Terms & Conditions
WEBDADI LIMITED
GENERAL TERMS AND CONDITIONS
SUPPLY OF SERVICES
Interpretation
1.1 Definitions:
In this Contract, the definitions and rules of interpretation contained in this clause shall apply.
Acceptance means the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 5.
Ancillary Services means:
(a) In relation to Hosting Services: Website hosting, low or high res data hosting and serving services and media storage, maintenance, support, data backup, or such other ancillary services as detailed in the Order.
(b) In relation to Software as a Service: software hosting, data warehousing, products, plugins, hosting, maintenance, version updates, backup, software support or such other ancillary services as detailed in the Order.
Authorised Users means the employees of the Customer who are authorised by the Supplier to use the Software as a Service.
Branch: a 'branch' refers to a physical or virtual location in the Supplier's database associated with the Customer's residential, international or commercial properties or contacts. This includes any 'branch' listed with a third party that uses the Supplier's systems to import or export data. Where the Customer acts as an agent to sell or let properties from a specific location, that location is considered one 'branch'. If the Customer has two physical or virtual locations, where one facilitates property sales and the other facilitates sales or lettings, they will constitute two branches. Each physical or virtual office created in the system for associating properties to an office or branch is automatically deemed to be a 'branch' for licensing and billing purposes.
Bronze Level Package means the Supplier's Bronze level Support package that the Customer will receive, normally stated within the Service Level Agreement section of the Order, and the terms thereof described hereunder.
Business Day means a day other than a Saturday or Sunday or public holiday in England.
Project Change Procedure refers to the procedures set out in clause 14.
Charges refer to the fees for the Services listed in clause 8 and specified in the Order, including any additional fees resulting from Project Change Procedures.
Conditions refers to the terms and conditions that may be revised periodically, and serves as a clear and unambiguous agreement between the Customer and Supplier.
Confidential Information means 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:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Contract refers to the agreement between the Supplier and the Customer for the provision of Services under these Conditions, including the Order, any mutually agreed modifications, the Supplier's charge out rates, and other pertinent documents.
CRM Software means the customer relationship management software utilised by the Customer, the normally a source of data for use by the Supplier to output on the Site, as specified in the Order.
Customer means the person, firm or company who purchases Services from the Supplier.
Customer Data means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Software as a Service or facilitating the Customer's use of the Software as a Service.
Data Protection Legislation means unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then any successor legislation to the GDPR or the Data Protection Act 1998.
Data Subject means, for the purpose of this Contract, includes all living individuals about whom the Supplier holds Personal Data on behalf of the Customer.
Deliverables refer to all forms of documents, products, and materials that are produced by the Supplier, its agents, subcontractors, consultants, and employees in connection with the Services. This encompasses templates, designs, software codes, computer programs, data, and reports.
Design Agency refers to a third-party firm or company engaged to develop the look and feel of the Site as specified in the Order.
Design and Development Services means, if applicable, the design and development of the Site provided by the Supplier to the Customer as more particularly described and for the price set out in the Order.
Effective Date means the date of commencement of the Contract in accordance with clause 2.5.
Emergency Development Rate means the amount charged by the Supplier to the Customer on an hourly basis as detailed in the Order or in the absence of such, the Supplier's current charge-out rates.
Final Payment means the final payment, payable by the Customer to the Supplier pursuant to clause 8.2, as detailed in the Order as a percentage of the total price payable.
GTM Features refers to the features of Google Tag Manager (GTM) such as, but not limited to, Containers, Workspaces, Tags, Triggers and Variables, or other features provided within Google Tag Manager that maybe used in conjunction with a Site.
GTM Recipe refers to one, or a collection of, several Tags, Triggers or Variables in Google Tag Manager.
Hard Reset means restoring a device to its factory settings. Passwords and other settings may be lost during this process.
Hosting Services means, if applicable, the Site hosting services to be provided by the Supplier to the Customer as more particularly described and for the price set out in the Order.
Inappropriate Content means any content, whether created by human or artificial intelligence or provided by a third-party or customer, that violates applicable laws, regulations, or industry standards, infringes on the intellectual property rights of any third-party, contains false or defamatory information about any person, entity, or product, promotes or encourages illegal or harmful activities, contains sexually explicit or obscene material, promotes or incites hatred, violence, discrimination, or intolerance based on any protected characteristic, invades personal privacy or information, contains viruses, malware, or other harmful code, disrupts normal website operations or any associated systems or networks, constitutes spam or unsolicited bulk email, or is otherwise contrary to the interests of the website or its users, as determined by the website at its sole discretion.
Initial Payment means the initial payment, payable by the Customer to the Supplier pursuant to clause 8.2, as detailed in the Order as a percentage of the total price payable.
Intellectual Property Rights refer to a range of exclusive legal rights granted to an individual or entity over their creative and innovative endeavours. These rights include patents, utility models, and the right to invent. Additionally, they include copyright and associated rights, moral rights, trademarks and service marks, business names, domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, and rights in designs. Moreover, Intellectual Property Rights also encompass rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including trade secrets and know-how) and all other intellectual property rights. These rights can be either registered or unregistered and include all applications, renewals, extensions, and the rights to claim priority from such rights. Finally, Intellectual Property Rights also involve the protection of similar or equivalent rights or forms of protection that exist or will exist anywhere in the world in the future.
Image Materials refers to any images or photographs which are included as a part of the materials provided by the Customer to the Supplier for use on the Site.
Materials refers to the content that is provided to the Supplier by the Customer or any third-party on a periodic basis for incorporation in the Site. This includes but is not limited to the Image Materials.
Minimum Period: has the meaning given in clause 13.2.
Monthly Licence Fee means the monthly fee paid in advance for various services, including but not limited to Hosting Services, Software as a Service, Ancillary Services (including Plugins), Support Services, and any other related services as specified in the Order. The Monthly License Fee is also known as the Monthly Software Subscription or Total Monthly Cost. It covers the necessary charges for access and availability of the Website(s) or Web Service(s) to the Customer and general public, as detailed in the Order.
Monthly Software Subscription refers to the monthly fees paid in advance, for Hosting Services, Software as a Service, Ancillary Services (including Plugins), Support Services, and any other related services as specified in the Order. The Total Monthly Cost includes charges for access and availability of the Website(s) or Web Services to the Customer and general public, as outlined in the Order.
