Flexi Code

 

TERMS AND CONDITIONS

1.INTERPRETATION

1.1. In these Conditions -

'the Charges' means any sum payable by the Client in accordance with the Contract;

'the Client' means the person identified as such on the Specification Sheet; 'these Conditions' mean the terms and conditions set out in this document, and a reference to a paragraph has a corresponding meaning;

'the Content' means any aspect of the on-screen appearance or presentation of the Website or Application, including without limitation any visible reproduction in whole or in part of any Input Material, and any other features of the Website or Application such as text, pictures, sound or moving images which are accessible by visitors to the Website and/or users of the Application;

'the Contract' means the agreement for provision of the Services to the Client comprising these Conditions, the Specification Sheet, any other document referred to in it, and any other terms and conditions agreed in writing between the parties;

'the Contractor' means Internet Pipelines UK ;

'Input Material' means any material, data or information to be supplied by the Client in accordance with the Contract;

'Intellectual Property Rights' means any patent, copyright, trade mark or any other form of protection, any application for any such protection, any rights of confidentiality in any part of the world, any rights of a similar nature to any of the foregoing in any part of the world, and any extension or renewal of any such protection or rights;

'the Output Material' means any material, data or information to be supplied by the Contractor in accordance with the Contract;

'the Services' means the software design and other technical services to be provided by the Contractor for the Client in accordance with the Contract;

'the Specification Sheet' means the sheet to which these Conditions are appended;

'the Underlying Technology' means any software (including source code) used to operate, host and maintain the Website on a computer server and to make the Content available via the Internet, or by which any Output Material is produced or which is necessary for its use, but not including the Content; and

'the Website' means any Internet Website agreed to be developed by the Contractor for the Client pursuant to the Contract.

'the Application’ means any software facility agreed to be developed by the Contractor for the Client pursuant to the Contract.

1.2. In these Conditions, a reference to -

a. the parties means the Contractor and the Client, and includes their successors in title and permitted assignees;

b. a person includes any individual, body corporate, unincorporated association, partnership or other legal entity;

c. a document includes, in addition to a document in writing, any media in or on which any data or other information of any description are contained, stored or recorded in any way;

d. writing, and any similar expression, includes a communication sent by facsimile or similar means, including email;

e. the singular includes the plural and vice versa.

1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.

2.PROVISION OF THE SERVICES

2.1. The Contractor shall provide the Client with the Services, as set out in the Contract Document/Specification Sheet and any document referred to in it, or as otherwise agreed between the Contractor and the Client from time to time.

2.2. The Contractor shall consult with the Client as appropriate in relation to the provision of the Services, and shall keep the Client informed as to the progress of work from time to time.

2.3. The Contractor shall use its reasonable endeavours to adhere to any timescale for the provision of the Services agreed with the Client as part of the Contract, but time for performance of the Services shall not be of the essence of the Contract, and the Contractor shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay or failure to adhere to any such timescale.

2.4. The Client shall supply the Contractor in good time with all Input Material, which it is necessary for the Client to supply in order to enable the Contractor to provide the Services.

2.5. The Client shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Contractor shall have no liability for any such loss or damage, however caused. The Client shall ensure that all Input Material is virus-free when delivered to the Contractor.

2.6. All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client. The Contractor shall ensure that all Output Material is virus-free when delivered to the Client.

2.7. The Client must within 7 days of delivery of any Output Material notify the Contractor of any claim that the Output Material is unacceptable or that the work in question has not been carried out in accordance with the Contract, failing which it shall be deemed to have been accepted by the Client and to be in accordance with the Contract.

2.8. If the Client rejects any Output Material in accordance with paragraph 2.7, and the Contractor accepts that the Client is entitled to do so, the Contractor shall use its reasonable endeavours to correct it within a reasonable time.

2.9. If the Contractor disputes that the Client is entitled to reject any Output Material, the parties shall seek to agree the dispute amicably within 21 days, failing which it shall be referred for determination in accordance with paragraph 7.12.

3. CHARGES

3.1. Subject to any special terms agreed, the Client shall pay the Contractor's standard charges and any additional sums which are agreed between the Contractor and the Client for the provision of the Services or which, in the Contractor's reasonable opinion, are required as a result of the Client's instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.

3.2. The Contractor shall be entitled to vary its standard charges from time to time by giving not less than 30 days written notice to the Client.

3.3. All charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, or other applicable taxes (other than taxes on profit), for which the Client shall be additionally liable at the applicable rate from time to time, subject to receipt of a valid VAT invoice.

3.4. The Contractor shall be entitled to invoice the Client following the end of each month in which any part of the Services is provided, or at such other times as may be agreed with the Client.

3.5. The Charges shall be paid by the Client (together with any applicable Value Added Tax, and without any set-off or other deduction) within 14 days of the date of the Contractor's invoice. Time of payment shall be of the essence of the Contract.

