Terms & Conditions
In these Terms:
"Billing Rates" means our personnel charges from time to time as notified plus the cost of any materials provided, together with VAT if applicable.
"You", "your" means the client whose details are set out in the Specification
"DPMC", "The webworks”, "we", "us", "our" means DPMC Ltd of Unit 4, 53 High Street Hampton Hill, Middlesex. TW12 1ND
webworks” is a trading name of DPMC Ltd."
"Intellectual Property Rights" means all copyrights (including without limitation database copyrights), patents, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world
"Price" means the price of the Web Site as set out in the Specification and/or the price of the updating Services as set out in clause 3, as the case may be
"Services" means the Web Site design and development work to be undertaken and/or updating services to be provided by us as set out in the Specification
"Specification" means the agreed specification of the Web Site and its functionality, as varied by the parties from time to time in accordance with clause 12
"Third Party IPR" means Intellectual Property Rights owned by third parties used by us in the Web Site
"Timetable" means the agreed timetable contained in the Specification for the provision of the Services
"Web Site" means the web site to be designed and developed by us for you as described in the Specification
2 Effect of these Terms
These Terms together with the Specification shall govern the agreement between the parties to the exclusion of any other terms and conditions ("the Agreement"). If you raise any order on any other terms and conditions, then those will not apply in any circumstances. In the event of any inconsistency between these Terms and those in the Specification, the latter shall prevail.
3.1 In respect of the Web Site Services, the Price quoted is exclusive of VAT and is valid for 30 days only or until earlier acceptance by you, after which time it may be altered by us without giving notice to you.
3.2 Unless agreed otherwise in the Specification, the Price for updating Services shall be our Billing Rates. If an annual retainer for updating Services has been agreed in the Specification, then any other updating Services provided by us and not covered within the retainer shall be at our Billing Rates.
3.3 Any third party disbursements/expenses incurred by us on your behalf (including without limitation courier fees, postage, travel, etc) will be charged to you
3.4 Any products or services not expressly provided for in the Specification shall be chargeable on a time and materials basis in accordance with our Billing Rates.
3.5 We reserve the right, by giving notice to you, to increase the Price to reflect any increase in cost to us.
4 Terms of payment
4.1 Subject to contrary provision in the Specification we shall be entitled to invoice you for the Price and any disbursements/expenses:
a) in respect of Web Site Services on completion of work; and
b) in respect of updating Services, on completion of work for updating Services performed, or at such times otherwise agreed in writing by the parties and if an annual retainer fee has been agreed, then such amount shall be payable in equal monthly instalments in advance or as agreed between parties;
and you agree to pay 50% of the agreed price on commencement of work and the remaining amount plus any disbursements/expenses of any invoice arising from this Agreement without set off within 7 days of the invoice date.
4.2 If you fail to pay any invoice on the due date, we shall be entitled to:
a) suspend our Services or any part of them until arrangements as to credit or payment to our satisfaction have been made; and/or
b) charge interest on a daily basis on any sums outstanding from the invoice date until payment in full (both before and after judgement) at an annual rate 8% above the base rate for the time being in force of The Bank of England;
and you shall indemnify us against any costs and legal fees which we may incur in recovering such unpaid amounts and the interest thereon.
5 Our Obligations
5.1 We undertake to perform the Services as described in the Specification and to provide the Services with reasonable skill and care.
5.2 We warrant that we will use all reasonable commercial endeavours to maintain the integrity of our telecommunications and web sites but no warranty is given that the Web Site will be free from viruses or contamination or from damage by unauthorised users of the Web Site.
5.3 We warrant that we will perform the Services in compliance with the provisions of the Data Protection Act 1998.
5.4 Except as expressly provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6 Client's Obligations
6.1 You undertake:
a) to secure copyright and other appropriate licences or consents where necessary for the inclusion of any material, data and information provided to us pursuant to this Agreement to enable us to incorporate such material, data and information into the Web Site; and
b) that you will provide or procure the provision of the information, data and material required for the purposes hereof by us in whatever formats and timescales agreed by the parties and set out in the Specification; and
c) that any such content provided by you or on your behalf and/or any data collected on the Web Site are not defamatory, obscene, blasphemous or illegal in any jurisdiction and you agree that we may remove from the Web Site or refuse to place on the Web Site any such content or data which we have reasonable grounds to believe are defamatory, obscene, blasphemous or illegal.