Non-Supplier Defects are those defects described in clause 5.9.
Normal Business Hours are from 9am to 6pm, Monday through Friday, with the exception of Bank Holidays.
Notice of Termination means the notice that the Customer must provide in order to terminate the agreement, specifically as a written notice given to the Supplier, within the minimum time stated on the Order, which is normally 60 days. The Supplier requires this minimum time before the expiration of either the Minimum Period/term or the Further Period/term of the Term of Subscription.
Order refers to the written quotation, proposal, requirements, accepted Change, project plan or statement of work (SOW), which outlines the Services that the Supplier will provide to the Customer. This document may be varied and agreed upon between the Supplier and the Customer.
Personal Data: The term Personal Data corresponds to the definition set out in Article 4(1) of the GDPR.
Phase refers to a key stage of work identified in the Project Plan.
Premium Support Rate refers to the hourly charge that the Supplier imposes on the Customer, as detailed in the Order, or in the absence of such, the Supplier's current charge-out rates.
Project: The Project refers to the provision by the Supplier of the Design and Development Services as set out in the Contract. This Contract intends to withstand UK legal challenges from the Customer aimed at the Supplier, and the Supplier seeks to protect itself from such challenges.
Project Plan refers to the timetable within which the Supplier will implement the Project as set out in the Order or as otherwise agreed between the Supplier and the Customer in writing.
User Acceptance Tests (UAT) refers to the tests to be carried out on the Site as set out in clause 5 and as described in the Order.
Server refers to one or more computer servers administered by the Supplier as described in the Order.
Services refers to the services to be provided by the Supplier under the Contract, as detailed in the Order or otherwise agreed in writing. This may include any one or more of the following services: Design and Development Services, Website (Site) Services, Hosting Services and Ancillary Services, Software as Service and Ancillary Services, Support Services, or any other services (related or otherwise) to be provided by the Supplier to the Customer.
Site refers to the website detailed in the Order if applicable.
Site Software refers to the software for the Site commissioned by the Customer as specified in the Order.
Site Specification refers to the specification for the Site set out in the Order or as otherwise agreed between the Supplier and the Customer in writing.
SLA refers to the Service Level Agreement as detailed in the Order.
Software as a Service, also known as SaaS, refers to the online services (if any) such as any online software, CRM Software, Site Software, or Customer's Website(s), provided by the Supplier to the Customer via a specific Web address (URL) served by Webdadi server(s), or any other Website notified to the Customer by the Supplier from time to time, normally paid on a recurring Monthly Subscription, as the Licence Fee, as more particularly described in the Order.
Software as a Service Software refers to the online software applications provided by the Supplier as part of the Software as a Service.
Supplier refers to the business entity Webdadi Limited, incorporated and registered in England and Wales with company number 06650275, whose registered office is at 7-8 Crescent Stables, 139 Upper Richmond Road, Putney, London SW15 2TN.
Support Services refers to the support and maintenance services provided by the Supplier to the Customer as more particularly described and for the price set out in the Order, if applicable.
Third-Party Products refers to third-party software products and/or services such as, but not limited to: Google Maps, Google Tag Manager, Google Analytics, Google re-Captcha, FeeFo and ValPal.
Total Monthly Cost refers to the total fees payable monthly in advance for the Hosting Services and/or the Software as a Service(s), and/or Ancillary Services (including Plugins and/or Support Services), and/or any other related services (the Monthly Software Subscription) as detailed in the Order, for access and availability thereof to the Customer and/or to the general public.
Visitor refers to a visitor to the Site.
1.2 The clause and schedule headings do not affect the interpretation of this Contract.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Contract.
1.4 Unless the context otherwise requires, words in the singular shall include the plural, and in the plural, include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
1.7 Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.8 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.
1.9 Writing or written includes fax and email.
2. Application of Conditions
2.1 These Conditions shall apply to the Contract and will be incorporated into it.
2.2 In the event of any conflict between these Conditions and the Order, the Order shall take precedence.
2.3 No addition, variation, exclusion, or attempted exclusion of any term of the Contract will be binding on the Supplier, unless it is in writing and signed by a duly authorised representative of the Supplier.
2.4 The Order issued by the Supplier to the Customer is not an offer, and is only valid for 30 days from the date of issue.
2.5 The Customer's signature on the Order constitutes an offer to purchase Services in accordance with these Conditions.
2.6 The Order will be considered accepted when the Supplier receives the signed Order from the Customer or begins to supply any of the Services detailed in the Order (whichever is earlier). The date on which this happens is the Effective Date, and the Contract will come into existence on that date.
2.7 The Contract represents the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, or representation made or given by the Supplier or on the Supplier's behalf, unless it is set out in the Contract.
3. Supplier’s Obligations
3.1 Provision of Services
3.1.1 If the Supplier is providing Design and Development Services, it shall develop the look and feel of the Site after liaising with the Customer (or the relevant Design Agency) and deliver the Site in Phases specified in the Project Plan.
3.1.2 If the Supplier is providing Hosting Services, it shall host the Site from the Server(s).
3.1.3 If the Supplier is providing Software as a Service, it shall make the Software available 24/7 except for planned maintenance and unscheduled maintenance outside Normal Business Hours, with reasonable efforts to limit any disruption of service.
3.2 Performance Dates
The Supplier shall use reasonable efforts to meet any performance dates for the Services specified in the Order. However, any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 Changes to Services
The Supplier shall have the right to make any changes to the Services necessary to comply with applicable law or safety requirements, and shall notify the Customer in any such event. The Supplier shall not make changes that materially affect the nature or quality of the Services.
3.4 Postponement or Failure to Comply by Customer
If the Customer postpones the performance date for the provision of the Services or the Supplier is otherwise unable to perform the Services due to the Customer’s failure to comply with its obligations under the Contract, except where such failure or delay is caused by a force majeure event or by the Supplier’s failure to comply with its obligations under the Contract, the Supplier reserves the right to charge the Customer for all related costs and expenses.
3.5 Server Availability
The Supplier shall use reasonable efforts to ensure the continual availability of its Server(s). However, the Supplier shall not be responsible for any loss suffered by the Customer due to the unavailability of the Server and does not guarantee that its use will be uninterrupted and/or error-free or that it will always be available.
