This is a contract between Textor Webmasters Ltd of 10 Barley Mow Passage, London W4 4PH (The Company) and Client to whom services are being provided (The Client).
Quotation means the document, file or email defining the scope of the project and commercial terms which refers to these terms and conditions.
Specification is
Software means the computer files required to publish and run the web site.
Base Software means the Software which the Company has developed and which is used to create the web site, excluding any customisation as described in the next paragraph. These files are program files and some data files. The program files are stored in following directories in the cgi-bin directory: cgi-bin/common, cgi-bin/pp, and cgi-bin/pe.
Customise means creating new files, or modifing certain files (Customisation Files) designed to be modified, in the process of adapting the Software as required by The Specification. Customisation program files will be stored in cgi-bin/[projectcode] where [projectcode] is the identifying code assigned to this web site.
Modify means the process of changing the Base Software.
Documentation means information about the Software stored in computer files but which does not affect the operation of the Software.
Web Server means the computer on which the Software runs and from which the web site is made available on the World Wide Web or on a private network. This term also covers a cluster of computers or any other type of load-sharing arrangement.
Hosting means the provision and operation of the Web Server
End User means the operator of the web site, which may be The Client unless The Client is an intermediary, reselling the services of The Company to the End User (Reseller), in which case the end-user will be named in the Quotation.
Content means any information added to the database, or files uploaded via the Software, which populates the web site with information. This information is subsequently made available to visitors to the web site.
The Service is the development of the web site according to The Specification, Hosting and subsequent support and maintenance.
Enhancement means a change to be made to the software, agreed with The Client, other than as required to meet The Specification.
Fault means a set of circumstances where the web site operation does not comply with The Specification as modified by any subsequent Enhancements.
The Quotation and any supplementary materials originated by The Company are owned by The Company and are Copyright protected materials of The Company.
Quotations are valid for 30 days from the date of the quotation unless otherwise specified in the Quotation.
Any documents and any backup materials supplied at no cost in the course presenting a Quotation are supplied on the understanding that the contents will not be disclosed to any third party without the written permission of The Company. If these materials are disclosed to a third party, other than as agreed by The Company in writing, then the work done to create them will be billed at Time and Materials (T&M) rates.
The Company agrees to Customise the Software according to The Specification and make it available on the Web Server.
The Specification supersedes any previous written or verbal communication and is taken as a complete statement of requirements. Other requirements (even if such matters have been previously discussed) do not form part of the specification.
Unless otherwise stated in The Specification, the Deliverables do not include populating the site with Content.
Unless otherwise agreed in writing, target browser platforms for the Deliverables are the Browser versions in use by 92.5% of visitors counting from most frequently used browser version to least frequently used. We will make reasonable efforts to provide an acceptable result on other platforms.
The Deliverables are designed to function on a Web Server provided by The Company unless otherwise agreed in writing. If the Deliverables are to be hosted on a web server not provided by The Company then the Client is responsible for obtaining licences for any third-party products installed on the server.
The Company may quote an additional fee for any Enhancements requested by The Client. All Enhancement requests must be in writing and work on Enhancements will not start until the client has agreed to any increase in the budget and timescale. Once agreed, the Enhancement requests are considered part of the Specification.
Enhancements may require reworking and retesting and may therefore cost significantly more than if included in the original Specification. Changes may also have a disproportionate effect on timescale due to resource allocation problems. Clients are strongly advised to review the Specification in detail to ensure that it reflects their requirements.
The Company does not represent that hosting will be provided on the basis of 100% uptime. There may be times when the Web Server is slow or non-operational. The Company will make best efforts to keep such times to a minimum.
The Company is not responsible for The Content even if The Company initially uploaded it. It is the responsibility of The Client to ensure that it is legal and that it has the right to include this on their web site.
The Client will indemnify the Company against liability and/or any judgement or any settlement made by the company resulting from the Content either uploaded initially by the Company or subsequently uploaded by the Client.
When the Software has been installed on the Web Server the client agrees to test The Software to verify that it performs according to The Specification (Acceptance Tests).
Once handed over for Acceptance Tests, Faults must be reported in writing. (Fault Report). If a computerised tracking system is installed, then Fault Reports must be submitted via this system. Fault Reports should include enough information for the fault to be reproduced.
Once handed over for Acceptance Tests, the Client has a period of 30 days to test the system (Acceptance Period). Once any Faults arising during the Acceptance Period have been fixed The Software will be deemed to have been accepted.
If the client request that the Software is put into live use then the Software is deemed to be accepted.
These acceptance procedures apply to the initial development and any subsequent changes to the system.
The Company may make revisions of The Software available on a system other than the live server (the Test Server) in which case the Client may conduct tests on the Test Server prior to release onto the Web Server. Nevertheless these acceptance procedures apply only once The Software has been released to The Web Server.
