Terms & Conditions of Business
This Agreement is between Digital Red and (Client) the Customer referred to in the Schedule.
Consulting Services
1. Digital Red will provide consulting services to the Customer relating to the creation or modification of a Website. The specific nature of the services to be provided by Digital Red will be as specified in the Schedule ("the Services"). Subject to any lawful restraint imposed upon it by any other party (such as an obligation as to confidence), Digital Red will make available to the Customer all knowledge, information and expertise in its possession in performing the Services. If the Customer wishes Digital Red to perform any services other than those specified in the Schedule (including without limitation to provide any additional functionality) or to provide further or other Products or software, then Digital Red shall be entitled to quote the Customer separately for the provision of those services or the provision of those products or software. If the Customer accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services, products or software.
2. Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the date specified in the Schedule.
3. Unless specifically stated as a fixed price quote, any cost estimates that are or have been given by Digital Red are estimates only. Actual time spent and Products supplied may be used as the basis for billing.
Products
4. Digital Red may also supply the Customer with Products (as ordered by Customer and agreed by Digital Red) from time to time. In the context of this Agreement, "Products" means any hardware and/or third party software provided to the Customer by or on behalf of Digital Red pursuant to this Agreement.
Reporting and Meetings
5. The Customer shall make its employee (specified in the Schedule or such other person as the Customer shall nominate in writing) (the "Customer Contact") available to meet with Digital Red when reasonably required by Digital Red for the purposes of discussing the status of the Services. Digital Red will meet regularly with the Customer Contact (by remote communication facility if necessary) and report to the Customer on the status of the Services.
Consulting Rates, and Other Expenses
6. Digital Red will provide Services to the Customer and will be entitled to charge the Customer for such Services at the rates specified in the Schedule.
7. Digital Red shall be entitled to provide the Services remotely from its own premises and will not be required to attend the Customer's premises. If Digital Red is required to attend the Customer's premises for any reason pursuant to this Agreement, the Customer will reimburse Digital Red for reasonable transport and/or accommodation expenses incurred by Digital Red in doing so. However this does not include transport or accommodation expenses where the Customer's premises are located within 25kms of 32 Ashburton Road, Ruislip Manor, Middlesex, HA4 6AB, United Kingdom.
8. The Customer authorizes Digital Red to obtain access to the Customer's computing facilities referred to in the Schedule (the "Facilities") using the remote means of access referred to in the Schedule ("Means of Access") and subject to any Restrictions on Access set out in the Schedule, for the purposes of providing the Customer with Services.
9. Digital Red will not use the Means of Access (or any other methods of remote access) to access the Facilities for any purpose other than to provide the Services. However, Digital Red shall be permitted to gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require special authorization.
10. Digital Red will take the following steps to ensure the security of the Facilities (insofar as the use of Digital Red's systems and the Means of Access are concerned):
- ensuring that no passwords are stored in easily recognizable form on
Digital Red's own systems in circumstances where a breach of Digital Red's own internal security may reveal them;
- ensuring that only those employees and contractors of Digital Red who are required to access the Facilities using Digital Red's systems and the Means of Access are able to do so;
- ensuring that the Facilities are not capable of being accessed by a system or user, which transits Digital Red's own systems, except as permitted by this Agreement.
11. The Customer indemnifies Digital Red against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which Digital Red has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach by Digital Red of its own obligations under Clause 10 of this Agreement.
12. The Customer will also reimburse Digital Red for all expenses incurred by Digital Red on the Customer's behalf or in carrying out its obligations under this Agreement.
13. The Customer will pay Digital Red for the cost of any Products (including any licensing that Digital Red is required to pay to obtain a sub-license in favor of the Customer for any third party software) together with Digital Red's own charge that it levies for handling and/or obtaining any relevant sub-licenses.
Payment of Invoices
14. Digital Red will be entitled to invoice the Customer on an interim basis at least monthly for progress payments for any Services performed or Products supplied during the previous month (or during any earlier period which has not previously been invoiced) together with such expenses as the Customer is required to reimburse Digital Red. Such invoices shall contain such information and detail as the Customer may reasonably require to permit the Customer to account for the Services and Products (for instance, by attaching copies of any time sheets) reasonably prescribed by the Customer.
15. All invoices rendered by Digital Red are payable within fourteen (14) days from the date of invoice. The Customer agrees to pay Digital Red in full within this time period.
16. If the Customer fails to pay any invoice by the due date for payment, then without prejudice to Digital Red's rights under this Agreement, the Customer shall also pay Digital Red interest on the outstanding amount at the rate of 4% per month.
Confidentiality
17. Digital Red will not disclose to any third party or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the Customer. This obligation of confidence will cease to apply in relation to information that Digital Red is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Digital Red of its obligations of confidence under this Agreement.
