WHEREAS:

A. We provide interface design, development and programming, as well as other services (together the “Services”) in relation to the Internet and world-wide web (hereinafter together referred to as “WWW”).

B. The services are to be provided in accordance with the terms and conditions set out below (the “Terms”).

By instructing us to commence provision of the Services, you shall be agreeing to these Terms.

As the supplier Webstars is referred to as “We” or “Us” as the Client you are referred to as “You”

NOW IT IS AGREED AS FOLLOWS

1. Definitions

In this agreement unless inconsistent with the context or otherwise specified the following definitions will apply:

1.1. “The Act” shall mean the Copyright, Designs and Patents Act 1988 (as subsequently amended or varied);

1.2. “Completion Date” shall mean the date on which the Website and/or the Software is actually Delivered to Client;

1.3. “Delivered” shall mean the point at which the Website and/or the Software materially meets the Specification and is made available to Client in accordance with the terms and conditions herein;

1.4. “Hosting” shall mean the process in which the Website is made available upon the WWW

1.5. “Intellectual Property” means rights in and in relation to Confidential Information, patents, marks, registered designs, design rights, copyrights (including, without limitation, in computer programmes, software and databases) and moral rights, database rights, rights in know-how, trade secrets, utility models and all other forms of protection having an equivalent or similar nature or effect subsisting now or in the future anywhere in the world, whether enforceable, registered, unregistered or registrable (including, where applicable, all renewals, extensions and applications for registration) and the right to sue for damages for past and current infringement (including passing off and unfair competition) in respect of any of the same;

1.6. “Mobile Devices” shall mean iPads, iPhones and similar mobile devices/ smartphones;

1.7. “Project” shall mean the creation of the Website and/or Software in accordance with the Specification;

1.8. “Project Price” shall mean the cost of the Project, the Hosting charges and any associated costs, as set out in this order form;

1.9. “Server” shall mean the hardware-computing device upon which the Website will be uploaded and installed;

1.10. “Software” shall mean the coding, programming and applications incorporated in the Website or software project;

1.11. “Specification” shall mean the document attached to Schedule 2 subject to any Specification Addenda;

1.12. “Specification Addendum” shall mean an amendment to the Specification agreed by the parties in writing pursuant to Clause 4 below;

1.13. “Term” the period as set out in the Schedule for the licence of the Software; and

1.14. “Website” shall mean a construction of web pages using HTML or another programming language including but not limited to JavaScript and PHP.

2. The agreement

2.1. You will pay the fees as set out in the Order Form, for the Services and / or software as described in the Order Form.

2.2. You may use the Software from the Completion Date.

3. Ownership of copyright

3.1. You will own the copyright of anything we design for you except if the design includes images, video, fonts, audio, text and other media assets from image libraries. In this case you will own the copyright for everything else and have a licence to use the other media assets and licences from third parties if passed to us.

3.2. You confirm to us that you either own or have a license to the copyright in all the text, images, fonts, videos, sound files and other media assets, provided by you to us.

3.3. We will be the owner of the Software included in the Website, which shall include the source code and the database structure.

3.4. Following the Completion Date and strictly conditional upon
(i) you maintaining the Software on a secure Server, to our reasonable satisfaction, and
(ii) only creating backup copies for security purposes, we will grant you a license to use the Software.
You must not sublicense or transfer, the licence to use the Software. We shall not be restricted in any way from licensing the Software to third parties. You use of the Software shall be further governed by the remaining terms of this Agreement, as well as the Specification. You agree that the maintenance of any software licensed to you by other parties, acquired during the course of our development of the Website shall be your sole responsibility and expense. This might include components such as image editors, or the WYSIWG text editor included in most of the sites we build. Typically these components are provided at no cost to us or you but may require upgrades which would take us or another developer time to install.

3.5. Should you start to host your site with us and then decide to engage another party, other than ourselves to host the Website, you will be required to provide us with at least ninety days’ advance notice in writing of such change and specifying that you will be terminating such hosting services by ourselves. Where upon receiving a written notification to terminate our hosting services, we shall provide you a minimum specification for the Server. Should you choose another party, instead of ourselves, to host the Website, we shall accept no liability for the operation of the Software or the Website.

3.6. We shall be accredited for all design and programming tasks both in case studies, online portfolios and by a discrete link from your website pages to our website(s), similar to “site design by Webstars Ltd” or “system by Webstars Ltd”.

3.7. We shall provide you with the full un-encrypted source code, EXCEPT for any third party modules or scripts used in the site, as soon as the full project price has been paid and you have signed both a Non Disclosure Agreement and a Software Licence Agreement, or such other similar documentation as we may notify you.

