TERMS OF BUSINESS – CREATIVE INTENT LTD
1. Definitions In these terms and conditions the following expressions shall have the following meanings:
“Company”‘ means CREATIVE INTENT Limited, Company no 07467266. Registered Office: 14 Wilford Bridge Spur, Woodbridge, Suffolk, IP12 1RJ
“Customer” means the person, firm, company or unincorporated association, which is stated to be the Customer on the Quotation.
“Hosting” means the hosting of the System on a server of the Company.
“Hosting Charge” means the Company’s annual or monthly charge for the Hosting as detailed on the Quotation.
“Intellectual Property Rights” mean all rights to any copyrights, moral rights, related rights, patents, trade marks, trade names, service marks, design rights, database rights, semi- conductor rights, rights to domain names, software, source codes and other similar intellectual property rights (whether registered or not) and applications for such rights as may exist anywhere in the world.
“Normal day rates” mean the normal daily rates charged for work by the Company.
“Quotation” means the quotation presented to the Customer by the Company which describes the Service and which incorporates these terms and conditions.
“Service” means the Website or System Design or the provision of other goods and services including Hosting and Support as detailed on the Quotation or otherwise agreed from time to time in writing between the parties. “Service Charge” means the Hosting or other Support Charges as detailed on the Quotation. “Support” means the Support as detailed on the Quotation SSLA.
“Timetable” means the timetable as detailed on the Quotation.
“System” means the website or software application designed and/or hosted by the Company in accordance with the Quotation.
“System Design” means the concept, design, build and delivery of the System.
“Production Fee” means the set up fee as detailed on the Quotation.
Support Service Level Agreement means the standard or bespoke Service Level Agreement under which the Company that defines the level of support services to be provided within the Quotation.
2. Company’s obligations
2.1 The Company shall provide the Service for the Customer in accordance with the Support Service Level Agreement.
2.2 unless otherwise agreed in writing between the parties the Company shall host for the Customer the System for a 12 month period and automatically each following 12 months period unless and until terminated by either party giving to the other party not less than 60 days prior written notice to expire before any such automatic renewal.
2.3 The Company shall not be required to give notice to the Customer of the commencement of the Hosting.
3. Customer’s obligations
3.1 In accordance with the Timetable the Customer shall supply the Company with all System content and approvals to enable the Company to provide the Service failing which the Company may consider that the Customer has cancelled the Service.
3.2 The Customer shall check and approve the contents of all work submitted by the Company to the Customer and the Company shall not be responsible for any errors contained therein.
3.3 The Customer warrants that the Customer is the owner of any Intellectual Property Rights which the Customer wishes to use in the System and/or has obtained the consent to use any third party Intellectual Property Rights.
3.4 The Customer hereby irrevocably and unconditionally indemnifies and shall hold fully indemnified the Company from and against any and all actions, proceedings, losses, damages, liabilities, obligations, costs, claims, charges and expenses suffered by the Company of whatsoever nature arising out of or in connection with the Company’s use of any materials supplied to it by the Customer in the course of its provision of the Service and links from the System to any third party web sites including but not limited to the provisions of the Data Protection Act 1998, Intellectual Property Rights or obscenity laws in any country of jurisdiction in which the content of the System can be viewed, and shall satisfy this indemnity on demand by the Company.
3.5 The Customer shall use its best endeavours, and shall procure that all of their employees and advisers shall use their best endeavours, to protect and keep confidential all software used by it which is provided by the Company and shall make no attempt to examine, copy, alter, “reverse engineer” tamper with or otherwise misuse such software.
4. Intellectual Property Rights
4.1 The Customer shall have sole title and ownership of all Intellectual Property Rights previously held by the Customer and all Intellectual Property Rights created or developed by the Customer. The Company shall have sole title and ownership of all Intellectual Property Rights created or developed by the Company including in particular all application software, source codes and graphical designs originated by the Company and any subsequent developments of such software, source codes and graphical designs.
4.2 The Company may consider licensing such application software Source codes and graphical designs to the Customer if requested.
5.1 The Customer agrees to pay to the Company the Production Fee and the Service Charge.
5.2 Any domain names registered on behalf of the client, the System and any hosting space reserved for the System will remain the property of the Company until the Production Fee is paid in full whereupon the Company will connect the System to the Internet.
5.3 The Company reserves the right to increase the Production Fee and to charge Normal Day Rates if changes to the Design or to the Timetable are required or caused by the Customer which depart from the Quotation.
