Website development Terms and Conditions

THESE ARE THE TERMS AND CONDITIONS AS REFERRED TO IN THE PROPOSAL FOR WEB DESIGN AND DEVELOPMENT

THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSES 8 (LIMITATIONS OF LIABILITY) AND CLAUSE 15 (GUARANTEE AND INDEMNITY)

CONDITIONS

1. Interpretation

The definitions and rules of interpretation in this clause apply in these Conditions.

• Definitions:

• Acceptance: the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 4.
• Acceptance Tests: the tests to be carried out on the Site as set out in the Project Plan (if any).
• Business Day: a day, other than a Saturday or Sunday or public holiday in England, when banks in London are open for business.
• Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
• Change Control: has the meaning given in clause 13.
• Charges: the charges in respect of the Services set out in the “Investment” section of the Proposal, together with any charges arising from any Change Control.
• Conditions: the terms and conditions set out in this document.
• Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
  1. identified as confidential at the time of disclosure; or
  2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
• Contract: the contract between the Supplier and the Customer to deliver the Project in accordance with these Conditions.
• Customer: the customer named in the Proposal.
• Customer’s Representative: the person named as the Customer’s representative in the Proposal or as otherwise agreed in writing by the Customer and Supplier.
• Effective Date: the date these Conditions are accepted by the Customer.
• Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Customer relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
• Non-Supplier Defects: those defects described in clause 4.
• Proposal: the proposal from the Supplier to the Customer via the “Offorte” platform to provide the Services and design, develop and deliver the Site.
• Project: the provision by the Supplier of the Services as set out in the Proposal.
• Project Plan: the timetable within which the Supplier will implement the Project as agreed in writing between the Supplier’s Representative and Customer’s Representative.
• Services: the design, development and other services to be provided pursuant to the Contract as set out in the Proposal.
• Site: the website referred to in the Proposal.
• Site Software: the software for the Site commissioned by the Customer as specified in the Project Plan or as otherwise agreed in writing by the Customer and Supplier.
• Site Specification: the specification for the Site set out in the Proposal or as otherwise agreed in writing by the Customer and Supplier.
• Supplier: Global Bay Creative Limited incorporated and registered in England and Wales with company number 08440174 whose registered office is at Henleaze House 13 Harbury Road, Henleaze, Bristol, England, BS9 4PN.
• Supplier’s Representative: the person named as the Supplier’s representative in the Proposal or as otherwise agreed in writing by the Customer and Supplier.
• Termination Date: the date of Acceptance of the Site and payment of all outstanding sums unless the parties agree in writing to extend the term of the Contract in which case they may extend in writing for an agreed period.
• Visitor: a visitor to the Site.
• Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
  • Clause and Schedule headings do not affect the interpretation of these Conditions.
  • References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of these Conditions.
  • Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
  • A reference to legislation or a legislative provision is a reference to it as it is in force as at the date of the Contract.
  • A reference to legislation or a legislative provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
  • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, preceding those terms.
  • References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
  • A reference to writing or written excludes fax but not email.

2. Scope of the project

The Supplier shall:

• design, develop and deliver the Site in accordance with the Project Plan; and
• provide the Services.

3. Customer responsibilities
   • The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to the Supplier. Accordingly, the Customer shall provide the Supplier with access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations under these Conditions.
   • The Customer shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause
4. Development and acceptance of site
   • Once the Supplier has completed the design and development of the Site in accordance with the Project Plan, the Supplier shall run the Acceptance Tests. The procedure set out in this clause 4 shall be repeated in respect of any further development works agreed by the parties from time to time.
   • The Acceptance Tests shall test compliance of the Site with the Site Specification. The form and detail of such tests shall be as set out in the Project Plan.
   • Acceptance of the Site shall occur:
     • when the Site has passed the Acceptance Tests; or
     • if the Project Plan does not specify any Acceptance Tests, when the Supplier (acting reasonably) determines the design and development of the Site has been completed,

and the Supplier shall notify the Customer when Acceptance of the Site occurs in writing.

• If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. The Supplier shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.
• Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
  • the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
  • the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Supplier is ready to commence running such Acceptance Tests or retests.

5. Project management
   • Each party shall appoint a project manager, these being the Supplier’s Representative and the Customer’s Representative, who shall provide professional and prompt liaison with the other party and have the necessary expertise and authority to commit the relevant party.
   • The project managers shall meet as often as is reasonably necessary (but in any case no more than once every week unless the Supplier agrees otherwise).
   • The parties shall use reasonable endeavours to agree the Project Plan as soon as reasonably practicable following the acceptance of these Conditions by the Customer.
   • If the Customer requests what the Supplier (acting reasonably) considers to be an excessive number of changes (however described) to the Site during the design and development process, the Supplier may elect to:
     • cease making additional changes to the Site absolutely; or
     • cease making additional changes to the Site unless such changes form part of an agreed Change Order.