3.8. You shall keep confidential all information related to our business and activities, including, without limitation, the Intellectual Property and any other of our technology, materials, data and information that may be obtained by you as a result of this Agreement ("Confidential Information"). You shall hold our Confidential Information in strict confidence and will not disclose such Confidential Information to any person, firm or enterprise, or use (directly or indirectly) any such Confidential Information for your own benefit or the benefit of any other party, unless we have given you our specific authorisation, in writing, to do so.

3.9. We shall keep confidential all information related to your business and activities, including, without limitation, the Intellectual Property that may be obtained by us as a result of this Agreement ("Confidential Information"). We shall hold your Confidential Information in strict confidence and will not disclose such Confidential Information to any person, firm or enterprise, or use (directly or indirectly) any such Confidential Information for our own benefit or the benefit of any other party, unless you have given us your specific authorisation, in writing, to do so.

3.10. Where information is:
(i) already known by the receiving party and there has been no duty of confidentiality restricting the use of such information; or
(ii) is obtained from an independent third party free of restriction and without breach of this Agreement; or
(iii) is or becomes publicly available through no wrongful act of the receiving party; or
(iv) is independently developed without reference to any Confidential Information of the other party, then such information shall not be classified as Confidential Information.

3.11. Where you engage a third party to work on the source code, such third party shall only use the source code for your benefit.  You shall ensure that such a third party enters into a written agreement to the effect that they must protect the confidentiality of the source code and not keep any copies once the engagement with you has been terminated or expires.  Should you require any changes to these requirements and restrictions, you shall first seek our prior written agreement.  Within such written agreements you shall name Agency as an “interested third party with the right to injunctive relief”, in order to allow us to take direct action in order to protect our Confidential Information, where they would be in breach of this clause 3.11.

3.12. We both shall ensure that any of our employee who obtains or is in a position to obtain any Confidential Information understands and agrees to comply with the terms and conditions of this Clause 3. Each party further agrees to take all other commercially reasonable steps, by agreement, instruction or otherwise, to ensure compliance with these obligations.

3.13. Each party acknowledges and agrees that as damages alone are not likely to be sufficient compensation for the losses that may be caused by a breach of this clause 3, that the remedy of injunctive relief is reasonable and is likely to be essential to safeguard the interests of the parties in relation to such an actual or threatened breach. Notwithstanding the foregoing, each party shall be entitled to pursue any other available remedies at law or equity, including the recovery of monetary damages, with respect to the actual or threatened breach of the foregoing provisions of this clause 3.

4. Specification and changes to brief or specification

4.1. The Specification for the Software and the Website are set out in the Order Form.

4.2. At any time prior to the Completion Date, we may recommend and you may request, in writing, changes to any part of the Project.

4.3. Within five working days of receipt of the change request or the making of the change recommendation, we shall send to you details of the time and cost needed to investigate the implications to the Specification, of implementing the proposed change. The investigation will only be carried once we have received your written instruction.

4.4. Following the investigation (if any), we will provide you with a written estimate (valid for up to thirty (30) days from the date it is given to you) showing the increase or decrease in the Project Price and any other related effect on other contractual matters that the proposed change would cause. We will use all reasonable endeavours to provide the estimate within ten (10) working days (or such longer period as may be agreed) of receipt by us of a written instruction to investigate the implications of the proposed change.

4.5. If you wish to proceed with the proposed change, you shall notify us in writing (a “Change Acceptance Notice”) of your wish to do so, as soon as reasonably practicable after receipt of our written estimate, but no later than ten (10) working days (or such other period as we may agree between) of receipt of the written estimate. Once we receive your Change Acceptance Notice, authorising us to go ahead with the proposed change, the specification affected by the change will then be deemed to be modified accordingly and we shall incorporate this change as soon as reasonably practicable.

4.6. Please note that until we receive a Change Acceptance Notice, we will continue to carry on with the Project, for the same fees, as if the change had not been proposed.

4.7. You acknowledge that we may have to charge additional fees in respect of overtime worked by our staff, or our suppliers (outside their normal hours of business), in order to meet your deadlines required, where such overtime has arisen due to delays caused by you, or other reasons beyond our, or our suppliers’, reasonable control AND the original Completion Date cannot be changed. We will provide you with a supplementary order form if we do feel overtime is required OR an updated completion date if you do not wish us to undertake overtime.

4.8. Following the Completion Date, any additions or changes to the Specification, that you have requested, shall be separately quoted in writing.

4.9. Unless specifically agreed in the Specification, a data / content migration service is not included.

4.10. It is essential that all copy is correct and has been approved by you. Whilst every effort is made to ensure that copy is correct, it is your responsibility to proof-read and approve (“sign off”) all copy and the setting, before final production commences. If you require alterations once the copy has been proofed, these subsequent amendments shall be liable to a further charge payable by you, as well as any related costs. Errors discovered during proof-reading that have been made by us or our suppliers in preparing the copy will be corrected at no charge.