3.6 Archiving and Restoration of Customer Data
The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy. In the event of any loss or damage to Customer Data, the Supplier’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and backup).
3.7 Refusal to Send Customer Data to Third Parties
The Supplier reserves the right to refuse to send Customer Data to third parties and may refuse hosting the Customer Data inside third-party websites.
3.8 Refusal of Linked Data
The Supplier reserves the right to refuse any of its data from being linked to or used within an iframe, iframe-like, or similar digital context within third-party Websites or Web Services to ensure that it is not subjected to unreasonable support, maintenance, and hosting requirements which may exceed the scope of the Services.
3.9 Internet Browser Compatibility
The Supplier shall use reasonable efforts to provide Internet Web Browser compatibility for Internet Browser versions no older than 2 years old and ensure Internet Web Browser compatibility with the Supplier’s Template Websites only. The Supplier reserves the right to refuse compatibility and technical support and or resolution compatibility for any Internet Browsers older than 2 years.
3.10 Non-Compatibility with Internet Browsers
The Supplier reserves the right to neither support nor make compatible its Websites or templates to be compatible with any Internet Browsers in current existence that are either older than 2 years or not specifically one of the following: Microsoft Edge, Google Chrome, Mozilla Firefox, Opera, or Apple Safari.
4. Customer responsibilities
4.1 The Customer must cooperate fully and provide timely and accurate information and data to the Supplier or Design Agency (if applicable) in order for the Supplier to provide the Services. The Customer must:
4.1.1 provide the Supplier with access to all necessary information, data, and documentation for the Supplier to perform its obligations under the Contract;
4.1.2 provide clear instructions to the Supplier; and
4.1.3 manage and provide instructions to their Design Agency (where applicable).
4.2 The Customer is responsible for ensuring the accuracy and completeness of the Materials on the Site in accordance with clause 12.
4.3 The Customer must:
4.3.1 ensure that all Order terms, scope of work, and specifications are complete and accurate; and
4.3.2 provide timely and accurate information and assistance as requested by the Supplier.
4.4 If the Customer, or any of their agents, sub-contractors or employees, cause delay or prevent the Supplier from fulfilling their obligations, the Customer must pay all reasonable costs, charges or losses incurred by the Supplier, subject to written confirmation from the Supplier.
4.5 The Customer cannot, without the Supplier's written consent, attempt to employ or solicit any of the Supplier's employees or sub-contractors for a period of 12 months following the termination of the Contract.
4.6 The Customer is responsible for ensuring that no unauthorised third party gains access to the Server(s) and/or Site Software and/or Software as a Service using the Customer's passwords. If the Customer's passwords are disclosed to any third party, the Customer must notify the Supplier immediately.
4.7 If the Supplier is providing Support Services to the Customer:
4.7.1 the Customer must appoint/nominate a Super-User to liaise with the Supplier in respect of the Support Services;
4.7.2 aside from the Super-User and any of the Customer’s directors, none of its other employees, agents or sub-contractors shall be permitted to use or access the Support Services unless necessary for security or business Support reasons.
4.8 The Super-User can only be changed with the prior written consent of both parties.
4.9 The Customer must notify the Supplier within 60 days of any changes that may affect the importing/exporting of data from or to a third party system.
4.9.1 The Customer must notify the Supplier within 60 days if any third party is engaged to build a replacement Website that will be hosted on the same domain. If this is true, the Customer must provide notice of Termination of the Agreement to the Supplier including the expected switchover date.
4.10 If the Customer fails to notify the Supplier of any work resulting from a change in its internal systems in accordance with clause 4.9, the Customer becomes liable for the Charges and Rates in accordance with Clauses 8.8 and 8.9.
4.11 This clause 4.12 and clauses 4.13 to 4.18 (inclusive below) apply if the Supplier is providing Software as a Service to the Customer. The Customer owns all right, title and interest and has sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
4.12 The Customer undertakes to:
4.12.1 limit the number of Authorised Users accessing and using the Software as a Service to the maximum number detailed in the Order (unless otherwise agreed in writing by the parties);
4.12.2 ensure each Authorised User keeps their password confidential;
4.12.3 maintain an up-to-date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
4.13 The Customer must not:
4.13.1 copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any portion of the Software as a Service Software (as applicable) unless allowed under this Contract or by any applicable law which is incapable of exclusion by agreement between the parties;
4.13.2 reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software as a Service Software;
4.13.3 access any part of the Software as a Service Software to build a product or service which competes with Software as a Service;
4.13.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software as a Service available to any third party except Authorised Users.
4.14 The Customer must use reasonable endeavours to prevent unauthorised access to, or use of, the Software as a Service and, in the event of any such unauthorised access or use, promptly notify the Supplier.
4.15 The Customer must not use any automated, manual, or other means to obtain, harvest or aggregate any data, software, code, or other content from the Website including, without limitation: Spiders, Scrapers, or Bots, without the expressed prior written agreement from the Supplier.
4.16 The Customer acknowledges that the Supplier strictly limits Internet Web Browser compatibility to:
4.16.1 Websites and Web Templates, including technical Support services and development warranty for the duration of the Term of Subscription and any successive renewal period of the Contract only.
4.17: The Supplier warrants support only for bespoke Website pages for a period of three months from the Go Live date. Any errors or bugs found displaying content in the Internet Browsers described in Clause 3.10, which require compatibility related development fixes, shall not constitute a Supplier defect. If the Customer requires a Web Browser compatibility related fix, a development Change request is necessary, and the Customer understands a development charge may be applicable.
4.17.1 Where the Customer requests development work under Clause 4.17, the Supplier shall provide an estimate of the costs of such work and any changes to the Charges or Rates resulting from such work. The Customer must accept the estimate and any changes in writing before the work is carried out.
4.17.2 The Customer has 14 days from receiving the estimate and any changes to accept or reject them in writing. If the Customer rejects them, the Supplier is under no obligation to carry out the work.