3.6. If the Client refuses payment of any of the Charges, and the Contractor disputes that the Client is entitled to do so, then subject to paragraph 2.9 the dispute shall be referred to determination in accordance with paragraph 7.12, and in the meantime the Client shall pay to the Contractor one half of the amount of the Charges in dispute.

3.7. If payment of any of the Charges is not made on the due date, the Contractor shall be entitled, without limiting any other rights it may have, to:

a. Suspend any further development, maintenance, servicing and the provision hosting facilities until the outstanding amount is paid in full.

b. Suspend or (at the Client's discretion) terminate the licence granted by the Contractor to the Client to use any Output Materials; and

c. charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of LloydsTSB Bank PLC from the due date until the outstanding amount is paid in full.

3.8. If any of the Charges due, are not made within 30 days of the due date, the Contractor will, without limiting any other rights and without further notice, suspend any and all development, maintenance, servicing and the provision hosting facilities until the outstanding amount is paid in full, including any interest charges accrued.

3.9. The cost (direct, indirect or otherwise) to the Clients business(es) resulting for such a suspension of services, shall be to the client account solely.

3.10. The cost of reinstating a service or facility that has been suspended as above, shall be £199+vat in addition to the payment in full of all outstanding charges.

4. OWNERSHIP OF RIGHTS

4.1. All Intellectual Property Rights in any Input Material belong to the Client or to any third party providing the Input Material, and the Contractor shall be entitled to use any Input Material solely for the purposes of fulfilling its obligations under the Contract.

4.2. All Intellectual Property Rights in the Underlying Technology and any Output Material other than the Content belong or shall belong to the Contractor or its licensors.

4.3. In respect of any such Intellectual Property Rights belonging to the Contractor, the Contractor shall grant to the Client, subject to payment in full of the Charges, a non-exclusive, royalty-free licence during the term of the Contract to the extent necessary for the purposes of using the Output Material and operating the Website/Application for the purposes as described in the contract, but so that the licence:

a. will be personal to the Client, and may not be assigned, transferred or sub-licensed, except as necessary for the purposes of using the Output Material and operating the Website/Application as described; and

b. will not extend to the use of the Underlying Technology or any such Output Material in any other medium.

4.4. The Client shall:

a. not part with possession of, lend or transfer the Underlying Technology or any such Output Material to any other person, or permit any other person to have access to it except the Client's properly trained and authorised employees who need to have such access;

b. take all proper steps to ensure the security of the Underlying Technology and any such Output Material; and

c. not adapt, modify, reverse engineer, decompile or alter in any way any part of the Underlying Technology or any such Output Material without the prior written consent of the Contractor, except as permitted by law.

4.5. The Client shall not be entitled to have access to or possession of the source code in respect of the Underlying Technology or any such Output Material but the Contractor shall, if so requested in writing with the Client, deposit the source code with an escrow agent at the expense of the Client and on terms to be agreed.

4.6. The Client shall be responsible for obtaining from any third party licensor, paying for and maintaining in force any licence in respect of any of the Output Material originating with any such third party licensor or required for the operation of the Website.

4.7. All Intellectual Property Rights in any of the Content (including preparatory design material for it, and any media containing or recording any part of it) which is created by or for the Contractor in the course of the provision of the Services shall belong exclusively to the Client, and the Contractor shall assign to the Client absolutely with full title guarantee all such Intellectual Property Rights in the Content, subject to payment in full of the Charges.

4.8. The Contractor reserves its moral rights in respect of the Content, except to the extent that the Content reproduces any Input Material, and the Client shall ensure that any copyright notice or acknowledgement of the Contractor on the Website or any Output Material is not removed or obscured.

4.9. Any Input Material or other information provided by the Client which is designated as confidential by the Client shall be kept confidential by the Contractor, and all Output Material provided by the Contractor which is designated as confidential by the Contractor shall be kept confidential by the Client.

4.10. The Contractor shall not and shall ensure that none of its employees or subcontractors shall at any time either during the continuance of the Contract or after its termination (except in the course of and to the extent necessary for providing the Services, or unless ordered to do so by law) disclose to any person or use for any purpose any information concerning the business, affairs, finances, transactions or trade secrets of the Client or of any of its customers.

4.11. Paragraphs 4.9 and 4.10 shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are provided by either party to the other, and shall cease to apply if at any future time they become public knowledge through no fault of the other party

5. WARRANTIES AND LIABILITY

5.1. The Contractor warrants that the Services will be performed with reasonable skill and care to normal professional standards.

5.2. The Client warrants that to the best of the knowledge and belief of the Client:

a. any Input Material and its use by the Contractor for the purpose of providing the Services will not infringe the Intellectual Property Rights of any third party; and

b. no such Input Material will be blasphemous, defamatory or otherwise unlawful.

