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Terms and Conditions
The Customer's attention is particularly drawn to the provisions of clause 12.
1.1 In these Conditions, the following definitions apply:
Acceptance the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 5;
Business Day a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Change Control Procedure the procedure set out in clause 9;
Charges the charges payable by the Customer for the supply of the Services set out in the Specification;
these terms and conditions as amended from time to time in accordance with clause 21;
Confidential Information has the meaning given in clause 9;
Contract the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions and any Special Terms set out in the Specification;
the person, company, firm or other organisation who purchases Services from the Supplier as specified in the Specification;
Effective Date has the meaning set out in clause 2.2;
Intellectual Property Rights all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
the content provided to the Supplier by the Customer for incorporation into the Site;
Non-Supplier Defects those defects described in clause 5;
Order the Customer's written acceptance of the Supplier's Specification;
the provision by the Supplier of the Services as set out in these Conditions and the Specification;
the timetable within which the Supplier will implement the Project as set out in the Specification;
Server a computer server administered by the Supplier;
Quality Assurance Tests the tests to be carried out by the Supplier on the Site during the design and development stages as more particularly set out in the Specification;
Services the design and development services, including the Site, supplied by the Supplier to the Customer as set out in the Specification;
Site the website designed and developed by the Supplier for the Customer as more particularly described in the Specification;
Special Terms such terms as are set out in the "Special Terms" section of the Specification from time to time;
Specification the description, specification or proposal of the Services provided in writing by the Supplier to the Customer;
AYO Media Limited registered in England and Wales with company number ;
User Acceptance Tests the tests to be carried out on the Site by the Customer following delivery of the Site more particularly set out in the Specification.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Effective Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions and any Special Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 For the avoidance of doubt, these Conditions shall apply in their entirety to the extent that there are no Special Terms. Where Special Terms have been agreed, such Special Terms shall have precedence over the corresponding terms of these Conditions.
2.7 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
The Supplier shall:
3.1 supply the Services to the Customer in all material respects in accordance with the Specification;
3.2 subject to clause 3.2, design, develop and deliver the Site in accordance with the Project Plan;
3.3 use all reasonable endeavours to meet any performance dates set out in the Specification and Project Plan, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; and
3.4 have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4. Customer's Obligations
4.1 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 any Materials, information and data provided to the Supplier by the Customer.
4.2 The Customer shall:
4.2.1 provide the Supplier with such information and Materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.2.2 ensure that the terms of the Order and any information it provides to the Supplier for the purpose of delivering the Services are complete and accurate;
4.2.3 co-operate with the Supplier in all matters relating to the Services; and
4.2.4 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.3 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.3.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
4.3.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.3; and
4.3.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Development and Acceptance of Site
5.1 Throughout the design and development of the Site in accordance with the Project Plan, the Supplier shall run the Quality Assurance Tests. The procedure set out in this clause 5 shall be repeated in respect of any further development works agreed by the parties from time to time.
5.2 The Quality Assurance Tests shall test compliance of the Site with the Site Specification. The form and detail of such tests is set out in the Specification. The Supplier shall notify the Customer when the tests have been passed and provide the results of such tests to the Customer in writing.
5.3 Within 14 days following delivery of the Site to the Customer, the Customer shall carry out the User Acceptance Tests. Acceptance of the Site shall occur when the Site has passed the User Acceptance Tests and the Customer shall notify the Supplier of the outcome of such tests as such as is practicable.
5.4 If any failure to pass the User 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 User Acceptance Tests notwithstanding such Non-Supplier Defect.
5.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
5.5.1 the Customer uses any part of the Site in a live environment, accessible by the intended users of the Site; or
5.5.2 where the Customer fails to carry out the User Acceptance Tests within fourteen days of the date on which the Site is delivered, on the date fifteen days from the date on which the Site is delivered.
6. Charges and Payment
6.1 The Supplier shall invoice the Charges to the Customer in accordance with the Specification.
6.2 The Customer shall pay each invoice submitted by the Supplier:
6.2.1 within 14 days of the date of the invoice; and
6.2.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
6.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.4 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Bank of England's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.5 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. Intellectual Property Rights
7.1 Unless otherwise varied by the Special Terms, all Intellectual Property Rights in the Site (including in the branding, design, text, graphics and other content of the Site and the Site Software), but excluding the Materials, arising as a result of the provision of the Services shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site.
