These terms (including any schedules attached to it and any documents in which these Terms may be referred to) set out the terms and conditions pursuant to which IDO Trading t/a indemandonline of 74 Victoria Road, Darlington, County Durham, DL1 5JG, England (“Supplier”) agrees to provide design, web development, hosting, SEO and support services (as agreed from time to time) (“Services”) to the customer (as indicated in the quotation or invoice) (“Customer”). These Terms govern and apply to the contract between the Supplier and the Customer.
1. Scope of the Services
1.1 The Supplier shall provide such of the design, development, hosting, SEO & support services in relation to the website to be designed, developed or hosted by the Supplier (“Site”) as set out in the Supplier’s quotation or invoice (“Services”).
1.2 Once the Services have been agreed and signed, no amendment shall be made to it except in accordance with these Terms.
1.3 The Supplier shall use best endeavours to meet any performance dates or milestones specified in the Services, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence notwithstanding Clause 1.4
1.4 The Supplier shall meet the performance dates and milestones specified in the Services where & only when, the Customer has signed up to Money Back Guarantee Scheme, and the Supplier agrees to refund all, or a proportion of, the fee as agreed under the Special Terms for Money Back Guarantee set out in the quotation, in the event of delays, or non delivery where Supplier is at fault
1.5 Any request to change the scope of the Services shall require a subsequent quotation or invoice defining the additional Services.
2. Customer Responsibilities
2.1 The Customer shall pay all fees due promptly in accordance with these Terms.
2.2 The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer (or a third party on behalf of the Customer) provides to the Supplier. The Customer further acknowledges and agrees that the Supplier shall not be liable for any delays in implementing the Services resulting from the Customer’s failure or delay to fulfil any of its obligations.
2.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, lack of communication, failure to perform or delay in the performance of any of its obligations under this agreement, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
2.4 The Customer shall:
(a) without undue delay, provide the Supplier with access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations under these terms;
(b) instruct, manage and ensure the co-operation of any third parties acting on behalf of the Customer;
(c) be responsible for the accuracy and completeness of the content provided to the Supplier by the Customer from time to time for incorporation in the Site (“Materials”) in accordance with Clause 10;
(d) access the system using a single licensed login, unless additional user licenses have been purchased;
(e) comply with all applicable laws and regulations.
2.5 The Customer shall not:
(a) be abusive or act in an unprofessional manner towards representatives of the Suppliers
3. Development and Acceptance of Website
3.1 The Supplier shall run acceptance procedures in the design, development and “commissioning” of the Website. The procedure set out in this Clause 3 shall be repeated in respect of any further development works agreed by the parties from time to time.
3.2 Acceptance of the Website shall shall occur when the Website has passed or is deemed to have passed the applicable acceptance tests. The Supplier shall notify the Customer when the test have been passed.
3.4 If any failure to pass the acceptance tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility (“Non-Supplier Defect”) the Website shall be deemed to have passed the acceptance tests notwithstanding such Non-Supplier Defect. The Supplier shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.
3.5 Acceptance of the Website shall be deemed to have taken place upon the earliest ocurrence of any of the following events:
(a) the Customer uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) the Customer unreasonably delays the start of the relevant Acceptance Tests or retests.
4. Project Management
4.1 Each party shall appoint a single project manager who shall:
(a) provide professional and prompt liaison with the other party; and
(b) have the necessary expertise and authority to commit the relevant party.
4.2 The project managers shall communicate at least once every week until Acceptance. Minutes shall be documented by the Supplier and these shall be made available to the Customer upon request.
5. Charges and Payment
5.1 The Supplier shall issue invoices in respect of the charges as set out in the relevant quotation or invoice, and the Customer shall pay to the Supplier the Charges set out in such Supplier’s invoice within 14 days of the date of the Supplier’s invoice, save for the initial Invoice payment for which shall be required upfront in advance of the Services.
5.2 All charges are quoted exclusive of VAT.
5.3 If the Customer fails to pay any amount payable by it under these Terms, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of the actual payment, after as well as before judgment, at the rate of 9% per annum above the base (reference) rate. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) act 1998.
5.4 It is the responsibility of the Customer to ensure all payments are settled by the appropriate due dates as indicated on the relevant invoices. The Supplier reserves the right to suspend any Services where payment is delayed and shall not be liable for any losses on the part of the Customer that may be caused or may arise as a result of such suspension.
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these Terms.
