Terms and Conditions

1. Interpretation
The definitions and rules of interpretation in this clause apply in this Contract.

1.1 Definitions:
Acceptance: the acceptance or deemed acceptance of the Website by the Client pursuant to clause 5.
Acceptance Tests: the tests to be carried out on the Website in accordance with clause 5.
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in UK are open for business.
Charges: the charges in respect of the Services set out in the SRS.
Client: the person who instructs the Supplier to provide the Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 20.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during 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.
Content: the content provided to the Supplier by the Client from time to time for incorporation into the Website.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
Deposit: the deposit amount required by the Supplier before supplying the Services.
Effective Date: The date the Supplier accepts the Client’s Order in writing in accordance with clause 2.2.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client’s written acceptance of the Supplier’s proposal.
Services: the design and development services to be provided pursuant to this Contract as set out in the SRS.
SRS: the document setting out the Services, the Website Specification, the Charges and any timeframe for the delivery of the Services.
Supplier: ViralMESH
Third Party Products: those third-party software products set out in the SRS.
Visitor: a visitor to the Website.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Website: the website designed by the Supplier pursuant to this Contract.
Website Software: the software for the Website commissioned by the Client as specified in the SRS.
Website Specification: the specification for the Website set out in the SRS.

1.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.3 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.

1.4 Writing or written includes email but not fax.

2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions.

2.2 The Order shall only be deemed accepted when the Supplier issues its written acceptance of the Order at which point the Contract will come into effect.

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.4 Any proposal or quotation given by the Supplier shall not constitute an offer and will only be valid for a period of 20 Business Days from the date of its issue.

3. Scope of the project
3.1 The Supplier shall design, develop and deliver the Website in accordance with the SRS.

3.2 The Supplier shall use its reasonable endeavours to meet any performance dates specified in the SRS, but any such dates shall be estimates only and shall not be of the essence for the performance of the Services.

3.3 The Supplier reserves the right to amend the SRS if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in such event.

4. Client responsibilities

4.1 The Client acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide) and any information and data the Client provides to the Supplier. Accordingly, the Client shall 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 this Contract.

4.2 The Client shall be responsible for the accuracy and completeness of the Content on the Website in accordance with clause 11.

5. Development and acceptance of site

5.1 Once the Supplier has completed the design and development of the Website the Supplier shall run the Acceptance Tests.

5.2 The Acceptance Tests shall test compliance of the Website against the Website Specification.

5.3 If, notwithstanding the passing the Acceptance Tests, the Customer is of the reasonable opinion that the Website fails to comply with the Website Specification, it shall provide the Supplier with a written notice to that effect, giving details of such failure. If the Supplier accepts that the Website fails to comply with the Website Specification in the manner notified, it shall remedy such failure within a reasonable time and run the Acceptance Tests again.

5.4 If any failure to pass the Acceptance Tests results from a defect which is caused by a direct or indirect act or omission of the Client, the Client shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.

5.5 Acceptance of the Website shall be deemed to have occurred on whichever is the earlier of:
(a) the Client acknowledging its acceptance in writing;
(b) the expiry of 14 days after the completion of all the Acceptance Tests unless the Client has given any written notice under clause 5.3; or
(c) the publication of the Website on the internet.

6. Third party products

The Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms.

7. Charges and payments

7.1 The Client shall pay the Deposit in full to the Supplier before the Supplier supplies any of the Services. The Deposit is a deposit against the Charges.

7.2 The Deposit shall only be refundable to the Client if the parties are unable to agree matters contained within the SRS. Once the contents of the SRS have been agreed, the Deposit shall not be refundable.

7.3 The Supplier may, in its absolute discretion, request that all of the Charges are paid in advance of it providing the Client with any Services.

7.4 The Supplier shall issue a invoice in respect of the Charges, and the Client shall pay to the Supplier the Charges set out in such Supplier’s invoice within 7 days of the date of the Supplier’s invoice.

7.5 Websites and Hosting maybe suspended after 10 days if no payment is made.

7.6 All licence fees payable in respect of any Third Party Products shall be payable by the Customer in addition to the Charges within 7 days of them being invoiced by the Supplier.

7.7 If the Client fails to make any payment due to the Supplier under this Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 12, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

8. Warranties

8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Contract.

