1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.
CMS: the Supplier’s content management system known as Businesshub or such amended or upgraded system as the Supplier shall use from time to time
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.8.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person who purchases Services from the Supplier.
Deposit: a non-refundable sum equivalent to 100% of the Charges in respect of the website design and development services or as stated in the Quotation.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence Fee: the fee payable for the licence granted pursuant to clause 9.1.
Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
Quotation: the Supplier’s quotation for the supply of Services
SEO: search engine optimisation
Server: the server controlled and administered by the Supplier or a third party elected by the Supplier
Services: the services supplied by the Supplier to the Customer as set out in the Services Specification.
Services Specification: the description or specification of the Services as displayed on the Supplier’s website or provided in writing by the Supplier to the Customer.
Site Specification: any specification for the Site, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Businesshub
Site: the Customer’s website in respect of which the Services are provided
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails.
2. Basis of contract
2.1 The Quotation constitutes an offer by the Supplier to supply the Services in accordance with these Conditions. The Customer is responsible for ensuring that it fully understands the scope of the Services as described within the Services Specification and for satisfying itself that these meet its requirements and for approving or bringing any amendments required to the Site Specification to the attention of the Supplier before providing the Supplier with Order Confirmation. In the event that the Customer requests any material amendments to the Services Specification or to the Site Specification following submission of the Quotation the Supplier shall be entitled to treat the Contract as rescinded and to re-submit a new Quotation to the Customer.
2.2 The Quotation shall only be deemed to be accepted when the Customer provides the Order Confirmation on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing and shall apply on each and every occasion that the Customer places further orders with the Supplier whether or not on each such occasion the Supplier provides a further copy of these Conditions to the Customer.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues brochures or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 Any quotation given by the Supplier is only valid for a period of 30 Business Days from its date of issue.
3. Scope of Services
3.1 The Supplier shall:
(a) design, develop and deliver the Site in accordance with the Site Specification; and
(b) provide such other maintenance, support, hosting, e-mail and SEO services as are described in the Services Specification, monthly fees may change at any point with 7 days notice.
3.2 The Site shall be deemed to be delivered at the point at which the Site, conforming with all material elements as detailed in the Site Specification, goes live (Delivery).
3.3 Where the Services include SEO services the Customer acknowledges that the Supplier makes no representation and gives no warranty as to any specific placement of high ranking on any particular search engine resulting from the Services
3.4 Unless otherwise agreed in writing with the Supplier, maintenance and support services shall be provided subject to a time limit of 120 minutes per month. The Supplier shall be entitled to invoice the Customer at its standard rates for any time in excess of 120 minutes spent in delivering maintenance and support services in any calendar month.
3.5 The Customer acknowledges that from time to time it may be necessary to suspend access to the Site for the purpose of planned maintenance works or due to technical fault or error. The Supplier is unable to offer any guarantee as to the duration or timing of any such suspension of access but will ensure that the Customer is kept informed of the date or time at which it is anticipated that normal access will be resumed.
4. Supply of Services
4.1 The Supplier shall supply the Services to the Customer in accordance with the Services Specification in all material respects.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Services Specification or Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. The Supplier shall have no liability in respect of any delay in the performance of the Services or failure to perform the Services as the result of the Customer’s failure to provide Materials or to perform any of its other obligations under the Contract.
4.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4.4 The Supplier shall be under no obligation to commence work on the design and development of the Site until the Deposit has been paid in full and the Supplier is in receipt of cleared funds.
5. Customer's obligations
5.1 The Customer shall:
(a) Carefully review the Services Specification and the Site Specification to ensure that they accurately describe the services and type of website required by the Customer and immediately bring any omissions errors or defects to the attention of the Supplier;
(b) co-operate with the Supplier in all matters relating to the Services (including, without limitation, the provision of any Materials) and follow the Supplier’s reasonable and lawful instructions;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) provide the Materials in a timely fashion as and when requested by the Supplier;
(f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
5.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation or provide Materials as requested (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. Charges and payment
6.1 All Charges for the Services shall be calculated in accordance with the Quotation, subject to the Supplier’s ability to increase its standard fees in accordance with clause 6.2.
6.2 The Supplier reserves the right to increase its standard fees, provided that such charges cannot be increased more than once in any 6 month period. The Supplier will give the Customer written notice of any such increase 7 days before the proposed date of the increase. If such increase is not acceptable to the Customer, the Customer shall notify the Supplier in writing within 5 weeks of the date of the Supplier's notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 5 weeks' written notice to the Customer.
