These terms and conditions (“Terms“) govern the terms of the Contract and provision of the Services by Waters Creative Limited (“the Supplier”) to you (“the Customer”).
1. Interpretation
Please refer to the definitions and interpretation provisions as laid out in the schedule to these Terms.
2. Services
The Supplier shall:
- Procure the hosting services from a third party-provider and make them available to the Customer in accordance with the Specification.
- Use reasonable endeavours to set up the Site for Acceptance Testing, provided necessary Materials are received within a reasonable timeframe which the Supplier, in its sole discretion, considers to be adequate.
3. Customer Responsibilities
The Customer is responsible for:
- Ensuring accuracy and completeness of Materials.
- Avoiding project delays by meeting all obligations under the Specification.
- Compensating the Supplier for costs resulting from Customer-caused delays.
4. Acceptance
- Acceptance is deemed to be accepted when the Customer issues written acceptance of the Specification, or, if earlier, the Supplier begins providing the Services.
- If any failure results from a defect which is caused by an act or omission or the Customer, or by one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility (“Non-Supplier Defects”), the Site is still considered accepted.
- Additional services provided by the Supplier (if agreed) to remedy Non-Supplier Defects are chargeable to the Customer.
- Acceptance is also deemed if the Customer uses the Site for business or delays testing unreasonably.
5. Charges and Payment
- Charges are invoiced monthly and payable within 30 days.
- Charges exclude VAT.
- Late payments incur interest at 4% above the Bank of England base rate from the due date until payment is made in full.
- If payment is not made by the due date, the Supplier reserves the right, without liability to suspend or cease provision of the Services and/or access to the Site (including those procured from third parties) until payment has been made in full.
- If, in our opinion, you have caused delays that materially impact progress or prevent the project from moving forward, we reserve the right to cease work and begin charging you an hourly rate (as amended from time to time) for time spent on the Services, up to a total amount equal to the Charges.
6. Warranties
- Both parties warrant legal authority to enter into the Contract.
- These Terms exclude responsibility of the Supplier for issues caused by Site Software or Materials.
- The Supplier makes no warranties as to the uptime, performance, accessibility, or availability of the Site or any component thereof, which are delivered and/or provided by a third-party.
- The Supplier shall not be responsible for failures caused by the third-party hosting provider or any Materials.
- No other implied warranties apply.
7. Limitation of Liability
- The Supplier’s liability is not limited in cases of death, personal injury, fraud, or breach of statutory title provisions.
- The Supplier shall not be liable to the Customer for any loss of profit or any direct or indirect loss arising under or in connection with the Contract.
- Our total liability under these Terms shall not exceed the total Charges paid by you and received by us in the 12 months preceding the claim.
- To the fullest extent permitted by law, the Supplier shall not be liable for any failure, delay, interruption, suspension, or degradation of the Services caused by the third-party hosting provider. In the event of such issues, the Customer acknowledges and agrees that its sole recourse shall be against the third-party hosting provider, and not the Supplier.
- The Supplier may, from time to time and at its discretion, apply available software patches or updates to the hosted environment, but does not warrant that such updates will be comprehensive or sufficient to prevent security breaches. The Supplier shall not be responsible for any security vulnerabilities, breaches, or other cyber incidents affecting the Site or the Customer, including those arising from Materials or third-party components, which the Customer acknowledges it has sole responsibility to ensure.
- Customer liability for breaches of Intellectual Property Rights is not limited.
8. Intellectual Property Rights
- The Customer retains the Intellectual Property Rights in the Materials, and grants the Supplier a licence to such Intellectual Property Rights for the Supplier to be able to perform its obligations under the Contract.
- All Intellectual Property Rights arising from a result of the performance of the Services shall vest with the Supplier.
- The Customer warrants that it shall not provide, upload, or submit any Materials that infringe the Intellectual Property Rights of any third party.
- As part of our creative process, we may use electronic tools, including but not limited to automation software, and design enhancement technologies, to assist in the production and refinement of the Services. By agreeing to these Terms, you acknowledge and consent to the use of such tools and technologies in the provision of the Services.
- The Customer shall indemnify the Supplier against all damages, losses and expenses arising out of an action or claim that the Materials infringe any Intellectual Property Rights of a third party.
9. Site Content
- The Supplier shall update the Site with Materials provided from time to time by the Customer in accordance with the number of hours allocated under a retainer agreement entered into as part of the Services, or otherwise in accordance with a separate quotation accepted by the Customer. For the avoidance of doubt, the Supplier shall have no obligation to update the Site with any materials unless such a retainer agreement is in place, or a separate quotation has been accepted by the Customer.