6. Charges and payment
   • In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.
   • The Customer shall reimburse the Supplier on demand for the following expenses and costs which are excluded from the Charges:
     • any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses;
     • the cost of services or software licences provided by third parties and required by the Supplier for the performance of the Services; and
     • the cost of any materials.
   • The Supplier may invoice the Customer for the Charges following the Customer’s acceptance of these Conditions.
   • The Customer shall pay each invoice submitted to it by the Supplier within the number of days specified in the relevant invoice from receipt (or, if no payment period is specified, within 14 days from receipt) and to a bank account nominated in writing by the Supplier from time to time.
   • If the Customer finances the settlement of any invoice submitted to it by the Supplier (or any other amount(s) owing from the Customer to the Supplier under the Contract) using the “Iwoca” platform (Iwoca):
     • the Customer undertakes to the Supplier that it shall comply with any applicable terms and conditions from Iwoca or otherwise relating to the financing, which shall include (without limitation) the payment of any amount(s) it owes to Iwoca when due;
     • the Customer shall, at the reasonable request of the Supplier, provide such assistance as is required by the Supplier in liaising with Iwoca in respect of the Charges or financing; and
     • without limiting any other rights or remedies the Supplier may have, the Customer shall indemnify the Supplier against, and shall pay to the Supplier on demand a sum equal to, all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and professional costs and expenses) suffered or incurred by the Supplier as a result of or in connection with any breach by the Customer of its obligations under this clause.
   • If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 12:
     • the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
     • the Supplier may suspend all or part of the Services until payment has been made in full.
   • All Charges and other amounts payable to the Supplier under the Contract:
     • are exclusive of VAT and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
     • shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   • Time of payment of any amount due under this clause is of the essence.
7. Warranties
   • Each of the parties warrants to the other that it has full power and authority to enter into and perform the Contract.
   • The Supplier warrants that it shall perform the Services with reasonable care and skill.
   • The Supplier warrants that the Site will perform substantially in accordance with the Site Specification for a period of three months from Acceptance. If the Site does not so perform, the Supplier shall carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
   • The warranty set out in clause 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.
   • These Conditions 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 the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
   • The Supplier does not warrant that:
     • the Customer’s use of the Services or the Site will be uninterrupted or error-free; or
     • the Services or the Site will be free from Vulnerabilities
     • the Services or the Site will comply with any Heightened Cybersecurity Requirements.

8. Limitation of liability
   • Nothing in these Conditions limits any liability which cannot legally be limited including but not limited to the Supplier’s liability for:
     • death or personal injury caused by its negligence;
     • 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 (title and quiet possession);
     • fraud or fraudulent misrepresentation; or
     • any other liability which cannot be excluded or limited under applicable law.
   • Subject to clause 1:
     • the Supplier shall have no liability for any:
       • loss of profits;
       • loss of business;
       • wasted expenditure;
       • depletion of goodwill or similar losses;
       • loss or corruption of data or information; and
       • any special, indirect or consequential loss, costs, damages, charges or expenses.
     • the Supplier’s total aggregate liability to the Customer (including in respect of the indemnity at clause 3) shall not exceed the Charges paid to the Supplier by the Customer under the Contract in the 12 month period preceding the date on which the claim arose.
   • Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
   • References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   • Nothing in the Contract excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
9. Intellectual property rights
   • All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software) arising in connection with the Contract shall, following payment of all sums due to the Supplier from the Customer under the Contract, become the property of the Customer, and the Customer hereby grants the Supplier a non-exclusive licence of such Intellectual Property Rights together with those in the Materials for the purpose of the Supplier being able to reference, showcase and case study the Site on it’s website, social media accounts and for use in exhibitions, networking and marketing events.
   • The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
   • 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 2 (which relate to the Materials).
   • The indemnities in clause 2, clause 9.3 and clause 10.3 are subject to the following conditions:
     • the indemnified party promptly notifies the indemnifier in writing of the claim;
     • the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
     • the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
     • the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
   • The indemnities in clause 2, clause 9.3, clause 10.3 and clause 10.4 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
    • 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).
    • If the Services include the Supplier hosting the Site on a computer server it administers:
      • the Supplier shall grant the Customer access to the Server in order to update information held on the Site; and
      • the Customer acknowledges that the Supplier has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site; and
      • the Supplier reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content and shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content;
    • The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
    • Subject to clause 10.5, the Supplier may include the statement “Designed by Global Bay” (or such reasonably similar wording as it elects to signify the Supplier’s design or development of the Site) on the home page of the Site.
    • If the Customer notifies the Supplier not to include on, or to remove from, the Site a statement of the kind referred to in clause 10.4, the Supplier may charge the Customer the sum of £500 plus VAT in consideration of this. The provisions of clauses 6.4 to 6.8 (inclusive) apply in relation to any charges arising under this clause.
    • If the Customer removes a statement of the kind referred to in clause 10.4 from the Site without giving notice to the Supplier, the Customer shall be deemed to have given such notice on the date the said statement was removed.
    • The Supplier reserves the right to present and reference the Site on the Supplier’s website and marketing (included but not limited to social media, web marketing and hard copy brochures) for its own marketing purposes.
    • The Customer agrees that it shall be responsible for providing any terms of use, privacy policies, cookies policies and other policies as are required for the Site in accordance with the Customer’s legal obligations and further agrees that, in the event it fails to provide these, the Supplier shall be under no obligation to do so.
11. Data protection
    • The following definitions apply in this clause:

