1. BASIS OF CONDITIONS
1.1 Indigo Multimedia Limited (the Company) shall provide the Customer with the Development Services for the purposes of completing the development of the Media and shall carry out Additional Services (if any) in accordance with and subject to the Project Document.
1.2 These Conditions shall apply to the exclusion of any other terms and conditions including those supplied by the Customer.
1.3 No variation or addition to the Services or these Conditions made by the Customer shall be binding unless agreed in writing by the Project Manager save as permitted under Condition 9 (Modifications and Variations) below.
1.4 The Company may at any time without notifying the Customer make any changes to the Service and/or Media which are necessary to comply with any applicable safety or other statutory requirements or which do not materially affect the nature or quality of the Services and/or Media.
1.5 The Company may at any time employ an agent, consultant, sub-contractor, or other third party to carry out any or all of its obligations outlined in the Project Document.
1.6 The Company’s employees, agents, consultants, or sub-contractors are not authorised to make any representation concerning the Services unless confirmed in writing by a director of the Company save as is specified in condition 2 below.
2. REPRESENTATIVES OF THE PARTIES
2.1 The Company shall designate a Project Manager and the Customer shall designate a Customer Representative for the purposes of the Contract and each shall promptly give notice to the other party of the identity and contact details of these persons.
2.3 The Project Manager and Customer Representative will be authorised to make decisions relating to the Project on behalf of the Company and the Customer respectively and shall be responsible for representing the Company and Customer respectively for the Term of the Project and for providing any information that may be required by the other party to perform its obligations outlined in the Project Document.
3. GENERAL OBLIGATIONS OF THE COMPANY
Throughout the Term of the Project the Company shall:
3.1 carry out its obligations under the Project Document with reasonable care and skill;
3.2 ensure that suitably qualified employees, agents, consultants or sub-contractors of the Company perform the Services.
4. GENERAL OBLIGATIONS OF THE CUSTOMER
Throughout the Term of the Project the Customer shall:
4.1 promptly supply all the Customer’s Materials and all other necessary Documents, data, and other information relevant to the Services as the Company may require in order to provide the Services in accordance with the Project Document;
4.2 ensure that its employees and other independent contractors co-operate reasonably with the Company, its employees, and/or its sub-contractors in carrying out the Project.
5. PROJECT DOCUMENT
Any Project Document prepared by the Company is for the Company’s use in providing the Service and in the development of the Media and the Customer shall have no rights to it or to use it save as provided in these Conditions.
6. PROJECT BREAKDOWN
6.1 The Company will commence the Services and the development of the Media in compliance with the Project Document and subject to and in accordance with these Conditions and the Company shall use all reasonable endeavours to complete each stage of the Project by the dates set out in the Project Document or as soon thereafter as possible.
6.2 The Company shall issue scheduled charges and give notice to the Customer when it considers that each stage of the Project as set out in the Project Document has been completed and if so required by the Project Document the Customer shall be invited to conduct a review of the Media within the periods set out in the Payment Schedule of the Project Document or at a time agreed in writing between the Project Manager and the Customer Representative.
6.3 On completion of any review if the Customer is satisfied that the Media meets the requirements of the stage then it shall deliver to the Company notice of completion of the stage and authorise stage payment (if any) due to the Company.
6.4 If the Customer is not satisfied that the Media meets the requirements of the stage then it shall supply the Company with the reasons and the Company shall take reasonable steps to make such modifications as in the circumstances it considers are necessary to complete the stage.
6.5 If the Customer has not conducted a review or if the Company has not received a notice of completion of the stage within the agreed period of the Company giving notice to the Customer pursuant to Condition 6.2 (Project Breakdown) above then the Company shall be deemed to have completed the stage.
7. DELIVERY AND ACCEPTANCE
Once the Media has been accepted by the Customer (whether deemed or express) the Company shall use all reasonable endeavours to make available to the Customer the final version of the Media on or before the agreed completion date or as soon thereafter as possible.
8. TRAINING
8.1 The Company shall provide training (if any) in the use, installation, and maintenance of the Media for the Customer as specified in the Project Document.
8.2 If the Customer requires any additional training a request may be made by the Customer to the Company setting out in detail the specific training requirements. The Company shall provide any additional training in a manner and for a price agreed between the Project Manager and the Customer Representative.
8.3 Nothing in this Condition 8 shall impose any obligation on the Company to provide the Customer with Training unless specifically specified in the Project Document.
