service Provider with immediate effect.
- The Client will be required to pay the full amount in respect of any Services required by the Client of which the total Fees for the provision of the same equates to a value not exceeding £3,000.00 (exclusive of VAT) on the commencement of the Contract. The Client acknowledges that VAT may be payable in addition to the Fees.
- In the event that the Client fails to make any payments due to the Service Provider by the due date, the Service Provider reserves the right to suspend all Services until payment in respect of any outstanding Fees has been paid in full and charge the Client for the costs it incurs in recovering the outstanding Fees. The Client hereby acknowledges that should the Service Provider exercise its right in this clause 4.7, the Service Provider shall not be held liable for any negative impact this may have on the Client.
- In the event that the Client disputes any invoice raised by the Service Provider, whether in whole or in part, the Service Provider must be notified in writing in accordance with the provisions outlined in clause 23 within 10 days from receipt by the Client of the Service Provider’s invoice after which the Client shall be deemed to have accepted the invoice and shall not be entitled to dispute the invoice and any Fees paid.
- The Service Provider shall be entitled to receive interest at a rate of 4% above the base rate of the Bank of England from time to time on all Fees and any additional costs that may be outstanding and overdue for payment. Such interest, if charged, shall be payable by the Client on demand from the due date for payment up until the date of settlement and will accrue on a daily basis.
- The Client shall pay all amounts due under the Contract in full and without any set off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Service Provider may, if required, without limiting its other rights or remedies, set off any amounts owing to it by the Client against any amount payable by the Service Provider to the Client.
- The Client is permitted to make payment to the Service Provider by any one or more of the following means:
- Cheque made payable to Ampco (UK) Ltd;
- Credit Card;
- Direct Debit; or
- BACS Payment to the bank account details: Account Name: Ampco (UK) Ltd, Bank: Lloyds TSB, Sort Code: 30-97-17, Account Number: 38607668.
- Any increase in the Fees that is intended to be made by the Service Provider will be notified to the Client, in writing, no later than 30 days in advance of the proposed increase. If such increase is not acceptable by the Client, the Client shall notify the Service Provider of the same, in writing, within 10 days from receipt of the Service Provider’s notice of increase. In such circumstances, the Contract will terminate with immediate effect but the Client will not be required to pay the remainder of the Fees then outstanding in accordance with clause 14.1.
- All payments made under the Contract shall be expressly exclusive of any value added tax, unless otherwise indicated.
- WEBSITE DESIGN
- Where specified in the Proposal, the Service Provider shall provide the Services and the Service Provider agrees to develop the relevant Website in accordance with the Specification and any Work Statement prepared.
- The Client shall provide to the Service Provider, in a timely and suitable manner, such content and information as may be reasonably necessary to complete the Website in accordance with the Specification, provided that the Client shall not supply any content or information which infringes the Intellectual Property Rights of a third party, or is fraudulent, offensive, abusive, defamatory or obscene.
- The Client guarantees and warrants that any Pre-existing Work or any element of text, graphics, music and content supplied to the Service Provider for inclusion in the Website is owned by the Client, or in the instance it is not, the Client has obtained all appropriate permissions from the rightful owner to use each of the elements, and will indemnify the Service Provider against any claim which may arise from its use of such elements provided by the Client to the Service Provider during the provision of the Services.
- CLIENT’S RESPONSIBILITIES
- The Client shall furnish information requested by the Service Provider, provide adequate access to personnel of the Client and maintain the accessibility and operability of the Website to the extent reasonably necessary for the Service Provider to fulfil its obligations under the Contract.
- Any delays attributable to the Client’s failure to respond to reasonable requests by the Service Provider will extend any, and all, estimated performance dates for an amount of time equal to the Client’s delay. The Service Provider reserves the right to make any necessary equipment or software upgrades, changes or modifications to the manner in which it provides its Services and will not be liable for any delay in performance due to undertaking such activities.
- DELIVERY AND ACCEPTANCE OF THE WEBSITE
- The Client shall have 20 days to review and approve the work that has been completed in accordance with the First Project Milestone. Payment of the Second Instalment will be required in full when the Service Provider presents the completed aspect of the Services required to achieve the First Project Milestone to the Client for review.
