Terms and Conditions
These are the terms and conditions of supply of Textmimedia Ltd in relation to the provision of Software Development Services. These terms shall be deemed accepted by our clients upon their placing an order with us:
In this document the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms of any applicable Development Proposal and Cost Specification Documents;
1.2 “Client” means the organisation or person who purchases services from Textmimedia;
1.3 “Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
1.4 “Specification” means all or any of the following documents: development proposal, cost specification documents, statement of work, quotation or other similar documents supplied to the Client describing the services to be provided by Textmimedia;
1.5 “Acceptance Date” means the date on which the Software is accepted by the Client;
1.6 “Acceptance Tests” means the tests specified in the Specification and/or such other tests as may be agreed in writing between the Client and Textmimedia for the purposes of confirming that the Software operates according to the functional requirements in the specification.
1.7 “Additional Services” means any additional services requested by the Client to be provided by Textmimedia as set out in the Specification;
1.8 “Annual Support Fee” means a fee, subject to a separate commercial quotation, to be charged for the optional provision of support services to the Client by Textmimedia;
1.9 “Change Request” means a documented request for a change to the Specification or Software or Project Plan or other of the Deliverables made by the Customer or Textmimedia;
1.10 “Confidential Information” shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, trade secrets, and any other commercially sensitive information of either party regardless of its nature;
1.11 “Deliverables” means the software, documentation and services to be delivered by Textmimedia to the Client in fulfilment of this Agreement as set out in the Specification.
1.12 “Project Plan” means the timing and sequence of events agreed between the Client and Textmimedia for the performance of this Agreement, as set out in the Specification;
1.13 “Live Operational Use” means the use of the Software in pursuance of the business of the Client;
1.14 “Mis-use” means the use of the Software in a way for which it was not intended to be used according to the Specification;
1.15 “Payment Schedule” means the schedule of payments set out in the Specification;
1.16 “Planned Acceptance Date” means the date specified in the Project Plan on which the Software is intended to be accepted by the Client in accordance with this Agreement;
1.17 “Price” means the fixed aggregate price for the provision of the Deliverables as set out in the Specification;
1.18 “Project” means the software development, delivery and testing of the Software and the other Deliverables;
1.19 “Rates” means the rates set out in the Specification;
1.20 “Software” means the source programs, compiled object code of the software, mark-up language layouts, style sheets, scripts and installation programs being developed by Textmimedia for the Client, as set out in the specification, including any enhancements and modifications made;
1.21 “Specified Equipment” means the configuration of computer or computers, including operating systems, on which the Software is to function as specified in the Specification;
1.22 “Standard Working Hours” means the hours of 9.00am to 6.00pm UK time Monday through to Friday excluding UK Bank Holidays.
1.23 “Anti Social Hours” means the hours of 6.00pm to 9.00am Monday to Friday and; All UK Bank and National Holidays and; 6.00pm Friday through to 9.00am Monday;
1.24 “System” means collectively the Specified Equipment and the Software;
1.25 “Warranty Period” means the period of three calendar months immediately following the Acceptance Date;
1.26 “Company” shall mean Textmimedia Ltd and its representatives.
2.1 These Terms and Conditions shall apply to all contracts for the supply of services by Textmimedia to the Client.
2.2 Before the commencement of the services Textmimedia shall submit to the Client a Development Proposal and Cost Specification Documents which shall specify the services to be performed and the fees payable. The Client shall notify Textmimedia immediately if the Client does not agree with the contents of the Development Proposal and Cost Specification Documents. All Development Proposal and Cost Specification Documents shall be subject to these Terms and Conditions.
2.3 Textmimedia shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
3 THE PROJECT
3.1 Textmimedia shall provide the Client with software development services for the purpose of creating the Software and other Deliverables as detailed in the Specification, in accordance with the terms and conditions of this Agreement.
3.2 Textmimedia shall provide to the Client the Deliverables when requested by the Client subject to full payment having been received by Textmimedia for the Deliverables or part of the Deliverables being provided.
3.3 Unless explicitly itemised in the Specification Textmimedia shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training.
3.4 For the avoidance of doubt, Textmimedia shall not be responsible under any circumstances for backup and archiving of the Software or of any data used by the Software on computer equipment belonging to the Client or the Client's appointed computer hosting supplier.
