1. BASIS OF CONDITIONS1.1 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 below.
1.4 The Company may at any time without notifying the Customer make any changes to the Service 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.
1.5 The Company may at any time employ an agent, consultant, sub-contractor or other third party. Including, without limitation, Illustrators; Copywriters; Service Providers; Camera Operators; Sound Engineers 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 Customers 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 developing 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 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 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 entitled to conduct a review of the Media at a time agreed 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.
6.5 If the Customer has not conducted a review or if the Company has not received a notice of completion of the stage or non-completion of the stage within 20 working days of the Company giving notice to the Customer pursuant to Condition 6.2 above or by such other date as has been agreed between the Project Manager and the Customer Representative, or if the Customer has implemented the necessary modifications in compliance with Condition 6.4 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:
7.1 in the case of a website and software (if any), use all reasonable endeavours to make available to the Customer the final version of the Website and Software (if any) on or before the Completion Date or as soon thereafter as possible;
7.2 in the case of a Product, use all reasonable endeavours to deliver to the Customer the Product Duplication/s to a specified delivery address on or before the Completion Date or as soon thereafter as possible.
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. THIRD PARTY SOFTWARE COMPONENTS (Plug-ins)
11.1 The Company cannot provide any guarantee nor can it accept any liability in respect of the performance (or non-performance) of any plug-in/s used by the Company in the Media that has been developed by a Third Party Software Components Service Provider.
11.2 In the event of a fault, upon becoming aware of the fault or upon receipt of notice of the existence of such a fault by you, we shall use reasonable efforts to promptly correct the fault (if correctible) at a charge agreed by the Representatives of the Parties.
12. CHARGES AND PAYMENT
12.1 In consideration of the provision of the Project Document (if any) the Services and the supply of the Media, 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 Material or any other cause attributed to the Customer, such additional charges to be calculated at the Company’s current rates.
12.2 Payment of any such sums due in accordance with Condition 12.1 shall be made:
12.2.1 immediately at the start of each Project on receipt of a Project Start Phase invoice issued by the Company;
12.2.2 within 30 days (except for Condition 12.2.1) of the date of the Company’s invoice, which shall be raised by the Company at the times or phases set out in the Project Document..
12.3 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.
12.4 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 after a period of 12 months from receipt.
12.5 Ownership in the Media / Product shall remain with the Company until full payment has been received from the Customer.
13 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
13.1 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 Projects commencement.
13.2 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 .
13.3 The reference in Condition 13.1 to all Intellectual Property Rights shall, without limitation, include:
13.3.1 all those Intellectual Property Rights owned or used by the Company prior to commencement of the Term; and,
13.3.2 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.
13.4 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 course of provisions of the Services save that which;
13.4.1 already in its possession other than as a result of a breach or what would have been a breach of these Conditions;
13.4.2 in the public domain other than as a result of a breach or what would have been a breach of these conditions.
14.1 The Customer acknowledged that computer software in general is not error-free and agrees that the existence of any such errors in the Product shall not constitute a breach of Contract.
14.2 As the Company claims no rights to the Customers Material at the Customers 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.
15.1 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:
15.1.1 any breach of its contractual obligations arising under the Contract; and,
15.1.2 any representation (except fraudulent) or tortuous act or omission including negligence arising under or in connection with the Contract.
15.2 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.
15.3 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).
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.
17.1 Either party shall at any time be entitled by notice in writing to the other to terminate the Contract:
17.1.2 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;
17.1.3 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;
17.1.4 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.
17.1.5 termination for whatever reason shall not affect the accrued rights of the parties arising in any way out of the Contract as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive the Contract shall remain in force and effect. Such termination shall be without prejudice to any provision intended to operate thereafter.
18 FORCE MAJURE
Notwithstanding anything contained in the Contract, if the Company shall be prevented or delayed whether directly or indirectly, in the performance of any of its obligations under the Contract by reason of any cause whatsoever beyond the Company’s control (including without limitation any prevention or delay caused by an act or omission of the Customer or industrial dispute) and shall give notice thereof to the Customer specifying the period for which it is estimated that such prevention or delays will continue, the Company shall be excused from performance of its obligations under the Contract from the date of such notice for so long as such prevention or delay shall continue.
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.
The Contract shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.
These Conditions shall be deemed accepted by the Customer on commencement of the Project.
In these Conditions:
“Additional Services” means any additional services requested by the Customer to be provided by or arranged by the Company and being such of the Host Services, the Domain Name Services, the Website Services, the Support Services, Product Services and CMS Licences;
“Charges” means all charges payable by the Customer in respect of the of the Project Document;
“CMS” means the Content Management System for creating, administrating, managing, organizing and facilitating collaborative creation of documents and other content 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 and (unless the context otherwise requires) includes 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 on computer storage devices, supplied by the Company to the Customer, or received or deduced by the Customer either directly or indirectly from information supplied by the Company, including (without limitation) technical information, data, drawings, designs, know-how, formulae, specifications, products, customer details and any other information relating to the Company’s business, affairs and Intellectual Property Rights;
“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;
“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 for the time being or from time to time duly appointed by the Customer and notified in writing to the Company to act as the Customer’s representative for the purpose of the Project subject to and in accordance with these Conditions;
“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 direct by the Customer or commissioned from a third party by the Customer;
“Delivery site” means the Customer’s preferred premises specified in writing to the Project Manager;
“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 map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other devices embodying any other 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;
“Licence” means :the Company will grant a free licence for the non-exclusive, non-transferable use of the Media as set out in the Project Document/s;
where the licence relates to the use of the Content Management System/s, or other chargeable web applications, an annual fee will be charged to the Customer by the Company for the non-exclusive, non-transferable licence for usage as set out in the Project Document;
“Media” means one or more of the Product, the Website, the Mobile Application and the Software developed by the Company for the Customer;
“Mobile Application” means a software application developed specifically for use on small, wireless computing devices, such as smartphones and tablets, rather than desktop or laptop computers;
“Product Duplications” means multiple duplications (if any) of the Product;
“Product” means the DVD, CD-ROM or video specified in the Project Document and including any associated packaging, labelling, documentation, printed material or other material to be supplied as part of the Product;
“Project Breakdown” means the timetable specifying the dates for the completion of set stages of the Project;
“Project Manager” means the person for the time being or from time to time duly appointed by the Company and notified in writing to the Customer to act as the Company’s representative for the purposes of the Project and subject to and in accordance with these Conditions;
“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;
a) in relation to the Website, the development of the Website and development and testing of the Software in accordance with the Development Services and Website Services (if any);
b) in relation to the Product, means the development, delivery and testing of the Product in accordance with the Development Services and Product Services (if any);
“Service Provider” means the company, person or organisation (if any) other than the Company who may at the Companys 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 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.
“Software” means the software being developed or customised by the Company to the requirements of the Customer as specified in the Project Document;
“Support Services” means those support and maintenance services (if any) to be provided by the Company for the Customer as set out in the Project Document;
“Term” means the period from the date of commencement of the provision of the Development Services continuing until terminated in accordance with Condition 17;
“The Company” means Indigo Multimedia Limited (CDN:03114121) whose registered office is situated at 52A Station Road, Ashington, Northumberland, NE63 9UJ and whose business address is 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.