Kate Litt

MUTUAL AGREEMENT

SUMMARY

I will always do my best to fulfil your needs and meet your goals, but sometimes it’s best to have a few things written down so that we both know what’s what, who should do what and what happens if stuff goes wrong. In this contract you won’t find complicated legal terms or long passages of unreadable text. I have no desire to trick you into signing something that you might later regret. I do want what’s best for the safety of both parties, now and in the future.

WHAT DO BOTH PARTIES AGREE TO DO?

As my customer, you have the power and ability to enter into this contract on behalf of your company or organisation. You agree to provide me with everything that I’ll need to complete the project, including text, images and other information, as and when I need it and in the format I ask for. You agree to review my work, provide feedback and approval in a timely manner. Deadlines work two ways and you’ll also be bound by any dates that we set. You agree to stick to the payment schedule set out when you sign up to my packages. I have the experience and ability to perform the services you need from me and I will carry them out in a professional and timely manner. Along the way I will endeavour to meet all the deadlines set but I can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off my work on-time at any stage. On top of this I’ll also maintain the confidentiality of any information that you give me.

DESIGN

I’ll create designs for the look-and-feel, layout and functionality of your website. This contract includes one main design plus the opportunity for you to make up to two rounds of revisions. If you’re not happy with the designs at this stage, you will pay me in full for all of the work that I have produced until that point and you may either cancel this contract or continue to commission me to make further design revisions at my standard design rates.

HTML AND CSS LAYOUT TEMPLATES

If the project includes HTML markup and CSS templates, I’ll develop these using valid HTML and CSS code. The landscape of web browsers and devices changes regularly and my approach is to look forward, not back. With that in mind I will test all my markup and CSS in current versions of all major desktop browsers to ensure that I make the most from them. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software. I do not cater for people using Microsoft Internet Explorer 6 and cannot predict the behaviour of that browser.

I will also test that these templates perform well on Apple’s iPad. I will not test old or abandoned browsers, for example Microsoft Internet Explorer 6 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need me to consider these older browsers, I will charge you at my standard old browser rate for any necessary additional design work, development and testing.

TEXT CONTENT

I may have written a hundred blog posts but I’m not responsible for writing or inputting any text copy unless I specified it in the original package. I’ll be happy to help though, and in addition to your package, I will charge you at my standard copy writing or content input rate.

PHOTOGRAPHS

You will supply me photographs in digital format. If you choose to buy stock photographs I can suggest vendors of stock photography. Any time I spend searching for appropriate photographs will be charged at my standard discovery rate, unless included in the package you’ve signed up for.

CHANGES AND REVISIONS

My package prices are based on the amount of work I estimate I’ll need to do, to accomplish everything that you have told me you want to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality, that won’t be a problem. However, you will be charged accordingly and these additional costs will need to be agreed on before the extra work commences. This additional work will affect deadlines and they will be moved accordingly. I’ll be up front about all of this if and when it happens to make sure we’re all on the same page before proceeding. I may also ask you to put requests in writing so I can keep track of changes.

If the nature or functions of the project change significantly throughout the process, I reserve the right to deem the current project cancelled. At this point you will pay me in full for all the work I have done and may commission me to complete the new project based on the new requirements. This will require a new agreement.

TECHNICAL SUPPORT

You may already have professional website hosting, you might even manage that hosting in-house; if that’s the case, great. If you don’t manage your own website hosting, or your current hosting environment does not support the solution I am providing, I can help you to set up an account for you at one of my preferred, third-party hosting providers then, any support issues will be up to you.

I am not a website hosting company and so do not offer or include technical support for website hosting, email or other services relating to website hosting, but if you decide to pay over a 12 month period, your website will need to be hosting on the Kate Litt account with my own hosting company, as part of your Website BFF Squad membership.

During this period, you will not be granted access to my hosting account or your website’s cPanel account. I will communicate directly with the hosting company whilst you site is hosted through my account. After this 12 month period you are welcome to maintain your hosting through my hosting account, as part of your Website BFF Membership, or you can choose to cancel your membership and move your website do a different web host at any time.