4 THE CLIENT'S OBLIGATIONS
4.1 The Client shall:
4.1.1 make available to Textmimedia, free of charge, such computer facilities and resources, (including but not limited to unhindered access to the Specified Equipment including remotely for access at Textmimedia's premises), power and computer consumables and office and administrative resources as a reasonably necessary to enable Textmimedia to carry out its obligations under this Agreement;
4.1.2 make available suitably qualified employees as may be required for Textmimedia to carry out its obligations under this agreement and ensure that its employees and other independent contractors co-operate reasonably with Textmimedia and its employees in carrying out the Project;
4.1.3 promptly furnish Textmimedia with such information and documents as it may reasonably request for the proper performance of its obligations under this Agreement;
4.1.4 ensure that its representative is available as reasonably required by Textmimedia; and
4.1.5 use best endeavours to co-operate with and assist Textmimedia to such extent as Textmimedia may reasonably require to perform Textmimedia's obligations under this Agreement.
4.2 Textmimedia reserves the right to initiate a Change Request if the project is delayed by the failure of the Client to carry out its obligations under this Agreement or if the project is delayed by the acts or omissions of an employee, agent or third party supplier of the Client or if the project is delayed by the circumstances beyond the reasonable control of Textmimedia.
4.3 It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties however well developed and supported and acceptance of Deliverables under this Agreement shall not be unreasonably withheld due to minor faults in the Software.
4.4 The Client acknowledges that all and any Deliverables from Textmimedia to the Client or from a third party contracted by Textmimedia in respect of this Agreement are of specific importance to Textmimedia meeting the agreed schedule in the Project Plan and accepts full responsibility for any delay in accepting the Deliverables.
5 CHANGE CONTROL
5.1 If either party identifies a requirement for a change to the Specification or to the Software or Project Plan, a Change Request shall be sent to the other party detailing the change requirements. If sent by Textmimedia, the Change Request shall state the effect such a change shall have on the Specification, the Project Plan and the Price. If sent by the Client, the receipt of the Change Request by Textmimedia shall constitute a request to Textmimedia to state in writing the effect such a change shall have on the Specification, the Project Plan and the Price. Textmimedia shall use all reasonable endeavours to supply the necessary details within ten working days from receipt of the Change Request or such other period as may be agreed.
5.2 Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Specification. The parties shall then decide weather or not to implement the change.
5.3 If Textmimedia in its sole discretion deems that more than one working hour is required to investigate and estimate a Change Request initiated by the Client then Textmimedia reserves the right to produce a quotation for the investigation work for the Client's approval before commencing investigation work.
5.4 Textmimedia shall not implement any changes to the Software specified in a Change Request unless the Change Request has been agreed by both of the Parties in writing.
5.5 If a Change Request is agreed in writing by both Parties, the change shall then be deemed to form part of the Specification, Software, Project Plan and Price for the purpose of meaning of these terms in the Agreement.
6 ACCEPTANCE TESTS
6.1 It shall be the sole responsibility of the Client to execute the Acceptance Tests.
6.2 The Client shall accept the Software immediately after the Software has passed the Acceptance Tests and shall sign Textmimedia's Acceptance Certificate without delay.
6.3 If the Software fails to pass the Acceptance Tests, repeat tests shall be carried out without delay following the release of corrected Software by Textmimedia until the Software passes the Acceptance Tests.
6.4 If at any time the Client or any of its appointed agents, contractors or clients under its authority shall commence Live Operational Use of the whole or any part of the Software then the Client shall be deemed to have accepted the Software in its entirety.
6.5 If at any time the Client shall distribute all or any part of the Software for commercial use by any of its staff, appointed agents, contractors or clients then the Client shall be deemed to have accepted the the Software in its entirety.
6.6 If following one month after the delivery of the Software, there are no unresolved fault reports logged by the Client with Textmimedia that evidence that the software does not pass the Acceptance Tests then the client shall be deemed to have accepted the Software in its entirety.
6.7 It shall be the responsibility of the Client to create suitable Acceptance Test scripts that accurately reflect the Specification and to provide suitable data for the Acceptance Tests. The scripts and data must be made available to Textmimedia not less than one month prior to the expected commencement date of Acceptance Tests according to the Project Plan.
