The definitions and rules of interpretation in this clause apply in this agreement.
Acceptance: the acceptance or deemed acceptance of the Site by the Client pursuant to clause 4;
Acceptance Tests: the tests to be carried out on the Site as set out in clause 4;
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business;
Change Control Procedures: the procedures set out in SCHEDULE 2;
Charges: the charges in respect of the Services set out in the section of the Specification entitled “Financial”, together with any charges arising from the Change Control Procedures;
Client Defects: those defects described in clause 4.4;
Client Materials: the content provided to Fluid Digital by the Client from time to time for incorporation in the Site;
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.
Effective Date: As per order;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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;
Phase: in relation to the Project Delivery Timetable, any of the key phases of work identified in the Project Delivery Timetable;
Project: the provision by Fluid Digital of the Services as set out in this agreement;
Project Delivery Timetable: the timetable within which Fluid Digital will implement the Project as set out in the Specification;
Services: the design, and development services to be provided pursuant to this agreement as set out in the sections of the Specification entitled “Scope Of Work” and “Dependencies and Assumptions”;
Site: the websites at https://www.clientsite.co.uk;
Site Software: the software for the Site commissioned by the Client as specified in the Specification;
Specification: the specification for the Site attached hereto as Schedule 1
Third Party Products: those third party software products set out in the Specification;
Visitor: a visitor to the Site.
1.2 Clause and Schedule headings do not affect the interpretation of this agreement.
1.3References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 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.
1.9 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a site for access by a Visitor to that website.
1.10 Writing or written includes fax and email.
2. SCOPE OF THE PROJECT
Fluid Digital shall:
2.1.1 design, develop and deliver the site in three phases in accordance with the project delivery timetable and specification; and
2.1.2 provide the services, in accordance with this agreement.
3. CLIENT RESPONSIBILITIES
3.1 The Client acknowledges that Fluid Digital’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any design specifications, information and data the Client provides to Fluid Digital. Accordingly, the Client shall:
3.1.1 provide all necessary assistance (including access to all relevant employees, usernames, passwords and other access credentials) and technical information as reasonably required by Fluid Digital in sufficient time and in any specified format to facilitate the provision of the Services and the design, development and delivery of the Site in accordance with any estimated delivery dates or milestones generally or the Project Delivery Timetable specifically;
3.1.2 attend any and all meetings convened on reasonable notice by Fluid Digital to discuss the Services, the Project Delivery Timetable and the Site;
3.1.3 as quickly as possible and within any agreed deadline or in accordance with the Project Delivery Timetable provide comments on and approvals of content relating to the Site or the Services by Fluid Digital. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement any changes on websites, in IT systems or where it may otherwise be required by Fluid Digital; and
3.2 have sole responsibility for ensuring the accuracy of all information provided to Fluid Digital relating to the Site and the Services, and warrants and undertakes to Fluid Digital that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
3.3 The Client shall be responsible for the accuracy and completeness of the Client Materials on the Site in accordance with clause 11 below.
4. DEVELOPMENT AND ACCEPTANCE OF SITE
4.1 Once Fluid Digital has completed the design and development of the Site in accordance with Phase one of the Project Delivery Timetable, Fluid Digital shall run the Acceptance Tests. The procedure set out in this clause 4 shall be repeated in respect of Phase One and any further development works shall be agreed between the parties from time to time.
4.2 The Acceptance Tests shall test compliance of the Site with the Specification. Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. Fluid Digital shall notify the Client when the tests have been passed.
4.3 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Fluid Digital has no responsibility (Client Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Client Defect. Fluid Digital shall provide assistance reasonably requested by the Client in remedying any Client Defect by supplying additional services or products. The Client shall pay Fluid Digital in full for all such additional services and products at Fluid Digital’s then current fees and prices.
4.4 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
4.4.1 the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
4.4.2 the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Fluid Digital is ready to commence running such Acceptance Tests or retests.
4.5 The Client shall liaise with Fluid Digital as to any applicable or suitable launch date for the Site, which will be agreed between the parties.
