Our terms of business are set out below. These terms apply to all our projects as specified on our project specification document. In some cases, particularly on larger projects, we may use a more detailed contract.
1.00 Specific Provisions
1.01 Representatives of the Parties
Each of the Parties acknowledges that the person designated by it in the Specifications (or any other person replacing the designated person, pursuant to a notice to that effect given to the other Party) shall represent it and shall have full authority to take all steps, make all decisions and give all consents required with respect to the performance of these Terms.
1.02 Obligations of the Client
The Client undertakes as follows in favour of the Developer:
- The Client shall cooperate fully with the Developer and provide the Developer with all information required in order to ensure that the Services are provided in a proper and complete manner;
- Upon request from the Developer, the Client shall carry out the testing on the Website and all provide comments and suggestions allowing for the correction or improvement of the Website;
- Unless the Client has serious grounds for refusing its approval, upon request from the Developer, the Client shall give the Developer its approval of the work carried out at the end of each of the Website development phases set forth in the Specifications;
- The Client shall be solely responsible for the content of the Website and any damage resulting from the use or display thereof;
- The Client shall pay the price of the Developer’s Services and the price of all additional services required by the Client, and it shall reimburse to the Developer all expenses incurred, the whole in accordance with the terms and conditions of payment set forth in the Specifications; and
- The Client shall give notice forthwith to the Developer if the Client’s representative, as indicated in the Specifications, is replaced during the performance of the Project.
1.03 Obligations of the Developer
The Developer undertakes as follows in favour of the Client:
- The Services shall be provided in a professional manner, in accordance with generally accepted industry practices, and based upon the Specifications;
- Any Software Component:
- Shall be programmed according to the rules generally accepted by the industry;
- Including components shall be programmed in accordance with the Web Server specifications;
- Shall run as efficiently as possible, subject to the software and hardware limitations;
- The testing of the Website shall include a verification:
- Of the proper functioning of hypertext and e-mail links;
- Of the proper functioning of the Software Components;
- Of the downloading procedure as well as of the Website operation and appearance using the Web Browsers.
- The Developer shall give notice forthwith to the Client if the Developer’s representative, as indicated in the Specifications, is replaced during the performance of the Project.
Unless there is a provision to the contrary, the Developer may employ any third party in order to perform this Agreement. Nonetheless, its performance shall remain under the Developer’s supervision and responsibility.
1.05 Verification, Testing and Approval Process
Upon request from the Developer at the end of the each of the Website development phases set forth in the Specifications, the Client shall verify, review, test or otherwise evaluate the results of the Services rendered up to then by the Developer. In particular, the Client shall carry out testing on the Website. Within not more than ten (10) days after the Developer’s request, the Client shall approve or refuse the work performed by the Developer. If the Client approves the work performed or fails to indicate its approval or refusal within the stipulated deadline, the work performed shall be deemed to have been approved and to have been performed in accordance with the Specifications, and the Developer may continue to perform its work, if applicable. If the Client refuses all or part of the work performed, it shall give written notice to the Developer within the specified deadline, which notice shall set forth any error, omission or failure to comply with the Specifications, or any other grounds for refusal, and shall provide all useful and detailed information necessary for a proper understanding of the problems raised by the Client. The Developer shall then have the same deadline as specified herein-above within which to correct them problems raised and once again submit the results of its work to the Client. If the Developer disagrees with the Client regarding one or more of the problems raised in the refusal notice, it shall indicate its position in writing to the Client within not more than five (5) days following receipt of the aforementioned refusal notice.
1.06 Modifications Requested During the Course of the Project
If, during the performance of the Project and before final approval of the Services performed by the Developer, the Client requires any revisions, corrections, additions, substitutions or other modifications to the Specifications:
- So that the desired results will comply with the Information Elements originally provided by the Client;
- As a result of an error or omission on the part of the Developer; or
- Which do not result in additional work for the Developer, the said modification request shall not be considered to be a request for additional services and, therefore, shall not entail any additional costs for the Client. All such requests for modifications made by the Client shall be made in writing. Any other request for modifications made by the Client shall be considered to be a request for additional services.
1.07 Limitation of Warranty
The Developer shall not provide the Client with any express or implied warranty with respect to the following:
- The Web Server, its operation, its hardware and software components including its access through the Internet;
- The consequences which result or may result from the use and display of the Website, whether such consequences are actual or threatened, financial or not, or positive or not.