7 REPRESENTATIVES AND PROGRESS MEETINGS
7.1 Each party shall nominate in writing upon the signing of this Agreement, the person who shall act as its representative for the purposes of this Agreement and who shall be responsible for providing any information which may be required by the other party to perform its obligation under this Agreement.
7.2 The parties shall procure that their respective representatives shall meet by physical meeting or conference telephone call, as agreed, at least once a month (or as otherwise may be agreed) between the date of this Agreement and the Planned Acceptance Date to discuss and minute the progress of the Project.
7.3 The representative of Textmimedia shall maintain a log of issues, risks and actions that affect the project. The representative of the Client shall exercise due diligence in co-operatively assisting the representative of Textmimedia to mitigate risks, resolve issues and complete actions in a timely fashion.
8.1 On payment of the Annual Support Fee, Textmimedia shall provide the Client with the following support commencing on the Support Commencement Date for one year and renewable thereafter:
8.1.1 Help Desk: Textmimedia shall provide the Client with reasonable help desk assistance regarding the installation and use of the Software, and the identification and diagnosis of faults. Textmimedia shall attempt to resolve any support questions posed by the Client.
8.1.2 Error Corrections: correction of critical errors or assistance to overcome specific software problems. Textmimedia may, in its sole discretion, correct errors by providing a patch or by releasing a new version of software.
8.2 The Client shall supply in writing to Textmimedia a detailed description of any fault requiring support and the circumstances in which it arose, and shall submit sufficient material and information as requested by Textmimedia including screen shots and log files to enable Textmimedia's support staff to duplicate the problem and shall allow Textmimedia sufficient access to the Client's system to enable diagnosis of the fault.
8.3 Textmimedia shall use reasonable commercial efforts to communicate with the Client, by telephone, e-mail, or fax within the following targeted response times, regarding faults that the Client reports to Textmimedia during the specified support hours below; for the purposes of this Agreement, a “response” means Textmimedia's acknowledgement of a fault, and does not necessarily mean that a resolution will be achieved.
1 – System Failed
Multiple users not able to access the system to perform normal work.
2 working hours.
2 – System Malfunction
The system is still considered operational with some functionality disabled.
4 working hours
3 – Operation impaired
System operation is impaired, slow running or prints not being produced. Core functionality is operation.
4 – Data Issues
System operates normally but incorrect data items or an individual user not able to access the system etc
5 – Cosmetic Issues
Cosmetic error, e.g.spelling mistake, screen layout inconsistency. User enhancement request.
8.5 Textmimedia shall respond to calls and progress calls during Standard Working Hours.
8.6 Where possible, Textmimedia's response to a fault report shall include an estimate of how long a problem may take to resolve. Textmimedia shall keep the Customer informed of the progress of problem resolution. This shall be not more than every two hours for Severity 1 and 2 calls.
8.7 All support shall be provided by electronic or other communication methods where possible.
8.7.1 Where Textmimedia employees are required to work on Client property or otherwise outside of Textmimedia's offices, expenses shall be remunerated by the Client.
8.8 Textmimedia shall be under no obligation to provide support in respect of:
8.8.1 problems resulting from any modifications or customisation of the Software not authorised in writing by Textmimedia. For avoidance of doubt, modifications to the software shall include but not be limited to changes to the logical or physical database schema of the software, changes to the computer hardware configuration, and hand-modified changes to the data within the databases;
8.8.2 any software other than the Software
8.8.3 incorrect or unauthorised use of the Software or Misuse of the Software or operator error;
8.8.4 any fault in the Specified Equipment or any other computer or network hardware;
8.8.5 any programs or software used in conjunction with the Software which have not been supplied by Textmimedia;
8.8.6 use of the elements of the Software in any combination other than those specified in any operating instructions supplied by Textmimedia;
8.8.7 use of the Software with computer hardware, operating systems, or other supporting software other than the Specified Equipment; and
8.8.8 The Client's failure to install and use upon any new release of the Software within 30 days of its receipt from Textmimedia.
8.9 Any time spent by Textmimedia investigating any fault pursuant to the circumstances described in clause 8.8 shall be chargeable at Textmimedia's then current rates. Textmimedia shall invoice such charges at its discretion and such shall be paid within 7 days of the date of said invoice.