- The Client shall have a further 20 days to review the work that has been completed in accordance with the Final Project Milestone and the Client agrees that the Services will be deemed as being satisfactory in all respects if it has not raised a dispute with the Service Provider within the times periods specified in clause 7.1 and this clause 7.2. Payment in respect of the Third Instalment will be done when the Service Provider considers the Final Project Milestone to be completed, such decision by the Service Provider will be final and binding.
- The Client may only reject the Website due to a material failure to comply with the applicable Specification and any Work Statement. In the event of rejection, the Client shall provide detailed reasons for such rejection to the Service Provider. The Service Provider shall then use all commercially reasonable efforts to correct any deficiencies or non-conformities from the applicable Specification and resubmit the rejected items as promptly and as soon as reasonably possible to the Client for its approval.
- INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT AND DELIVERABLES
- The Client’s logos, trademarks, trade names, copyright materials and Pre-existing Work remain the Client’s sole property. The Service Provider agrees that the Client’s Website, uniform resource locator (“URL”) and the IP numeric equivalent will be obtained by and remain the sole property of the Client. The Service Provider agrees to identify the Client’s trademarks, copyrights and other Intellectual Property Rights on the Website by including appropriate symbols and notices as reasonably requested by the Client.
- All work and other items and materials delivered by the Service Provider to the Client hereunder, and all Intellectual Property Rights associated with any of the foregoing, shall be owned exclusively by the Service Provider, and no right, title or interest in or to any of the same other than any licence granted to the Client.
- The Client hereby grants to the Service Provider a non-exclusive, non-transferable (except with written permission from the Client), non-sub-licensable, worldwide licence to use, reproduce and/or modify the Client’s Website as described in the Contract and in accordance with the Services, solely in connection with the development and operation of the Website.
- Any Intellectual Property Rights subsisting in the final design of the Website shall be assigned to the Client upon receipt by the Service Provider of all relevant sums due to it in consideration of the Services. Upon such assignment, the Service Provider shall be deemed to have waived all moral rights in respect of the creation of the Website, such work arising out of Chapter IV of the Copyright Designs and Patents Act 1988.
- The Service Provider further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Service Provider by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Service Provider by such third parties and will, where relevant, be subject to the requirements of clause 8.4.
- Nothing in the Contact shall vest any rights in the Client’s Website in the Service Provider and any such rights which may arise to the benefit of the Service Provider in the Website shall be assigned to the Client in accordance with clauses 8.3 and 8.4 once the Client has paid all Fees in full.
- SERVICE PROVIDER’S WARRANTIES
- The Service Provider represents, warrants, undertakes, and agrees with the Client as follows:
- the Website and software it creates or licences to the Client shall perform to a reasonable standard as stated in the Specification and the Service Provider will perform all work and Services in compliance with all applicable laws;
- the work produced in the course of the Services shall be original to the Service Provider (except where otherwise indicated) and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
- the work produced in the course of the Services shall not, under the laws of England and Wales, be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of UK Data Protection Legislation, and nothing contained in the work will, if published, constitute a contempt of court; and
- the Service Provider shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the work produced in the course of the Services except pursuant to the Contract and shall not enter into any agreement or arrangement which might conflict with the Client’s rights under the Contact or might interfere with the Service Provider’s performance of its obligations under the Contract.
- CLIENT’S WARRANTIES AND INDEMNITIES
- The Client represents, warrants, undertakes, and agrees with the Service Provider as follows:
- the Pre-existing Work presented to the Service Provider on commencement of the Services, shall be original to, or otherwise owned by, the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person and where required, the Client has obtained all necessary consents;
- any Website that the Client has previously designed and which it requires the Services of the Service Provider in respect of, shall not, under the laws of England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the UK Data Protection Legislation and nothing contained in the Website or the Required Information will constitute a contempt of court; and
- the Client shall not enter into any contract or arrangement which might conflict with the Service Provider’s rights under the Contract or might interfere with the Service Provider’s performance of its obligations under the Contract.