- The Customer shall ensure that the Materials do not infringe any applicable laws, regulations, or third party rights (such as but not limited to material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights (“Inappropriate Content”).
- The Supplier shall include only the Materials on the Site. The Customer acknowledges that the Supplier has no control over any content placed on the Site by Users and does not purport to monitor the content of the Site. The Supplier reserves the right to remove content from the Site where it reasonable suspects such content is Inappropriate Content or is otherwise obliged to by law.
- The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.
10. Data Protection
- Parties shall comply with all applicable data protection laws. The Customer acknowledges that hosting is carried out by a third-party provider and accepts that such provider may act as an independent data processor or controller.
- The Customer acknowledges that the Supplier will not act as a data controller whilst providing the Services.
11. Term, Termination and Survival
- The Contract begins on the date the Supplier begins to provide the Services and continues unless terminated in accordance with this Term.
- Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer:
- fails to pay an amount due under this Contract on the due date for payment;
- commits a material breach of any term of these Terms or the Contract and (if such breach is remediable) fails to remedy that breach within a period of five days after being notified to do so;
- takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure within this Term;
- the other party suspends or ceases, or threatens to suspend or cease, carrying on business;
- enters into a deteriorated financial position so far as to reasonably justify the Supplier having the opinion that its ability to give effect to the terms of the Contract or these Terms in jeopardy; or
- has a change in control (within the meaning of section 1124 of the Corporation Tax Act 2010).
- Without affecting any other right or remedy available to it, the Supplier may terminate the Contract on giving not less than one months’ written notice to the Customer.
- Terms that survive termination include Terms 7, 8 and 13.
12. Force Majeure
- Neither party shall be liable for delay or failure due to unforeseen circumstances beyond their control.
13. Confidentiality
- Each party agrees to keep confidential information secret and use it solely for performance under the Contract.
14. Notices
- All notices must be in writing and delivered by hand, post (to the registered office address of the Supplier or Customer (as appropriate), or other agreed means.
15. Announcements
- No public statements may be made regarding the Contract without prior written consent of the other party.
16. Assignment
- The Supplier shall have the ability to assign, novate or transfer the Contract without prior consent of the Customer.
- The Customer shall not have the ability to assign, novate or transfer the Contract without the prior written consent of the Supplier such written consent not to be unreasonably withheld or delayed.
17. Entire Agreement
- The Contract and these Terms represent the complete understanding and agreement between the parties, and supersede any other prior negotiations.
18. Third Party Rights
- No third party shall have rights under the Contract.
19. Variation
- Amendments to the Contract must be in writing and signed by both parties.
20. Waiver
- Delay or failure to enforce rights does not constitute a waiver of said rights.
21. Rights and Remedies
- Rights under the Contract are cumulative and do not exclude other rights.
22. Severance
- If any part is invalid or unenforceable, the remainder will still apply.
23. No Partnership or Agency
- Nothing in the Contract or these Terms create a partnership or agency relationship.
24. Governing Law
- The Contract is governed by the laws of England and Wales.
25. Jurisdiction
- Courts of England and Wales have exclusive jurisdiction to settle disputes.
Schedule: Interpretation
Definitions:
Acceptance: the acceptance or deemed acceptance of the Site by the Customer under Term 4.
Acceptance Testing: the tests to be carried out on the Site as set out in Term 4 and as described in the Specification.
Business Day: any day other than a Saturday, Sunday or public holiday in England when banks in London are generally open for business.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Terms and incorporating the Specification.
Charges: the charges in respect of the Services referred to in Term 5 together with any charges of the Supplier arising from the Services.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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.
Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Site.
Non-Supplier Defects: the defects described in Term 4.
Project Plan: the timetable for setting up the Site and performing the Services.
Services: the hosting and related services, supplied by the Supplier to the Customer as set out in the Specification and/ or retainer agreement.
Specification: the description or specification of the Services, including the Project Plan, provided in writing by Supplier to the Customer, to which these Terms are attached and incorporated.
Site: the Customer’s website as referred to in the Specification, to be hosted by the Supplier via a third party hosting provider pursuant to the Contract.
Site Software: the software for the Site commissioned by the Customer as described in the Specification.
Construction:
- In these Terms, the following rules apply:
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- Reference to a party or parties is to Supplier and the Customer and includes its personal representatives, successors or permitted assigns;
- A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted, provided that, as between the parties, no such amendments, extension or re-enactment made after the date on which the provision of the Services has started shall apply for the purposes of the Contract to the extent that it would impose any new or extended obligations, liability or restrictions on, or otherwise adversely affect the rights of either party.
- Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- A reference to writing or written excludes faxes but includes e-mails.