These terms apply to the provision of Services by the Supplier to the Customer.
SUPPLIER OF SERVICES
The services will be provided by Coded4 Ltd incorporated and registered in England and Wales with company number 11895533 whose registered office is at Richardshaw Business Centre Richardshaw Road, Stanningley, Pudsey, England, LS28 6RW (“Supplier”)
For the purposes of this Agreement a Customer is any business or individual who engages the services of the Supplier (“Customer”)
The Supplier is in the business of providing web and software development services.
The Customer wishes to obtain and the Supplier wishes to provide the services on the terms set out in this agreement.
The following definitions and rules of interpretation apply in this agreement.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9am to 5pm on any Business Day.
Change Order: means any written document which material changes the obligations or services of the Supplier under this Agreement. A Change Order can be completed by way of an exchange of emails between authorised representatives of the Supplier and Customer agreeing to such changes.
Charges: The sums payable for the Services as set out in Schedule 2
Content: means all relevant information, documents, words, images or other content which is to be included by the Supplier on the website.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services including any Content provided by the Customer to the Supplier.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998 or Article 4(7) of the General Data Protection Regulations whichever is governing at the time of this Agreement.
Data Protection Laws: shall mean the Data Protection Act 1998, General Data Protection Regulations or such other legislation in force at the time of this Agreement.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: any output of the Services to be provided by the Supplier to the Customer as specified in Schedule 1 and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s equipment).
Deposit: The Supplier will invoice the Customer 50% of the overall cost and charge this as the 50% deposit that is to be paid by the Customer to the Supplier in advance of commencement of the services.
Hosting: The server on which the website is stored and made visible to the public on the internet.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Milestones: a date by which a part of the Services is to be completed, as set out in Schedule 1.
Personal Data: has the meaning set out in the Data Protection Act 2018 and the General Data Protection Regulations and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing the Services under this agreement
Privacy Notice: means the Notice provided by the Supplier on their website or otherwise provided to the Customer detailing the manner in which the Supplier handles Personal Data.
Processing and process: have the meaning set out in the Data Protection Act 1998 and the General Data Protection Regulations.
Quote: a document provided by the Supplier in which the Supplier documents the Services and the Charges applicable to the Customer.
Services: the Services as set out in Schedule 1 (including services which are incidental or ancillary to such Services).
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services in the supply of the Services including any such items specified in Schedule 1 but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
COMMENCEMENT AND DURATION
This agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with Clause 13.
The Supplier shall provide the Services to the Customer in accordance with this agreement from the date of the Agreement until such time as the Services are completed,
The Supplier shall use reasonable endeavours to supply the Services and deliver to the Customer in accordance with this agreement in all material aspects.
The Supplier shall use reasonable endeavours to meet any performance dates specified in Schedule 1 but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence in this agreement.
The Supplier shall appoint a manager for the Services such person as identified in Schedule 1. That person shall have authority to contractually bind the Supplier on all matters relating to the Services (including by signing Change Orders). The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of this agreement, but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
The Customer shall:
co-operate with the Supplier in all matters relating to the Services;
appoint a manager for the Services, such person as identified in Schedule 1. That person shall have the authority to contractually to bind the Customer on matters relating to the Services (including by signing Change Orders);
provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in Schedule 1;
provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
inform the Supplier of all health and safety and security requirements that apply at the Customer’s premises;
obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services in all cases before the date on which the Services are to start.
If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
The obligation to provide the Content to the Supplier rests with the Customer. Any delay in providing the Content to the Supplier will result in a delay in the Supplier completing the Services. The Supplier accepts no responsibility for this delay.
If Content is not received within three months of receipt of the Deposit, then the Supplier shall be entitled to terminate this Agreement on written notice. The Deposit is non-refundable and the Supplier shall be entitled to retain the Deposit without rebate or refund to the Customer if the Customer fails to provide the Content in accordance with Clause 4.5 or the Customer is otherwise in material breach of their obligations under this Agreement.
The Customer shall adhere to the Milestones detailed in Schedule 1 particularly in respect of the Customer providing feedback to the Supplier.