- The Client shall be solely responsible for the adequacy and accuracy of all Content, information and data that may be provided to the Service Provider. The Client shall review the accuracy of all Content, information and data once the Service Provider has included the same in the Website.
- The Client hereby undertakes to indemnify the Service Provider, and keep the Service Provider at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including, without prejudice to the generality of this provision, all legal costs and expenses of the Service Provider on a fully indemnity basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Client of any of the Client’s undertakings, warranties, or obligations under the Contract.
- The Client represents, warrants, undertakes, and agrees with the Service Provider as follows:
- LIMITATION OF LIABILITY – THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO THE PROVISIONS OF THIS CLAUSE 11.
- The Service Provider shall only be liable for any damage and loss incurred, or both, by the Client if it is caused as a result of the Service Provider’s negligence, breach of duty or other wrongful act or omission subject to the limitations set out in this clause 11.
- The Service Provider shall not be responsible for screening, policing, editing, or monitoring any content, or additional materials added by the Client or any third party to the Website or included in the Services. If notified of allegedly infringing, defamatory, damaging, obscene, illegal or offensive material, the Service Provider will inform the Client of such allegations.
- Notwithstanding anything to the contrary contained in the Terms and Conditions, the Service Provider’s liability for fraud (including fraudulent misrepresentation), death or personal injury resulting from its negligence is no way limited or excluded.
- The Service Provider has no liability to the Client for any loss of profit, loss of business, business interruption, loss of business opportunity, loss of data due to damage to software, or for any indirect or consequential loss or damage. The Service Provider shall also not be liable to the Client due to any failure of the Website if this is due to failure of computer hardware or communication systems for whatever reason.
- The Service Provider shall not be liable to the Client under any circumstances for any direct or indirect loss (including, but not limited to, loss of profits or loss of goodwill), or any other special or indirect losses, costs, damages, or claims which do not arise naturally as a result of the Service Provider’s negligence, breach of duty, or other wrongful act or omission, which includes any damage or loss incurred by any third party services utilised or employed by the Service Provider in procuring the performance of the Services.
- In the instance that the Service Provider utilises the services of any third party in the provision of any aspect of the Services, the Client acknowledges and accepts that the Service Provider is acting solely as the Client’s agent in attending to the same and accepts no responsibility or liability for any successful registration, continuance, or otherwise, of any registered domain names, website use and mailbox access.
- Neither party shall be liable to the other or be deemed to be in breach of the Contract, for any failure or delay in performance of the Services under these Terms and Conditions due to any event caused beyond that party’s reasonable control and as set out in clause 19.
- Subject to clause 11.3, the total liability of the Service Provider under the Contract, whether in contract, tort (including negligence), or breach of statutory duty, or howsoever arising, shall be limited to a sum equivalent to the total sum paid to it by the Client for the provision of the Services under the Contract.
- The Client is only permitted to bring a claim in respect of a breach of the provisions contained within the Contract within a period of 2 years after the event giving rise to the breach occurred.
- The Client acknowledges and it has read and fully understands the limitations and exclusions of the obligations and liabilities of the Service Provider as set out in the Contract, has freely agreed to them and accepts the risks associated with them in accordance with the Fees payable for the Services.
- TERM AND TERMINATION
- The Contract shall commence upon the Client’s acceptance of the Proposal and will terminate on completion of the Services.
- Without prejudice to clause 12.1, the Contract may be terminated with immediate effect, notwithstanding any other rights and remedies the parties may have, in the following circumstances:
- the other party fails to comply with the terms and obligations contained within the Contract and such failure, if capable of remedy, is not remedied within 21 days of written notice of such failure from the other party;
- Without prejudice to clause 12.1, the Contract may be terminated with immediate effect, notwithstanding any other rights and remedies the parties may have, in the following circumstances:
- an encumbrancer takes possession of, or a receiver is appointed, of any of the property or assets of the other party;
- the other party makes any voluntary arrangement with its creditors or, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
- the other party, being an individual or firm, has a bankruptcy order made against it or goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the other party resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other party under the Contract);
- anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;
- the other party ceases, or threatens to cease, to carry on business; or
- control of the other party is acquired by any person or connected persons not having control of that other party on the date of the Contract. For the purposes of this clause 12, “control” and “connected persons” shall have the meanings ascribed thereto by sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
- The termination of the Contract shall be without prejudice to any rights which have already accrued to either of the parties under the Contract.