5. THIRD PARTY PRODUCTS
Any Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms and, where supplier, are set out in the Specification. The initial licence fee for such Third Party Products is included in the Charges payable under clause 7.1. If subsequent licence fees are payable then Fluid Digital shall notify the Client at the time such Third Party Products are supplied to the Client.
6. PROJECT MANAGEMENT
6.1 Each party shall appoint a project manager who shall:
6.1.1 provide professional and prompt liaison with the other party; and
6.1.2 have the necessary expertise and authority to commit the relevant party.
The project managers shall meet, either in person or via a conference call at least once every month until Acceptance. Fluid Digital shall provide minutes of these meetings to the Client.
7. CHARGES AND PAYMENT
7.1 Fluid Digital shall issue invoices in respect of the Charges in relation to the design and development of the Site as set out within the section of the Specification entitled “Financial” in respect of the Charges relating to the Services, and the Client shall pay to Fluid Digital the Charges set out in such Fluid Digital’s invoice within 14 days of the date of Fluid Digital’s invoice.
7.2 All Charges are exclusive of VAT.
7.3 If the Client fails to make any payment due to Fluid Digital under this agreement by the due date for payment, then, without limiting Fluid Digital’s remedies under clause 13 below, Fluid Digital may suspend the provision of all Services and any services provided subject to the terms of this agreement until payment has been made in full and the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount. Such interest shall accrue on a daily basis and be compounded quarterly. Fluid Digital reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.4 In the event of any purported termination of this Agreement by the Client other than in accordance with clause 13 below, or should the Services and the Site not proceed to Acceptance, then the Client shall pay to Fluid Digital a sum calculated on a pro rata basis which reflects the Services provided to the Client up to the relevant date.
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
8.2 The Client warrants that it has full power and authority to licence any Client Materials which they may provide (and any Intellectual Property Rights arising therefrom or relating thereto) to Fluid Digital for the purposes of the provision of the Site and the Services.
8.3 Fluid Digital shall perform the Services with reasonable care and skill.
8.4 Fluid Digital warrants that the Site will perform substantially in accordance with the Specification for a period of three months from Acceptance. If the Site does not so perform, Fluid Digital may, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Specification. In the event that the Site does not so perform as a result of any circumstances referred to in clause 8.5 below, Fluid Digital will carry out the further work necessary to ensure that the Site substantially complies with the Specification for a further charge to be agreed between the parties. In the event that such agreement cannot be reached, then Fluid Digital may terminate this agreement on written notice and without any further liability.
8.5 The warranty set out in clause 8.4 above shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Specification is caused by any failure to follow the correct change control process, by the content or nature of any Materials or through any act or omission by (i) the Client or (ii) any third party.
8.6 This agreement sets out the full extent of Fluid Digital’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 agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
9. LIMITATION OF REMEDIES AND LIABILITY
9.1 Nothing in this agreement shall operate to exclude or limit Fluid Digital’s liability for:
9.1.1 death or personal injury caused by its negligence; or
9.1.2 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.1.3 fraud; or
9.1.4 any other liability which cannot be excluded or limited under applicable law.
9.2 Fluid Digital shall not be liable to the Client for any damage to software, damage to, corruption of or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, the use of money, revenue, goodwill, reputation or business opportunity, or for any indirect or consequential loss or damage, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
9.3 Subject to clause 9.1 above, Fluid Digital’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Charges payable by the Client to Fluid Digital under this agreement in that calendar year.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), arising in connection with this agreement shall be the property of the Client and Fluid Digital hereby assigns absolutely with full title guarantee all such Intellectual Property Rights to the Client, subject always to payment of the Charges in full.
10.2 The Client shall indemnify Fluid Digital against all damages, losses and expenses (including legal fees) arising as a result of any action or claim that the Client Materials infringe the Intellectual Property Rights of a third party.
10.3 Fluid Digital shall indemnify the Client against all directly-incurred and reasonably foreseeable damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 10.2.above.
10.4 The indemnities in clause 10.2, clause 10.3 and clause 11.3 above are subject to the following conditions:
10.4.1 the indemnified party promptly notifies the indemnifier in writing of the claim;
10.4.2 the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
10.4.3 the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require.