The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
Any consent given by the Supplier in accordance with Clause 5.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 30% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 30% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
If the Customer breaches the terms of this clause 5, the Client will indemnify and keep indemnified, the Supplier for all costs and expenses of losing that Restricted Staff Member, which will include a payment of the equivalent of 12 months basic salary for the Restricted Staff Member.
The parties agree that each provision in this clause 5 is fair and reasonable.
Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
If the Customer wishes to make a change to the Services:
If the parties:
agree to a Change Order, they shall sign it (or confirm express agreement in writing by some other agreed manner) and that Change Order shall amend this agreement; or
are unable to agree a Change Order, then the parties may elect to continue with the Services in the manner provided for prior to the Change Order or if the party who proposed the Change Order believes it is not possible to continue with the Agreement they may terminate the Agreement by providing not less than 1 month’s written notice. If the Customer elects to terminate the Agreement then the Customer shall pay all Charges payable to the Supplier under this Agreement.
The Supplier may charge a reasonable sum for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Clause 6.3.
CHARGES AND PAYMENT
In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges set out in Schedule 2 or otherwise payable under this Agreement.
Where the Charges are calculated on an hourly rate or day-rate basis:
the Supplier’s standard daily fee rates for each individual person as set out in Schedule 2 are calculated on the basis of an seven-hour day, worked during Business Hours;
the Supplier shall be entitled to charge an overtime rate of 50% of the standard daily fee rate set out in Schedule 2 on a pro-rata basis for any time worked by individuals whom it engages on the Services outside Business Hours or outside Business Days; and
the Supplier shall ensure that every individual whom it engages on the Services completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
The Supplier shall invoice the Customer for the Charges at the intervals specified in Schedule 2. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month.
The Customer shall pay each invoice submitted to it by the Supplier within 28 days of receipt to a bank account nominated in writing by the Supplier from time to time.
Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
All sums payable to the Supplier under this agreement:
In some circumstances, the Supplier may receive commission or other payments from third parties as a consequence of the Services provided by the Supplier to the Customer. The Customer acknowledges that the Supplier is entitled to receive some commission where appropriate and that the receipt of such commission by the Supplier shall not have any impact or bearing on the fees which the Customer is liable to pay the Supplier. The Customer shall not be entitled to any set-off or any other reduction in the Customer fees by virtue of any commission payments received by the Supplier.
INTELLECTUAL PROPERTY RIGHTS
In relation to the Deliverables:
Upon payment of all Charges payable to the Supplier under this Agreement, ownership of the Deliverables (including but not limited to any Website developed by the Supplier for the Customer) shall transfer to the Customer. Until such time as full payment is made by the Customer to the Supplier, ownership of the Deliverables shall remain with the Supplier and the Customer shall not reproduce or otherwise utilise any Deliverable without the prior written consent of the Supplier.
In relation to the Customer Materials (which shall include any Content provided by the Customer to the Supplier), the Customer:
If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this Clause 8, the Indemnified Party shall:
COMPLIANCE WITH LAWS AND POLICIES
In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws
Changes to the Services required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in Clause 6.
DATA PROTECTION AND DATA PROCESSING
The Customer and the Supplier will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
The Customer and the Supplier acknowledge that for the purposes of the Data Protection Laws, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
It is acknowledged that, as a consequence of the Services provided by the Supplier to the Customer, the Supplier may receive Personal Data relating to the Customer’s Clients, prospective Clients or other users of the Customer’s website. The Customer shall be solely responsible for ensuring that Clients of the Customer are notified regarding the provisions of the Supplier’s Privacy Notice and that the Customer ensures that they have provided an appropriate notice to the Customer’s Clients setting out the Customer’s lawful basis on which Personal Data will be retained in accordance with the Data Protection Laws.
Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 10.
The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractors’ contract:
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 11.2.
Each party may disclose the other party’s confidential information:
No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
LIMITATION OF LIABILITY
Nothing in this agreement shall limit or exclude the Supplier’s liability for:
Subject to Clause 12.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
Subject to Clause 12.1 and Clause 12.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to 50% of the Charges paid by the Customer under this agreement and shall never exceed the sum of £5,000.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
CONSEQUENCES OF TERMINATION
On termination or expiry of this agreement:
Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation
Provided it has complied with Clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
The Affected Party shall:
If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 8 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 2 weeks’ written notice to the Affected Party.