LEGAL STUFF

I can’t guarantee that the functions contained in any web page templates or in a completed website will always be error-free and so I can’t be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if you have advised me of the possibilities of such damages. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

COPYRIGHTS

You guarantee to me that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide me for inclusion in the website are either owned by you, or that you have permission to use them. When I receive your final payment, you will automatically be granted full ownership of the graphics and other visual elements that I create for you for this project.

I’ll give you a copy of all files and you should store them really safely as I am not required to keep them or provide any native source files I used to make them. You also own text content, photographs and other data you provided, unless someone else owns them. I own the markup, CSS and other code and I license it to you for use on only this project.

I love to show off my work and share what I have learned with other people, so I reserve the right to display and link to your completed project as part of my portfolio and to write about the project on websites, in magazine articles and in books about web design. I also reserve the right to place a credit to Kate Litt designing your website, with link to my website in the footer of your website.

PAYMENTS

I am sure you understand how important it is, as a small business, that you pay promptly. As I’m also sure you’ll want to stay friends, you agree to stick tight to the payment schedule agreed when you purchase a package through my website. This means that you agree to make sure that sufficient funds are available in your account for automated payments to be taken as per the schedule.

If your payment schedule is set over a 3 or 12 month period, I will maintain administrative control of the website until the final payment is made. During this period you will still have full access to the website and be the primary user. Once the final payment is made, I will hand over all administrative control to you.

If you miss a payment and do not pay the outstanding balance within 30 days, I reserve the right to unpublish your website until arrears are paid. If a total of 3 payments are missed, I reserve the right to delete you website files entirely and will consider the contract terminated.

BUT WHERE’S ALL THE HORRIBLE SMALL PRINT?

Just like a parking ticket, you can’t transfer this contract to anyone else without my permission. This contract stays in place and need not be renewed. If for some reason one part of this contract becomes invalid or unenforceable, the remaining parts of it remain in place. Although the language is simple, the intentions are serious, and this contract is a legal document under exclusive jurisdiction of the courts of England.

AUTHORISING ANY PROJECT REQUIRES A SIGNATURE OR APPROVAL OF THIS AGREEMENT, WHICH WILL BE ARRANGED ONCE A PROJECT IS BOOKED.

Kate Litt

TERMS & CONDITIONS

Please read these Terms and Conditions carefully. All contracts that the Developer may enter into from time to time for the provision of the Developer’s services shall be governed by these Terms and Conditions, and the Developer will ask the Customer for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.

TERMS AND CONDITIONS

  1. Definitions

1.1    Except to the extent expressly provided otherwise, in these Terms and Conditions:

Acceptance Criteria” means:

(a)    the Website conforming in all respects with the Statement of Work; and

(b)    the Website being free from Website Defects;

Acceptance Period” means a period of 30 Business Days following the supply of the Website to the Customer or the resupply of the Website to the Customer in accordance with Clause 4, or such other period as the parties may agree in writing;

Acceptance Tests” means a set of tests designed to establish whether the Website meets the Acceptance Criteria, providing that the exact form of the tests shall as set out in the Website Proposal;

Assignment Works” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website

Business Day” means any week day (other than a bank or public holiday) in England;

Business Hours” means the hours of 10:00 to 17:00 GMT on a Business Day;

Charges” means the following amounts:

(a)    the amounts specified in the written invoice;

(b)    such amounts as may be agreed in writing by the parties from time to time; and

(c)    amounts calculated by multiplying the Developer’s standard time-based charging rates (as notified by the Developer to the Customer before the date of the Contract) by the time spent by the Developer’s personnel performing the Services (rounded up by the Developer to the nearest hour);

Confidential Information” means the Developer Confidential Information and the Customer Confidential Information;

Contract” means a particular contract made under these Terms and Conditions between the Developer and the Customer;

Customer” means the person or entity identified as such in the Statement of Work;

Customer Confidential Information” means:

(a)    any information disclosed by or on behalf of the Customer to the Developer at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Developer (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

Customer Indemnity Event” has the meaning given to it in Clause 18.3;