5.4 The Hosting Charge shall be invoiced monthly and payment must be received by the Company within 30 days after the date of the invoice.
5.5 Interest on an overdue invoiced Production Fee or Service Charge shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above HSBC Plc base rate from time to time in force. Interest shall accrue at the relevant court rate after any judgement.
5.6 No right of set off shall exist in respect of any claims by the Customer unless and until such claims are accepted by the Company in writing and the Customer shall not withhold payment of the Production Fee or Service Charge or any part thereof which have become due for payment
6.1 The Company may immediately terminate or suspend the Service if the Customer:
6.1.1 does not pay a Production Fee or Service Charge by the date for payment;
6.1.2 uses the Service in a manner which the Company reasonably believes is illegal, offensive or is an abuse of the Service;
6.2 Either Party may immediately terminate this Agreement if the other Party:
6.2.1 materially breaches any of these terms and conditions;
6.2.2 becomes insolvent;
6.2.3 becomes bankrupt;
6.2.4 has a winding-up order made against it;
6.2.5 passes a resolution for its winding up;
6.2.6 has a receiver appointed; or,
6.3 Without limiting its other rights or remedies either party may terminate the Agreement for convenience by giving the other 60 days written notice.
6.4 Termination shall operate without prejudice to the accrued rights of either party.
6.5 On termination:
6.5.1 the Company may, with the prior agreement and after permitting the Customer sufficient time to make alternative arrangements, delete from its servers the System;
6.5.2 the Company may charge the Customer a disconnection fee if termination is without notice;
6.5.3 set up charges are non-refundable; and,
6.5.4 In the event of termination under clause 6.1, 6.2.1 or 6.3 only, the Customer shall pay to the Company:
[i] any outstanding Production Fee in relation to the Services provided to the date of termination;
[ii] a pro rata amount of any Service Charges to the date of termination; and
[iii] a pro rata amount of any payments the Company has made or has contracted to make or liabilities incurred to any third parties in relation to the System or the Customer provided that the Company shall use reasonable endeavours to mitigate any cost arising to the Customer as a result of such termination.
7.1 Company shall warrant that it shall:
7.1.1 perform the Services with reasonable care and skill;
7.1.2 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Quotation, and that the Deliverables shall be fit for the purpose expressly made known in writing to the Company by the Customer;
7.1.3 provide all equipment, tools and such other items as are required to provide the Services;
7.1.4 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
7.2 The Company shall not be held liable for any loss damage or failure of performance of the Service due to war, strikes, industrial action short of a strike, lockouts, accidents, fires, blockades, import or export embargos, legal restrictions, Acts of God, natural catastrophes or any other obstacles over which the Company has no control.
7.3 The total aggregate liability of the Company to the Customer not excluded or held to be invalidly excluded by these terms and conditions shall be £100,000 (one hundred thousand pounds) .
8.1 The Customer’s right to use the Service is personal to the Customer and is not transferable.
8.2 The Quotation incorporating these terms and conditions shall be governed by English Law and the parties submit to the exclusive jurisdiction of the Courts of England.
8.3 If any provision of the Quotation incorporating these terms and conditions is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect. In the event of there being any invalidity so fundamental as to prevent the accomplishment of the purpose of this Quotation incorporating these terms and conditions, the parties shall immediately commence good faith negotiation to remedy such invalidity.
8.4. The Production Fee and Service Charge do not include the cost of any merchant accounts required by the Customer for on-line credit card transactions.
8.5 The Company will use its best endeavours to back up data on a regular basis and to restore data as soon as is practicable but the Company does not assume responsibility for being able to restore it and the Customer accepts that it may be impossible and agrees to keep a copy of any website pages or database records.
8.6 The Company will use its best endeavours to provide Support to the Customer.
8.7 Any Notices required to be given under this Agreement shall be in writing and shall be sent by first class recorded post or by hand to the addresses of the parties specified on the Quotation.
8.8 The Company reserves the right on 60 days notice to change these terms from time to time. Continued use of the Service will signify that the Customer agrees to any such changes.
8.9 The receipt of your instructions to start work under this quotation after today’s date will constitute your agreement to the contents of these terms and conditions.
8.10 In the event that the Customer solicits, entices or employs any employee of the Company, the Customer shall pay to the Company on demand a sum equal to 50% of the relevant employee’s gross annual salary and benefits while previously employed by the Company.