7.2 The Customer acknowledges that all methodologies, know-how and techniques that the Supplier utilises in performing the Services (Background IP) belong to the Supplier and the Supplier shall be free to use such Background IP during the course of its business in providing services to other customers. For the avoidance of doubt, nothing in this clause 7 shall constitute a transfer of Background IP to the Customer.
8. Site Content
8.1 The Supplier shall upload any Materials provided prior to delivery by the Customer to the Site. 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, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
8.2 The Customer shall indemnify and keep indemnified the Supplier against all damages, costs, losses, expenses and other liabilities arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
8.3 The Customer warrants that all Intellectual Property Rights in the Materials are the property of the Customer or its licensors and the Customer grants the Supplier a non-exclusive licence of such Intellectual Property Rights for the purpose of providing the Services.
8.4 The Customer shall indemnify and keep indemnified the Supplier against all damages, costs, losses, expenses and other liabilities arising as a result of any action or claim that the Materials constitute Inappropriate Content.
8.5 The Supplier may include the statement "Web development by AYO Media Limited" on the home page of the Site.
9. Change Control Procedure
The Customer may by giving written notice to the Supplier, up to the point of Acceptance of the Site by the Customer, request a change, amendment or variation to the Site (Change Control Request) and any Change Control Request shall be considered by the Supplier. The Supplier shall decide (at its sole discretion) whether to implement any Change Control Request (and for the avoidance of doubt, the Supplier shall be under no obligation to implement any Change Control Request and shall do so at the Supplier's sole discretion); provided always any obligation on the Customer to make any payment pursuant to the Contract shall still continue to apply and payment should still be made by the Customer in accordance with the Contract, irrespective of whether the Supplier agrees to implement such Change Control Request.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 10 shall survive termination of the Contract.
11.1 The Supplier shall perform the Services with reasonable care and skill.
11.2 The Supplier warrants that the Site will perform in all material respects in accordance with the Site Specification for a period of four weeks from Acceptance and that the Customer's sole remedy for breach of the warranty contained in this clause 11.2 shall be correction of any part of the Site that does not so conform within a reasonable time.
11.3 The warranty set out in clause 11.2 shall not apply to the extent that any failure of the Site to perform in all material respects in accordance with the Site Specification is caused by any Materials or any other act or omission of the Customer.
11.4 This Agreement 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 this Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
12. Limitation of Liability
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 any other liability which in law cannot be so limited or excluded.
12.2 Subject to clause 12.1:
12.2.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
126.96.36.199 loss of profits; or
188.8.131.52 loss of business; or
184.108.40.206 loss of business opportunity; or
220.127.116.11 loss of anticipated saving; or
18.104.22.168 depletion of goodwill; or
22.214.171.124 loss of anticipated saving; or
126.96.36.199 loss of corruption of data or information; or
188.8.131.52 special, indirect or consequential damages;
suffered by the Customer that arises under or in connection with these Conditions or any Contract; and
12.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed the amount set out in the Order.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13. Term and Termination
13.1 This Contract shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 13) terminate automatically on Acceptance of the Site and payment of all outstanding sums.
13.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.2.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
13.2.2 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.2.3 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
13.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.4 [Without limiting its other rights or remedies, each partythe Supplier shall have the right to terminate the Contract by giving the other partyCustomer one months' written notice.]
13.5 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier and/or to restrict or withhold access to the Site if the Customer becomes subject to any of the events listed in clause 13.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14. Consequences of Termination
14.1 On termination of the Contract for any reason:
14.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.1.2 all licences granted by the Supplier under this Agreement shall terminate immediately;
14.1.3 otherwise than on termination by the Supplier pursuant to clause 13, the Supplier shall return all Materials to the Customer, and but shall not be obliged to provide to the Customer an a electronic copy of the Site (including all content on the Site)unless and until the Customer has complied in full with clause 14.1.1; and
14.1.4 all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue in full force and effect.
15. Force majeure
15.1 For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
16. Assignment and Subcontracting
16.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
16.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.1 Any notice to terminate the Contract and any document, notice or other communication relating to any prospective, threatened or actual legal proceedings in connection with this Contract (Notice) shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number. For the purposes of this clause 17, "writing" shall not include emails and for the avoidance of doubt Notice shall not be validly served if sent by e-mail.
17.2 Any Notice shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
17.3 This clause 17 shall not apply to any communications relating to the Contract other than a Notice.
18. Waiver and Remedies
18.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
19.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20. Rights of Third Parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
22. Governing Law and Jurisdiction
The Contract, these Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
AYO Media Limited
Northern Design Centre
Baltic Business Quarter
Tyne and Wear
Terms and Conditions