8.2 The Supplier shall perform the Services with reasonable care and skill.

8.3 The Supplier warrants that the Website will perform substantially in accordance with the Website Specification upon Acceptance. If the Website does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Website substantially complies with the Website Specification.

8.4 The warranty set out in clause 8.3 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 Content.

8.5 This Contract sets 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 this Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

8.6 The Supplier does not warrant that the Client’s use of the Services or the Website will be uninterrupted or error-free or that the Website will be free from Vulnerabilities.

9. Limitation of remedies and liability

9.1 Nothing in this Contract shall operate to exclude or limit the Supplier’s liability for:
(a) death or personal injury caused by its negligence; or
(b) fraud.

9.2 The Supplier shall not be liable to the Client for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

9.3 Subject to clause 9.1, the Supplier’s aggregate liability in respect of claims arising out of or in connection with this Contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Charges paid by the Client to the Supplier under this Contract.

9.4 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must clearly identify the event and the grounds for the claim in reasonable detail.

10. Intellectual property rights

10.1 All Intellectual Property Rights in the SRS shall be the property of the Supplier.

10.2 All Intellectual Property Rights in the Website (other than Intellectual Property Rights owned by third parties, Third Party Products or Content) arising in connection with this Contract shall be the property of the Supplier, and the Supplier grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Website.

11. Website content

11.1 The Client shall ensure that the Content does not infringe any applicable laws, regulations or third party rights (including third party stock images, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

11.2 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Content constitutes Inappropriate Content.

11.3 The Supplier may include the statement “Designed by Alt Web Design” on the home page of the Website in a form to be agreed.

12. Term and termination

12.1 This Contract shall commence on the Effective Date and shall (subject to earlier termination under this clause 12) terminate automatically on Acceptance of the Website and payment of all outstanding sums.

12.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(c) to clause 12.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) any warranty given by the other party in clause 8 of this Contract is found to be untrue or misleading.

12.3 On termination of this Contract by the Supplier under clause 12.2, all licences granted by the Supplier under this Contract shall terminate immediately.

12.4 On expiry or termination of this Contract otherwise than on termination by the Supplier under clause 12.2, the Supplier shall promptly return all Content to the Client, and shall provide to the Client an electronic copy of the Website (including all content on the Website).

12.5 On expiry or termination of this Contract, all provisions of this Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

13. Changes to the SRS

13.1 Any request to change the SRS shall be processed in accordance with this clause 13.

13.2 Where the Client proposes any change to any aspect of the SRS, it shall notify the Supplier of this in writing, setting out the reasons for the change and providing full details of the changes required.

13.3 Upon receipt of a notice from the Client pursuant to clause 13.2, and provided that the Supplier is prepared to change the SRS, the Supplier shall confirm in writing any impact the change will have on the SRS.

13.4 If the Client agrees with the impact on the SRS advised by the Supplier, the parties shall record that variation to this Contract in writing accordance with clause 20.

14. Force majeure

The Supplier shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

15. Confidentiality

15.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination or expiry of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 15.2.

15.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

16. Notices

16.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the SRS.

16.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2(c), business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.4 A notice given under this Contract is not valid if sent by fax.

17. Assignment

17.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.

17.2 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.

18. Entire agreement

18.1 This Contract and any document referred to within it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party agrees that it 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

19. Third party rights

This Contract does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.

20. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21. Waiver

21.1 A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

21.2 A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

22. Rights and remedies

Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

23. Severance

23.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.

23.2 If any provision or part-provision of this Contract is deemed deleted under clause 23.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

