Terms & Conditions
Last modified: 30 April 2015
This Terms and Conditions document (the “Agreement”) describes the terms that apply to any Bespoke Software (the “Bespoke Software”) provided by Silverback Internet Services Ltd a company registered in England and Wales under number 07120829 (“British Websites”) for each client (the “Client”). The Bespoke Software is usually combined with code (the “BW Core”) which is provided in conjunction with the BW Core Licence document with reference “BWCL1” (the “BWC Licence”). British Websites licence use of its BW Core Scripts to the Client, with such combination executed by British Websites of Bespoke Software and the BW Core being referred to as the “Website”.
- Delivery and acceptance
- British Websites shall produce the Website in accordance with the specification agreed in writing prior to the website deposit being paid and as advised in writing by the Client from time to time as the project progresses (the “Specification”).
- Upon receipt of the System, the Client, with the reasonable assistance of British Websites, shall carry out tests to check the System meets the Specification. If the System fails in any respect to meet the Specification, British Websites shall make such changes requested by the Client as are reasonably necessary to the System, until such time as the Client is satisfied that the System meets the Specification, and the System is accordingly accepted by the Client.
- British Websites cannot always guarantee to start work immediately on a commission but will arrange a date with the client as to when work can commence.
- British Websites makes every effort to create the Website which will display acceptably in the most popular current browsers, but cannot accept responsibility if it does not display acceptably in new versions of browsers released after acceptance of the System in accordance with clause 1.2.
- British Websites can accept no responsibility or liability if any search engine online directory or search site submitted as part of the Website project, chooses not to list the Website.
- British Websites is not liable for the Website project continuing beyond an agreed completion date if British Websites deems the Client has not provided required content or information within a time-frame requested by British Websites.
- Payment of any amount towards the Website or any written notice given to commence work shall be deemed as a contractual agreement between the Client and British Websites and will bring these terms & conditions into effect.
- If a quote is not provided prior to work commencing, the Client shall pay British Websites on a time and materials basis for the time properly spent (and materials and computer time properly used) on developing the Bespoke Software and creating the Website at a rate of £75.00 (seventy five pounds) (Sterling) per hour exclusive of VAT unless notice is given to the contrary in writing by both parties, provided that the total amount payable to British Websites under this Agreement shall not exceed the budget provided by the Client, or the quoted price, whichever is higher.
- Except in the event of a disagreement as to the amount due thereunder, correctly prepared invoices submitted by British Websites to the Client shall be payable by the Client within 30 (thirty) days of the end of the month in which the invoice is received.
- If a quote is provided, British Websites shall be entitled to invoice 50% of the total quoted amount including VAT (in Sterling) which must be paid and available to British Websites as cleared funds before the project can be scheduled to start.
- British Websites shall be entitled to invoice the Client in respect of the fees owed (in Sterling) on acceptance of the System in accordance with clause 1.2.
- British Websites is entitled to invoice an amount greater than any amount quoted if notice is provided to the Client with additional costs estimated or itemised and notice is received by British Websites from the Client to proceed.
- British Websites requires payment by bank transfer or cheque (made payable to ‘British Websites’).
- British Websites reserves the right to pass on any bank charges to the Client for returned payments plus either an administration fee of £50 (Sterling) excluding VAT, or 5% of the outstanding balance, whichever is greater. British Websites will issue a new invoice for this charge.
- British Websites reserves the right to alter the time and materials hourly rate at any time without notice. This will not affect the Website only if a quote has been provided and acceptance notice given by the Client prior to the change in hourly rate.
- British Websites warrants, represents and undertakes to the Client that the System shall conform with the Specification and will be, at the date of delivery thereof, free of all and any software viruses, defects, worms, Trojan horses or malicious programs.
- In the event that a defect is found with the Website within the given Specification, provided it has not arisen as a result of updates in technology outside of British Website’s control, and it written notice is given within 45 days of acceptance of the System in accordance with clause 1.2, British Websites agree to commence diagnosing the defect within 5 working days and commence any fixes determined during diagnosis within a further 5 working days.
- British Websites does not undertake to maintain or update the Website as part of the Website commission. If a client wishes British Websites to maintain or update a website, this must be negotiated between the Client and British Websites on either a one-off basis, or a new maintenance contract.
- Termination and consequences of termination
- This Agreement shall continue in force unless and until terminated by either party giving the other party 30 days' notice in writing.