4.18: If the Customer perceives a bug displaying any part of a Website on a device's Internet browser, the Customer must check whether the device meets the minimum system requirements. If both the device and the Internet browser meet the requirements, the Customer should report the specific error found to the Supplier. The Supplier reserves the right to reset any User Acceptance Testing period in progress. If the device or Internet browser does not meet the requirements, the Supplier is not required to take any further action, and the Customer shall be liable for the total time taken by the Supplier in supporting the issue.
4.19: If the Supplier is unable to replicate the reported bug through internal testing, the Customer acknowledges that such a bug defect may be caused by software or hardware installed on the device, and the Supplier shall not be required to support the defect. The Customer shall be liable for the total time taken by the Supplier in supporting the issue with the Supplier's time spent deducted from the Customer's SLA Support quota.
4.20: If the Supplier is unable to find the reported bug after the Customer has performed a Hard Reset of the device to its factory settings, the parties agree to no further action being taken in relation to the issue. The Customer shall be liable for the total time taken by the Supplier in supporting the issue with the Supplier's time spent deducted from the Customer's SLA Support quota. If the SLA quota has been exceeded or is unavailable to the Customer due to being on Bronze Level SLA Support, the Customer shall be charged at the Premium Support Rate in accordance with clause 8.8.
4.21: The Supplier reserves the right to add or remove any functionality from the Services, or withdraw any of the Services, at its discretion and without notice. Any material changes will be communicated to the Customer through a Notice in accordance with Clause 17, including the effective date and details of the changes made. If the changes made are to the material detriment of the Customer, the Customer may terminate the Services with immediate effect by giving written notice of Termination to the Supplier within five business days of the effective date of the change. The Customer acknowledges that continued use of the Services after the expiry of five business days from the effective date of any changes shall constitute acceptance of such changes.
5. Development and Acceptance of Site
5.1 This clause applies if the Supplier provides Design and Development Services.
5.2 Upon completion of the Project, the Supplier shall conduct User Acceptance Tests for each Phase and any further development works agreed by the parties.
5.3 The User Acceptance Tests shall assess Site compliance with the Site Specification detailed in the Order.
5.4 If the Customer has not selected the Image Materials to be used on the Site prior to the User Acceptance Tests, the Supplier shall use a random selection of images. The Customer may request to change the Image Materials after the User Acceptance Tests, and this will be treated as a separate Project, subject to the Supplier's standard charges.
5.5 The Supplier shall inform the Customer when the User Acceptance Tests have passed. The Customer has fourteen (14) days from the date of notification to dispute the results. If the Customer does not dispute the results during this period, the results will be deemed accepted.
5.6 If the Customer disputes the results during the User Acceptance Testing Period, the Supplier shall consider their feedback and may pause the User Acceptance Testing Period while Necessary Changes are made. Once the Necessary Changes have been made, the User Acceptance Testing Period shall either automatically resume or end and be considered accepted.
5.7 After the User Acceptance Testing Period, the parties shall discuss any final changes to the Site that the Customer requires. Unless otherwise agreed by the Supplier, any such changes will be treated as a separate Project subject to the Supplier's standard charges.
5.8 The Supplier shall confirm any Final Changes to be made in an email to the Customer following the discussion referred to in clause 5.7.
5.9 If the Site fails User Acceptance Tests due to a Non-Supplier Defect, the Site will be deemed to have passed the tests, and the Supplier will offer reasonable assistance to remedy the Non-Supplier Defect. The Customer shall pay the Supplier's fees and charges for any additional services or products provided.
5.10 Acceptance of the Site will be deemed to have occurred upon any of the following events:
the Customer using any part of the Site for revenue-earning purposes or to provide services to third parties
the Customer unreasonably delaying User Acceptance Tests or retests for seven (7) Business Days
the User Acceptance Testing Period ending without dispute from the Customer
6. Third-Party Products
Any Third-Party Products shall be supplied in accordance with the relevant licensor's standard terms.
7. Project Management
7.1 Each party shall appoint a project manager with necessary expertise and authority to liaise promptly and professionally with the other party.
7.2 The project managers shall meet at agreed intervals until Acceptance and thereafter at such intervals as they agree.
7.3 The Supplier shall aim to retain the same project manager throughout a project but may replace them where reasonably necessary in the interests of the Supplier's business.
8. Charges and Payment
8.1 This clause applies if the Supplier provides Design and Development Services to the Customer, and the Supplier shall provide such services for the price specified in the Order.
8.2 The Customer shall pay the Supplier an amount equal to the Initial Payment on the Effective Date and the Final Payment upon Acceptance or deemed Acceptance of the Site in accordance with clause 5, subject to any payment schedule set out in the Order.
8.3 The final payment shall become due once the Site has been rolled to live Servers.
8.4 This clause applies if the Supplier is providing any Services other than Design and Development Services to the Customer, and unless otherwise agreed, the Supplier shall issue an invoice for the Monthly Licence Fee in advance on a monthly basis. The first Monthly Licence Fee shall be due and payable for Hosting Services, Support Services, and Software as a Service (including Ancillary Services) on the date the User Acceptance Testing Period starts pursuant to clause 5.5, and for any other Services on the date specified by the Supplier in the Order or agreed between the parties in writing.
8.5 Unless otherwise agreed in writing, the Monthly Licence Fee is due and payable monthly in advance until termination of the Contract in accordance with these Conditions.
8.6 This clause applies if the Supplier is providing Support Services to the Customer or the Customer had subscribed for Hosting Services but terminated such services in accordance with these Conditions and is not receiving any on-going services from the Supplier (aside from the Support Services).
8.7 Unless otherwise agreed, the Supplier shall charge the Customer for the Support and Development Services on an hourly basis in accordance with clauses 8.8 and 8.9.
8.8 The Supplier shall charge the Premium Support Rate where the Customer requires immediate Support for a problem, defect or bug not caused by the Supplier or where the Customer has the Bronze Service Level Agreement with the Supplier and requires Support Services.
8.9 The Supplier shall charge the Emergency Development Rate, together with the Rates, for a problem, defect or bug not caused by the Supplier and where urgent Development is necessary and accepted by the parties to begin in remedy thereof. The Rates may be amended by the Supplier from time to time without reference to the Customer.
