These Terms and Conditions (Terms) together with our engagement letter (Engagement Letter) constitute the agreement between us (Agreement) and set out the basis on which we will provide our services to you. With the exception of clause
11, in the event of any inconsistency between these Terms and the Engagement Letter, the latter shall prevail.
2. DEFINITIONS & INTERPRETATION
In these Terms, the following definitions apply:
2.1 Business Day: any day which is not a Saturday, Sunday or public holiday in London;
2.2 Deliverables: the materials produced on behalf of, or provided to, you by us in connection with the Services (including the Website and the Documentation).
2.3 Design Brief: a description of the appearance, content and functionality of the Website and Documentation (if any) that we are providing you in accordance with the terms of this Agreement.
2.4 Documentation: any user documentation relating to the Website.
2.5 Error: a material failure of the Website to conform with the Design Brief.
2.6 Fees: the fees payable to us by you as detailed in the Engagement Letter.
2.7 Initial Design: the design and outlay of the Website, but not including any functionality or content.
2.8 Intellectual Property: copyright, database right, patents, registered and unregistered design rights, registered and unregistered trade marks and all other industrial, commercial or intellectual property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world.
2.9 Materials: all materials either requested by us or provided or made available by you to enable us to use in performing the Services or incorporating into the Deliverables.
2.10 Services: the design and development of a Website and the provision of the Deliverables to you in accordance with the Agreement and the Design Brief.
2.11 Website: the source code of the Website to be created on your behalf by us in accordance with the Agreement.
3. APPOINTMENT AND PERFORMANCE
In consideration of you agreeing to pay our Fees in accordance with clause 6, we agree to perform the Services in accordance with this Agreement.
4. OUR OBLIGATIONS
4.1 We shall:
4.1.1 use our reasonable endeavours to provide you with the Services and to deliver the Deliverables in a timely manner and in all material respects in accordance with the Design Brief; and
4.1.2 respond to your reasonable requests and written instructions and act in a professional manner.
4.2 We shall not be liable for any delay in the provision of the Services or the delivery of the Deliverables due to any failure on your part to provide us with the Materials or any other information which we have requested from you.
5. YOUR OBLIGATIONS
5.1 You shall:
5.1.1 co-operate with us in all matters relating to the Services;
5.1.2 provide us, in a timely manner, all Materials we require in order for us to perform the Services;
5.1.3 pay to us our Fees on or before the due date for payment.
6.1 Upon your acceptance of the Initial Design of the Website in accordance with clause 8, we shall issue you an invoice for our Fees which shall be payable within 14 days of the date of issue.
6.2 Unless stated otherwise, our Fees do not include VAT which you shall pay in addition to our Fees at the prevailing rate on the date of the invoice. All sums payable by you shall be paid as cleared funds into our bank account, details of which will be included on our invoice.
6.3 Should you fail to make any payment in full by the due date, we may charge interest on the outstanding amount with such interest to accrue on a daily basis at the rate of 3% above the base rate of Barclays Bank Plc from time to time in force from the due date until the date of payment, whether before or after any judgment.
6.4 We reserve the right to increase our Fees in the event that you request (and we agree) a material change to the Services provided or the Design Brief.
7. DESIGN BRIEF
7.1 Upon acceptance of this Agreement, we will consult with you regarding the content and design of your Website and agree with you the Design Brief.
7.2 As soon as reasonably possible following our consultation and agreement with you of the Design Brief we shall provide you with a written copy of the Design Brief at which time any deposit paid by you will become non-refundable.
8. INITIAL DESIGN
8.1 We shall within a reasonable time and in any case within 10 Business Days from the date we provided you with the Design Brief (unless there is a delay which is beyond our control), provide you with the Initial Design.
8.2 Within 10 Business Days from receipt of the Initial Design, you shall either accept the Initial Design (in which case our Fees will become due and payable in accordance with clause 6) or provide us with your comments relating to any changes you reasonably require (and that do not materially differ from the Design Brief) and we shall make such amendments accordingly and resubmit the Initial Design to you. You will be deemed to have accepted the Initial Design if you fail to communicate your request for amendments to the Initial Design within the required time period.
8.3 The procedure detailed in clause 8.2 shall be repeated until such time as acceptance of the Initial Design has taken place or is deemed to have taken place PROVIDED HOWEVER that if acceptance has not taken place within 40 Business Days of you receiving the first Initial Design, we may, by written notice to you, terminate this Agreement in which case you will forfeit any monies paid to us by way of a deposit but otherwise in such circumstances neither of us shall have any further obligations or liability to the other.