Customer Materials” means all works and materials supplied by or on behalf of the Customer to the Developer for incorporation into or integration with the Website, or for use in connection with the Services;

Customer Personal Data” means any Personal Data that is processed by the Developer on behalf of the Customer in relation to the Contract, but excluding data with respect to which the Developer is a data controller;

Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

Developer” means Kate Molloy (trading as Kate Litt) of 47 Hough Road, Birmingham, B14 6HL;

Developer Confidential Information” means:

(a)    any information disclosed by or on behalf of the Developer to the Customer at any time before the termination of the Contract (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

Developer Credit” means a textual credit for the Developer incorporating a link to the website of the Developer, in a form agreed by the parties acting reasonably;

Developer Indemnity Event” has the meaning given to it in Clause 18.1;

Development Services” means the design and development of the Website by the Developer;

Documentation” means the documentation for the Website produced by the Developer and delivered or made available by the Developer to the Customer;

Effective Date” means the date of execution of the Contract;

Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Developer exclusively in connection with, the performance of the Developer’s obligations under the Contract;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Licensed Works” means the Website and the Documentation excluding the Assignment Works, the Third Party Materials and the Customer Materials;

Personal Data” has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);

Remedy Period” means a period of 10 Business Days following the Customer giving to the Developer a notice that the Website has failed the Acceptance Tests, or such other period as the parties may agree in writing;

Services” means any services that the Developer provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

Source Code” means software code in human-readable form, including human-readable code compiled to create software or decompiled from software, but excluding interpreted code;

Statement of Work” means a written statement of work agreed by or on behalf of each of the parties;

Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation from time to time;

Third Party Materials” means the works and/or materials comprised in the Website excluding the Customer Materials, the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 5 of the Statement of Work or which the parties agree in writing shall be incorporated into the Website;

Website” means the website developed or to be developed by the Developer for the Customer under the Contract, as specified in the Statement of Work, including all the Source Code for that website created by the Developer in the course of providing the Services;

Website Defect” means a defect, error or bug in the Website having an adverse effect on the appearance, operation, functionality, security or performance of the Website, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Website;

(b)    any use of the Website contrary to the Documentation by the Customer or any person authorised by the Customer to use the Website;

(c)    a failure of the Customer to perform or observe any of its obligations in these Terms and Conditions; and/or

(d)    an incompatibility between the Website and any other system, network, application, program, hardware or software not specified as compatible in the Website Specification; and

Website Specification” means the specification for the Website set out in Section 2 of the Statement of Work, as it may be varied by the written agreement of the parties from time to time.

  1. Term

2.1    The Contract shall come into force upon the Effective Date.

2.2    The Contract shall continue in force until the end of the Acceptance Period, upon which the Contract shall terminate automatically, subject to termination in accordance with Clause 21 or any other provision of these Terms and Conditions.

2.3    Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.

  1. Development Services

3.1    The Developer shall provide the Development Services to the Customer.

3.2    The Developer shall use reasonable endeavours to ensure that the Development Services are provided in accordance with the timetable set out in Section 6 of the Statement of Work, and that the Website and Documentation are delivered to the Customer in accordance with that timetable.

3.3    The Customer acknowledges that a delay in the Customer performing its obligations under these Terms and Conditions may result in a delay in the performance of the Development Services; and subject to Clause 19.1 the Developer will not be liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

3.4    The Developer shall ensure that the Source Code, and any interpreted code, comprised in the Website created by or on behalf of the Developer during the provision of the Development Services is written to a professional standard, conforms with any coding standards document agreed between the parties, and incorporates sufficient commentary to enable a competent third party developer to understand, adapt, maintain and update the code.

3.5    The Developer shall keep the Customer reasonably informed of the progress of the Development Services and, in particular, shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.

3.6    The Developer shall during the course of the Development Services at the request of the Customer make accessible to the Customer the current development version of the Website for the purposes of enabling the Customer to assess the progress of the Development Services and provide feedback to the Developer regarding the Website.

3.7    If the Contract terminates (for whatever reason) before the delivery of the completed Website or Documentation to the Customer, the Developer must within 14 days following such termination deliver to the Customer all work in progress towards the Website and Documentation.