6.3 The Supplier shall be entitled to invoice the Customer as follows:
(a) in respect of the Deposit, on or before the Commencement Date;
(b) in respect of the Charges for the design and development of the Site (less the Deposit), within 7 days of the Commencement Date, or (if earlier) in the event of termination of the Contract by the Customer, at any time on or after the date of termination;
(c) in respect of Services other than the design and development of the Site including but not limited to support, maintenance, e-mail, hosting and SEO services, monthly in advance; and
(d) in respect of the Licence Fee, monthly in advance; and
(e) in respect of any costs or expenses incurred on behalf of the Customer, including but not limited to fees in respect of domain name registration or the purchase of stock imagery, upon the fee being incurred.
6.4 The Customer shall pay each invoice submitted by the Supplier:
(a) in the respect of the Deposit, payment shall be made on or before the Commencement Date;
(b) in respect of the Charges (less the Deposit), within 30 days of the date of the invoice;
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.6 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to:
(a) suspend the provision of all Services including access to the Site until such time as payment has been received in full; and
(b) charge interest at the rate of 8% above the prevailing Bank of England base rate on and to recover fixed charges in respect of the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1988.
6.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. Warranties
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
7.2 The Supplier shall perform the Services with reasonable care and skill.
7.3 The Supplier warrants that the Site will perform substantially in accordance with the Site Specification for a period of three months from Delivery. If the Site does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
7.4 The Supplier warrants that any images sourced by the Supplier for use on the Site will be purchased from an appropriate commercial provider of stock images subject to that provider’s licence terms and that proof of the purchase of an appropriate licence will be adduced to the Customer on demand
7.5 The warranty set out in clause 7.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials.
7.6 This agreement sets out the full extent of the Supplier's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
8. Limitation of remedies and liability
8.1 Nothing in this agreement shall operate to exclude or limit the Supplier's liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
8.2 The Supplier shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
8.3 Subject to clause 8.1, the Supplier's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with the Contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total of the Charges payable by the Customer to the Supplier under the Contract in that calendar year.
9. Intellectual property rights
9.1 All Intellectual Property Rights in the Site (including in the content of the Site, but excluding the Materials) and the CMS arising in connection with the Contract shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site.
9.2 Save for as expressly provided in these Conditions, the Supplier shall not be obliged to:
(a) make available to the Customer for its use any Intellectual Property Rights in the Site; or
(b) undertake, procure or otherwise facilitate any File Transfer Protocol (FTP) of or in connection with the Site.
9.3 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials or any stock imagery used on the Site infringe the Intellectual Property Rights of a third party.
9.4 The Supplier shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 9.3.
9.5 The indemnities in clause 9.3, clause 9.4 and clause 10.3 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
9.6 The indemnities in clause 9.3, clause 9.4 and clause 10.3 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
10. Site content
10.1 The Supplier shall update the Site with Materials provided from time to time by the Customer. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
10.2 The Supplier shall include only Materials and stock imagery approved by the Customer on the Site. The Customer acknowledges that the Supplier has no control over any content placed on the Site by the Customer its users and visitors and does not purport to monitor the content of the Site. The Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
10.3 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials or any stock imagery used at the Customer’s instruction constitute Inappropriate Content.
10.4 The Supplier may include the statement "Designed by Businesshub" on each page of the Site in a form to be agreed.
11. Data protection
11.1 The Supplier warrants that, to the extent it processes any Personal Data on behalf of the Customer:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
11.2 In this clause 11, Personal Data has the meaning given in the Data Protection Act 1998.
12. Term and termination
12.1 This agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with these Conditions, shall last for a minimum term of 11 months and shall continue thereafter until either party provides the other with one month’s written notice of termination such termination not to take effect before the first anniversary of the Commencement Date.
12.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
12.3 On termination of this agreement by the Supplier pursuant to clause 12.2, all licences granted by the Supplier under this agreement shall terminate immediately.
12.4 On expiry or termination of this agreement otherwise than on termination by the Supplier pursuant to clause 12.2, the Supplier shall promptly return all Materials to the Customer, and shall allow the Site to remain live for a period of 30 days following termination in order that the Customer may access and download content from the site. The Supplier shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the domain name or names to the Customer or another service provider, subject to the payment of the Supplier's expenses reasonably incurred.
12.5 On termination of the Contract the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt and in the event of termination by the Customer prior to Delivery of the Site the Supplier shall be entitled to invoice the Customer for and the Customer shall be obliged to pay the full amount of any Charges due in respect of the design and development of the Site as set out in the Quotation notwithstanding that there shall be no obligation on the Supplier to deliver the Site in such circumstances.
12.6 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
13. General
13.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 13.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
13.4 Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.6 No partnership:
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third parties:
A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 Variation:
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
13.9 Governing law and jurisdiction:
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.