9.1 We shall provide you with the Deliverables within reasonable time and in any event (unless there is a delay which is beyond our control) within 20 Business Days of you having provided us with all information required.
9.2 Before delivering the Deliverables (or any part of them) to you, we shall test the Deliverables and satisfy ourselves that they function correctly and that they in all material respects accord with the Design Brief.
9.3 Upon delivery to you of the Deliverables you shall within 20 Business Days of receipt report any Errors to us and provide us with a detailed description of the Error. Subject to any reproduction of the Error, we shall use our reasonable endeavours to correct such Error and deliver a corrected version of the Deliverables to you as soon as reasonably possible.
9.4 The Deliverables shall be deemed to be accepted if:
9.4.1 you notify us of your acceptance of the Deliverables; or
9.4.2 you do not notify us of any Error within the required time under clause 9.3.
9.5 Upon acceptance of the Deliverables (or upon the Deliverables being deemed to be accepted in accordance with clause 9.4), we shall, at your direction, either:
9.5.1 subject to further agreement between us, provide you with web-hosting facilities; or
9.5.2 provide you with the Deliverables in such format and manner as you shall request except that, in relation to the Website, unless exceptionally agreed otherwise by us, we shall only upload this to a location of your choice and we give no guarantee or warranty that it shall function properly when uploaded to such location. In the event that the Website’s source code requires amending so to enable it to fully function from your chosen location, we reserve the right to charge you a further fee in relation to any such work undertaken.
You shall indemnify and hold us harmless from and against all and any losses, liabilities, demands, claims, costs and expenses (including legal costs and disbursements on an indemnity basis) and damages incurred or suffered by us, and any damages awarded against us, arising directly or indirectly as a result of or in connection with any claim that the Materials infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene.
11. PROPERTY RIGHTS
11.1 Other than Materials that you provide us, to which you grant to us a licence to use in relation to the provision of the Services, the Deliverables remain the sole property of ours until such time as you have paid our Fees at which time all property rights in the Deliverables shall vest in you. Should this Agreement be terminated prior to any Fees becoming due and payable then we will retain all property rights in the Deliverables.
11.2 Any domain name we hold on your behalf shall remain our property until such time as you have paid the Fees at which time we shall transfer all our property rights in the domain name to you.
11.3 Any new inventions, designs or processes which evolve in the provision of the Services or the design of the Deliverables shall belong to us and you agree to assist us (at our cost) in the registration of any of the inventions, designs or processes as may be determined by us.
12. WARRANTIES AND LIABILITY
12.1 We warrant that we shall use reasonable care and skill in providing you the Services.
12.2 We shall have no liability to you for any loss, damage, costs or expenses or other claims for compensation arising from any of the Materials, information or instructions provided to us by you which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of yourself.
12.3 Except in respect of death or personal injury caused by our negligence, or as otherwise expressly provided in these Terms, we shall, to the fullest extent permissible by law, not be liable to you by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our negligence or that of our employees, servants or agents) which arise out of or in connection with the provision of the Services, and our entire liability under or in connection with providing you the Services shall not exceed the amount of our Fees.
13.1 Either of us can terminate this Agreement (without limiting any other remedy) at any time by giving notice to the other:
13.1.1 if the other commits any breach of this Agreement and (if capable of remedy) fails to remedy the breach within 14 days of receiving notice; or
13.1.2 if the other goes into liquidation, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters into administration, or a moratorium comes into force in respect of the other (within the meaning of the Insolvency Act 1986).
13.2 Except where terminated under clause 8.3, the termination of this Agreement for any reason shall not affect any rights and/or obligations:
13.2.1 accrued before the date of termination;
13.2.2 expressed or intended to continue in force and despite termination.
14.1 This Agreement constitutes the entire agreement between us and supersedes any previous agreement or understanding and may not be varied except in writing between us. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
14.2 A notice required or permitted to be given by you to us shall be in writing and sent to Dental Design, Elizabeth House, 40 Lagland Street, Poole, Dorset BH15 1QG or faxed to 01202 677 006. A notice required or permitted to be given to you by us shall be in writing and sent to you at your last known address or your last known facsimile number.
14.3 No failure or delay by either of us in exercising our rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either of us of any breach of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.
14.5 English law shall apply to this Agreement, and each of us agrees to submit to the exclusive jurisdiction of the English courts.
14.6 No person who is not a party to this Agreement shall have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.