  1. Acceptance procedure

4.1    During each Acceptance Period, the Developer shall ensure that the Website is accessible to the Customer and the Customer shall carry out the Acceptance Tests.

4.2    The Developer hereby grants to the Customer a non-exclusive non-transferable and non-sublicensable licence to use the Website during each Acceptance Period solely for the purpose of conducting the Acceptance Tests.

4.3    The Developer shall provide to the Customer, at the Developer’s own cost and expense, all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.

4.4    Before the end of each Acceptance Period, the Customer shall give to the Developer a written notice specifying whether the Acceptance Tests have been passed or failed.

4.5    If the Customer fails to give to the Developer a written notice in accordance with Clause 4.4 or uses the Website for any purpose other than the conduct of the Acceptance Tests, then the Website shall be deemed to have passed the Acceptance Tests.

4.6    If the Customer notifies the Developer that the Acceptance Tests have been failed, then the Customer must provide to the Developer, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.

4.7    If the Customer notifies the Developer that the Website has failed the Acceptance Tests:

(a)    if the Developer agrees with the Customer that the Website has not passed the Acceptance Tests, then the Developer must correct the issue and re-supply the Website to the Customer before the end of the Remedy Period; or

(b)    otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Website has not passed the Acceptance Tests and, if appropriate, a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.

4.8    Notwithstanding the other provisions of this Clause 4, but subject to any written agreement of the parties to the contrary, the maximum number of rounds of Acceptance Tests under this Clause 4 shall be 3, and if the Acceptance Criteria have not been met by the end of the final round of Acceptance Tests, the Developer shall be deemed to be in material breach of the Contract.

4.9    If the Customer notifies the Developer that the Website has passed the Acceptance Tests or the Website is deemed to have passed the Acceptance Tests under this Clause 4, then subject to Clause 19.1 the Customer will have no right to make any claim under or otherwise rely upon any warranty given by the Developer to the Customer in these Terms and Conditions in relation to the conformance of the Website to the Website Specification or the absence of Website Defects from the Website, unless the Customer could not reasonably have been expected to have identified the breach of that warranty during the testing process.

  1. Customer obligations

5.1    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Developer, or procure for the Developer, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

        as are reasonably necessary to enable the Developer to perform its obligations under the Contract.

5.2    The Customer must provide to the Developer, or procure for the Developer, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Developer to enable the Developer to perform its obligations under the Contract.

  1. Customer Materials

6.1    The Customer must supply to the Developer the Customer Materials specified in Section 4 of the Statement of Work, in accordance with the timetable specified in Section 6 of the Statement of Work.

6.2    The Customer hereby grants to the Developer a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Materials to the extent reasonably required for the performance of the Developer’s obligations and the exercise of the Developer’s rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Developer’s obligations and the exercise of the Developer’s rights under these Terms and Conditions.

6.3    The Customer warrants to the Developer that the Customer Materials will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

  1. Intellectual Property Rights

7.1    The Developer hereby assigns to the Customer with full title guarantee all of the Intellectual Property Rights, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding the Intellectual Property Rights in the Customer Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights. This assignment shall take effect in respect of a work upon the delivery of that work to the Customer.

7.2    Subject to any express written agreement between the parties, the Developer shall ensure that the Third Party Materials are:

(a)    licensed to the Customer in accordance with the relevant licensor’s standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms);

(b)    licensed to the Customer on reasonable terms notified by the Developer to the Customer;

(c)    sub-licensed by the Developer to the Customer on reasonable terms notified in writing by the Developer to the Customer; or

(d)    sub-licensed by the Developer to the Customer on the basis of a non-exclusive, worldwide, perpetual and irrevocable licence to use the Third Party Materials in connection with the Website.

7.3    To the maximum extent permitted by applicable law:

(a)    the Developer irrevocably and unconditionally waives all moral rights (including rights of paternity and rights of integrity) in respect of the Website and the Documentation to which the Developer may at any time be entitled; and

(b)    the Developer undertakes to ensure that all individuals involved in the preparation of the Website and/or the Documentation will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the Website and/or the Documentation to which they may at any time be entitled.