24. Governing law

This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

1.1 Definitions:

Applicable Data Protection Laws:
means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Commercially Reasonable Efforts: the same degree of priority and diligence with which the Supplier meets the support needs of its other similar customers.
Client Cause: any of the following causes:
a) any improper use, misuse or unauthorised alteration of the Website by the Client;
b) any use of the Website by the Client in a manner inconsistent with the then-current Documents;
c) the use by the Client of any hardware or software not provided by the Supplier or approved by the Supplier in the Specification for use by the Client in connection with the Website; or
d) the use of a non-current version or release of the Website.
Conditions: these terms and conditions as amended from time to time in accordance with clause 22.
Content: the content provided to the Supplier by the Client from time to time for incorporation into the Website.
Contract: the Contract between the Supplier and the Client which for the supply of Support Services which is subject to these Conditions.
Effective Date: the date from which the Support Services will be provided to the Client.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Excluded Services: services that the Supplier will not be supplying to the Client as more particularly described in clause 4.
Fault: any Operational Fault.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a company within the relevant industry or business sector.
Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Website.
Higher-level Support: any higher-level support provided by an individual.
Initial Term: the period of three months from the Effective Date.
Operational Fault: failure of the Website to operate in all material respects in accordance with the Specification and Documents, including any operational failure or error referred to in the Service Level Table.
Out-of-scope Services: any of the following services:
a) any services provided by the Supplier in connection with any apparent problem regarding the Website reasonably determined by the Supplier not to have been caused by a Fault, but rather by a Client Cause or a cause outside the Supplier’s control (including any investigational work resulting in such a determination); or
b) any Higher-level Support provided in the circumstances specified in clause 2.3.
c) Support Services provided at the request of the Client in excess of the agreed Support Hours or outside of the Support Hours.
Personal Data: any personal data which the Supplier processes in connection with this agreement
Service Levels: the service level responses and response times referred to in the Service Level Table.
Service Level Table: the table set out in clause 7.1.
Solution: either of the following outcomes:
a) correction of an Operational Fault or;
b) a workaround in relation to an Operational Fault (including a reversal of any changes to the Website if deemed appropriate by the Supplier) that is reasonably acceptable to the Client.
Support Fees: the fees or basis for charging fee agreed by the parties in writing.
Support Hours: the maximum number of hours provided by the Supplier for Support Services in each calendar month as agreed with the Client in writing.
Support Period: the period more particularly described in clause 13.1 (Term and Termination).
Support Request: request made by the Client for support in relation to the Website, including correction of an Operational Fault.
Support Services: maintenance of the Website, including the updating of the Website’s Content, Help Desk Support and Higher-level Support, but excluding any Out-of-scope Services and the Excluded Services.
Support Times: 9.00 am until 2.00 pm Monday to Friday (excluding bank holidays).
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Website: the website to be supported by the Supplier pursuant to this Contract.

1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms

1.4 Writing or written includes email but not fax.

2. Support Services

2.1 During the Support Period and up to the maximum number of Support Hours, the Supplier shall perform the Support Services during the Support Times in accordance with the Service Levels.

2.2 As part of the Support Services, the Supplier shall:

(a) provide Help Desk Support by means of the following telephone number [0121 663 0202] and e-mail address [[email protected]];
(b) use Commercially Reasonable Efforts to correct all Operational Faults notified under clause 6.3; and
(c) provide technical support for the Website in accordance with the Service Levels.

2.3 Any Higher-level Support requested by the Client to be provided by an individual whose qualification or experience is greater than that reasonably necessary to resolve the relevant Support Request shall be deemed an Out-of-scope Service, provided that an appropriately qualified or experienced individual was available at the time when the Higher-level Support was sought.

2.4 The Supplier may reasonably determine that any services are Out-of-scope Services.

2.5 The Client acknowledges that the Supplier is not obliged to provide Out-of-scope Services.

2.6 The Client acknowledges that Support Hours will not be carried over to subsequent months if they are not utilised in any calendar month.
3. Website Content
3.1 The Supplier shall update the Website with Content, but no more than once in any month during the Support Period. The Client shall ensure that the Content does not infringe any applicable laws, regulations or third party rights (such as but not limited to material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

3.2 The Client acknowledges that the Supplier has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Website. The Supplier may remove Content from the Website where it reasonably suspects such content is Inappropriate Content.

3.3 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Content or any other material posted to, or linked to, the Website constitutes Inappropriate Content.

4. Excluded Services
The Supplier will not be providing the Client with the following Services (without limitation):
(a) Ongoing monitoring of website content;
(b) Penetration testing;
(c) Cybersecurity;
(d) Data protection / UK GDPR;
(e) Hosting;
(f) Back-ups; or
(g) Anti-virus protection.

5. Fees
5.1 The provision of Support Services on a remote, off-site basis (such as over the telephone or by e-mail) within the Support Period shall be included in the Support Fees.

5.2 The provision of Support Services outside the Support Period or the provision of Out-of-scope Services shall be charged for at the Supplier’s applicable time/cost rates.

6. Submitting Support Requests
6.1 The Client may request Support Services during the Support Times by way of a Support Request.

6.2 Each Support Request shall include a description of the Operational Fault and, where relevant, the start time of the incident.