If a Fault Report is submitted and it is subsequently discovered that the system adheres to The Specification then any time taken to investigate the report may be billed at time and materials rates.
The software is warranted for 90 days following Acceptance. Any Faults found in the sofware will be fixed free of charge during this period.
After the warranty period, time spent fixing faults will be charged at time and materials rates unless covered by the Support and Maintenance Service.
The warranty does not cover documentation which is provided as-is.
The Company will provide the following Support and Maintenance services provided a maintenance fee has been agreed in The Specification.
This covers
The Company makes no guarantee and does not represent that it will complete the support Services within any given time period. It will make reasonable efforts to address operational emergencies and start work within the Response Times defined below:
Support and maintenance not covered by the maintenance fee as described above and where a maintenance fee has not been agreed will be supplied on a time and materials basis.
All maintenance work requests and faults reported under warranty must be submitted in writing (Tickets). If a computerised tracking system is installed, then Fault Reports and requests for Enhancements must be submitted via this system. Emergence situations should also be followed up with a telephone call. No work will be undertaken unless the form on the web site is completed or if not available a request is received in writing.
Tickets should include enough information to reproduce the fault or make the enhancement
Tickets not closed 20 days after completion of the work will be closed automatically
If the Client or End User or any party associated with the Client or End User Modifies or Customises The Software, then:
The Base Software is the intellectual property of The Company and is a valuable trade secret of The Company.
The Company will grant a perpetual non-exclusive Licence to the Client and End User to use the Base Software under the following terms.
The Documentation is subject to the same licence conditions as The Software.
The Client is authorised to licence The Software to The End User on these terms.
The Company makes no claim to the intellectual property ownership of The Content or Customisation Files.
All prices quoted exclude VAT unless otherwise stated.
All invoices are payable within 30 days unless contested within 7 days of receipt.
In the event of non-payment The Company reserves the right to terminate the Service. Any work involved in restoring the Service following such a termination will be billed at time and materials rates.
Projects £3,000 or over are subject to the following payment schedule unless agreed otherwise in writing: 50% on commencement; 50% on completion. Projects under £3000 are 100% on completion.
In the event of delay to the project over 30 days due to events outside the Company's control, there will also be an interim stage payment covering the work done to date.
The Company agrees that it will not disclose any information about the Client or End User, not otherwise in the public domain, to any outside party without written permission of the Client.
The Client agrees that it will not disclose any information about the Company, not otherwise in the public domain, to any outside party without written permission of the Company. The End User must agree to be bound by this confidentiality clause.
The Client agrees not to disclose the content of the Base Software to any third party, other than the End User, except where approved by The Company. Any such third party must agree to be bound by this confidentiality clause. For the avoidance of doubt this includes contractors working for the Client or End User.
In the event that The Company goes into Liquidation, the license to use the software will continue in perpetuity.
In the event that The Client goes into liquidation the contract will terminate. This licence may not be transferred to creditors of the company.
The agreement will automatically terminate should either party fail to comply with its terms.
Neither party shall, without the written agreement of the other, make any offer of employment to any staff member of the other.
If it is mutually agreed that a staff member is trasnferred to a client, then an agency recruitment fee of 25% of annual salary will be payable to The Company.
The Company will indemnify the Client against liability and/or any judgement or any settlement made by the company for infringement of United kingdom patents, registered designs, copyright or trademarks arising from the Clients normal use of the Software subject however to the following conditions:
The Client must notify the Company promptly in writing of any allegation of infringement.
The Client must make no admission of liability without the Company's consent.
The Client must, at the Company's request allow the Company to conduct and/or settle all negotiations and litigation and must give the Company promptly all reasonable assistance in connection therewith. The costs incurred or recovered in such negotiation or litigation shall be for the Company's account.
This indemnity shall not apply to any infringement arising from the use of the Software in
combination with equipment and or programs not supplied or approved by the Company.
This indemnity states the Company's entire
liability in respect of patents, design rights, registered designs, copyright and trademarks.
Save as above, the Company makes no warranty either expressed or implied concerning the performance or results you may obtain by using the Software or Hosting service. The Company makes no warranty either expressed or implied as to the non-infringement of third party rights, merchantability, satisfactory quality, or fitness for any particular purpose. In no event will The Company be liable for any damages whatsoever, (including without limitation, consequential, incidental, or special damages including any lost profits, or lost savings) arising out of the use of the software or inability to use the software even if The Company has been advised of the possibility of such damages, or for any claim by any third party. Where legal liability cannot be excluded, but may be limited, The Company's liability shall be limited to £1.
This agreement shall be governed by the Laws of England.
This is the entire agreement between The Company and The Client.
If any part of this agreement shall be found to be un-enforceable, it will not effect the balance of the agreement, which shall remain valid and enforceable.
The headings (in bold) of this agreement are for clarity only and do not form part of the agreement.