8.10 Textmimedia reserves the right to discontinue the Support and Maintenance for any prior version of the Software if a superseding version has been available to the Client.
8.11 Textmimedia shall not be obliged to make modifications or provide Support in relation to the Client's computer hardware, operating system software, third party software or any data feeds or external data.
8.12 The Client shall:
8.12.1 operate the Software, maintain data and the database in accordance with all instructions issued by Textmimedia
8.12.2 by arrangement, grant access to premises and/or systems at all times for support;
8.12.3 make hardware accessible to Textmimedia's support staff and, when required, enable logons or passwords with suitable access permissions required for such support staff;
8.12.4 permit Textmimedia to install the current version of the Software from time to time when upgrades or fixes occur;
8.12.5 provide notice of intention to change hardware or operating system or data-feeds. If any of these changes have a major effect on the Software then Textmimedia reserves the right to increase its charges.
8.13 The Client shall pay to Textmimedia the Annual Support Fee on or before the Support Commencement Date. No support services shall be provided before the Annual Support Fee has been paid in full. Or services may be taken as a single per incident request which will be chargeable at Textmimedia's then current rates.
8.14 The Client shall renew the support annually by paying the Annual Support Fee to Textmimedia on or before the anniversary of the Support Commencement Date unless 30 days notice in writing is provided to Textmimedia to cancel the renewal of the service.
8.15 The support service may be cancelled at any time during the supported year but no refund of the Annual Support Fee or part thereof shall be payable to the Customer.
8.16 Textmimedia may increase the Annual Support Fee for any annual renewal of the support by providing not less than 120 days notice in writing to the Client before the anniversary of support renewal.
9.1 Textmimedia warrants that the Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;
9.2 Textmimedia shall not be liable under clause 9.1 if a failure to meet the warranties set out in it is caused by:
computer equipment or computer software, other than the Software delivered by Textmimedia; or
modifications or customisation made by or on behalf of the Client to the Software, without the authorisation of Textmimedia; or
Misuse of the Software; or
9.3 If Textmimedia receives a written notice from the Client identifying a breach of the warranties set out in clause 9.1, or otherwise becomes aware of its failure to comply with the warranties set out in clause 9.1, then Textmimedia shall at its own expense, promptly remedy such breach or failure provided that Textmimedia shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.
10 LICENSE AND OWNERSHIP
10.1 On payment in full of the Price, Textmimedia grants to the Client a non-exclusive, perpetual, non-transferable right for the Software to be used by the staff, customers and/or contractors of the Client as defined in the Specification. The Client may not disclose or make available for use the Software or any of the Deliverables to any entity other than the staff, customers and/or contractors of the Customer as defined in the Specification who have agreed to these license terms. For the avoidance of doubt, the License may not be transferred from the Client to any other company entity, individual, partnership, including any company entity, individual or partnership that may gain ownership or part-ownership of the Client or the business or assets of the Client at a future date. The ownership of the Intellectual Property Rights in the Software including the source code, object code, methods, algorithms and programming logic but not exclusively shall be and remain vested in Textmimedia.
11 PROPRIETARY RIGHTS
11.1 Textmimedia shall take reasonable steps to ensure that the Client is not put at risk as a
11.1 Textmimedia the Client on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use of possession of the Software infringes the Intellectual Property Rights of any third party subject to such infringement having been deliberately and consciously entered into on the part of Textmimedia.
The Client shall promptly notify Textmimedia in writing of any allegations of infringement of which it is aware and shall not make any admissions without Textmimedia's prior written consent;
The Client, at Textmimedia's request and expense, shall allow Textmimedia to conduct and/or settle all negotiations and litigation resulting from any such claim subject to Textmimedia taking over such conduct within 10 working days after being notified of the claim and provided that Textmimedia diligently pursues the settlement of any such claim; and
The Client shall, at the request of Textmimedia, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by Textmimedia on demand for all expenses properly incurred in doing so.
If the Client's use or possession of the Software or any part of the Software in accordance with this Agreement, is held by a court of competent jurisdiction to constitute an infringement of a third party's Intellectual Property Rights, then Textmimedia shall promptly and at its own expense:
procure for the Client the right to continue using and posessing the Software or the infringing part; or
modify or replace the Software (or part thereof) without detracting from the overall performance of the Software, so as to avoid the infringement.