7.4    The Developer must use reasonable endeavours to:

(a)    do or procure the doing of all acts; and

(b)    execute or procure the execution of all documents,

        that the Customer may reasonably request from time to time in order to perfect or confirm the Customer’s ownership of the rights assigned by these Terms and Conditions.

  1. Reversion of assignments and licences

8.1    Notwithstanding any other provision of these Terms and Conditions, the licences and assignments granted by the Developer to the Customer under these Terms and Conditions are subject to the payment by the Customer of all amounts owing to the Developer under the Contract in full and on time.

8.2    If the Customer owes any amount to the Developer under the Contract and fails to pay that amount to the Developer within 30 days following the receipt of a notice requiring it to do so and specifying that the assignments will revert and the licences will terminate if the amount remains unpaid, then the Developer may immediately revert the assignments and terminate the licences granted by the Developer under these Terms and Conditions by giving written notice of reversion and termination to the Customer.

  1. Developer Credit

9.1    The Developer may include the Developer Credit on the footer of each page of the Website.

9.2    The Customer must retain the Developer Credit on the Website and any adapted version of the Website, must not interfere with the Developer Credit in any way which will have or may reasonably be expected to have a negative impact upon the value of the Developer Credit to the Developer, and may only remove the Developer Credit at the Developer’s request.

  1. Charges

10.1  The Customer shall pay the Charges to the Developer in accordance with these Terms and Conditions.

10.2  If the Charges are based in whole or part upon the time spent by the Developer performing the Services, the Developer must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Developer any Charges in respect of Services performed in breach of this Clause 10.2.

10.3  All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.

10.4  The Developer may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of the Contract, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

  1. Expenses

11.1  The Customer shall reimburse the Developer in respect of any Expenses, providing that the Developer must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

11.2  The Developer must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

11.3  Within 10 Business Days following receipt of a written request from the Customer to do so, the Developer must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Developer as the Customer may specify in that written request.

  1. Timesheets

12.1  The Developer must:

(a)    ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete reasonably detailed records of their time spent providing those Services; and

(b)    retain such records during the Term, and for a period of at least 12 months following the end of the Term.

12.2  Within 10 Business Days following receipt of a written request, the Developer shall supply to the Customer copies of such of the timesheets referred to in Clause 12.1 and in the Developer’s possession or control as the Customer may specify in that written request.

  1. Payments

13.1  The Developer may issue invoices for the Charges to the Customer on or after the invoicing dates set out in Section 7 of the Statement of Work.

13.2  The Customer must pay the Charges to the Developer following receipt of an invoice issued in accordance with this Clause 13, within the time frame detailed on the invoice.

13.3  Where the Customer orders Development Services directly via the website, upfront Payments will be issued via the payment gateway Stripe.

13.4  Where the Customer orders Development Services directly via the website, and elects to have Payments split over a three month period, Payments will be set up and issued by the payment gateway Stripe.

13.5  Where automatic Payments are set up, the Customer must take note of the date of each automatic payment via Stripe and ensure adequate funds are available for Payments to be made.

13.6  The Customer must pay the Charges by bank transfer or the Stripe payment gateway (using such payment details as are notified by the Developer to the Customer from time to time).

13.7  If the Customer does not pay any amount properly due to the Developer under these Terms and Conditions, the Developer may charge the Customer interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Developer acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 13.4 constitute a substantial remedy within the meaning of that Act.

  1. Confidentiality obligations

14.1  The Developer must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Developer uses to protect the Developer’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Customer Confidential Information; and

(e)    not use any of the Customer Confidential Information for any purpose other than to enable the Development Services to be carried out;

14.2  The Customer must:

(a)    keep the Developer Confidential Information strictly confidential;

(b)    not disclose the Developer Confidential Information to any person without the Developer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the Developer Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Developer Confidential Information; and

(e)    not use any of the Developer Confidential Information for any purpose other than to enable the Development Services to be carried out.

