"Associate" means any consultancy firm, company or individual that the Company may engage to work on the development and delivery of the Services.
"Acceptable Use Policy" means the policy in force from time to time by the Company to ensure all content in use by the Customer as part of the Services meets all UK legal requirements and the Company's own ethical standards.
"Company" means Fresh Egg Limited (UK Company Number: 03950929)
"Customer" means the organisation stated in the Project Agreement.
"Due Date" means the date specified for the payment of Monthly Costs and Fees in these Terms and Conditions
"Fees" means the charges made by the Company, including its Associates, to the Customer as stated in the Project Agreement.
"Party(ies)" means the Customer and Company who has signed the Agreement.
"Project" the products and services to be delivered to the Customer as described in the Project Agreement.
"Project Addendum" means the document signed by both Parties that details the changes to the Project Agreement.
"Project Agreement" means the document signed by both parties confirming the quotation accepted by both Parties.
"Project End Date" means the date specified in the Project Agreement when the Project will end.
"Website" means the website designed, developed, hosted and managed by the Company for the Customer.
"Monthly Costs" means the monthly costs for the Services specified in the Project Agreement
"Services" means the services defined in the Project Agreement to be provided by the Company to the Customer including but not limited to website creation, e-mail, web hosting, search engine optimisation (SEO), analytics and insight.
"Terms" means these Terms and Conditions
"Third Party Services" means those services provided by Third Party Service Suppliers which are necessary or appropriate to the provision of the Services as detailed in the Project Agreement.
"Third Party Service Suppliers" means any third party, other than Associates, used by the Company at its sole discretion to provide Third Party Services.
2.1 These Terms and Conditions ("Terms") and the Project Agreement (together with any document specifically referred to in either as constituting part of the Agreement) shall constitute the entire agreement ("Agreement") between the Parties in relation to the provision of Services and supersedes any and all previous agreements entered into between the Parties. No representation, warranty or other statement (whether in writing or otherwise) made by the Company shall be of any effect (and is expressly disclaimed by the Company) unless it has been specifically reduced into writing and set forth in the Terms or the Project Agreement.
2.2 The Agreement shall not come into effect until the Project Agreement has been signed by a director of the Company and a director or partner of the Customer or some other person with the appropriate authority on behalf of the Customer. The Customer shall have accepted the Project Agreement by signing it or by accepting the provision of Services specified therein.
2.3 In the event of any conflict between the Terms and the Project Agreement, the Project Agreement shall take precedence over the Terms.
3.1 The Company shall provide the Services specified in the Project Agreement to the Customer.
3.2 The Company shall allocate the Monthly Costs and Fees to Third Party Service Suppliers and Associates, if appropriate, and in such proportions as the Company shall think fit, having regard to the size of the Monthly Costs and Fees and the interests of the Customer. The Company may change the proportion of the Monthly Costs and Fees allocated to any Third Party Service Supplier and Associate during the course of any month as it shall think fit.
The Company shall provide the necessary computer equipment, communications facilities, software tools, stationery and other consumables that the Company requires to perform the Services as part of the Project Agreement, unless otherwise specified.
4.2 Supervision of the Company's staff and Associates The Company may assign any of its staff or Associates it considers appropriate to provide the Services and the Company shall be responsible for the conduct and the quality of work carried out by its own staff and that of its Associates.
The Company shall produce reports to the Customer, in the format specified in the Project Agreement, as and when reasonably required by the Customer.
4.4 Suspension of Services
The Company may from time to time suspend Services under the Agreement to carry out any work to upgrade or maintain the Company's network, having provided at least five days notice in writing of its intention to do so, whenever practicable to do so.
4.5 Website Creation
If a project timescale has been agreed with the Customer, the Company cannot be held liable for any costs incurred or loss of revenue by the Customer if a deadline has not been met, for whatever reason.
4.6 Domain Name Registration
The Company acts on behalf of the Customer to register and renew domain names. It is the Customer's responsibility to ensure that they adhere to the terms and conditions set out by the Naming Authority for Domain Names and that the Domain Name is renewed when it is due if the Customer wishes to retain the use of the Domain Name.