4.11. We code sites using semantically correct xhtml code and although this should render and function on Mobile Devices, it cannot and is not guaranteed. If compatibility with Mobile Devices is essential, you must request a specific quote for a mobile specific version, or mobile application, for such Mobile Devices. Alternatively during the design and build phase and by keeping the site very simple, we can achieve better compatibility.

4.12. We test the Software to perform materially as specified in the order form, which, as well as detailing the Specification, sets out the platforms for which the Software shall be tested and approved. Furthermore, should changes beyond our control affect the functionality of the Software, such as changes in browser technology, legislation, social media integration or APIs, we shall agree a cost with you for updating the Software, based upon us providing a reasonable level of work required to accommodate such changes.

5. Exclusion of liability and indemnity

5.1. Nothing in these Terms shall limit our liability of you for death or personal injury caused by our negligence.

5.2. We shall not liable for any indirect loss, consequential loss, loss of profits, revenue, data or goodwill howsoever arising or suffered by you and arising in any way in connection with this Agreement or for any liability of yours to any third party. You agree that you are in a better position than us to foresee and estimate any loss you may suffer in connection with the Agreement and our performance of the services set out herein, and that the Project Price has been accordingly to take into account such risks. You should take out suitable insurance to protect you in relation to the losses you may suffer as a result of the exclusions under this clause 5.2.

5.3. We shall not be liable for any viruses uploaded to the Website by third parties or your employees or agents. You shall be solely responsible for virus-checking any programs, macros, data files or other material accessed through the World Wide Web.

5.4. We shall not be liable for any failure to perform the services set out in this Agreement, where such failure results directly or indirectly from failure or interruption in software or services provided by third parties, or any services beyond our reasonable control. This includes, but not limited to, changes in browser technology, legislation, social media integration, or APIs.

5.5. Our maximum liability to you, for any claims that may occur, in relation to this Agreement, for any loss, be it direct or otherwise, and including (but not limited to) loss of profits, or reputation, shall never exceed, in total, whether such claim arises in contract or in tort shall not exceed a sum equal to the amount of the Project Price received by us in the previous twelve (12) month period prior to such claim, or claims, first arising.

5.6. You shall indemnify us at all times and hold us harmless from and against all claims and proceedings brought by any third party arising from or incidental to any breach of this Agreement by you or your employees.

6. Force majeure

6.1. Neither party shall be liable for any loss suffered by the other, or be deemed to be in default, for any delays or failures in performing its obligations as set out under this Agreement, where such delays or failures result from acts or causes beyond its reasonable control. Examples of such acts include; acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, fire, riots, strikes, lock- outs, labour troubles, illness, labour or transportation difficulties, inability to obtain export or import licences, failure or fluctuation of electric power, air conditioning or humidity control.

7. Defects warranty

7.1. We shall for a period of one (1) months from the project’s Completion Date, without charge to you, rectify any Defect within seven (7) days of being notified by you in writing of such Defect either by repair or, at our option, by supply of a replacement. For the purposes of this clause a “Defect” means any non-conformance with the Specification.

7.2. Subject always to Clause 3.5 we shall have no liability in respect of any Defect unless the Defect is promptly reported to us in writing and occurs within the time scales as described in Clause 7.1

7.3. We shall only be obliged to take action under this Clause 7 where we have been given by you, without delay and free of charge, full and complete details of the Defect and adequate time and access to the Software during our normal working hours to rectify such Defect. If we rectify the Defect, we shall have no other liability of any kind in respect of or arising from such Defect.

7.4. If a Defect is found upon investigation not to be our responsibility under this Clause 7, we shall be entitled to charge you immediately for all reasonable costs and expenses incurred by us in the course of or in consequence of such investigation.

7.5. We shall not be responsible for (i) any defect arising from or caused by any modification (whether by alteration, deletion, addition, or otherwise) made to the Software, or any part of it, by anyone other than ourselves; or (ii) for Defects otherwise outside the scope of the Specification.

7.6. Further to Clause 4.11above, we specifically excludes any warranty in relation to the Software functioning on Mobile Devices, unless the Software has been specifically designed for such use.

7.7. Further to Clause 4.12 above, we specifically exclude any warranty in relation to the Software functioning on platforms not agreed in the Order Form.

8. Hosting

Our terms applicable to its Hosting of the Website are available on request.

9. Estimated completion date

9.1. We shall provide you with an estimate of the amount of time required to complete the Project. This estimate is based on you providing us with full details of the information required to be included within the Website or Software and all necessary artwork and licences in a timely manner. We shall then use all reasonable efforts to achieve the estimated delivery date but shall not be liable in the event that such delivery date should not be achieved. A guaranteed delivery date will only be agreed where you agree to pay our “guaranteed delivery premium” (details of which are available upon request).

