It is agreed as follows:
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day”
means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales;
“Commencement Date”
means the date on which provision of the Services shall commence, as set out in sub-Clause 10.1;
“Confidential Information”
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Fees”
means any and all sums due under this Agreement from the Client to the Service Provider, as specified in Project Costs (Schedule 2);
“Programme”
means a schedule for the provision of the Services which shall set out relevant dates and times for the Services as set out in sub-Clause 2.6
“Project”
means the software project, mobile application, website and/or graphic design service project in relation to which the Service Provider is to provide the Services, as fully described in The Project (Schedule 1).
“Services”
means the services to be provided by the Service Provider to the Client in accordance with Clause 2, as fully defined in The Project (Schedule 1), and subject to the terms and conditions of this Agreement.
“Specified Contractor”
means a third party consultant or contractor appointed in accordance with Clause 4 who shall be instructed by the Service Provider as identified in the Programme.
“Term”
means the term of this Agreement as set out in Clause 10.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means.
1.2.2 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time.
1.2.3 a Schedule is a schedule to this Agreement.
1.2.4 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2.5 a “Party” or the “Parties” refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2.1 With effect from the Commencement Date, the Service Provider shall, throughout the Term of this Agreement, provide the Services to the Client.
2.2 The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the mobile applications, web design & implementation and graphic design industries sector in the United Kingdom.
2.3 The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in The Project (Schedule 1).
2.4 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
2.5 The Service Provider shall keep the Client informed of all activities related to the Project by means of regular contact.
2.6 The Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Programme that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
2.7 The Service Provider may, in relation to certain specified matters related to the Services, act on the Client’s behalf. Such matters shall not be set out in this Agreement but shall be agreed between the Parties as they arise from time to time.
3.1 The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services. Such information shall include, but not necessarily be limited to, that pertaining to the priorities of the Project and the Project timetable.
3.2 The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in The Project (Schedule 1).
3.3 In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
3.4 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
3.5 If the nature of the Services requires that the Service Provider has access to the Client’s premises or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Service Provider has access to the same at the times to be agreed between the Service Provider and the Client as required.
3.6 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this Clause 3 shall not be the responsibility or fault of the Service Provider.
4.1 The Client may, from time to time, appoint such other third party consultants and contractors as required to perform other services necessary for the Project. The Service Provider’s involvement in such appointments shall not be required except in the event that the services provided by such third parties are likely at any time to duplicate, overlap, or in any other manner interfere with the Services provided by the Service Provider.
4.2 Any and all third party consultants and contractors appointed to the Project shall be required to cooperate fully with the Service Provider and to promptly provide any and all such information reasonably required by the Service Provider to enable the Service Provider to provide the Services and comply with this Agreement.
4.3 The Service Provider shall be required to cooperate fully with any and all third party consultants and contractors appointed to the Project and to promptly provide any and all such information reasonably required by any such consultants and contractors to enable them to provide the relevant agreed services to the Client in compliance with all relevant agreements.
4.4 The Service Provider may, from time to time, identify certain parts of the Project which require the services of a third party specialist. In such cases, the Service Provider shall inform the Client of the need for such a specialist and discuss appropriately.
4.5 The Client shall keep the Service Provider fully informed of any and all third party consultants and contractors appointed to the Project.
4.6 In certain cases, the Service Provider may require third party consultants and contractors appointed by the Client to consider and comment upon certain work completed by the Service Provider, where such work relates to the services provided by those third party consultants and contractors, in order that the Service Provider may make any reasonably necessary and appropriate adjustments and revisions to that work.
4.7 Certain Specified Contractors shall be instructed only via the Service Provider. The Client shall not instruct Specified Contractors directly without the express written consent of the Service Provider. The Service Provider shall not be responsible for any instructions issued in breach of this provision.
5.1 The Client shall pay the Fees to the Service Provider in accordance with the provisions of Project Costs (Schedule 2) and this Clause 5.
5.2 The Service Provider shall invoice the Client for Fees due in accordance with the provisions of Project Costs (Schedule 2).