11.3 If the remedies set out in clause 11.2 above are not in Textmimedia's opinion reasonably available, then the Client shall return the Software which is the subject of the intellectual property claim and Textmimedia shall refund to the Client the corresponding portion of the Price, as normally depreciated, whereupon this Agreement shall immediately terminate.
12 CHARGES AND EXPENSES
12.1 In consideration of Textmimedia carrying out the Project, the Client shall pay to Textmimedia the Price which shall be invoiced to the Client in the specified proportions set out in the Specification and subject to the terms set out in clause 13.
12.2 In consideration of any Additional Services, the Client shall pay to Textmimedia the amounts invoiced by Textmimedia to the Client using the rates set out in the Specification.
12.3 Except as otherwise agreed in writing, The Client shall pay to Textmimedia all reasonable travelling, accommodation and other reasonable out-of-pocket expenses incurred by Textmimedia staff in the course of the Project with car mileage charged at the rate of 40 pence per mile.
13 TERMS OF PAYMENT
13.1 Payment of sums due by the Client to Textmimedia shall be made within 7 days of the receipt of an invoice from Textmimedia. All payments under this Agreement shall be made in Pounds Sterling unless otherwise agreed in writing between the Parties.
13.2 With effect from the beginning of each year commencing on the Acceptance Date, Textmimedia may, at its sole discretion, increase the Rates in effect during the previous year.
13.3 All monetary amounts stated within this Agreement are exclusive of VAT, which shall be payable by the Client at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.
13.4 Without prejudice to any other right reserved by Textmimedia in this Agreement, if any sum payable under this Agreement is in arrears for more than fourteen (14) days from the due date of payment then Textmimedia shall be entitled to charge interest on a day-to-day basis on any such arrears as from the invoice date at the rate permitted from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998.
14 LIABILITY AND INSURANCE
14.1 Textmimedia shall in no event be liable for any damages resulting from loss of or corruption of data or information, loss of goods, use, profits, business, anticipated savings, goodwill or similar losses, nor for any damages that are an indirect or secondary consequence of any act or omission of Textmimedia whether such damages were reasonably foreseeable or actually foreseen.
14.2 In no event shall Textmimedia be liable for any damages resulting from the Misuse of the Software.
14.3 The parties acknowledge and agree that the limitations contained in this clause 14 are reasonable in light of all the circumstances.
14.4 The Client's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations shall apply regardless of the form of action, whether under statute, in contract or tort including negligence or any form of action. For the purposes of this clause, “Textmimedia” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
14.5 Unless a separate Service Level Agreement supersedes this clause, the Company shall not be liable for any form of outage of services provided.
14.6 The Company will not be responsible or held liable for any delays in projects due to third party providers and services.
14.7 In the event that a delay has occurred as a result of clause 14.6, the Company shall make reasonable efforts to resolve the problem with the third party and keep the Client informed of the situation. We accept no liability for information being unavailable due to lack of information at a third party provider since many do not provide an Service Level Agreement. Should a service level agreement exist at such provider we may make recommendations to the Client that this service be opt for.
15.1 This Agreement shall continue until completion of the Project unless either party gives to the other not less than 90 day's prior written notice of termination or unless the Agreement is terminated in accordance with any of the provisions of this clause 15 or any other clause of this Agreement.
Either party shall be entitled to terminate this Agreement forthwith at any time by written notice to the other party if:
the other party commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.
15.3 Forthwith upon the termination of this Agreement, Textmimedia shall return to the Client any materials and documentation and any Confidential Information belonging to the Client and all copies of the whole or any part thereof or, if requested by the Client, shall destroy the same and certify in writing to the Client that it has been destroyed.
15.4 Any termination of the License or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it effect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15.5 In the event of termination of this Agreement Textmimedia shall compute a project completion percentage by comparing completed tasks with tasks on the project plan. The Client shall then pay to Textmimedia the same percentage of the Price.
Textmimedia shall evidence completed tasks to the Client by demonstrating working functionality or source code.
16.1 Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fufil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its customers, suppliers or customers nor permit its use or disclosure.