14.3  Notwithstanding Clauses 14.1 and 14.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

14.4  No obligations are imposed by this Clause 14 with respect to a party’s Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)    is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

14.5  The restrictions in this Clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

14.6  Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

14.7  Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

14.8  The provisions of this Clause 14 shall continue in force indefinitely following the termination of the Contract,

  1. Data protection

15.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

15.2  The Customer warrants to the Developer that it has the legal right to disclose all Personal Data that it does in fact disclose to the Developer under or in connection with the Contract.

15.3  The Customer shall only supply to the Developer, and the Developer shall only process, in each case under or in relation to the Contract, the Personal Data of the Customer of the following types: name and address, phone number, email addresses, payment platform logins and APIs, social media logins and APIs, other website logins and APIs; and the Developer shall only process the Customer Personal Data for the following purposes: in order to deliver the Development Services.

15.4  The Developer shall only process the Customer Personal Data during the Term and for not more than 28 days following the end of the Term, subject to the other provisions of this Clause 15.

15.5  The Developer shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

15.6  Notwithstanding any other provision of these Terms and Conditions, the Developer may process the Customer Personal Data if and to the extent that the Developer is required to do so by applicable law. In such a case, the Developer shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

15.7  The Developer shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

15.8  The Developer and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including the measures specified in the information security policy of the Developer (as it may be updated by the Developer from time to time).

15.9  The Developer must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Developer shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Developer must not implement the changes. The Developer shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Developer by this Clause 15.

15.10 As at the Effective Date, the Developer is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the following categories: email providers, payment providers, website platforms, web hosts, CRM providers, newletter platforms, plugin developers, social media accounts.

15.11 The Developer shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

15.12 The Developer shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

15.13 The Developer shall make available to the Customer all information necessary to demonstrate the compliance of the Developer with its obligations under this Clause 15 and the Data Protection Laws.

15.14 The Developer shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

15.15 The Developer shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Developer’s processing of Customer Personal Data with the Data Protection Laws and this Clause 15. The Developer may charge the Customer at its standard time-based charging rates for any work performed by the Developer at the request of the Customer pursuant to this Clause 15.15.

15.16 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms and Conditions, then the parties shall use their best endeavours promptly to agree such variations to these Terms and Conditions as may be necessary to remedy such non-compliance.

  1. Warranties

16.1  The Developer shall provide the Services with reasonable skill and care.

16.2  The Developer warrants to the Customer that:

(a)    the Developer has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;

(b)    the Developer will comply with all applicable legal and regulatory requirements applying to the exercise of the Developer’s rights and the fulfilment of the Developer’s obligations under these Terms and Conditions and

(c)    the Developer has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

16.3  The Developer warrants to the Customer that:

(a)    the Website as provided will conform in all material respects with the Website Specification;

(b)    the Website will be supplied free from Website Defects and will remain free from Website Defects for a period of at least 12 months following the supply of the Website;

(c)    the Website will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(d)    the Website shall incorporate security features reflecting the requirements of good industry practice.

16.4  The Developer warrants to the Customer that the Website and Documentation, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law; providing however that the Developer shall have no liabilities under this Clause 16.4 in respect of any such breach caused by the Customer Materials or the Third Party Materials.

16.5  The Developer warrants to the Customer that the Website and Documentation, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law; providing however that the Developer shall have no liabilities under this Clause 16.5 in respect of any such infringement caused by the Customer Materials or the Third Party Materials.

16.6  If the Developer reasonably determines, or any third party alleges, that the use of the Website by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, the Developer may acting reasonably at its own cost and expense:

(a)    modify the Website in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Website Defects into the Website and must not result in the Website failing to conform with the Website Specification; or

(b)    procure for the Customer the right to use the Website in accordance with these Terms and Conditions.

16.7  The Customer warrants to the Developer that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.

16.8  All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

  1. Acknowledgements and warranty limitations

17.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Developer gives no warranty or representation that the Website will be wholly free from defects, errors and bugs.

17.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Developer gives no warranty or representation that the Website will be entirely secure.

17.3  The Customer acknowledges that the Website is only designed to be compatible with that software (including web browser and web server software) that is specified as compatible in the Website Specification; and the Developer does not warrant or represent that the Website will be compatible with any other software.