THE WARRANTIES SET FORTH IN THESE TERMS ARE THE ONLY WARRANTIES PROVIDED WITH RESPECT TO THE OBJECT OF THESE TERMS, AND THEY CONSTITUTE A LIMITED WARRANTY. THE CLIENT EXPRESSLY WAIVES ALL OTHER EXPRESS OR LEGAL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL LEGAL WARRANTIES REGARDING LATENT DEFECTS, EVICTION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CERTAIN JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, AND IT IS POSSIBLE THAT ONE OR MORE OF THE AFOREMENTIONED EXCLUSIONS OR LIMITATIONS WILL NOT APPLY. IT IS ALSO POSSIBLE THAT THE CLIENT MAY HAVE OTHER WARRANTY RIGHTS, WHICH RIGHTS MAY VARY FROM ONE PLACE TO ANOTHER. UNDER NO CIRCUMSTANCES WILL THE VALUE OF THE WARRANTY EXCEED THE VALUE OF THE SERVICES RENDERED TO THE CLIENT AND PAID FOR BY IT. THE CLIENT EXPRESSLY WAIVES THE RIGHT TO MAKE ANY WARRANTY CLAIM EXCEEDING THE SAID LIMIT.
1.08 Limitation of Liability
Except in the event of gross negligence on the part of the Developer, the Developer shall not be liable towards the Client for any fault or any direct or indirect damage resulting therefrom, and the Client shall indemnify the Developer and hold it harmless from and against all claims, including all claims under a warranty, in any of the following cases:
- Modifications made to the Website or its Software Components by a person other than the Developer or a person reporting to the Developer;
- Hardware or software modifications or additions made to the Web server which affect the proper operation of the Website;
- The introduction of a computer virus into the Web server or the Website, which affects the proper operation of the Website;
- The migration of the Website to a different hardware or software environment;
- Appropriation, modification, loss or destruction, illegal or unauthorized, in whole or in part, of files, Software Components or Graphic Elements;
- Loss or destruction of the Website traffic statistics;
- The loss of business opportunities or income relating to the operation or failure to operate or to the use or failure to use the Website or to the information found or that could be found therein;
- Unlawful or unauthorized third party hacking into the Web server or the Website;
- Temporary bandwidth congestion; and
- Interruption of Internet connection beyond the Developer’s control.
1.09 Security Deposit
The Client shall pay to the Developer the security deposit set forth in the Specifications.
All amounts owed by the Client to the Developer pursuant to the Project shall bear interest at a rate of four percent (4%) per annum over the base rate from time to time quoted by Lloyds Bank Plc as of their due date.
1.11 Collection Costs
If, as a result of the Client’s failure to make a payment, it becomes necessary to refer the overdue invoice or invoices to a collection agency or an attorney, the Client shall pay to the Developer, in addition to the amount owed, collection costs equal to twenty five percent (25%) of the principal amount and interest owed.
1.12 Suspension of Services in the Event of Failure to Pay
If, after the Developer has sent a demand for payment, the Client refuses, without right, to pay the Developer the amounts payable or reimbursable pursuant to the Project in accordance with the terms and conditions of payment set forth in the Specifications, the Developer may suspend performance of the Services in question, without further notice or delay, the whole without prejudice to any of the Developer’s other rights pursuant to the Project.
1.13 Termination of the Project (by the Client)
The Client may terminate this Project at any time, upon giving a notice to the Developer. However, the Client shall remain liable for the following:
- Payment of the price of the Services rendered;
- Payment of the price of the additional services rendered; and
- Reimbursement of the expenses incurred;
without any reduction or deduction whatsoever.
Moreover, if the Developer has fulfilled its obligations pursuant to this Project up to the date of termination thereof, the Client shall pay to the Developer, for loss of expected profits, an amount equal to fifty percent (50%) of the balance of the price of the Project.
1.14 Termination of the Project (by the Developer)
If, after the Developer has sent a demand to the Client, the Client does not abide by any one of its obligations pursuant to this Project, the Developer may terminate this Project. In such a case, the Developer shall be required only to reimburse to the Client the amount of the advances (or any balance thereof) or excess amounts received, the whole without prejudice to any of the Developer’s rights and resources against the Client.
2.00 General Provisions
Unless otherwise stated, the following provisions shall apply.
2.01 “Force Majeure”
Neither Party shall be considered to be in default pursuant to these Terms if the fulfilment of all or part of its obligations is delayed or prevented due to “force majeure”. “Force majeure” is an external unforeseeable and irresistible event, making it absolutely impossible to fulfil an obligation.
If all or part of any section, paragraph or provision of these Terms is held invalid or unenforceable, it shall not have any effect whatsoever on any other section, paragraph or provision of these Terms, nor on the remainder of the said section, paragraph or provision, unless otherwise expressly provided for in these Terms.
Any notice intended for either Party shall be deemed to be validly given if it is in writing and is sent by registered or certified mail, by bailiff or by courier service to such Party’s address as set forth in the specifications, or to any other address which the Party in question may have indicated in writing to the other Party. A copy of any notice sent by e-mail shall also be sent according to one of the above-mentioned delivery modes.
These Terms shall bind the Parties hereto as well as their respective successors, heirs and assigns.
2.05 Elapsed Time
Whenever one of the Parties fails to fulfil an obligation under these Terms within a stipulated deadline, the mere lapse of time shall constitute a formal notice of default to the said Party.