6.2 Unless agreed otherwise in the Specification, you will be responsible for registering and maintaining the domain name of the Web Site and for choosing and maintaining services from your web host provider and/or internet service provider.
6.3 Unless agreed otherwise in the Specification, you shall provide any terms and conditions for users of the Web Site including without limitation any terms and conditions of use, disclaimers, legal statements and privacy policies.
7 Intellectual Property and Indemnities
7.1 Without prejudice to any Intellectual Property Rights owned by you prior to this Agreement, you agree to waive and acknowledge that you obtain no ownership rights or claims to any Intellectual Property Rights whatsoever (including without limitation any Intellectual Property Rights in the graphics, software applications or database structure, design and architecture used in the Web Site) by virtue of this Agreement.
7.2 We warrant that we are the owner of, or are entitled to license the use of, all Intellectual Property Rights in the Web Site (other than your Intellectual Property Rights). Subject to acceptance of the Web Site pursuant to clause 9 and subject to payment of all sums due by you, we shall grant to you :
a) an exclusive royalty-free licence to use the copyright in the Web Site; and
b) a non-exclusive royalty-free licence to use our Intellectual Property Rights
for the purposes set out in the Specification until such time as this Agreement terminates for any reason whatsoever.
7.3 Your entitlement to use Third Party IPR shall be limited solely to the licence offered by any such third party. For the avoidance of doubt, we shall not be obliged to disclose any protected files or source code created by us pursuant to this Agreement.
7.4 You shall immediately bring to our attention any infringement or suspected infringement by any third party of any of our Intellectual Property Rights of which you are, or become, aware and shall at our request and expense take such action or assist us in taking such action as we may deem appropriate to protect our Intellectual Property Rights.
7.5 Each party ("the Indemnifying Party") shall indemnify the other party against any losses, claims, liabilities, damages, costs (including legal costs) and expenses which may be suffered or incurred by the other party arising out of or as a result of or in connection with any infringement by the Indemnifying Party of the Intellectual Property Rights of any third party or arising from the use of any material or data provided by or on behalf of the Indemnifying Party in the Web Site or any act or omission by the Indemnifying Party, its employees or agents in relation thereto provided that the Indemnifying Party is given immediate and complete control of such claim, that the other party does not prejudice the Indemnifying Party's defence of such claim, that the other party gives all reasonable assistance with such claim and that the claim does not arise otherwise than as a result of the breach of the terms of this Agreement by the Indemnifying Party.
7.6 You hereby grant licences and consents to us without charge to use your Intellectual Property Rights to the extent necessary for the purposes of this Agreement.
7.7 You agree to indemnify us in respect of the consequences of failure to abide by the terms of licences granted in respect of Third Party IPR.
8 Limitation of Liability
8.1 It is your exclusive responsibility to ensure that the parameters of the Web Site are fully reflected in the Specification. The consequences of any failure to do so, financial or otherwise will be for your sole account.
8.2 Without prejudice to clause 16.6, our maximum aggregate liability (including any liability for the acts and omission of our employees) to you in respect of any breach of our contractual obligations arising under this Agreement or any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement which results in damage to your tangible property shall be £50,000.
8.3 We shall not be liable for any failure to provide the Services and in particular to provide any updating Services to the extent that such failure is due to failure by your web host provider and/or internet service provider to support the Web Site sufficiently to enable us to comply with our obligations or to your failure to maintain registration with your web host provider and/or internet service provider or registration of the domain name.
8.4 Our liability to you for death or injury resulting from our own or that of our employees’ negligence shall not be limited.
8.5 Subject to clause 8.6, our liability for any other losses or liabilities not referred to in clauses 8.1, 8.2 or 8.3 shall be limited to £50,000.
8.6 Except as expressly set out in this Agreement, we exclude all other liabilities (whether in contract, tort or otherwise), representations and warranties, express or implied and in any event shall not be liable for any claims or liability in contract, tort or otherwise for loss of profits, goodwill, data or any type of special indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of you incurring the same.