8.10 The remainder of this clause 8 applies to each of the Services as applicable.
8.11 Where a price has been quoted by the Supplier for a Change, the price may be an estimate based on the information given to the Supplier by the Customer and/or which is available to the Supplier at that time and may be based on a number of assumptions. The Supplier is entitled to charge the Customer for any additional Services provided in addition to those detailed in the Order, together with all related costs and expenses incurred by the Supplier. The Customer shall be notified by the Supplier as soon as this additional cost reasonably becomes known to the Supplier, and both parties shall mutually agree on the basis to proceed with or reject the Change.
8.12 Unless otherwise agreed between the parties, the Customer shall pay each invoice submitted by the Supplier in full, with cleared funds, by the due date stated on the invoice.
8.13 Invoices that are not disputed within 21 days of the date of the invoice shall be deemed accurate and accepted by the Customer. Invoices disputed and subsequently paid in full shall be deemed accepted by the Customer.
8.14 All Charges are exclusive of VAT.
8.15 The Customer agrees to make payment by direct debit and continue to make payments by direct debit for the remainder of the term of the Contract unless otherwise agreed in writing by both parties.
8.16 Where the Customer agrees to make payment by direct debit, credit card, Stripe or Paypal, the Customer authorises the Supplier to bill such direct debit, credit card, Stripe or Paypal account on or at any time after the invoice date.
8.17 If the Customer fails to pay the Supplier on the due date, the Supplier reserves the right to charge interest on such sum at the annual rate of 8% above the base lending rate of Barclay’s Bank, withhold, remove, disable or suspend all Services until payment is made, charge and receive payment in full for the reconnection fee of £85 plus VAT for the resumption of the Services, and continue to charge for services rendered during any part of the suspension period, due to Customer data continuing to be stored, maintained, hosted in the private Cloud and backed-up by the Supplier.
8.18 All amounts and fees stated or referred to in this agreement shall be payable in pounds sterling. The Customer shall be responsible for all bank charges for payment transmission, including currency exchange rate charges.
8.19 Time for payment shall be of the essence of the Contract.
8.20 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other contrary provision. This clause is without prejudice to any right to claim for interest under any law, or any such right under the Contract.
8.21 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8.22 All amounts due under the Contract shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier shall invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
8.23 Any additional Branches or Ancillary Services added by agreement between the Supplier and Customer during the Term of Subscription shall be automatically deemed part of the existing Contract. The additional Branch or Ancillary Service shall be bound for the full Term of Subscription, including any renewal periods and these Terms unless otherwise agreed in the Order.
8.24 Any reduction in the number of total Branches or Ancillary Services shall not constitute a reduction of the Monthly Software Subscription/Monthly Licence fee until the end of the Term of Subscription unless otherwise agreed in the Order. The standard Notice of termination still applies for withdrawal of a Branch or Ancillary Services.
8.25 The Supplier may increase the Charges on an annual basis with effect from the first anniversary of the date of the Contract, as detailed in the Order, in line with the percentage increase in the Retail Price Index (RPI) in the preceding 12-month period.
8.26 The Supplier requires at least 24 hours cancellation notice of any training appointments agreed between the Supplier and Customer to avoid charges for a rescheduled training appointment.
9. Warranties
9.1 Each party warrants that it has the full power and authority to enter into and perform the Contract.
9.2 The Supplier warrants that it will perform the Services with reasonable care and skill, in compliance with all applicable laws and regulations in force from time to time.
9.3 If the Supplier provides Design and Development Services, it warrants that the Site will perform substantially in accordance with the Site Specification for a period of three months from Acceptance. If not, the Supplier will carry out any necessary work to ensure compliance at no extra charge.
9.4 The warranty in clause 9.3 does not apply if any failure of the Site to comply with the Site Specification is caused by any Materials, force majeure event, or any act, omission, or default by the Customer, its employees, agents, or subcontractors.
9.5 The Supplier makes no representations or warranties about the quality, condition, state, or description of Software as a Service and Third-Party Products, and their fitness or suitability for any purpose.
9.6 This Contract sets out the Supplier's full obligations and liabilities regarding the supply of the Services, Site Software, and Third-Party Products. All conditions, warranties, or other terms concerning the Services, Site Software, and Third-Party Products that might otherwise be implied into this Contract or any collateral contract, whether by statute or otherwise, are expressly excluded.
9.7 This clause 9.7 applies if the Supplier provides Software as a Service to the Customer. The Supplier:
9.7.1 does not warrant that the Customer's use of the Software as a Service will be uninterrupted or error-free; or
9.7.2 does not warrant that the Software as a Service and/or the information obtained by the Customer through the Software as a Service will meet the Customer's requirements; and
9.7.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet. The Customer acknowledges that the Software as a Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
10. Limitation of remedies and liability
10.1 The following provisions set out the entire financial liability of the Supplier, including without limitation any liability for the acts or omissions of its employees, agents, and sub-contractors, to the Customer in respect of:
10.1.1 any breach of the Contract howsoever arising;
10.1.2 any use made by the Customer of the Services, the deliverables, or any part of them; and
10.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions, and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
10.3 The Supplier is not liable:
10.3.1 for death or personal injury caused by its negligence; or
10.3.2 for fraud or fraudulent misrepresentation.
10.4 Subject to clauses 10.2 and 10.3, the Supplier is not liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent), or otherwise, for:
(a) loss of profits;
(b) loss of business;
(c) depletion of goodwill or similar losses;
(d) loss of anticipated savings;
(e) loss of goods;
(f) loss of contract;
(g) loss of use;
(h) loss or corruption of data or information; or
(i) any special, indirect, consequential, or pure economic loss, costs, damages, charges, or expenses.
10.4.2 The Supplier's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract is limited to the price paid for the Services in the preceding six months.
10.5 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of or correspondence with any such third-party website or any transactions completed, and any contract entered into by the Customer with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
10.6 This clause 10.6 applies if the Supplier provides Software as a Service. The Customer assumes sole responsibility for results obtained from the use of the Software as Service Software by the Customer and for conclusions drawn from such use. The Supplier has no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Supplier by the Customer in connection with the Software as a Service or any actions taken by the Supplier at the Customer's direction.
11. Intellectual Property Rights
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, the Site (excluding the Materials), and any Deliverables arising in connection with the Contract. The Customer shall not challenge or dispute such ownership.