6.3 The Client shall provide the Supplier with:
(a) prompt notice of any Faults which it becomes aware of; and
(b) such output and other data, documents, information, assistance and (subject to compliance with all Client’s security and encryption requirements notified to the Supplier in writing) remote access to the Website, as are reasonably necessary to assist the Supplier to reproduce operating conditions similar to those present when the Client detected the relevant Operational Fault and to respond to the relevant Support Request.

6.4 All Support Services shall be provided on an off-site basis (such as over the telephone or by e-mail) from the Supplier’s office.

7. Service Levels

7.1 The Supplier shall:
(a) prioritise all Support Requests based on its reasonable assessment of the severity level of the Fault reported; and
(b) use its reasonable endeavours to respond to Support Requests, in accordance with the responses and response times specified in the table set out below:

7.2 Time for responding to a Support Request shall not be of the essence. Accordingly, no discount, refund or credit will be given to the Client in the event the Supplier fails to provide a solution within the relevant Service Level response time. The Client’s sole remedy in the event of the Supplier’s failure to respond to a Support Request within the relevant Service Level shall be contained in clause 8.

8. Sole remedy
If a Solution is not provided within the relevant Service Level response time, the Client may escalate the Support Request to the Supplier’s relationship manager.

9. Communications
The parties may communicate in respect of any matter referred to in this by e-mail (unless specified otherwise).

10. Data Protection

10.1 By entering into this agreement, the Client consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Personal Data.

10.2 Without prejudice to the generality of clause 10.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Supplier during the Support Period and for purposes of this Contract.

10.3 The Client acknowledges that when providing the Support Services, the Supplier may have to appoint sub-processors to host the Website on a temporary basis for the purposes of carrying out investigations into Operational Faults. The Client hereby gives it prior general authorisation for the Supplier to:
(a) appoint sub-processors to process Personal Data for the purposes of the Support Services;
(b) Transfer Personal Data outside of the UK as required, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

11. Limitation of Liability

11.1 Nothing in this Contract shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited under applicable law.

11.2 Subject to clause 11.1, the Supplier shall not be liable to the Client for any loss of profit or indirect, special or consequential losses or damages.

11.3 Subject to clause 11.1 and clause 11.2, the Supplier’s aggregate liability to the Client in respect of claims arising out of or in connection with this Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by Client in the three months preceding the claim.

11.4 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must clearly identify the event and the grounds for the claim in reasonable detail.

12. Intellectual Property
12.1 Where the Client owns the Intellectual Property Rights in the Website and its Content, it will grant the Supplier a licence to use such Intellectual Property Rights to the extent required by the Supplier to perform the Supply Services.

12.2 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Website or Content infringe any Intellectual Property Rights of a third party.

12.3 Where the Website or the Content contains the Intellectual Property Rights of third parties, the Client shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this clause 12.

13. Term and termination

13.1 This Contract shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 13, for the Initial Term and thereafter until either party gives to the other party not less than one month’s notice in writing to terminate this Contract.

13.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) if the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in section 123(1)(e) or 123(2) of the IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other (being a company) than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company, or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.3 The Supplier may terminate this Contract in whole or in part for convenience at any time by at least 7 days’ prior written notice to Client.

13.4 On expiry or termination of this Contract the Client shall pay all Charges outstanding.

13.5 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14. Confidentiality

14.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination or expiry of this Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2.

14.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such Confidential Information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14; and
(b) as may be required by law, court order or any governmental or regulatory authority.

14.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

15. Force majeure

The Supplier shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

16. Notices

16.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by email to the address specified in the Statement of Work.

16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2(c), business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

16.3 This clause 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.4 A notice given under this Contract is not valid if sent by fax.

17. Assignment and subcontracting

17.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
17.2 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.

18. No partnership or agency

18.1 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

19. Entire agreement

19.1 This Contract and any documents referred to within it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

19.2 Each party acknowledges that in entering into this Contract 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 Contract.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

20. Independent Contractors

No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

21. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

22. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

23. Severance

23.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.

23.2 If any provision or part-provision of this Contract is deemed deleted under clause 23.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

24. Further assurance

At any time after the date of this Contract each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the terms and conditions of this Contract.

25. Invalidity

If any provision of this Contract shall be held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.

26. Costs

Subject to any express provision in this Contract to the contrary, each party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Contract.

27. Governing law

This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England.

28. Jurisdiction

Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.