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1. Definitions
In this agreement the following words and expressions will have the following meanings
1.1"Acceptance", "Acceptance Tests" mean respectively acceptance of the website (including any Bespoke Software) by the Client when the Website has passed CDTi's acceptance tests.
1.2 "Agreement" means this Agreement between CDTi and the Client including all specifications, plans, drawings and other documents referred to in this Agreement or attached hereto which may be or are agreed by the parties to form part of this Agreement.
1.3 "Bespoke Software" means any software program(s), manuals and other documentation, to be written CDTi for the Client. The copyright in the Bespoke Software will belong to CDTi.
1.4 Location(s)"means the Client's or CDTi's respective offices as specified in this Agreement or such other location as may be notified by either party to the other in writing.
1.5 "Software Licence (s) "means the licence(s) granted by CDTi to the Client for the right to use CDTi's own software and (if any) the Bespoke Software and the licence(s) granted by third party software owner(s) for the right for CDTi and the Client to use such third party software included in the Website.
1.6 "Timetable" means the proposed timetable for performance of the development work by CDTi under this Agreement as the same will be updated and amended from time to time by CDTi.
1.7 "Website" means the World Wide Web Website comprising all pages described
1.8 "Server(s)” means CDTi's computer server or servers upon which the Website will reside during development, the Website Server and servers for hosting the Website upon its completion and to any other server(s) to which the Website may be linked.
2. Application of Terms
These Terms and Conditions will apply to all dealings between the parties hereto unless specifically varied in writing and signed by a director of CDTi and a director of the Client respectively.
3. Commencement
The date of commencement of this Agreement will be the date of execution by both CDTi and the Client of this Agreement.
4. Client's Requirements and Selection of Server
Upon execution of this Agreement CDTi will:
4.1 Discuss the Client's Website requirements as outlined in the order confirmation and develop the Website for the Client;
4.2 Test the Website in accordance with the Acceptance Tests;
4.3 Provide to the Client training, support, updating services and such other Services as may be agreed between the parties.
5. Completion of Development, Testing and Delivery
Upon completion of CDTi's obligations in Clause 4.1 above, CDTi will run it’s Acceptance Tests. Upon passing such tests, CDTi will notify the Client that the Website is ready for Internet access on CDTi’s server.
6. Prices and Charges
6.1 The price for development of the Website is specified in the order confirmation and may be varied if the Client's requirements change during development and if the development takes longer than 3 months to complete (through no fault of CDTi).
6.2 Charges for the Services are specified in the order confirmation hereto and are subject to annual renewal unless earlier varied to meet a change in the Client's requirement.
6.3 All Prices are quoted subject to value added tax to be applied at the prevailing rate but otherwise inclusive of any applicable import and all other duties including but not limited to foreign exchange rates (where applicable).
7. Payment
7.1 The Price for the Website development will be as laid out in the order confirmation or website proposal document.
7.2 Payment terms are detailed on the invoices supplied to clients by CDTi. Failure to make payments within the payment terms shown on invoices may result in the suspension of any or all services provided to the client by CDTi. An administration charge may be levied to cover additional costs incurred by CDTi when re-instating any suspended service. All administration charges must be paid in advance before any service is re-instated.
8. Support and Maintenance
CDTi can provide or arrange for the provision of support and maintenance of the Website and support for all Software and Bespoke Software it’s charges as notified to the client from time to time.
9.CDTi's Liability
9.1 CDTi shall not be liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this agreement, the development, the Website, any software (including Bespoke Software), its use, application, support or otherwise, except to the extent to which it is unlawful to exclude such liability.
9.2 Notwithstanding the generality of 9.1 above, CDTi expressly excludes liability for consequential loss, damage or corruption to other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.
9.3 In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and CDTi becomes liable for loss or damage that it may otherwise have been lawful to limit, such liability shall be limited to the Price of the development work.
9.4 The Developer does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of CDTi its employees, agents or authorised representatives.
10. Copyright, Patents, Trade Marks and Other Intellectual Property Rights
10.1 The Client acknowledges that any and all of the copyright, trade marks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with development of the Website (unless the property of the Client prior to the date of this Agreement) are and shall remain the sole property of CDTi and the Client shall, upon completion of the Website, sign and return any software licence which relates to software required to operate the Website and which may be (but need not be attached hereto as the Second Schedule, prior to delivery/transmission of the Website to the client's ISP. The Client shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership by CDTi thereof.
10.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the Client acknowledges that the one shall be the property of CDTi unless otherwise agreed in writing by CDTi.