6.2 The Supplier shall perform the Services with reasonable care and skill.
6.3 The Supplier warrants that the Website will perform in accordance with the Website specification from Acceptance. If the Website does not so perform within the first two weeks of Commissioning, the Supplier shall, for no additional charge, carry out work necessary in order to ensure that, to the Supplier’s sole reasonable opinion, the Website substantially complies with the Website specification. Any additional defects shall be remedied in accordance with a separate Support Contract.
6.4 The warranty set out in clause 6.3 above shall not apply to the extent that any failure of the Website to perform substantially in accordance with the Website specification is caused by any Materials or Non-Supplier Defects.
6.5 These Terms set out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby expressly excluded to the fullest extent permitted by law.
6.6 The Supplier does not warrant that the servers or use of the internet will be free from defects, unauthorised users, or hackers.
7. Limitation of Remedies and Liability
7.1 Nothing in these Terms shall operate to exclude or limit the Supplier’s liability for:
(a) death or personal injury caused by its negligence; or
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
7.2 To the fullest extent permitted by the law, the Supplier excludes and shall not be liable to the Customer for any damage to software, damage to or loss of data (and the Customer is solely responsible for taking necessary backup of all data), loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage arising out of or in connection with the provision or lack of provision or lack of operation of the Website. The Supplier furthermore excludes all liability for non-receipt or misrouteing of email.
7.3 Subject to clauses 7.1 and 7,2 above, the Supplier’s aggregate liability in respect of claims based on events in a calendar year arising out of or in connection with these Terms or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 50% of the total charges payable by the Customer to the Supplier under these Terms in the calendar year in which the claim is made. The Customer acknowledges that the above limitation is fair and reasonable given the circumstances including price of the Services.
8. Intellectual Property Rights
8.1 Unless the parties agree in writing otherwise, all Intellectual Property Rights in the Website (including content management systems, software, code, scripts and PSD files) but excluding the Materials, arising out of or in connection with the provision of the Services, shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive license of such Intellectual Property Rights for the purposes of using the Website. For the purposes of these “Intellectual Property Rights in the Website” mean and include all intellectual property rights whatsoever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off arising out of or in connection with the Website.
8.2 The Customer shall indemnify and keep indemnified and harmless the Supplier, its officers, directors and employees against all damages, losses and expenses as a result of any:
(a) delay in providing any of the Materials, or Acceptance and
(b) action, claim or alleged claim that the Materials infringe the Intellectual Property Rights of a third party.
8.3 In the event the Supplier has notice of a claim in accordance with the provisions of clause 8.2, the Supplier shall:
(a) notify the indemnifier in writing of the claim;
(b) make no admissions or settlements without the Customer’s prior written consent
(c) give at the Customer’s request and expenses all information and assistance as Customer may reasonably require.
9. Website Content
9.1 In the event the Customer updates the Website from time to time, the Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is defamatory, threatening, liable to incite racial hatred, or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”)
9.2 The Supplier shall only grant the Customer limited access to the Server via the Content Management System (“CMS”) in order to update information held on the Website.
9.3 The Supplier shall include only Materials on the Website.
The Customer acknowledges that the Supplier has no control over any content placed on the Website by visitors to the Website and does not support to monitor the content of the Website. The Supplier reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Website may be Inappropriate Content.
9.4 The Customer shall indemnify and keep indemnified and harmless the Supplier its officers, directors and employees against all damages, losses and expenses arising as a result of any action, claim or alleged claim that the Materials constitute Inappropriate Content.
9.5 The Supplier may include the statement and/or link “Designed by indemandonline” or similar on the home page of the Website. The Customer shall not remove nor change the statement and/or link without the Supplier’s prior written consent.
10. Data Protection
10.1 The Supplier agrees that, to the extent it processes any Personal Data as defined in the Data Protection Act 1998 and The General Data Protection Regulation (EU) 2016/679 on behalf of the Customer.
(a) it shall act only on instructions from the Customer; and
(b) it has taken all reasonable and appropriate care against unauthorised or unlawful processing of Personal Data.
11. Term and Termination
11.1 These Terms shall commence on the date set out in the Services and shall (subject to earlier termination pursuant to this clause 11) continue unless terminated in accordance with the provisions of this clause,
11.2 Either party may terminate these Terms immediately at any time by written notice to the other party if:
(a) the other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(I) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement);
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court oder, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes pf solvent amalgamation or reconstruction).