If the Force Majeure Event prevails for a continuous period of more than 3 months, either party may terminate this agreement by giving 14 days’ written notice to the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
ASSIGNMENT AND OTHER DEALINGS
This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
Subject to Clause 6, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
This Agreement does not include the provision of Hosting Services. The Supplier may, at their discretion, offer Hosting Services but this will be governed by a separate agreement and separate charges will apply.
The Supplier agrees to allow the Customer to self-host and further agrees not to charge for maintenance or hosting if the Customer chooses to self-host.
Customers are expected to set up SSL and other appropriate security measures.
When the Supplier is hosting, the Supplier agrees to maintain a staging server which will in turn allow a copy of the site to be available for future development work, pre-live deployment testing and approval before deployment to the Customer. Should the Customer choose to self-host, this clause (20.3) does not apply.
Should self-hosting be the Customer’s preferred option, the Supplier’s price (as detailed in Schedule 2) does not include setting up the Website on the Customers server.
In order to protect the security of the Supplier’s system, the Supplier will not provide any File Transfer Protocol (FTP) or root access to their servers. Any changes required by the Customer after completion of the Services will be quoted for by the Supplier separately and such additional changes will only be provided to the Customer upon agreement of the additional quotation.
RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
THIRD PARTY RIGHTS
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
Any notice shall be deemed to have been received:
This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
28 GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.
The Supplier shall provide web design services to the Customer. The Customer has instructed the Supplier to design a website for domain name detailed in the Quote (‘The Deliverable’)
If the Customer has requested the Suppliers assistance with copywriting for the website then this will be supplied separately and separate charges shall apply and will be notified separately.
Service Levels and Timetable:
The Supplier will use all reasonable endeavours to complete the Deliverables within a reasonable time period. The Supplier will ordinarily provide an estimate of time for completion of the services at the time that the contract is entered to. Time is not of the essence and all time estimates are estimates only.
Upon completion of the Deliverables, feedback is required from the Customer within seven calendar days in order for changes to be made and for the live status of the website to be confirmed.
3. Customer Resources or Materials to be made available
The Customer shall supply to the Supplier the documents or information listed below as required or requested by the Supplier:
The Supplier repeats the Service Levels and Timetable detailed in Paragraph 2 of Schedule 1.
The following Milestones apply:
Content is to be provided by the Customer to the Supplier within 3 months of this Agreement.
Upon receipt of Content the Supplier will use reasonable endeavours to complete a first draft of the Website in a reasonable time frame which will be notified to the Customer.
The Customer shall notify the Supplier of proposed amendments and changes within 2 weeks of receipt of the Website
5. Customer’s manager
It is acknowledged and agreed that the Supplier shall be entitled to take instructions from any individual who holds themselves as having the appropriate authority to bind the Customer.
CHARGES, COSTS AND PAYMENT
The Charges will ordinarily be set out in the Quote but in addition the following conditions apply;
The Customer shall pay the Supplier the sums detailed in the Quote provided by the Supplier respect of the design and implementation of the Deliverable.
Hourly Rate Service
If the Customer instructs the Supplier to engage in services other than those quoted for initially then the Customer shall pay to the Supplier an hourly rate of £65 per hour plus VAT for the additional services.
The Supplier shall maintain appropriate time-sheets which shall be provided to the Customer upon request.
Payment terms will normally be set out in the Quote and any payment terms set out in the Quote will supersede the payment terms set out below. If the Quote is silent as to payment terms then the following conditions shall apply;
The Charges shall be paid as follows:
50% shall be paid as a Deposit in advance of commencement of the services;
50% shall be paid within 14 days of the Deliverable being completed.
If the Customer terminates the Supplier’s instructions prior to completion of the Services, the Customer shall remain liable for payment of the remaining 50% payable after payment of the Deposit and the full amount of the Charges shall be payable.