8.7 You specifically acknowledge that we have set our prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in these Terms on the basis that such liability should be insured against by you, and that the same form an essential basis of the bargain between the parties.
9 Acceptance of Web Site
9.1 During the development phase of the Web Site, we will enable you to monitor the development in the manner set out in the Specification. We shall notify you when we have in our opinion completed specific phases (as set out in the Specification or as set by us) of the Web Site and also, on the completion of the Web Site. You shall sign off on such phases and on completion to signify your acceptance (such acceptance not to be withheld unless the phases or the Web Site substantially fail to conform to the Specification) within the time scales set out in the Timetable or as set by us unless within such time scale, you notify us to the contrary in writing and specify in such notice the grounds for not accepting the specific phase(s) or the Web Site. You acknowledge that any delays caused by you in the signing off of such phases shall entitle us to suspend performance of the Web Site until such time as notification of acceptance or non-acceptance is received.
9.2 If any defect in the Services or Web Site which would not have been apparent from inspection pursuant to clause 9.1 is brought to our attention in writing within 7 days of acceptance pursuant to clause 9.1, we shall as soon as reasonably practicable and at our option, repair, replace or re-perform such Services without extra charge. On completion of such modifications the procedure set out in clause 9.1 will be repeated.
10 Updating Services
10.1 Any updating Services shall be provided by us during our office hours.
10.2 If we have agreed in the Specification to provide updating Services to you in return for a retainer, then:
a) the period of the retainer shall commence on the day the Web Site is delivered and/or accepted (whichever is the later) and shall be for a fixed term of 12 months;
b) after the term of the retainer has expired, it shall be renewed for further periods of 12 months until this Agreement is terminated in accordance with clause 15.4; and
c) on the renewal of the retainer we reserve the right to increase the fees payable for such retainer provided that we give not less than 1 month's notice to you of any increase prior to the start of the term of the renewed retainer.
11 Confidentiality & Marketing
11.1 We undertake not to divulge or otherwise disclose any information provided by you as a result of this Agreement until such time as the Web Site becomes publicly accessible.
11.2 The confidentiality provisions of this Agreement shall not preclude publicity referring to the existence of this Agreement. Further you agree that we may refer to you and may briefly describe your business in our marketing materials, our web site and any other media which we use. You hereby grant to us a limited license to use any of your trade names, trademarks and copyright solely in connection with the rights aforesaid.
12 Change Control
12.1 If at any time during the course of this Agreement, you wish to modify the Web Site or the Specification you shall supply to us full details of such modification(s) and we shall prepare a memorandum to reflect the required modification(s).
12.2 If, for any reason, we determine that the Web Site is required to be modified in order to meet the Specification or cannot be achieved in the manner set out in the Specification due to reasons beyond our reasonable control then we shall notify you of the modification required and provided that any modification shall not materially alter the functionality of the Web Site, we shall be permitted to modify the Web Site accordingly.
12.3 We at our option will either quote you a fixed price for the modification or estimate the costs on a time and materials basis in accordance with the Billing Rates.
12.4 In the case of a modification pursuant to clause 12.1, if you determine that the modification is to be performed, then you shall confirm your consent in writing, subject to any variations agreed in writing by the parties including terms as to payment. Any modification pursuant to clause 12.1 or 12.2 shall be attached as an addendum to the Specification ("Specification Addendum").
12.5 Any Specification Addendum will be incorporated into this Agreement and the modification covered will, subject to contrary terms in the Specification Addendum be effected on these Terms.
12.6 Acceptance of modifications shall be carried out in the manner set out in clause 9.
13.1 Whilst any target dates set out in the Timetable or elsewhere which relate to the Web Site are not binding and for guidance purposes only, we shall use our reasonable endeavours to meet such targets.
13.2 Without prejudice to the terms of clause 13.1, if any of the circumstances envisaged by clause 4 or any failure by you to adhere to the terms of this Agreement, lead to any delays, any target dates shall be extended so as to accommodate fully the effects of such delay.
13.3 To the extent that any delay is directly or indirectly caused by your act or omission, we shall be entitled to charge you for the effects of such delay on a time and materials basis at the Billing Rates.