9. MODIFICATIONS AND VARIATIONS
If the Customer requests any modifications or variations to the previously approved Project Document the Company shall be entitled to levy such charges as in the circumstances it considers reasonable in respect of the request at the Company’s current rates.
10 THIRD PARTY HOST SERVICES
10.1 On receipt of full payment of all project charges the Company shall arrange for the Host Services and shall arrange to place the Media created by the Company for the Customer on the computer server operated by a Host Service Provider.
10.2 The Company cannot provide any guarantee nor can it accept any liability in respect of the Host Services provided by the Third-Party Host Service Provider.
11. SUPPORT
11.1 The Company shall provide telephone and email support during business hours of 09:00 to 17:00 Monday to Friday.
11.2 Other than a Critical Support Issue that should be reported by telephone the Company will respond to all other support requests in accordance with the Customer’s chosen support package specified in the Project Document.
12. THIRD PARTY SOFTWARE COMPONENTS (Plug-ins)
12.1 The Company cannot provide any guarantee nor can it accept any liability in respect of the performance (or non-performance) of any plug-ins used by the Company in the Media that has been developed by a Third Party Software Components Service Provider.
12.2 Upon becoming aware of any Third-Party fault or upon receipt of notice of the existence of such a fault by the Customer the Company shall use reasonable efforts to promptly correct the fault (if correctible) at a charge agreed by the Project Manager and the Customer Representative.
13. CHARGES AND PAYMENT
13.1 In consideration of the provision of the Project Document (if any), the Services and the supply of the Media and in accordance with Condition 6.2 (Project Breakdown) the Customer shall pay the Company the Charges together with such additional sums as in the Company’s sole discretion are required as a result of the Customer’s instructions, the inaccuracy of the Customer’s Material or any other cause attributed to the Customer such additional charges to be calculated at the Company’s current rates.
13.2 Payment of any such sums due in accordance with Condition 13.1 shall be made at the times or stages set out in the Payment Schedule of the Project Document (if any) and/or no later than the due date stipulated on the Company’s invoice.
13.3 If payment of any sum due is not made by the due date the Company without prejudice to any other rights or remedies it may have reserves the right to suspend performance of the Services and supply of the Media until the date of payment in full.
13.4 Any advanced payments from the Customer will be held on account for the sole purpose of being used for Services supplied by the Company for the Customer. The Company will honour the purpose of the advanced payment until all such sums are spent. The Company also reserves the right not to refund any remaining credit.
13.5 Charges are subject to increase in line with inflation. Additionally, charges may be adjusted to reflect increases in service levels as outlined in the Project Document including but not limited to hosting charges and usage increases.
13.6 Cancellation of Recurring Charges:
13.6.1 Licence:The Customer must provide a notice of cancellation at least 3 months prior to the renewal period. If the notice is given after this period the Customer will be required to pay a charge equivalent to 3 months of the annual fee;
13.6.2 Retainer Fees: The Customer must provide a notice of cancellation at least 2 months prior to the renewal period. If the notice is given after this period the Customer will be required to pay a charge equivalent to 2 months of the agreed monthly fees;
13.6.3 Support Services: The Customer must provide a notice of cancellation at least 1 month prior to the renewal period. If the notice is given after this period the Customer will be required to pay a charge equivalent to 3 months of the annual fee.
14 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
14.1 All Intellectual Property Rights in the Media, the Company’s Material, and the Services shall be and remain vested in the Company. Further, the Customer shall have no right to any source code in the Media unless otherwise agreed in writing between the Company and the Customer prior to the Project’s commencement.
14.2 In accordance with and subject to the Project Document the Company hereby grants to the Customer a non-exclusive non-transferable licence to use the Intellectual Property Rights in the Media.
14.3 The reference in Condition 14 (Intellectual Property Rights and Confidentiality).1 to all Intellectual Property Rights shall without limitation include:
14.3.1 all those Intellectual Property Rights owned or used by the Company prior to the commencement of the Term; and
14.3.2 all those Intellectual Property Rights created by the Company in the Media or the Documents created in the course of or as a consequence of the provision of the Services during the Term or any time thereafter.
14.4 Each party undertakes to the other at all times whether during or after the Term to keep confidential any Confidential Information (written or oral) that it shall have obtained or received as a result of the discussions leading up to or the entering into of the Project or in the course of provisions of the Services save that which;
14.4.1 already in its possession other than as a result of a breach or what would have been a breach of these Conditions;
14.4.2 in the public domain other than as a result of a breach or what would have been a breach of these conditions.