5.3 All payments required to be made pursuant to this Agreement by either Party shall be made within 14 days Business Days of receipt by that Party of the relevant invoice.
5.4 All payments required to be made pursuant to this Agreement by either Party shall be made in British Pound Sterling £ in cleared funds to the Service Providers bank outlined on the services invoice as the receiving Party may from time to time nominate without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
5.5 Where any payment pursuant to this Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
5.6 Without prejudice to sub-Clause 10.4, any sums which remain unpaid following the expiry of the period set out in sub-Clause 5.3 shall incur interest on a daily basis at 4% until payment is made in full of any such outstanding sums.
6.1 The Service Provider shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance.
6.2 In the event that the Service Provider fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.
6.3 The Service Provider’s total liability for any loss or damage in respect of any individual occurrence or a series thereof arising out of any one event shall be limited either to the sum of £100,000 or to the net contribution calculated in accordance with sub-Clause 6.4, whichever is the smaller sum.
6.4 The net contribution referred to in sub-Clause 6.3 shall be calculated on the basis of what is deemed just and equitable for the Service Provider to pay taking into account the Service Provider’s responsibility for the loss or damage in question and comparing that responsibility with that of all other third parties providing services for the Project for the same loss or damage. The net contribution shall be assessed on the following assumptions:
6.4.1 that such third parties have provided to the Client contractual undertakings which are no less onerous than those under this Agreement with the Service Provider with respect to liability for such loss or damage;
6.4.2 that there are no exclusions or limitations of liability nor joint insurance or co-insurance provisions between the Client and any such third party; and
6.4.3 that such third parties are deemed to have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss or damage in question.
6.5 The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.
6.6 Nothing in this Agreement shall limit or exclude the Service Provider’s liability for death or personal injury.
6.7 The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Service Provider) caused by the Client or its agents or employees.
6.8 Neither Party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
8.1 Each Party undertakes that, except as provided by sub-Clause 8.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and any other related agreements (maintenance and/or hosting) and for 5 years after its termination:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other party;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
8.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 8.1.1 to 8.1.4 above.
8.2 Either Party may:
8.2.1 disclose any Confidential Information to:
8.2.1.1 any sub-contractor or supplier of that Party;
8.2.1.2 any governmental or other authority or regulatory body; or
8.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 8.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 8, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
8.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
8.3 The provisions of this Clause 8 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
9.1 No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
9.2 In the event that a Party to this Agreement cannot perform their obligations here under as a result of force majeure for a continuous period of 6 months, the other Party may at its discretion terminate this Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of this Agreement.
10.1 This Agreement shall come into force on the date stated on page one and shall continue subject to the provisions of this Clause 10.
10.2 Either Party may terminate this Agreement by giving to the other not less than 30 days written notice.
10.3 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:
10.3.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 30 days Business Days of the due date for payment;
10.3.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.3.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
10.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.3.7 that other Party ceases, or threatens to cease, to carry on business; or
10.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 9, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.4 A breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
10.5 The rights to terminate this Agreement given by this Clause 10 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Upon the termination of this Agreement for any reason:
11.1 any sum owing by either Party to the other under any of the provisions of this Agreement (Milestones) shall become immediately due and payable;
11.1.1 For example, if the contract is terminated before an agreed milestone is paid as per the schedule in the service agreement the amount payable shall be what is outlined in the following milestone.
11.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain in full force and effect;
11.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
11.4 subject as provided in this Clause 11 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
11.5 each Party shall (except to the extent referred to in Clause 8) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
16.1 Subject to sub-Clause 16.2 This Agreement is personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
16.2 The Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission of the Service Provider.
19.1 Neither Party shall, for the term of this Agreement and for a period of 12 months after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
21.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
21.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
21.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
22.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
25.1 The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
25.2 If negotiations under sub-Clause 25.1 do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
25.3 If the ADR procedure under sub-Clause 25.2 does not resolve the matter within 30 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
25.4 The seat of the arbitration under sub-Clause 25.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
25.5 Nothing in this Clause 25 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
25.6 The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 25 shall be final and binding on both Parties.
26.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
26.2 Subject to the provisions of Clause 25, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
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