10.5 The indemnities in clause 10.2, clause 10.3 and clause 11.3 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party or the use of any open-source software.
11. SITE CONTENT
11.1 The Client shall ensure that any Client Materials do not infringe any applicable laws, regulations or third party rights (including 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 Fluid Digital shall include only Client Materials on the Site. The Client acknowledges that Fluid Digital has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Fluid Digital reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Fluid Digital shall notify the Client promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
11.3 The Client shall indemnify Fluid Digital against all damages, losses and expenses arising as a result of any action or claim that the Client Materials constitute Inappropriate Content.
12. DATA PROTECTION
12.1 Fluid Digital warrants that, to the extent it processes any Personal Data on behalf of the Client:
12.1.1 it shall act only on instructions from the Client; and
12.1.2 it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
12.2 In this clause 12, Personal Data has the meaning given in the Data Protection Act 1998.
13. TERM AND TERMINATION
13.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination under this clause 13) terminate automatically on Acceptance of the Site and payment of all outstanding sums.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
13.2.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
13.2.2 the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.2.3 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;
13.2.4 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;
13.2.5 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 that other party;
13.2.6 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);
13.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
13.2.8 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;
13.2.9 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;
13.2.10 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 13.2.3 to clause 13.2.8 (inclusive);
13.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
13.2.12 any warranty given by the other party in clause 8 of this agreement is found to be untrue or misleading.
13.3 On termination of this agreement by Fluid Digital under clause 13.2 above, all licences granted by Fluid Digital under this agreement shall terminate immediately, including in relation to the Intellectual Property Rights in the Site.
13.4 On termination of this agreement, the Client shall not (except with Fluid Digital’s prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from their employment any person employed or engaged by such other party in the provision of the Services or the Site at any time during the Term or for a further period of 12 months after the termination of this agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of Fluid Digital’s staff.
13.5 If the Client commits any breach of clause 13.4 above, it shall, on demand, pay to Fluid Digital a sum equal to one year’s basic salary or the annual fee that was payable by Fluid Digital to that employee, worker or independent contractor plus the recruitment costs incurred by Fluid Digital in replacing such person.
13.6 On expiry or termination of this agreement otherwise than on termination by Fluid Digital under clause 13.2 above, Fluid Digital shall promptly return all Client Materials to the Client, and shall provide to the Client an electronic copy of the Site (including all content on the Site).
13.7 On expiry or termination of this agreement, all provisions of this agreement 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.
14. CHANGE CONTROL
Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure set out in Schedule 2 below.
15. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving one month’s written notice to the affected party.
16.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
16.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
16.3 The obligations set out in this clause 16 shall not apply to Confidential Information which the receiving party can demonstrate:
16.3.1 is or has become publicly known other than through breach of this clause 16; or
16.3.2 was in possession of the receiving party prior to disclosure by the other party; or
16.3.3 was received by the receiving party from an independent third party who has full right of disclosure; or
16.3.4 was independently developed by the receiving party; or
16.3.5 was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
16.4 The obligations of confidentiality in this clause 16 shall not be affected by the expiry or termination of this agreement.
16.5 Notwithstanding the provisions of this Clause 16 above, the Client acknowledges that Fluid Digital shall be entitled to make reference to the Services and the Site on its website and in marketing materials.
17.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
17.1.1 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
17.1.2 sent by e-mail to the e-mail address of the relevant project manager.
17.2 Any notice or communication shall be deemed to have been received:
17.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.2 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 or at the time recorded by the delivery service.
17.2.3 if sent by e-Mail, at 9.00 am on the next Business Day after transmission.
17.3 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.
All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release. For the avoidance of doubt, the provisions of this clause shall not prohibit Fluid Digital from making reference to the Site and Services to which this agreement relates in award entries or general marketing material used to provide illustrative examples of work previously done by Fluid Digital to third parties and prospective clients.
Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
20. ENTIRE AGREEMENT
20.1 This agreement 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.
20.2 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 agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21 THIRD PARTY RIGHTS
21.1 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
25.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
26. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.