14.1 You shall designate a suitably skilled, competent and adequately experienced representative(s) from time to time who shall be authorised to deal with any matters arising pursuant to this Agreement (including without limitation dealing with any change pursuant to clause 12).
15 Termination and Cancellation
15.1 We shall be entitled to terminate this Agreement immediately in the event that:-
a) payment of any invoice is not received by the due date;
b) an order is made or a resolution is passed for your winding up, or a provisional liquidator is appointed or an administration order is made or a receiver, administrative receiver or manager is appointed in respect of you or all or any of your assets or you are unable to pay any of your debts within the meaning of Section 123 of the Insolvency Act 1986, or a voluntary arrangement is proposed under part 1 of the Insolvency Act 1986 in respect of you, or all or any part of the security created by any mortgage, charge, debenture or other security executed by the other party becomes enforceable and the party in whose favour that security is granted takes steps to enforce it; or
c) you breach a term of this Agreement and such breach is irremediable, or if remediable, is not remedied to our satisfaction within 7 days of notice to remedy such breach.
15.2 Termination of this Agreement shall not prejudice the accrued rights and obligations of the parties at the date of termination and shall not release either party from any obligation which expressly or impliedly survives termination.
15.3 In the event of cancellation by you (in which case you must notify us) or termination of this Agreement pursuant to clause 15, goods, services and licences already contracted for by us must be paid for by you. Further, we shall be entitled to charge a cancellation fee (payable on demand) equal to the actual loss (if any) caused by the cancellation or the termination of this Agreement and suffered by us and which shall in any event not be greater than the Price. The certificate of a partner of DPMC as to the amount of the cancellation fee payable by you pursuant to this clause shall, except in the case of manifest error, be binding on you. Such certificate shall be produced by us within 28 days of the date of termination or notification of cancellation.
Any invoices paid by us at the date of the calculation shall be deducted from the cancellation fee.
15.4 In respect of the updating Services where a retainer has been agreed and without prejudice to clause 15.1, either party may terminate this Agreement on not less than 1 month's notice, to expire at the end of the term of any retainer period.
16.1 Entire Agreement: This Agreement and any other expressly incorporated documents constitute the entire agreement between the parties relating to the subject matter hereof and neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 16.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for any negligent or innocent misrepresentation except to the extent (if any) that a court or expert may allow reliance on the same as being fair and reasonable.
16.2 Variations: No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
16.3 Severance: If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
16.4 Assignment and Sub-contracting: Your rights and obligations under this Agreement are personal to you and may not be assigned, transferred, charged, sub-licensed, subcontracted or otherwise delegated, transferred or disposed of in whole or in part. We reserve the right to sub-contract any of the work required to fulfil your order(s).
16.5 Notices: Any notice, instruction or other document given pursuant to these Terms shall be in writing and delivered by courier or sent by first class post or facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) or by email to the address, facsimile number or email address of the other party set out in the Proposal (or such other address or number or email address as may have been notified). Such notice shall be deemed to have been duly served upon and received by the addressee at the time of delivery, (if sent by post) upon the expiration of 48 hours after posting, (if sent by facsimile transmission) upon the expiration of 12 hours after dispatch or (if sent by email) upon the expiration of 2 hours after sending.
16.6 Force Majeure: Neither party shall be liable for any loss suffered by the other or be deemed to be in default for any delays or failures in performance hereunder resulting from acts or causes beyond its reasonable control.
16.7 Waiver: Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
16.8 Dispute Resolution: The parties shall endeavour to resolve all disputes or differences which shall at any time hereafter arise between the parties in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a "Dispute") through liaison between a member of the parties' respective managements. In the event of a failure to resolve a Dispute through such liaison, the Dispute shall be referred to such independent third party (the "Third Party") as the parties shall jointly nominate. If the parties hereto shall fail to nominate a Third Party within fourteen days of the date of occurrence of the Dispute then the Third Party shall be nominated at the request of any of the parties hereto by the President for the time being of the Computing Services & Software Association. The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall except in the case of manifest error be final and binding upon the parties hereto.
16.9 Headings: Clause headings have been included in these Terms for convenience only and shall not be considered part of or be used in interpreting, these Terms.
16.10 Third party rights: A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
16.11 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
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