11.2 Except as expressly stated herein, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services, the Site (excluding the Materials), and any Deliverables arising in connection with the Contract. The Customer shall not use any of the Supplier's intellectual property rights without prior written consent.
11.3 Where the Supplier is providing Design and Development Services, the Supplier grants the Customer a non-exclusive, non-transferable license of Intellectual Property Rights in the Site (excluding the Materials) for the purpose of the Supplier operating the Site.
11.4 Where the Supplier is providing Software as a Service, the Supplier grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Software as a Service for the Minimum Period and any Further Period solely for the Customer's internal business operations.
11.5 The Customer shall not disclose any of the Supplier's Intellectual Property Rights to any third party without the Supplier's written consent. Any breach of this clause shall result in the Customer being liable for all damages, losses, and expenses arising from such disclosure.
11.6 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.
11.7 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 11.6.
11.8 The indemnities in clauses 11.6, 11.7, and 12.5 are subject to the following conditions: (i) the indemnified party promptly notifies the indemnifier in writing of the claim; (ii) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent; (iii) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and (iv) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
11.9 The indemnities in clauses 11.6, 11.7, and 12.5 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.
11.10 The Customer hereby grants to the Supplier a non-exclusive license of any of its Intellectual Property Rights for the purpose of fulfilling the Supplier's obligations under the Contract.
12. Site Content
12.1 This clause shall apply if and to the extent that the Supplier is providing Website Design and Development Services and/or Hosting Services and/or Software as a Service to the Customer.
12.2 The Supplier shall update the Site with Materials provided from time to time by the Customer. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations, or third-party rights and are free from any Defects.
12.3 The Customer shall indemnify and hold harmless the Supplier, its employees, and contractors, from any claims, damages, or expenses arising out of the use of Materials that constitute Inappropriate Content or inaccurate Content. The Supplier reserves the right to charge the Customer for any corrective action taken by it to remove such content, and the Customer hereby agrees to pay the reasonable charges incurred by the Supplier to do so.
12.4 The Supplier shall include Materials on the Site, however any content placed on the Site by Visitors is not the responsibility of the Supplier. The Supplier reserves the right to remove any content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
12.5 The Customer shall ensure that the Materials do not include Inappropriate Content, and shall be liable for all damages, losses, and expenses arising as a result of any action or claim that the Materials infringe any applicable laws, regulations, or third-party rights.
12.6 The Supplier may include the statement "Software, Design & SEO by Webdadi” on the footer of the home page of the Site in a form to be agreed. Any changes to this statement require the Supplier's prior written consent.
Artificial Intelligence Content Creation Services
12.7. The Supplier may use artificial intelligence systems, such as ChatGPT, to create and supply content for the Customer's Website.
12.8. The Customer acknowledges and agrees that any content created using artificial intelligence is not the responsibility of the Supplier, and that the Supplier shall not be liable for any errors or omissions in such content, or for any damages arising from the use of such content.
12.9. The Customer shall indemnify and hold harmless the Supplier, its employees, and contractors, from any claims, damages, or expenses arising out of the use of content created using artificial intelligence.
12.10. The Supplier reserves the right to modify or remove any content created using artificial intelligence, at its sole discretion, without liability to the Customer.
12.11. The Customer agrees that it is solely responsible for the content on its Website, and that the Supplier shall not be liable for any claims, damages, or expenses arising out of the Customer's use of such content.
12.12. The Customer acknowledges that the use of artificial intelligence content creation services may result in additional charges to the Supplier, including but not limited to charges for the use of such services. Any such charges will be deemed disbursements, and the Customer agrees to pay all such charges in full within 14 days of receipt of an invoice from the Supplier.
12.13. The use of artificial intelligence content creation services is subject to the terms and conditions of the relevant service provider, and the Customer acknowledges that it has read and agrees to such terms and conditions.
Use of Google Tag Manager where integrated into the Site
12.14. The Supplier is not responsible for any maintenance, technical support, or resulting Website problems caused by the Customer's use of GTM Features belonging to a Customer's Google Tag Manager account.
12.15. The results and content of any implementation of GTM Features inside a Customer's GTM account, Container, or Workspace are expressly the sole responsibility of the Customer.
12.16. If a Customer chooses to add and Publish new GTM Features, it is the Customer's responsibility to ensure that the new Recipe does not adversely affect the Site.
12.17. If a Customer chooses to make changes, such as removing or modifying the installation of a GTM Features such as a Recipe, Tag, Trigger, or Variable in Google Tag Manager, it is their sole responsibility for any unwanted results caused.
12.18. The Supplier does not agree to help rectify problems caused by Google Tag Manager and reserves the right to charge for any Support offered to the Customer on a time cost basis, even if the Supplier attempts to identify the problem, even if the Supplier does not agree to, or cannot resolve the nature of the problem caused by, or related to, Google Tag Manager.
12.19. Should the Supplier agree to help the Customer rectify any unwanted results caused by Google Tags firing on the Customer's Site using Google Tag Manager, the Supplier may charge the Customer at the standard Support rate, or at the Premium Support Rate if urgent help is required. The Supplier may also charge the Customer at the standard development rate where any technical expertise or Development is required.
13. Term and Termination
13.1 If the Supplier solely provides Design and Development Services, the Contract will begin on the Effective Date and terminate automatically upon Acceptance of the Site and payment of all outstanding sums, unless earlier termination occurs under this clause 13.
13.2 Clauses 13.3, 13.4, and 13.5 apply to the supply of any Services (Other Services) other than Design and Development Services. The Contract will begin on the date of signature by the Customer on the Order.
13.3 The Monthly Subscription Commencement date for the Term of Subscription begins on the first day of the User Acceptance Testing Period or as otherwise agreed in writing or detailed in the Order.
13.4 The Monthly Subscription and license for the Software as a Service and/or Site will continue for a minimum period of two calendar years (Minimum Period), unless otherwise agreed in writing or detailed in the Order.