Intellectual Property
19. Upon payment in full for the Services provided by or on behalf of Digital Red pursuant to this Agreement, Digital Red grants the Customer a non-exclusive and non-transferable perpetual license to use the Intellectual Property for the Customer's own business purposes, and in the case of the third party software, will obtain a sub-license in favor of the Customer in similar terms.
20. Digital Red warrants to the Customer that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement, and the use by the Customer of any software provided by Digital Red will not infringe the rights of any third party.
21. Digital Red also grants the Customer the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the Customer must not copy any of the Intellectual Property for any other purposes.
22. The Customer must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to the Customer by Digital Red without Digital Red's prior written consent.
23. The Customer must hold any software (in source and/or in object code) and other materials provided to the Customer by Digital Red confidential. The Customer must not disclose any of those materials to any third party without Digital Red's prior written consent. The Customer must also take all reasonable steps within its power to protect the Intellectual Property of Digital Red.
High Risk Activities
24. None of the software or the Products provided pursuant to this Agreement is designed or intended to be fault-tolerant or designed or intended for use as or for use where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage ("High Risk Activities"). The term "High Risk Activities" includes but is not limited to on-line control equipment in hazardous environments requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, banking or financial control or reporting systems, or security systems). The Customer warrants that it will not use, distribute or resell any of the Products or the software for any High Risk Activities and that it will ensure that permitted end-users of such Products or software are provided with a notice in the form set out in this Clause. The Customer will indemnify Digital Red for any loss, cost, damage or third party claim arising from the Customer's use of any of the Products in High Risk Activities or from any breach by the Customer of this clause.
Liability
25. Except for express undertakings to indemnify and any warranties set out in this Agreement:
a) To the extent permitted by the law, Digital Red expressly excludes all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will Digital Red be liable to any party including the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if Digital Red has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. The Customer will indemnify Digital Red and keep it indemnified from and against any claims by any third party for or in respect of such damages.
26. Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in [Your Country] may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, Digital Red's liability for breach of such conditions or warranties and the Customer's sole and exclusive remedy in relation to such breaches shall be limited to:
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in the case of Products or software or other goods supplied by Digital Red, at Digital Red's option:
- the replacement or repair of those Products or software or goods, or the supply of equivalent goods; or
ii) the payment of the cost of replacing or repairing the Products or software or goods or of acquiring equivalent goods; and/or
- in the case of Services, at Digital Red's option:
- supplying the Services again; or
- the payment of the cost of having the Services supplied again.
27. The Customer is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.
Assistance and Facilities
28. The Customer will provide Digital Red with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Schedule, office facilities, and liaison with the necessary officers and employees of the Customer) in order to permit Digital Red to efficiently provide the Services.
No Poaching
29. The Customer undertakes to Digital Red that it will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away from Digital Red any employee of Digital Red. The Customer acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Digital Red.
Agreement Non-exclusive
30. The Customer acknowledges that Digital Red is providing Services to the Customer on a non-exclusive basis and that Digital Red may provide services of the same or a similar nature as the Services to any other party.
Termination
31. This Agreement may be terminated in the following circumstances:
a) By either party by giving the other party thirty (30) days notice in writing to that effect;
b) Immediately by Digital Red by notice in writing if the Customer fails to remedy a breach of this Agreement (including any provision as to payment) within fourteen (14) days of receipt of a notice from Digital Red of such breach requiring it to do so; or
c) By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets ("Insolvency Event"), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.
32. On termination of this Agreement however occurring, all moneys unpaid by the Customer pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that Digital Red may have for breach of this Agreement or otherwise) Digital Red will be entitled to retake possession of the Products and to disable any software provided pursuant to this Agreement (including by remote means).
33. The Customer's obligations (including any obligations to indemnify) under clauses 11, 18 to 23 inclusive (Intellectual Property), 24 (High Risk Activities), 25 to 27 inclusive (Liability), and Digital Red's obligations under clause 17 (Confidentiality) shall survive the termination of this Agreement for whatever reason.
General
34. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Customer or Digital Red at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
35. The Customer may not assign any of its obligations under this Agreement without the prior written consent of Digital Red. However Digital Red may arrange for subcontractors to perform any of Digital Red's obligations under this Agreement.
36. Digital Red will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Digital Red gives the Customer prompt notice thereof. In no event will this provision affect Customer's obligation to make payments to Digital Red under this Agreement except in respect of Services that are unable to be performed by Digital Red, until they can be performed.
37. A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
38. If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
- Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
- In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
- These terms and conditions shall be governed by and construed in the of England and you agree to submit to the jurisdiction of the English Courts.
Schedule
The Customer: |
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Customer Contact: |
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The Services: |
Services to be provided in accordance with the Proposal and the Proposal Supplement. E.g.
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Project Costing Estimate |
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The Items to be provided by the Customer: |
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Means of Remote Access: |
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Restrictions on Remote Access: |
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Signed on Behalf of |
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Name:
Title:
Date: |
Name:
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Date: |