5.3. Subject to paragraph 5.2, the Contractor warrants that to the best of the knowledge and belief of the Contractor:

a. the Content and any Output Material which is produced by or for the Contractor and presented to and accepted by the Client and its use by the Client for the purposes of utilising the Services will not infringe the Intellectual Property Rights of any third party; and

b. no such Output Material will be blasphemous, defamatory or otherwise unlawful.

5.4. The Client shall be responsible for ensuring that the Output Material, the Content and the Website/Application will comply with any applicable laws in all jurisdictions of the world, and the Contractor gives no representation, warranty, or other term as to such compliance. The Client shall indemnify the Contractor against any loss, damages, costs, expenses or other claims for compensation arising out of or in connection with the use of the Output Material or the Content, or the operation of the Website/Application.

5.5. Where the Contractor supplies in connection with the provision of the Services any goods or software (including Output Material) supplied by a third party, the Contractor does not give any representation, warranty, undertaking or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, pass on to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Contractor.

5.6. The Contractor shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

5.7. Except as expressly provided in these Conditions, the Contractor shall not be liable to the Client by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Contractor, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of the Contractor under or in connection with the Contract shall not exceed the amount of the Charges for the provision of the Services, except as expressly provided in these Conditions.

5.8. The Contractor shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Contractor's obligations in relation to the Services, if the delay or failure was due to any cause beyond the Contractor's reasonable control, including without limitation where such delay or failure is due to the default of any sub-contractor or other third party.

5.9. Nothing in the Contract affects the liability of either party for fraudulent misrepresentation or for death or personal injury caused by the negligence of the party in question.

6. DURATION AND TERMINATION

6.1. THE CONTRACT SHALL COMMENCE ON THE AGREED DATE AND, UNLESS SOONER TERMINATED, SHALL CONTINUE FOR A PERIOD OF 1 YEAR, SUBJECT TO ANY AGREEMENT FOR ITS RENEWAL.

6.2. The Client may terminate the Contract by giving written notice to the Contractor if:

a. the Contractor commits any breach of the Contract and, if the breach is capable of remedy, fails to remedy it after being given 15 days' written notice specifying the breach and requiring it to be remedied; or

b. the Contractor goes into liquidation or administration, has a receiver appointed over any of its assets or enters into any voluntary arrangement with its creditors.

6.3. The Contractor may forthwith terminate the Contract by giving written notice to the Client if:

a. the Client fails to pay any of the Charges on the due date for payment;

b. the Client commits any other breach of the Contract and, if the breach is capable of remedy, fails to remedy it after being given 15 days' written notice specifying the breach and requiring it to be remedied; or

c. the Client goes into liquidation or administration, has a receiver appointed over any of its assets or enters into any voluntary arrangement with its creditors.

6.4. For the purposes of paragraphs 6.2 and 6.3, a breach of any provision of the Contract shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance.

6.5. The termination of the Contract for any reason shall not affect any accrued right or liability of any party arising hereunder and shall be without prejudice to any other right or remedy of any party.

7. GENERAL PROVISIONS

7.1. The Contractor shall be entitled to assign the benefit of the Contract to any person, and to sub-contract any of its obligations under the Contract, but the Contractor shall give the Client written notice of any such sub-contracting.

7.2. The Contract is personal to the Client, which shall not be entitled to assign, mortgage, charge or otherwise transfer any of its rights under the Contract.

7.3. Nothing in the Contract shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the parties.

7.4. The Contract contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.

7.5. These Conditions and any other terms and conditions agreed in writing between the parties shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation by the Contractor is accepted or purported to be accepted by the Client, or any order is made or purported to be made by the Client.

7.6. Each party acknowledges that, in entering into the Contract, it has not relied on any representation, warranty or other provision except as expressly provided in the Contract, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

7.7. No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

7.8. If any provision of the Contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the other provisions of the Contract and the remainder of the affected provision shall continue to be valid.

7.9. English law shall apply to the whole of the Contract, and each party agrees to submit to the non-exclusive jurisdiction of the English courts, subject to paragraph 7.10.

7.10. Any dispute or disagreement between the parties arising out of or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement between the parties or, failing agreement between the parties within 30 days after a request for a reference is made by either party, nominated on the application of either party by the President for the time being of [The British Computer Society].

7.11. Any notice or other information required or authorised by the Contract to be given by either party to the other shall be delivered by hand, by pre-paid registered post (or recorded delivery) or facsimile transmission to the other party at its registered or principal office, or such other address as may be notified in writing from time to time to the party serving the proceedings.

7.12. Any notice or other information sent by post as provided by paragraph 7.11 which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid and posted, and that it has not
been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.

7.13. Any notice or other information sent by facsimile transmission shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party by post as specified in paragraph 7.11 within 24 hours after transmission.

7.14. These Terms & Conditions may be altered or amended, from time to time, by the Contractor and shall be made available via the Contractors principal website, the address of the principal website to be identified on the Specification Sheet.