17.4  The Customer acknowledges that the Developer will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Website; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Developer does not warrant or represent that the Website or the use of the Website by the Customer or any other person will not give rise to any legal liability on the part of the Customer or any other person.

  1. Indemnities

18.1  The Developer shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Developer of these Terms and Conditions (a “Developer Indemnity Event“).

18.2  The Customer must:

(a)    upon becoming aware of an actual or potential Developer Indemnity Event, notify the Developer;

(b)    provide to the Developer all such assistance as may be reasonably requested by the Developer in relation to the Developer Indemnity Event;

(c)    allow the Developer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Developer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Developer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Developer Indemnity Event without the prior written consent of the Developer,

        and the Developer’s obligation to indemnify the Customer under Clause 18.1 shall not apply unless the Customer complies with the requirements of this Clause 18.2.

18.3  The Customer shall indemnify and shall keep indemnified the Developer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Developer and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a “Customer Indemnity Event“).

18.4  The Developer must:

(a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

        without prejudice to the Customer’s obligations under Clause 18.3

18.5  The indemnity protection set out in this Clause 18 shall be subject to the limitations and exclusions of liability set out in the Contract.

  1. Limitations and exclusions of liability

19.1  Nothing in these Terms and Conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

19.2  The limitations and exclusions of liability set out in this Clause 19 and elsewhere in these Terms and Conditions:

(a)    are subject to Clause 19.1; and

(b)    govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

19.3  The Developer shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

19.4  The Developer shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

19.5  The Developer shall not be liable to the Customer in respect of any loss of revenue or income.

19.6  The Developer shall not be liable to the Customer in respect of any loss of use or production.

19.7  The Developer shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

19.8  The Developer shall not be liable to the Customer in respect of any loss or corruption of any data or database.

19.9  The Developer shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

  1. Force Majeure Event

20.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment) that obligation will be suspended for the duration of the Force Majeure Event.

20.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

20.3  A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  1. Termination

21.1  The Developer may terminate the Contract by giving to the Customer not less than 30 days’ written notice of termination.

21.2  The Customer may terminate the Contract by giving to the Developer not less than 30 days’ written notice of termination.

21.3  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach of the Contract, and the breach is not remediable;

(b)    the other party commits a breach of the Contract, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches the Contract (irrespective of whether such breaches collectively constitute a material breach).

21.4  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

(d)    if that other party is an individual:

(i)     that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)   that other party is the subject of a bankruptcy petition or order.

21.5  The Developer may terminate the Contract immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to the Developer under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Developer has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 21.5.

  1. Effects of termination

22.1  Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.7, 4.9, 7.1, 7.4, 8, 9, 11.2, 11.3, 12, 13.2, 13.4, 14, 15.1, 15.3, 15.4, 15.5, 15.6, 15.7, 15.8, 15.9, 15.10, 15.11, 15.12, 15.13, 15.14, 15.15, 15.16, 18, 19, 22, 25 and 26.

22.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

22.3  Within 30 days following the termination of the Contract for any reason

the Customer must pay to the Developer any Charges in respect of Services provided to the Customer before the termination of the Contract without prejudice to the parties’ other legal rights.

  1. Notices

23.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.

23.2  Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 8 of the Statement of Work):

(a)    delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or

(b)    sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,

(c)    sent by email, in which case the notice shall be deemed to be received when the email is replied to,

        providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

23.3  The addressee and contact details set out in Section 8 of the Statement of Work may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 23.

  1. Subcontracting

24.1  Subject to any express restrictions elsewhere in these Terms and Conditions, the Developer may subcontract any of its obligations under the Contract, providing that the Developer must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

24.2  The Developer shall remain responsible to the Customer for the performance of any subcontracted obligations.

  1. General

25.1  No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.

25.2  If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

25.3  The Contract may not be varied except by a written document signed by or on behalf of each of the parties.

25.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.

25.5  The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.

25.6  Subject to Clause 19.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

25.7  The Contract shall be governed by and construed in accordance with English law.

25.8  The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.

  1. Interpretation

26.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

26.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

26.3  References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

26.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

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