13.5 Immediately following the end of the Minimum Period referred to in clause 13.2, the Contract for the Other Services will either:
13.5.1 Automatically renew on the terms set out in the Order, subject to any variation to the successive period (the Subscription Term Further Period) renewal charges, where communicated to the Customer in writing, in no less than 30 days before the end of the Minimum Period; or
13.5.2 Continues to be provided after the Agreement expiry or termination date, if the Order does not specify any renewal terms or if the continuance of Other Services being provided by the Supplier are requested by the Customer, either in writing or by verbal request. In such cases, the Contract will automatically renew on a three-month successive Subscription term, on a rolling basis, until either party gives the other party at least one month’s written notice to terminate the Contract (such notice to expire at the end of a three-month successive term). If this event occurs, the Supplier may at its discretion increase the price payable by the Customer for the Other Services at any time.
13.6 The Customer may terminate a Contract for Other Services for convenience at any time during any Minimum Period or any Further Period by giving 30 days’ notice in writing. In this event, all Charges that would have been payable to the Supplier, had the Contract continued for the remainder of the Minimum Term or Further Period (as applicable), will become immediately due and payable on Termination Notice being served. The Customer acknowledges and accepts that these charges are reasonable to reflect that the Supplier has incurred upfront costs to provide the Services for the Minimum Term or Further Term, including acquiring IT resources such as hosting, bandwidth, and storage to operate the Customer’s Site and/or software-as-a-service (SaaS).
13.7 If the Customer has not given termination notice in accordance with this clause at least 30 days before the expiry of the Minimum Period or Further Period, the Contract will automatically renew in accordance with clause 13.3.
13.8 At the end of a Further Period (if applicable), the parties shall follow the same procedure as set out in clause 13.3, and shall continue to do so at the end of every subsequent Further Period.
13.9 If clause 13.5.2(a) is triggered at the end of the Minimum Period or a Further Period, the Customer shall automatically be transferred onto the Supplier’s Bronze Level Package for all Other Services (as applicable).
13.10 Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.10.1 The other party fails to pay any amount due under this 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;
13.10.2 The other party commits a material breach of any term of this Contract which breach is irremediable, or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
13.10.3 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 its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.10.4 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 that other party;
13.10.5 An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed, over the other party (being a Supplier);
13.10.6 The holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
13.10.7 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;
13.10.8 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;
13.10.9 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 13.10.1 to clause 13.10.9 (inclusive);
13.10.10 The other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
13.10.11 Any warranty given by the other party in clause 9 of this Contract is found to be untrue or misleading.
13.11 The Supplier may terminate the Contract if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010) or the Supplier transfers or assigns any Intellectual Property Rights to the Materials.
13.12 On termination of this Contract by the Supplier under clause 13.8, all licenses granted by the Supplier under this Contract shall terminate immediately.
13.13 On expiry or termination of this Contract, the Supplier shall, upon the request of the Customer, return the Customer’s data in a non-relational data format at a cost of £750 plus VAT, which shall be payable on demand.
13.14 On expiry or termination of this Contract, all provisions of the Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
13.15 Any provision of these Conditions 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.
13.16 Termination of the Contract shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.17 If the Supplier terminates this Contract pursuant to clause 13.7, the Customer shall remain liable to the Supplier for any sums due to the Supplier prior to the termination, whether or not such sums relate to Services that have provided or are to be provided, and including but not limited to any Monthly License Fee due to the end of the Minimum Period or the Further Period as appropriate and/or any such sums outstanding in relation to the Design and Development Services.
13.18 On termination of the Agreement for whatever reason, all Fees and any other monies payable by the Customer to the Supplier shall immediately become payable.
14. Project Change
14.1 If the Customer wishes to change the scope of the Services, the change request must follow the Project Change Procedure outlined below.
14.2 The Supplier and the Customer must engage in discussion regarding any changes to this Contract or to a Project, Product or Service. These discussions should result in one of the following outcomes:
14.2.1 A written request for Change from the Customer.
14.2.2 A written recommendation for Change from the Supplier.
If neither party submits a request or recommendation, the proposal for Change will not proceed.
14.3 If a written request for Change is submitted by the Customer, the Supplier must, unless agreed otherwise, send a Project Change request (PCR) to the Customer within the agreed period or within five Business Days from the date of receiving the request. The Supplier must also inform the Customer if they are not able to comply with the request.
14.4 If the Supplier submits a written recommendation for Change, it must be in the form of a PCR and sent directly to the Customer at the time of the recommendation.
14.5 Every PCR must include:
14.5.1 The title of the Change.
14.5.2 The originator and date of the request or recommendation for the Change.
14.5.3 The reason for the Change.
14.5.4 Full details of the Change, including specifications and user facilities.
14.5.5 The price (if any) associated with the Change.
14.5.6 A timetable for implementation, along with proposals for acceptance of the Change.
14.5.7 The impact of the Change on other aspects of the Contract, including Charges and contractual documentation.
14.5.8 The expiry date of the PCR (if applicable).
14.6 Within the period of validity of the PCR as specified in clause 14.5.8, the Customer must:
14.6.1 Allocate a case reference number to the PCR.
14.6.2 Evaluate the PCR and request further information, approve the PCR, or notify the Supplier of the rejection of the PCR, as appropriate.
14.6.3 If the PCR is approved, arrange for it to be signed by both the Customer and the Supplier, signifying acceptance of the Change.
14.7 Once the Change is signed by both parties in accordance with clause 14.6, it will be immediately effective, and both parties must perform their respective obligations based on the agreed amendment, subject to clause 14.8.
14.8 If an accepted Change increases the Charges, the Customer must pay the increased amount in full and in cleared funds to a bank account nominated by the Supplier:
14.8.1 If the increase is less than £150 plus VAT, within 14 days of the Supplier’s invoice.
14.8.2 If the increase is £150 plus VAT or more, immediately. The Supplier is not obliged to commence any work until they have received full payment of all sums due under this clause.
15. Force Majeure
Neither party will breach this Contract or be liable for delay in performing or failure to perform any of its obligations under this Contract if such delay or failure results from events, circumstances, or causes beyond its reasonable control. In such circumstances, the time for performance will be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 8 weeks, the unaffected party may terminate this Contract by giving 14 days’ written notice to the affected party.
16. Confidentiality
16.1 Both parties must protect the Confidential Information of the other party from unauthorised disclosure by using the same degree of care as they would to preserve and safeguard their own confidential information of a similar nature. This degree of care must be at least reasonable.
16.2 The receiving party may disclose Confidential Information to its employees, affiliates, and professional advisers if they are bound in writing to maintain the confidentiality of the information received.