4.7 Rescheduling the Services
In the unlikely that the Company requests information from the Customer for the purpose of delivering services on the critical path, as previously identified and agreed by the parties, and the customer fails to deliver to the Company such information within five working days of such request, the Company reserves the right to suspend all work on the development or delivery of the Services and reschedule the development or delivery of the Services once the customer has complied with the Company’s request.
5.1 The Customer shall pay the Monthly Costs and Fees specified in the Project Agreement, plus VAT at the applicable rate.
5.2 Unless otherwise agreed in any Project Agreement, the Company shall invoice the Customer for the Monthly Costs and Fees, and any applicable VAT, in advance on the 1st day of each month for the following month. The Customer shall provide the Company with cleared funds for the amount of that invoice within 30 days of invoice date, but in any event, before the first day of the month in which the Services are to be provided.
5.3 If the Customer fails to comply with Clause 5.2, the Company shall be under no obligation to provide the Services for that month, so long as the Monthly Costs and the Fees remain unpaid. Where Monthly Costs and Fees are paid late, the Company shall not be liable for failing to meet any pre-agreed deadlines, which shall be adjusted as necessary from the date payment is received.
5.4 Prior to incurring any additional costs in the event of any suspension pursuant to clause 4.7, the Company will make every reasonable effort to notify the Customer of any additional costs which may be associated with restarting the development or delivery of the Services, and the parties will reasonably agree such costs in writing before the Company incurs such costs.
6.1 Company and the Customer acknowledge that each party owns intellectual property, including but not limited to copyright and trademarks, including their respective business processes, procedures, and systems, at the date of this agreement which ownership will remain and be unaffected by this Agreement
6.2 Subject to Clause 6.3, all copyright and trademarks produced by the Company for the sole use of the Customer under the Agreement which is the property of the Company shall remain the property of the Company until all monies due to the Company under the Agreement have been paid up to the Project End Date. Upon the Company receiving all outstanding monies, the Company shall assign all such copyright and trademarks to the Customer
6.3 The copyright and intellectual property in any software and content used by the Company to provide the Services for the Customer under the Agreement, which belongs to the Company or another third party, shall at all times remain the property of the Company and any such third party, and the Company shall grant a non-exclusive licence to use such software and content to the Customer but only in connection with the Services for the duration of the Agreement.
6.4 Any copyright, trademark or other intellectual property provided by the Customer for use by the Company in connection with the Services which is the property of the Customer shall remain the property of the Customer and the Customer shall grant a non-exclusive licence of such intellectual property rights to the Company for the duration of this Agreement.
6.5 If any copyright, trademark or other intellectual property provided by the Customer for use by the Company in connection with the Services is the property of any third party and is not held by the Customer under licence, the Customer shall procure that all necessary consents, authorisations or licences to allow the use by the Company of such copyright, trademarks or other intellectual property in connection with the Services are obtained prior to the commencement of the Services.
6.6 Where any copyright, trademark or other intellectual property provided by the Customer for use by the Company in connection with the Services is held by the Customer under licence ("the Master Licence"), the Customer shall licence such copyright, trademark or intellectual property to the Company at no cost, on the same terms as the Master Licence and the Customer warrants that it is entitled to do so.
6.7 The Customer shall indemnify the Company in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with any breach by the Customer of clauses 6.5 and 6.6.
7.1 The Company and the Customer agree to treat any company information received from the other which is confidential or proprietary in nature or which is specified by the Party providing the information as being confidential with the same degree of care and diligence with which they treat their own information that is of a confidential and proprietary nature and shall not disclose the same to any person, firm or company without the disclosing Party's consent unless required by law. The provisions of this clause shall survive the termination of the Agreement for a period of five(5) years, but the restrictions contained in this clause cease to apply to any information which is in the public domain.