The provisions of clause 16.1 shall not apply where Confidential Information is divulged to:
either party's own employees and then only to those employees who need to know the same;
either party's auditors, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
16.3 Both parties undertake to ensure that persons and bodies referred to in clause 16.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
16.4 Each party to this Agreement shall promptly nottify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
16.5 The provisions of this clause shall survive the termination of this Agreement but the restrictions in clause 16.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
16.6 Nothing in this clause 16 shall prevent Textmimedia from exploiting any inventions or software that it develops during the term of this Agreement.
17 DATA PROTECTION
17.1 The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
17.2 It is the sole responsibility of the Client to ensure that the Software is not used in anyway that infringes data protection legislation at the time being. For the avoidance of doubt, Textmimedia accepts no responsibility whatsoever for any such infringement or alleged infringement.
18.1 In this Agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
references in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraph of that schedule;
the headings to the clauses, schedules and paragraphs of this Agreement shall not affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and any subordinate legislation or byelaw made under that enactment;
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
any party who agrees to do something shall be deemed to fulfil that obligation if that party procures that it is done.
18.2 In case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement shall take precedence.
19 AGENCY, PARTNERSHIP
19.1 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
19.2 This Agreement shall not establish the relationship of master and servant as between the Client and Textmimedia or its personnel. The Client shall not be entitled to require Textmimedia or its personnel to carry out any work other than as provided for by this Agreement.
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
21.1 This Agreement is personal to the parties and, subject to clause 21.2 below, neither this Agreement nor any rights, licenses or obligation under it may be assigned by either party without the prior written approval of the other party.
21.2 Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or substantially all of such party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause shall be void and without effect.
22 ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
23 FORCE MAJEURE
Neither Party shall be liable for any delay in meeting, or failure to meet its obligations under this Agreement due to any cause outside its reasonable control including (without limitation) acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, failure of a third party service or changes to documented procedures of a third party, failure of the public electricity supply, strike, lock-out or labour dispute or apprehension thereof (whether or not the settlement of the matter is at the discretion of the Party in question).
All notices under this Agreement shall be in writing.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by fax or e-mail and a transmission report or return receipt indicating failure of transmission is not generated; or
on the fifth business day following mailing, if mailed by Royal Mail; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
The provisions of the Schedules to this Agreement shall form part of this Agreement as if set out here.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
27 SUCCESSORS AND ASSIGNEES
27.1 This agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assignees, and references to a Party in this Agreement shall include its successors and permitted assignees.
27.2 In this Agreement references to a Party include references to a person:
who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or
who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or passed as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a Party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
30 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
At the sole discretion of Textmimedia, subject to the terms agreed henceforth, Textmimedia may perform any or all of its obligations under this Agreement by the use of agents or sub-contractors, provided that Textmimedia shall remain liable for such performance and shall indemnify the Client against any loss or damage suffered by the Client arising from any act or omission of such agents or sub-contractors.
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
33 COSTS AND EXPENSES
Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
Where either party has incurred any liability to the other party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under this Agreement.
35 THIRD PARTIES
The parties confirm their intent (subject to clause 14.4) not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Right of Third Parties) Act 1999 shall not apply to this Agreement.
35.1 Where a project or service is dependant on a third party provider, the Company shall not be held liable for a failure of that third party. A decision of a third party shall remain final. The company shall be under no obligation to provide any form of compensation as an action taken within the jurisdiction of the third party.
35.2 Where a third party service changes during the scope of a project, the Company reserves the right to initiate a change request to cover costs of adapting to the changes.
36 DISPUTE RESOLUTION
36.1 For the purpose of this clause 36, a dispute shall be deemed to have arisen when one Party serves on the other a notice in writing (not including e-mail) stating the nature of the dispute.
36.2 Any dispute which may arise between the parties concerning this Agreement shall be determined as follows.
36.3 Within seven days the representatives of the Parties shall meet to attempt to settle the dispute by mutual agreement.
36.4 If the representatives fail to reach a mutual agreement a director or partner of each of the Parties shall meet within the following seven days to attempt to settle the dispute by mutual agreement.