15 WARRANTIES
15.1 The Customer acknowledges that computer software in general is not error-free and agrees that the existence of any such errors in the Media shall not constitute a breach of Contract.
15.2 As the Company claims no rights to the Customer’s Material at the Customer’s request the Company will provide the Customer at a charge suitable to accomplish the task/s such Material held within the Media’s database/s in CSV Format.
16 LIABILITIES
16.1 The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents, and sub-contractors) to the Customer in respect of:
16.1.1 any breach of its contractual obligations arising under the Contract; and
16.1.2 any representation (except fraudulent) or tortious act or omission including negligence arising under or in connection with the Contract.
16.2 The Company shall have no liability to the Customer for any loss, damage, costs, expenses, or other claims for compensation arising from any Customer’s Material or instructions supplied by the Customer 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 fault of the Customer.
16.3 The Company shall not be liable to the Customer for any indirect, special, or Consequential Loss which arises out of or in connection with the provision of the Services (whether caused by negligence of the Company, its servants, agents, or sub-contractors or otherwise).
17 RESTRICTION
In consideration of the mutual undertakings set out in these Conditions, the Customer without prejudice to any other duty implied by law or equity agrees that it will not at any time from the date hereof for a period of twelve months after the Term directly or indirectly on its own account or as agent, partner, director, or employee of any other person, firm, company, or otherwise solicit or entice or attempt so to do any current employee, consultant, or agent of the Company to leave the employment or services of the Company.
18 TERMINATION
18.1 Either party shall at any time be entitled by notice in writing to the other to terminate the Contract:
18.1.2 if the other party fails to observe or perform any agreements or provisions contained in these Conditions unless the same is remedied (if capable of remedy) not longer than 28 days from the receipt of a notice specifying such failure;
18.1.3 if the other party becomes insolvent, makes a voluntary arrangement with its creditors, has a receiver or administrator appointed, or has an order made or a resolution passed for it to be wound up;
18.1.4 by serving in writing on the other not less than 1 calendar month notice of its intention to terminate giving an explanation for the reason of termination.
19 FORCE MAJURE
19.1 Neither the Company nor the Customer shall be liable for breaching this Agreement where that breach results from Force Majeure.
19.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, or any other event that is beyond the control of the Party in question.
20 NOTICE
Any notice will be deemed to have been received if by hand upon delivery, if by post three days after posting, and if by any instantaneous method of transmission upon being sent.
21 JURISDICTION
The Contract shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.
22 ACCEPTANCE
These Conditions shall be deemed accepted by the Customer on commencement of the Project.
INTERPRETATION
In these Conditions:
“Additional Services” – means all supplementary services requested by the Customer that are provided or arranged by the Company including but not limited to Host Services, Domain Name Services, Website Services, Support Services, Product Services, and CMS Licences;
“Charges” – means all charges payable by the Customer in respect of the Project Document (see Section 13: Charges and Payment);
“CMS” – means the Content Management System for creating, administrating, managing, organising, and facilitating collaborative creation of content and other documents used in the Media as set out in the Project Document;
“Conditions” – means the standard terms and conditions of business set out in this document including any special terms and conditions agreed in writing between the Project Manager and the Customer Representative;
“Confidential Information” – means any and all information relating to the Company’s business affairs and Intellectual Property Rights whether written, oral, visual, or stored on digital devices supplied by the Company to the Customer or deduced by the Customer from information supplied by the Company (see Section 14: Intellectual Property Rights and Confidentiality);
“Consequential Loss” – means any consequential loss including without limitation any economic loss or other loss of production, product, use, turnover, profits, anticipated profits, business opportunity, or goodwill and all loss or damage to property or equipment of the Customer or any of its sub-purchasers or any other third party;
“Contract” – means the contract for the provision of the Services and/or supply of the Media subject to these Conditions;
“Critical Support Issue” – means the Website is offline or a Payment Gateway is not working;
“CSV Format” – the CSV file format is a very simple data file format that is
supported by almost all spreadsheet management systems and programming languages;
“Customer Representative” – means the person appointed by the Customer to act as the Customer’s representative for the purpose of the Project;
“Customer’s Materials” – means any document or software applications, database, other materials, and any data or other information provided by the Customer relating to the Service whether provided directly by the Customer or commissioned from a third party by the Customer;
“Development Services” – means the development services to be provided by the Company for the Customer as detailed in the Project Document;