Applicable Data Protection Laws: means:(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.(b) To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

• Customer Personal Data: any personal data which the Supplier processes in connection with the Contract, in the capacity of a processor on behalf of the Customer.
• EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
• Purpose: the purposes for which the Customer Personal Data is processed, as set out in clause 11.7.
• Supplier Personal Data: any personal data which the Supplier processes in connection with the Contract, in the capacity of a controller.
• UK GDPR: has the meaning given to it in the Data Protection Act 2018.
  • For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breachand processing shall have the meaning given to them in the UK GDPR.
  • Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
  • The parties have determined that for the purposes of Applicable Data Protection Laws the Supplier shall process the personal data as processor on behalf of the Customer. Should the determination in this clause 11.4 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause
  • Without prejudice to clause 11.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer Personal Data to the Supplier and or lawful collection of the same by the Supplier for the duration and purposes of the Contract.
  • In relation to the Customer Personal Data, the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject are for the purpose of the Supplier providing the Services under the Contract.
  • Without prejudice to clause 11.3, the Supplier shall, in relation to Customer Personal data:
    • process that Customer Personal Data only on the documented instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest;
    • implement the technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
    • ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
    • assist the Customer (at the Customer’s cost) in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    • notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
    • at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 11.7(f), Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
    • maintain records to demonstrate its compliance with this clause
  • The Customer provides its prior, general authorisation for the Supplier to:
    • appoint processors to process the Customer Personal Data, provided that the Supplier:
      • shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 11;
      • shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
      • shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
    • transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
  • Either party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

12. Term, termination and survival
    • The Contract commences on the Effective Date and (subject to earlier termination under this clause 12) terminates automatically on the Termination Date.
    • Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
      • the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
      • the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay their debts;
      • the other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
      • the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);
      • an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      • the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d)to clause 2(k) (inclusive);
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
      • the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
      • there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
    • On termination of the Contract by the Supplier under clause 2, all licences granted by the Supplier under the Contract shall terminate immediately.
    • On expiry or termination of the Contract otherwise than on termination by the Supplier under clause 2, the Supplier shall promptly return all Materials to the Customer and shall provide to the Customer an electronic copy of the Site (including all content on the Site).
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13. Change control
    • Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
      • the Services;
      • the Supplier’s existing charges;
      • the Project Plan; and
      • any of the terms of the Contract.
    • If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
    • If the Customer wishes to make a change to the Services:
      • it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
      • the Supplier shall, as soon as reasonably practicable after receiving the information at clause 3(a), provide a draft Change Order to the Customer.
    • If the parties agree to a Change Order, they shall sign it and that Change Order shall amend the Contract.
    • The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 3 on a time and materials basis at the Supplier’s daily rates as notified to the Customer.
14. Force majeure
    • Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
      • acts of God, flood, drought, earthquake or other natural disaster;
      • epidemic or pandemic;
      • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      • nuclear, chemical or biological contamination or sonic boom;
      • any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
      • collapse of buildings, fire, explosion or accident;
      • any labour or trade dispute, strikes, industrial action or lockouts;
      • non-performance by suppliers or subcontractors; and
      • interruption or failure of utility service.
    • Provided it has complied with clause 3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    • The Affected Party shall:
      • as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
      • use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    • If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 4 weeks’ written notice to the Affected Party.
15. Guarantee and indemnity
    • The provisions of this clause apply if the Customer is a limited company or LLP.
    • In this clause, Guaranteed Obligations means all present and future payment obligations and liabilities of the Customer due, owing or incurred under the Contract to the Supplier.
    • In consideration of the Supplier providing the Services to the Customer, the company director or LLP member (as applicable) who accepts these Conditions on behalf of the Customer guarantees to the Supplier, whenever the Customer does not pay any of the Guaranteed Obligations when due, to pay on demand the Guaranteed Obligations.
16. Confidentiality
    • Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
    • Each party may disclose the other party’s confidential information:
      • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 16; and
      • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17. Notices
    • Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
      • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      • sent by email to the following addresses (or an address substituted in writing by the party to be served):
        • Supplier: the email address of the Supplier’s Representative as specified in the Proposal or as agreed in writing between the Customer and Supplier.
        • Customer: the email address of the Customer’s Representative as specified in the Proposal or as agreed in writing between the Customer and Supplier..
      • Any notice shall be deemed to have been received:
        • if delivered by hand, at the time the notice is left at the proper address;
        • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
        • if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
      • This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18. Assignment and other dealings
    • The Contract is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
    • The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
19. Entire agreement
    • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
    • Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
    • Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
20. Third party rights
    • The Contract does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
21. Variation

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives) and expressly states it is varying the Contract.

22. Waiver
    • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
23. Rights and remedies

Except as expressly provided in these Conditions, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

24. Severance
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
    • If any provision or part-provision of the Contract is deemed deleted under clause 1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Governing law and jurisdiction
    • The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.