11.3 On termination of these Terms by the Supplier, all licenses granted by the Supplier under this agreement shall terminate immediately.
11.4 On expiry or termination of these terms by the Supplier, the Supplier shall promptly return all Materials to the Customer, and shall provide to the Customer an electronic copy of the Website (html outputs, images and content) excluding any Intellectual Property Rights in the Website). The Supplier shall provide such assistance in transferring the hosting of the Website to the Customer or another service provider, subject to the payment of the Supplier’s expenses reasonably incurred.
11.5 In respect to design and development Services:
(I) In the event the Customer wishes to terminate or cancel any part of the Services after the commencement but before completion of the Services after commencement but before completion of the Services then the Customer shall pay for the proportion of work undertaken by the Supplier up until the point of cancellation or termination subject to a minimum charge of no less than 50% of the total Charges for the Services.
(ii) In the event the Customer wishes to delay, pause or place on hold the Services, the Customer shall be required to pay for any works not paid to date. If the period of suspension or delay exceeds 3 months, upon recommencement the remaining Services shall be subject to a minimum of 20% increase in charge. If the period of suspension or delay exceeds 12 months the Supplier shall reserve the right to terminate the Services and retain any payments made to date.
(iii) If the Customer is un-contactable for a period exceeding 1 month, the Supplier shall reserve the right to terminate the Services and retain any payments made to date.
(iv) On acceptance of the quotation the Customer agrees to make an initial payment, within 14 days. In the event the initial payment is not made the Supplier reserves the right to terminate the agreement and charge the Customer a minimum of 20% of the agreed Services in lieu of the time and effort expensed.
11.6 In respect to hosting and SEO Services:
(I) In the event the Customer wishes to cancel or terminate any part of the Services, the Supplier shall require a period of no less than 30 days notice to be provided in writing.
(ii) The Supplier reserves the right to review the status and suitability of the Services at any point based upon the demands and complexity of the Customer’s Website.
12. Force Majeure
12.1 A party who becomes aware of any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war)(“a Force Majeure Event”) which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these Terms shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
13.1 Customer shall protect the Confidential Information against unauthorised use or disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.2 Confidential Information may be disclosed by the Customer to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the Confidential Information received.
13.3 The obligations set out in this clause 13 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 13; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
13.4 The obligations of confidentiality in this clause 14 shall not be affected by the expiry or termination of these Terms
13.5 For the purpose of these Terms, “Confidential Information” means and includes all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure. Confidential Information shall include any identification, password and security data related to the Customer’s Website and operation of it.
14.1 A notice given under these terms shall be sent for the attention of the person and to the address, fax number or email address given in the quotation or invoice (or such other person, address, fax number or email address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
may be sent by fax or email; or sent by first class registered post; or (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.
14.2 A notice is deemed to have been received in the case of fax or email, at the time of transmission, provided a confirmatory copy is sent by first class post before the end of the next business day; or in the case of first class registered post, 48 hours from the date of posting; or in the case of registered airmail, five days from the date of posting; or if deemed receipt under the previous paragraphs of this clause is not within business hours (meaning 9.00am to 5.30pm Monday-Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.
14.3 To prove service, it is sufficient to prove that the notice was transmitted to the fax number or email address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
15.1 Unless the parties expressly agree otherwise, the Supplier shall be entitled to use the name of the Customer and Services provided as it may deem appropriate including in media releases, public announcements and other promotional or marketing material.
15.2 Neither party may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, save that nothing in these Terms shall restrict the Supplier from assigning, transferring or otherwise disposing of these Terms in the event of a solvent re-organisation, merger with or acquisition by a third party.
15.3 Except as provided in this clause 15.3, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into these Terms (“Misrepresentation”), and neither party shall have any liability other than pursuant to these Terms. Nothing in these Terms shall exclude or limit either party’s liability for any Misrepresentation made knowing that it was untrue. Each party’s liability for Misrepresentation as to a fundamental to that party’s ability to perform its obligations under these Terms, shall be subject to the limit set out in Clause 7.
15.4 These Terms are made for the benefit of the parties to it and are not intended to benefit, or be enforceable by, any other person.
15.5 The Supplier may vary the Terms at any time by giving written notice to the Customer. The Customer shall have 30 days from the day of notification to terminate the contract with the Supplier provided that the Customer pays all outstanding invoices and monies due for Services provided.
15.6 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.7 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that asrises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
15.7 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a Website. Writing or written includes faxes and email.