“Document” – includes any document in writing, any digital or electronic file, any map, plan, graph, drawing, or photograph, any digital image or video, and any other device embodying visual images or data and “Documents” shall be construed accordingly;
“Host Services” – means the host services (if any) as set out in the Project Document;
“Intellectual Property Rights” – means any patent, know-how, technical information, registered trade mark, service mark, trade name, registered design, copyright, moral right, design right, database right or any other industrial or commercial right (whether registered or unregistered and whether capable of registration or not) including any application for registration or protection of any of the same anywhere in the world (see Section 14: Intellectual Property Rights and Confidentiality);
“Licence” – the Company offers two types of licences for the use of the Media developed for the Customer:
Free Licence: A non-exclusive non-transferable licence granted to the Customer at no cost as set out in the Project Document/s;
Chargeable Licence: A non-exclusive non-transferable licence that requires the payment of a fee billed annually or monthly as agreed between the Company and the Customer as set out in the Project Document/s. A Chargeable Licence includes all fees and charges associated with the use, maintenance, and support of the Media developed for the Customer. This includes but is not limited to any costs related to ongoing service levels, renewal of necessary certifications, licences for third-party software components, and any other related service charges as specified in the Project Document/s;
“Media” – means one or more of the Product developed by the Company for the Customer;
“Mobile Application” – means a software application developed for use on small wireless computing devices such as smartphones and tablets;
“Plug-ins” – means a third-party piece of software that adds features or extends functionality to the websites;
“Product” – means any project developed by the Company for the Customer including but not limited to digital projects (such as websites, mobile applications, and SaaS systems), printed material, and audio production all branded in the customer’s identity as specified in the Project Document;
“Product Services” – means the development, creation, and delivery of the Product specified in the Project Document including any associated packaging, labelling, documentation, printed material, or other materials to be supplied as part of the Product;
“Project” – means:
In relation to the Website: the development of the Website and development and testing of the Software in accordance with the Development Services and Host Services (if any);
In relation to the Mobile Application: the development of the Mobile Application and development and testing of the Software in accordance with the Development Services and Host Services (if any);
In relation to the Product: the development, delivery, and testing of the Product in accordance with the Development Services and Product Services (if any);
“Project Breakdown” – means the timetable specifying the dates for the completion of set stages of the Project;
“Project Document” – means the written specifications including the Project Breakdown, Charges, and any other relevant documentation for the Project or provision of Service to be prepared by the Company and approved by the Customer prior to the commencement of the Project or provision of Service. The Project Manager and the Customer Representative may from time to time amend the Project Document in accordance with Condition 9 (see Section 9: Modifications and Variations);
“Project Manager” – means the person appointed by the Company to act as the Company’s representative for the purposes of the Project;
“Retainer Fees” – means payments made by the Customer to the Company on a monthly basis to secure the Company’s retained services as set out in the Project Document/s. Retainer Fees are not used for addressing support issues related to existing projects;
“Service Provider” – means the company, person, or organisation (if any) other than the Company who may at the Company’s request provide one or more of the Services to the Customer;
“Services” – means the Development Services and the Additional Services (if any) to be provided by the Company for the Customer;
“Software” – means the software being developed or customised by the Company to the specific requirements of the Customer as specified in the Project Document;
“Software Component” – means a plug-in (or plugin, add-in, addin, add-on, addon, or extension) that adds a specific feature to an existing computer program;
“Support Services” – means those support and maintenance services to be provided by the Company for issues that may arise with existing projects (see Section 11: Support). This includes but is not limited to resolving service downtimes, broken URLs, login difficulties, etc. Each project is credited with a minimum of one hour of annual support. These services are strictly for troubleshooting and resolving issues with existing projects and are not applied toward new work or projects which are covered under Retainer Fees;
“Term” – means the period from the date of commencement of the provision of the Development Services continuing until terminated in accordance with Condition 18 (see Section 18: Termination);
“The Company” – means Indigo Multimedia Limited (CDN:03114121) whose registered office and business address is situated at 176 New Bridge Street, Newcastle upon Tyne NE1 2TE;
“Website” – means the website developed by the Company for the Customer as set out in the Project Document;
“Website Services” – means the website services (if any) as set out in the Project Document.
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