- In addition to its rights of termination in accordance with clause 12, the Client’s exclusive remedies for the Service Provider’s default hereunder in respect of the Services provided shall be to obtain the repair, replacement or correction of the defective Services on notice to the Service Provider in accordance with clause 7.3. If such a remedy is not economically or technically feasible or effective, then the Client may obtain an equitable partial or full credit or refund of amounts paid with respect to the defective Services or Deliverable, subject to the limitations set forthwith in clause 11. In any event, any refund is entirely at the Service Provider’s discretion.
- WRONGFUL OR EARLY CANCELLATION CLAUSE
- In the event that the Client unlawfully terminates the Contract or the Service Provider terminates the Contract pursuant to clause 12.2, the Client will (without prejudice to the Service Provider’s other rights under the Contract) immediately pay to the Service Provider, by way of compensation for the termination of the Contract and as a pre-estimate of the Service Provider’s loss, all Fees which would, but for the termination, have become due and payable from the date of termination up to completion of the Services, less a discount for accelerated payment at a rate of 10%.
- The Client will immediately cease to be entitled to use of the Website until the Client has paid all outstanding charges up to the date of termination.
- EFFECTS OF TERMINATION
- Upon the termination of the Contract by whatever means, all clauses which, either expressly by their nature, relate to the period after the expiry or termination of the Contract shall remain in full force and effect and notwithstanding termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of the Contract and which existed at or before the date of termination.
- Any property, including the Pre-existing Work and any additional materials in the possession of the Service Provider and that have been provided by the Client during the course of the provision of the Services, shall be returned to the Client in the event of termination of the Contract.
- Both parties undertake that, unless authorised in writing by the other party, they shall at all times during the continuance of the Contract and for 2 years after its termination:
- keep confidential all Confidential Information;
- not disclose any Confidential Information to any other third party;
- not use any Confidential Information for any purpose other than as contemplated by the Contract;
- not make any copies of, record in any way or part with possession of any Confidential Information; and
- ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of this clause 16.
- Subject to clause 16.3, either party may disclose any Confidential Information to:
- any of their sub-contractors, substitutes, or suppliers or any third party utilised to assist with the provision of the Services;
- any governmental or other authority or regulatory body; or
- any of their employees or officers or those of any party described in clauses 16.2.1 or 16.2.2.
- Disclosure under clause 16.2 may be made only to the extent that is necessary for the purposes contemplated by the Contact, or as required by law. In each case the disclosing party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in clause 16.2.2 or is an authorised employee or officer of such a body, the disclosing party must obtain and submit to the other party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
- Either party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that party.
- When using or disclosing Confidential Information under clause 16.4, the disclosing party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
- The provisions of this clause 16 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
- DATA PROTECTION
- When undertaking the Services, the Service Provider will ensure that it has appropriate security measures in place to protect against the loss, misuse, destruction and alteration of any data both provided by the Client and on the Client’s Website.
- The Client acknowledges and accepts that whenever data is released online that data can be collected and utilised by third parties and that while the Service Provider will take reasonable precautions to ensure that such data is protected, it cannot guarantee the security of any information released during the Services and, if such circumstances arise, the Service Provider will not be liable for any loss, misuse or destruction of any data provided by the Client, including the Required Information.
- Where the Service Provider acts as a data controller (as defined in the General Data Protection Regulation (EU) 2016/679) or any successor legislation to it) pursuant to the Contract and when collecting any personal data, it will ensure it has obtained any necessary consents and has completed with the UK Data Protection Legislation.