9.2. Should the Project be put on hold, either due to no feedback or a delay by you in delivering assets, and this period exceeds two (2) weeks, or if the Project is put on hold at your request, we will raise an invoice for all work carried out up to that date. This invoice will become due fourteen (14) days after issue and payment will be required to re-commence the Project. At the end of the Project, this sum will be deducted from the final invoice.

9.3. All invoices issued by us are deemed to be correct unless you notify us in writing otherwise within fourteen (14) days of receipt of the invoice concerned. Such notice by you must set out the reasons why you believe the invoice is thought to be incorrect, giving as much detail as possible. We shall have a further period of fourteen (14) days in which to respond to you, either accepting the suggested revised amount, or stating that we do not agree with you and that the matter should be escalated to both our senior management.

9.4. Pause Clause, should the fortnightly, monthly or staged payments (as applicable) as specified in the order form be delayed we will stop working on the Project. As soon as payment re-commences we will advise of the new time line. Should one or more such pauses occur we may need to revise the price to allow for our increased costs or wasted staff time. This increase will be limited to ten (10) percent of the total project price unless the pause exceeds two (2) calendar months, whereupon we shall provide you with a revised schedule of fees.

10. Notices

10.1. All notices to be given under this Agreement will be in writing and will be sent to the address of the recipient as set out in the Order Form, or any other address the recipient may designate by notice given in accordance with this Clause. Notices may be delivered personally by recorded delivery letter, fax, or by such other electronic means capable of establishing the identity of the signing party such as the use of digital signature technology. Notices will be deemed to have been received:
by recorded delivery letter - 24 hours after the date of mailing;
by fax - immediately upon transmission provided a confirmatory copy is sent by recorded delivery by the end of the next business day; or
by electronic means - immediately upon transmission.
Copies of all notices to Client shall simultaneously be sent to Lanyard Consulting Limited, Park House, Charlton Court Place, East Sutton, Kent ME17 3AN.

11. Waiver

No delay or failure by either party to exercise any of its powers rights or remedies under this Agreement will operate as a wavier of such rights, nor will any single or partial exercise of any such powers, rights, or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing and signed by both parties. The remedies provided under this Agreement are cumulative and not exclusive of any remedies provided by law.

12. Severability

If any part of these Terms are found by a court with appropriate authority to be invalid, unlawful, or unenforceable then such part will be considered removed from the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.

13. Entire agreement

13.1. The terms set out in this Agreement shall take precedence over any other prior agreements, negotiations, representations or promises, and whether written or oral, where they prove to be inconsistent with this Agreement. This will not apply where such agreements, negotiations, representations or promises, are made fraudulently, regarding its subject matter. More specifically, the terms set out in this Agreement shall take precedence over any terms and conditions appearing in your own documentation (if any) and overrides and excludes any other terms and conditions stipulated or referred to by you, whether in any negotiations or in any course of dealing established between us.

13.2. The terms set out in this Agreement shall take precedence over your standard terms of contract in all cases and circumstances whatsoever, unless otherwise agreed in writing between us.

14. Variation

Except as otherwise set out in this Agreement, no changes shall be effective unless they are in writing and signed by persons authorised on behalf of both parties.

15. Survival

15.1. Any provision in this Agreement which must survive its termination or expiration, including all obligations to pay any fees and expenses due and not yet paid at the time of termination, shall survive and continue after any expiration or termination of this Agreement and shall bind the parties and their legal representatives, successors and assigns.

15.2. For the avoidance of doubt, the following Clauses shall survive the termination/expiration of this Agreement, or the relevant Schedule thereunder: Clauses 3, 5, 7, 10, 11, 12, 13, 14, this Clause 15 and 18.

16. Termination

16.1. Either party may terminate this Agreement and hence the Services immediately by giving written notice to the other party if the other party:

16.2. commits any material breach of any term of this Agreement, and:
16.2.1.the breach is not remediable; or
16.2.2.the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
16.2.3.persistently breaches the terms of this Agreement.
16.2.4.Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
16.2.5.is dissolved;
16.2.6.ceases to conduct all (or substantially all) of its business;
16.2.7.is or becomes unable to pay its debts as they fall due;
16.2.8.is or becomes insolvent or is declared insolvent
16.2.9.convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
16.2.10.an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
16.2.11.an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent designer reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);

17. Headings

Clause headings have been included in this Agreement for convenience only and shall not be considered part of, or be used in interpreting, the clauses

18. Governing law

This Agreement will be construed in accordance with and governed by the laws of England and Wales and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.

A signature on this order form or your continued instruction confirms your acceptance of these terms.