10.3 The Client shall indemnify CDTi fully against all liabilities, costs and expenses which CDTi may incur as a result of work done in accordance with the Client's instructions in development of the Website involving infringement of any copyright, patent or other proprietary right (including but not limited to framing or linking to third party Websites and/or third party proprietary material).
11.Indemnity
11.1 The Client agrees to indemnify and save harmless and defend at its own expense CDTi from and against any and all claims of infringement of copyright, patents, trade marks, industrial design, or other intellectual property rights affecting the website and based upon the Client’s contribution to the Website specification.
11.2 CDTi undertakes that the Client shall be given notice of any claim specified in 11.1 above that is made against CDTi and the Client shall have the right to defend any such claims and make settlements thereof at its own discretion and CDTi shall give such assistance as the Client may
reasonably require and at its expense to settle or oppose any such claims.
11.3 In the event that any such infringement occurs or may occur, the Client may instruct CDTi at the Client's expense to:
11.3.1 procure for the Client the right to continue using the infringing material; or
11.3.2 modify or amend the infringing material so that the same becomes non-infringing; or
11.3.3 replace the infringing material with other material of similar capability.
12. Confidential Information and Security
12.1 All information, drawings, specifications, documents, contracts, design material and all other data which CDTi may have imparted and may from time to time impart to the Client relating to its know-how, its business, clients, prices, services, software, Bespoke Software, the Website, contracts (including this Agreement), Website design, architecture and content (including any technical specifications therefore), is proprietary and confidential.
12.2 The Client hereby agrees that it will use such confidential information and all other data solely for the purposes of this Agreement and that it will not, at any time during or any time after the completion, expiry or termination of this Agreement use or disclose the same whether directly or indirectly, to any third party without CDTi's prior written consent.
12.3 The Client and each of its employees and consultants or advisors to whom any confidential information requires to be disclosed, will if so requested by CDTi, sign CDTi's separate confidentiality agreement.
12.4 The Client further agrees that it will not itself or through any subsidiary or agent use, sell, license, sub-license, create, develop or otherwise deal in any confidential information supplied to it by CDTi or obtained pursuant to this Agreement.
13. Termination
13.1 Notwithstanding any other provisions herein contained, and without prejudice to any other rights such party serving notice may have, CDTi may forthwith terminate this Agreement by written notice to the Client if any of the following events will occur:
13.1.1 If the Client commits any breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any schedule attached or adopted hereto and fails to remedy such breach (unless it is a breach which entitles the Client to terminate this Agreement immediately or insofar as such breach is not capable of remedy to furnish adequate compensation therefore) within thirty (30) days after receiving written notice requiring it so to do.
13.1.2 If the Client becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or Voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution will be threatened or levied upon any equipment and/or software or other property of the party entitled to serve notice hereunder or if the other party is unable to pay its debts in accordance with the law relating to this Agreement.
13.2 Within seven (7) days after the date of termination of this Agreement for whatever reason, the Client will return or destroy (as CDTi will instruct) hard-copy forms of the Website, Bespoke Software, CDTi’s software, designs, graphics, and all audio-visual and hard copy material and data relating to the Website and business and purge/expunge all magnetic and optical media forms of the Website and all software and related material and furnish CDTi with a certificate, certifying that the principal and all copies of such material made (in whole or in part), in any form of media have been so returned, destroyed and/or purged/expunged as the case may be or hereby permit CDTi's personnel or agents to collect, destroy or purge/expunge the same.
13.3 Termination of this Agreement will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by expiry or termination hereof.
14. Assignment
This Agreement will not be assigned by the Client whether voluntarily or involuntarily or by operation of law in whole or in part to any party without the Client forthwith giving notification of that assignment to CDTi.
15. Force Majeure
Neither party will be under any liability to the other in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body.
16. Notices
Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and will be delivered in person, or first class mail (properly posted and fully prepaid in an envelope properly addressed) to the addresses shown at the head of this Agreement or to such other address as may from time to time be designated by notice hereunder. Any such notice will be in the English language and will be considered to have been given on the first working day of actual delivery or in any other event within three (3) working days after it was posted in the manner hereinbefore provided.
17. Waiver
Failure or neglect by CDTi to enforce at any time any of the provisions hereof will not be construed nor will be deemed to be a waiver of CDTi's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice CDTi's rights to take subsequent action.
18. Headings
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or the interpretation of any of the terms and conditions of this Agreement.
19. Severability
In the event that any of these terms, conditions or provisions or those of any schedule or attachment hereto will be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision will to that extent be severed on the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
20. Law
The parties hereby agree that this Agreement and the provisions hereof will be construed in accordance with English Law and that this Agreement is subject to the sole jurisdiction of this English Courts.
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