8.1 If the Company wishes to make any changes to the Project Agreement, including the Third Party Supplier, Monthly Costs and Fees, timescales and resources, the Company shall give notice in writing to the Customer of the changes it wishes to make. The Company shall within 7 days of such notice inform the Customer of the impact of the proposed changes in writing.
8.2 If the Customer accepts the impact of the proposed changes notified to it by the Company in writing, the changes shall be set out in a written document ("Project Addendum") which shall be executed by a director of the Company and a director or partner of the Customer or some other person with the appropriate authority on behalf of the Customer, which document shall also form part of the Agreement.
8.3 If there is any change to the Services causing an increase in Monthly Costs and Fees under this clause 8 during any calendar month and such change is to take effect immediately, the Company shall provide to the Customer, as soon as possible after the execution of the Project Addendum, with an invoice setting out the amounts due to the Company which must be settled by the Customer within 30 days of the invoice date.
8.4 If the Customer rejects the changes proposed by the Company in writing, the Company may at its discretion give notice to the Customer to terminate the Agreement in writing subject to the provision of clause 11.1.1.
8.5 The Customer may request a change to the Project Agreement in writing to the Company. If the Company accepts the change, a Project Addendum will be prepared by the Company and signed off by each Party's authorised representative. In the event that the change request from the Customer is not accepted by the Company the Project Agreement in force, prior to the change request, will remain in force until the date the Agreement terminates, or unless subsequently changed using the Project Addendum.
9.1 Services provided by the Company:
9.1.1 The Company warrants that the Services will:
(a) be provided in a skillful, competent, and workmanlike manner;
(b) be delivered to the Customer in conformity with the specifications in the relevant Project Agreement,including the relevant proposal and any other relevant written agreement by the parties.
9.1.2 the Company warrants that it will use all reasonable endeavours to select and use the Third Party Service Suppliers and Associates, if required, that are most appropriate for the Services and the Customer, but for the avoidance of doubt the Company does not warrant that such Third Party Service Suppliers and Associates will be the best or cheapest.
9.1.3 The foregoing warranties are exclusive and in lieu of all other warranties, whether expressed or implied, written or oral, statutory or otherwise.
9.2 Services procured for the Customer by the Company The Company will not be liable for any defects in Third Party Services supplied by or procured for the Customer by the Company from any Third Party Service Supplier, except insofar as the Company has the benefit of any warranties as to the Third Party Services from that Third Party Service Supplier, in which case the Company will make all reasonable efforts to assign to the Customer all such warranty rights, and the Customer's sole claim to redress for any defects in those services will be against the Third Party Service Supplier.
10.1 Any claim under the Agreement by the Customer shall be notified to the Company in writing within 28 days from the end of the month in which the Services were provided. If the Customer does not notify the Company of its claim in accordance with this clause, the Company shall have no liability under the Agreement.
10.2 The Company cannot accept any liability for attacks on the Customer's Website from viruses, hacking or any other third party attempt to disrupt the normal working of the Website.
10.3 Under no circumstance shall the liability of the Company under or in connection with the Agreement exceed the fees paid by the customer for the previous twelve months
10.4 The Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or associates or sub-contractors or otherwise) which arise out of or in connection with the Agreement. Nothing in the Agreement shall limit the Company's liability for death or personal injury caused by the Company's negligence.
10.5 The Company shall not be liable to the Customer for any failure to renew a Domain Name.
11.1 The Agreement will terminate:
11.1.1 On the Project End Date or 3 months' written notice from either of the Parties or
11.1.2 If any element of the Project fails the acceptance criteria as specified in the Project Agreement or as otherwise agreed, or does not meet the standard as could reasonably be expected by the Customer, other than for minor faults, the Company will, at its sole discretion, rectify any faults to the satisfaction of the Customer within 30 days of the date of such failure, unless otherwise agreed between the Parties.
11.1.3 For any other reason specified in this clause 11;
11.2 Either party may terminate the Agreement immediately on written notice to the other party if the other party has become bankrupt or officially insolvent or is the subject of any winding up proceedings (not being a members' voluntary winding-up for the purposes of reconstruction or amalgamation) or is the subject of an appointment of a receiver, administrative receiver or administrator.