16.3 The obligations of confidentiality in this clause 16 do not apply to Confidential Information that the receiving party can demonstrate:
16.3.1 Is or has become publicly known other than through a breach of this clause 16.
16.3.2 Was in the possession of the receiving party before disclosure by the other party.
16.3.3 Was received by the receiving party from an independent third party who has the full right of disclosure.
16.3.4 Was independently developed by the receiving party.
16.3.5 Was required to be disclosed by a governmental authority, stock exchange, or regulatory body, provided that the party subject to such a requirement to disclose gives the other party prompt written notice of the requirement.
16.4 The obligations of confidentiality in this clause 16 will not be affected by the expiry or termination of this Contract.
17. Notices
17.1 Any notice given under this Contract must be in writing and can be sent by email, delivered by hand, or sent via first-class post or other next working day delivery service. The notice must be specifically addressed and sent to the business email address of the Customer's Account Manager, or such other email address as agreed by both parties, or as notified by the Supplier from time to time. In the case of an alternate email address specifically stated in the Agreement for the receipt of a Notice by the Supplier, the notice can be sent to that email address. Alternatively, notices can be sent via a notice on the login page or when logged into the VIA Software, the Software as a Service.
17.2 Any notice shall be deemed received upon signature of a delivery receipt or at the time the notice is left at the proper address if delivered by hand. If sent by pre-paid first-class post or other next working day delivery service, notice shall be deemed received at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service. If sent by email, notice shall be deemed received by 9.00 am on the next Business Day after transmission.
17.3 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.
17.4 Notices given by the Customer under the Agreement shall not be validly served if sent by email, except and in accordance with Clause 17.1.1.
18. Publicity
All media releases, public announcements, and public disclosures relating to this Contract or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
19. Assignment
The Customer is not permitted to assign or transfer any of its rights or obligations, or any interest herein, by operation of law or otherwise, without the prior written consent of the Supplier. Any such assignment without consent is null and void. This Agreement shall inure to the benefit of and be binding upon the Customer, their respective successors, executors, administrators, heirs and permitted assigns. Any person, firm, corporation, or other business entity that directly or indirectly acquires all or substantially all of the assets, liabilities, contracts, or business of the Customer will be deemed substituted for the Customer under the terms of this Agreement for all purposes.
20. Data Protection
20.1 Both parties must comply with all applicable requirements of the Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
20.2 The Customer is the data controller, and the Supplier is the data processor as defined in the Data Protection Legislation. Schedule 1 sets out 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.
20.3 The Customer must ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Contract.
20.4 The Supplier must, in relation to any Personal Data processed in connection with the performance by the Developer of its obligations under this Contract:
20.4.1 Process Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to process Personal Data.
20.4.2 Implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
20.4.3 Not transfer any Personal Data outside the European Economic Area unless certain conditions are fulfilled.
20.4.4 Assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation.
20.4.5 Notify the Customer without undue delay on becoming aware of a Personal Data breach.
20.4.6 Delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Personal Data.
20.4.7 Maintain complete and accurate records and information to demonstrate its compliance with this clause 20.
20.5 The Customer consents to the Supplier appointing third-party processors of Personal Data under this Contract. The Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 20.5.
21. Entire Agreement:
21.1. This Contract represents the complete and exclusive agreement between the parties and supersedes all prior verbal or written communications and agreements, including assurances, warranties, and understandings, relating to the subject matter of this Contract.
21.2. Each party acknowledges that no statement, representation, assurance, or warranty (whether made innocently or negligently) outside of this Contract shall have any legal effect. Neither party may bring a claim for negligent or innocent misrepresentation or negligent misstatement based on any statement outside of this Contract.
22. Third-Party Rights:
22.1. No person who is not a party to this Contract shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Contract unless expressly provided for in this Contract.
22.2. The parties have the right to terminate, rescind, or amend this Contract without the consent of any third party.
23. Variation:
The Supplier reserves the right to modify these Conditions by giving notice to the Customer.
24. Waiver:
24.1. Failure to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy.
24.2. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
25. Rights and Remedies:
The rights and remedies provided in this Contract are not exclusive and are in addition to any rights or remedies available under the law.
26. Severance:
26.1. If any provision or part of this Contract is deemed invalid, illegal, or unenforceable, it shall be modified to the minimum extent necessary to make it valid, legal and enforceable. If modification is not possible, the provision or part shall be deleted.
26.2. If any provision or part is deemed invalid, illegal, or unenforceable, the parties shall work in good faith to amend the provision to be legal, valid, and enforceable, to the maximum extent possible, to achieve the intended commercial result.
27. Governing Law:
This Contract and any dispute arising out of or connected to it shall be governed by and construed in accordance with the laws of England and Wales.
28. Jurisdiction:
Each party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Contract or its subject matter or formation, including non-contractual disputes or claims.
Schedule 1 – Processing, Personal Data, and Data Subjects
Processing by the Supplier
1.1 Scope and Nature
The Supplier shall store and process Personal Data provided by the Customer securely throughout the duration of this Contract. This processing is necessary for the Supplier to carry out its obligations to the Customer, including providing Hosting Services, Support Services, and a client relationship management system.
1.2 Purpose of Processing
The purpose of processing is to securely hold the Personal Data provided by the Customer, as required by the Supplier to fulfill its obligations under this Contract. This includes providing Hosting Services, Support Services, and a client relationship management system.
1.3 Duration of Processing
The processing shall continue until either the termination of this Contract or until the Customer provides the Supplier with written notice to delete or return the Personal Data in accordance with clause 20.4.6.
1.4 Types of Personal Data and Categories of Data Subject
The Customer may provide the following types of Personal Data to the Supplier in relation to the Customer’s customers:
Identity Data, including first name, last name, title, date of birth, and gender.
Contact Data, including billing and residential addresses, email address, and telephone numbers.
Technical Data, including IP address, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform, and other technology used to access the website.
Profile Data, including username and password, purchases made, interests, preferences, feedback, and survey responses.
Usage Data, including information about how the customer uses the website.
Please refer to the Standing Operating Procedures, including Backup Policy,Privacy Policy,Dispute & Complaint Procedure, for further guidance.
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