36.5 If the dispute remains unresolved and is of a technical nature relating to the functions or capabilities of the Software or any similar or related matter then such a dispute shall be referred for final settlement to an expert nominated jointly by the parties or failing such nomination within fourteen days after either Party's request to the other therefore nominated at the request of either party by a competent neutral advisor. Such expert shall be deemed to act as an expert and not as an arbitrator. His decision shall (in the absence of clerical or manifest error) be final and binding on the Parties in equal shares unless he determines that the conduct of either Party is such that such Party should bear all of such fees.
36.6 In any other case if the dispute remains unresolved the dispute shall be determined by the Courts of Justice in England and the Parties submit to the exclusive jurisdiction of that Court for such purposes.
37 RESELLER AGREEMENT
37.1 It is agreed that commission will be paid on any repeat clients that are introduced to the Company by the Client.
37.2 Commission will be paid at a rate of: XX% of the total pre-tax sales value.
37.3 The provisions of clause 37 apply to the end client that has been introduced by the Client which chooses to deal directly with the Company instead of going via the Client.
37.4 Clause 37 shall cease to be enforceable in the event that the agreement between the Company and the Client shall terminate.
38 AGENCY AGREEMENT
38.1 Where the Client is a Digital Agency the Client will commission the Company at a standard hourly rate.
38.2 The hourly rate may be altered from time to time in line with Company Policy.
38.3 The Company operate a overtime policy for hours of work conducted at the direction of the Client outside of normal business hours.
38.4 Anti Social Hours are considered Monday to Thursday between 6pm and 9am. Work conducted within this period will be invoiced at double the agreed hourly rate.
38.5 Weekend Hours are considered Friday 6pm until Monday 9am. Work conducted within this period will be invoiced at triple the agreed hourly rate.
38.6 Textmimedia reserves the right to review and alter its fixed prices to take into account inflation and increased operational costs and/or any other factors.
38.7 The Company at its discretion will highlight on our portfolio work conducted on behalf of the Agency. Should the Client wish to opt out of being featured on our portfolio they may request this in writing.
39 OUT OF POCKET EXPENSES
39.1 It is the Company policy to charge out of pocket expenses to the Client. This includes but is not limited to: travelling expenses, accommodation expenses, meals and drinks.
39.2 It is the Company policy to use business class or first class transport where possible whilst on business trips.
39.3 It is the Company policy to put staff in a 3 star or greater hotel or similar form of accommodation whilst on business trips.
40 INTELLECTUAL PROPERTY
40.1 For the purpose of this agreement, Intellectual Property will include software and digital media created by the Company.
40.2 The Company reserves intellectual property rights over our digital developments. This extends to all elements covered in the context of Intellectual Property within the Non-Disclosure Agreement section of this contract.
40.3 The Company extends intellectual property to protect our source code and all digital media generated by the Company.
41 FAIR USE POLICY
41.1 Where a service is being provided such that resources must be allocated from a pool of resources, a fair use policy exists.
41.2 We deem fair use policy such that it does not put a unwarranted strain on our infrastructure nor incur excessive costs to the Company.
41.3 All data usage is subject to periodic volume reviews and the Company reserves the right to limit or regulate the volume of data usage. The company also reserves the right to charge excess usage at rate pro-rata to the amount of over usage experienced based on the account agreement.
42 PROHIBITED USES
42.1 The company accepts no responsibility for the content provided by our hosted solutions.
42.2 We do not offer warranty on end user content management.
42.3 We reserve at our discretion the right to edit or modify or remove content that is deemed to be
1. Is in any way breaching any applicable local, national or international law or regulation.
2. In any way deemed to be unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
3. For the purpose of harming, or attempting to harm minors in any way.
4. To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam), or for your own commercial or business purposes.
5. To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, ad-ware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
6. Any other materials which are deemed to be offensive to any race or group for any reason.
44 MANAGEMENT OF CONTENT
44.1 Where the Client or authorised people on behalf of the client has access to management of content, the Company shall not be held liable for the accuracy of this information.
44.2 Should the Client be unwilling or unable to maintain content for the service provided, the Company reserves the right to charge the Client for updates to content.
44.3 Should the Client require the Company to upload content on its behalf then the Client agrees not to hold the Company liable to time constraints on the upload process. This will be scheduled in based on our current work load and will be completed when the Company has allocated resources to the project.
44.4 We will not prioritise content management over other higher profile clients. The content management will be done on a best effort basis.
45.1 We reserve the right under this agreement to amend the terms and conditions without notice.