11.3 If the Customer fails to pay the Monthly Costs or Fees within 14 days of the day of which they became due for payment, the Company may terminate the Agreement immediately on written notice.
11.4 Without prejudice to clause 11.3, if either Party is in material breach of the Agreement, and fails to remedy such breach within 14 days of written notification of the breach from the other Party, the other Party may terminate the Agreement immediately on written notice.
11.5 If the Customer is in breach of the Company's Acceptable Use Policy, and fails to remedy such breach within 14 days of written notification by the Company, the Company may terminate the Agreement immediately upon written notice to the Customer.
11.6 In the event that the Customer repeatedly fails to deliver to the Company any content that is required by the Company to deliver the Services in accordance with the Project Agreement, the Company may terminate the Agreement upon giving the Customer seven days written notice.
12.1 In the event that the Agreement is terminated under clause 11.1.1 by the Customer, and in the unlikely event that the Company has incurred costs in relation to the three month period from the date of Termination, the Company will notify the Customer of such costs, and, if the Company is able to verify such costs, the parties will reasonably agree any costs which the Customer may be required to pay.
12.2 In the event that the Customer wishes to transfer the support and maintenance of the Website to another supplier (the Transfer) the Company will provide all necessary assistance to the Customer's selected supplier to complete such Transfer. The Company reserves the right to charge the Customer for such assistance at its normal daily rate and payment on account will be required in advance before the Transfer commences.
12.3 Any such assistance provided to assist in the Transfer will only be supplied when all outstanding invoices have been paid in full.
12.4 In the event that the Company wishes to terminate the Agreement due to the Customer not paying invoices outstanding to the Company on time, the Company may suspend or terminate the Agreement without any liability to the Customer for loss of business due to the Website not working.
13.1 The Company shall select and use Third Party Service Suppliers for the provision of such Third Party Services as the Company at its sole discretion deems necessary for or appropriate to the provision of the Services.
13.2 However, where a Third Party Service Supplier is specified in the Project Agreement, the Company shall use such Third Party Supplier to provide the Third Party Services.
13.3 Where a Third Party Service Supplier is specified in the Project Agreement and cannot provide such Third Party Services and the Company reasonably considers that the specified Third Party Supplier is not suitable to provide the Third Party Services the Company shall have the right to use another Third Party Supplier to provide such Third Party Services without the prior approval of the Customer.
14.1 If any dispute or difference shall arise between the Parties as to the meaning of the Agreement or any matter or thing arising out of or connected with the Agreement then it shall be referred to the determination of an arbitrator to be appointed by agreement of the Parties or (in default of agreement) to be nominated by the President for the time being of the Chartered Institute of Arbitrators. The costs of such arbitration shall be borne by the Party that initiates the dispute. The arbitrator shall act as expert and not as arbitrator and his decision shall be final and binding upon the Parties.
15.1 Neither Party shall be liable for any default arising due to any act beyond their control, including, but not limited to, acts of God, war, terrorist action, strike, lockout, industrial action, fire, flood, drought, tempest or failure of any telecommunications system.
15.2 This Agreement shall be governed by and construed in accordance with the laws of England and the Parties hereby submit to the exclusive jurisdiction of the English Courts
15.3 This Agreement is personal to the Customer and the Customer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations hereunder without the prior consent from the Company, which would not be unreasonably withheld.
15.4 No waiver by the Company of any breach of this Agreement by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision
15.5 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected thereby
15.6 Any notice to be served on either of the Parties by the other shall be sent by pre-paid recorded delivery or registered post or by fax and shall be deemed to be received by the addressee within seventy-two (72) hours of posting or twenty-four (24) hours if sent by facsimile transmission to the correct facsimile number (with correct answerback) of the addressee and email.
15.7 Headings in the Agreement are for convenience only and shall not affect the interpretation of the Agreement.