- Where the Service Provider acts as a data processor (as defined in the General Data Protection Regulation (EU) 2016/679) or any successor legislation to it) pursuant to the Contract, it shall do so on the understanding the Client is the data controller (as defined in the General Data Protections Regulation (EU) 2016/679) or any successor legislation to it), and has obtained any necessary consents in respect of any personal data that may be collected during the Services.
- The Client has appropriate data protection policies in place that comply with UK Data Protection Legislation and agrees to indemnify the Service Provider against any losses incurred as a result of a breach of such legislation.
- COPYRIGHT AND PROPRIETARY RIGHTS NOTICES
- Until ownership passes in accordance with clause 8.4, the Client shall maintain on the Website 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 Service Provider. The Client shall not remove or alter any copyright or other Proprietary Rights Notices placed by the Service Provider.
- FORCE MAJEURE
- Neither the Service Provider nor the Client shall be responsible to the other party for any delay in performance due to any cause beyond the reasonable control of either parties. The affected party shall immediately inform the other party of this occurrence when it happens, stating that the occurrence has happened and the affected party will take all action reasonably possible to remedy the situation and to comply with the terms of the Contract.
- In the event that the force majeure events continue for a continuous period of 28 days, then the party not in default shall be entitled to terminate the Contract with immediate effect. Neither the Service Provider nor the client will have any liability against the other in respect of this termination arising as a result of the force majeure.
- INDEPENDENT CONTRACTORS: AUTHORITY OF THE SERVICE PROVIDER
- The Service Provider has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be carried out by it hereunder unless otherwise provided herein. The Service Provider may, at its own expense, employ such assistants as is deemed necessary to produce the Deliverables and complete the Services. The Client may not control, direct or supervise the Service Provider’s assistants or employees, and each party shall be responsible for its own taxes or any withholding or benefits on behalf of its employees.
- NATURE OF AGREEMENT
- The Contract is personal to the parties and neither party may assign, mortgage, or charge (otherwise than by floating charge) or sub-licence any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other party, such consent not to be unreasonably withheld, or as otherwise provided for in the Terms and Conditions.
- The Contract contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the parties, or either of their duly authorised representatives.
- Each party acknowledges that, in entering into the Contract, it does not rely on any representation, warranty or other provision except as expressly provided in the Contract, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- Unless otherwise provided for in the Terms and Conditions, no failure or delay by either party in exercising any rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- The parties agree that, in the event that one or more of the provisions of the Contract is found to be unlawful, invalid or otherwise unenforceable, those provisions shall be deemed severed from the remainder of the Contract. The remainder of the Contract shall be valid and enforceable.
- Any notices or other information required or authorised by the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised representative of the party giving the notice.
- Notices shall be deemed to have been duly given by either party to the other:
- when delivered, including when delivered by hand, by courier or other messenger (including registered mail) during normal business hours of the recipient;
- when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated;
- on the second Business Day following mailing (unless returned to the sender as undelivered), if mailed by national ordinary mail, postage prepaid; or
- on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.
- The address for service of any notice to be submitted to the Service Provider, if sending by pre-paid post, is Active Internet Marketing, 3a Basset Court, Loake Road, Northampton, Northamptonshire, NN4 5EZ, or if sending by email in accordance with clause 23.2.2, to email@example.com.
- Any notice or information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second Business Day after the envelope containing it was so posted and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted and has not been returned to the sender, and which shall be sufficient evidence that the notice or information has been duly given in accordance with clause 23.2.3 and 23.2.4.
- Any notice or information sent by electronic transmission, facsimile transmission or comparable means of communication in accordance with clause 23.2.2 shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party at the address given in clause 23.3 in respect of the Service Provider and in respect of the Client to the address specified in any correspondence, within 24 hours after transmission.
- ALTERNATIVE DISPUTE RESOLUTION
- The parties shall attempt to resolve any dispute or difference arising between the parties relating to the Contract or its subject matter. In the event that an agreement cannot be reached within 10 days, the matter may be referred to a mediator.
- LAW AND JURISDICTION
- The Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
- Subject to the provisions of clause 24, any dispute, controversy, proceedings or claim between the parties relating to the Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall exclusively within the jurisdiction of the courts of England and Wales.