- Termination of this Agreement will not terminate the licence in favour of the Client granted in clause 2.3 of the BWC Licence, unless the Client is in material breach of this Agreement.
- Termination of this Agreement does not affect a party's accrued rights and obligations at the date of termination.
- On termination or expiry of this Agreement, the following clauses shall continue in force: clause 2 of BWC Licence, clause 5 of BWC Licence, this clause 4, and clause 5 (for a period of 3 years from the date of this Agreement).
- If terminated, British Websites is entitled to invoice an amount British Websites judges to be proportional to the amount of work completed on the Website.
- The Agreement and the Website project will be terminated automatically if no contact is made between the Client and British Websites during a period of 90 consecutive days.
- Each party agrees to, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other party disclose to any third party (except (i) its professional advisers, (ii) as required by any legal or regulatory authority, or (iii) as required to develop the Website) any information of a confidential nature (including trade secrets and information of commercial value) which relates to either of the parties or their affiliates, unless such information is (i) public knowledge, (ii) already known to such party at the time of disclosure, (iii) subsequently becomes public knowledge other than by breach of this licence, or (iv) subsequently comes lawfully into the possession of the other party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
- Intellectual Property Rights
- Please refer to “BWC Licence” for all clauses relating to Intellectual Property Rights (“IPR”). Most websites created by British Websites use the BW Core, however if the Website does not contain any of the BW Core, the Client can disregard all IPR clauses relating to the BW Core. This does not affect the validity of clauses relating to the Bespoke Software.
- Limitation of liability
- Neither party shall be liable, in contract, tort (including negligence) or in any other way to the other party for any economic losses (including loss of revenues, profits, contracts, business or anticipated savings), or any loss of goodwill or reputation, or any special or indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, or were suffered or incurred by either party arising out of or in connection with any matter arising under this Agreement.
- Subject to clause 7.3, the total liability of British Websites, whether in contract, tort (including negligence) or otherwise in connection with this Agreement, shall in no circumstances exceed a sum equal to 50% of the total amount paid in Sterling for the Website to British Websites.
- Nothing in this clause shall limit either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or liability arising from breach of the Intellectual Property Rights indemnity granted in favour of British Websites in BWC Licence clause 1.4(d) or liability arising from breach of Intellectual Property Rights in BWC Licence clause 1.4(b).
- The Client agrees that British Websites will communicate with the email address(es) provided or via the My BW Online Portal and all notices sent to British Websites from the specified email address(es) or from the Client’s My BW account will constitute a formal notice without prejudice. In the unlikely case the Client email address or My BW account is accessed by an unauthorised party, the Client will be liable for any costs or agreements made without their knowledge.
- Each date, time or period referred to in this Agreement is of the essence. If the parties agree in writing to vary a date or time, the varied date or time will also be of the essence.
- Each notice under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by first class post or by email, as follows: The Client email address(es) provided as the head of the Website project and
(or as advised otherwise in writing), as applicable. Such notice, approval, consent or other communication takes effect from: (a) if by post at 9am on the second business day after posting; (b) if by email, the time it is received.
- No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- This Agreement may not be varied except in writing signed by both parties.
- A party’s rights, remedies and powers under this Agreement are in addition to any rights, remedies and powers provided by law.
- If any 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 while to the greatest extent possible achieving the intended commercial result (as determined by the parties in good faith) and such modification shall not affect the validity of the rest of this Agreement.
- This Agreement and the BWC Licence constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings, assurances, negotiations, warranties and representations, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into this Agreement it does not rely on and 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. Notwithstanding this, nothing in this Agreement shall limit or exclude any liability for fraud.
- No one other than a party to this Agreement shall have any right to enforce any of its terms. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person other than the parties.
- British Websites may not assign or transfer a right or obligation under this Agreement, nor subcontract the performance of any of its obligations under this Agreement, without seeking the Client’s written consent.
- The Client agrees to take reasonable measures to ensure the email address(es) used for communication with British Websites are not accessible by anyone other than authorised personnel for communicating with British Websites.
- This Agreement may consist of a number of counterparts, each of which when executed shall constitute an original of this Agreement, but all the counterparts together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The parties hereto agree that this Agreement may be validly executed and delivered by fax or email and that they intend to be bound by their respective faxed or emailed signature.
- By agreeing to the Agreement your statutory rights are not affected.
- This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with English law and the parties irrevocably agree that the English courts have an exclusive jurisdiction to settle such disputes and claims.
British Websites reserves the right to change or modify any of the terms and conditions contained within this Agreement at any time.