THIS AGREEMENT is made on the date of acceptance of any web maintenance proposal delivered by Digital Snowball Ltd.
Digital Snowball Ltd (“the Developer”)
an individual or business that contracts a web site design, maintenance and leasing project (“the Client”)
1.1 Unless the context otherwise admits words importing one gender shall include all other genders and words importing the singular shall include the plural and vice versa.
1.2 Reference to any statutory provisions in this Agreement shall include any statutory provisions, which amends or replaces it.
2.1 This Agreement details the terms and conditions agreed between the Parties for the development, hosting, leasing and maintenance of a web site, (including technical and design details) hereinafter known as the “Project” for the Client such development to be undertaken by the Developer.
2.2 As part of this Agreement the Developer will lease the subsequent Project web site to the Client for a minimum initial period of 12 months in consideration of which the Client will pay the Developer the monthly maintenance fee as detailed in proposals provided.
2.3 At the end of the initial lease period the Developer and the Client may agree to renew the lease period for another 12-month period, subject to agreeing terms.
3.1 The Developer and the Client have agreed a Project web site specification and Project web site maintenance as defined in the proposal, contract breakdown, and any emails constitute as being part of of this Agreement.
3.2 Any amendments proposed to this Project specification must be made in writing and delivered to the other party. Either party is entitled to request a meeting to discuss such amendments.
3.3 If such proposed amendments incur additional expense the Developer is entitled to seek further payment from the Client to cover such expense.
4.1 The Client will pay the agreed fees to the Developer on initial completion of the Project, completed according to the Project specification detailed in Schedule One of this Agreement. The Developer will invoice the Client and the Client will pay the invoice, including Value Added Tax, (VAT) at the prevailing rate according to the terms of payment detailed on the invoice.
4.2 The Developer will require payment on the completion of development milestones where the Project involves considerable development time to implement. Such development milestones and the amount of payment for the completion of each milestone to be included within the Project specification as defined in Schedule One of this Agreement, or if not specified in Schedule One to be agreed in writing by the parties prior to the commencement of the Project.
4.3 The Developer will undertake up to [specify maximum number] hours of maintenance per month on the Project web site. See Schedule 2 of this Agreement for details of the maintenance undertaken by the Developer.
4.4 The Client will pay the agreed monthly fees to the Developer for hosting and maintenance of the web site as specified in Schedule Two of this Agreement. The Developer will invoice the Client and the Client will pay the invoice, including Value Added Tax, (VAT) at the prevailing rate according to the terms of payment detailed on the invoice. Where both parties agree a monthly direct debit can be setup by the Client to pay for the hosting and maintenance. The monthly fee shall be charged irrespective of whether the Client submits any requests for changes to the web site that would constitute maintenance.
5.1 The Client will pay the expenses incurred by the Developer during the Project, including travel to the offices of the Client where required, the purchase of computer consumables required for the Project and such other reasonable expenses directly related to the Project.
5.2 The Developer will inform the Client in writing in advance if significant expenses not covered by clause 5.1 have to be incurred during the Project.
6.1 The Project web site will be hosted by the Developer or by a third party hosting company engaged by the Developer.
6.2 Where the web site is hosted by a third party hosting company all terms and conditions for hosting, including any service level agreement will mirror (but not exceed) those offered by the hosting company. The Developer will communicate such terms to the Client.
6.3 The Developer will not be liable for hosting errors caused by the hosting company or downtime experienced by the hosting company.
6.4 Where a third party hosting company is used the company may schedule regular maintenance of the server or servers and this may affect the hosting and availability of the Project web site. Such maintenance is necessary for the smooth running of the web site. Where possible such maintenance will be carried out when the web site is not busy.
7.1 The Developer will register and maintain a suitable domain name and possible variations of the domain name for the Project web site.
7.2 The domain name and any variations will remain the sole property of the Developer both during the term of this Agreement, upon termination of this Agreement and thereafter. The Client will not obtain any rights to the domain name or variations over time, nor upon the termination of this Agreement or thereafter.
7.3 The Developer will retain full ownership of and all rights to any domain name registered, irrespective of whether the domain name is the Client’s company name or variation thereof, the name of a Client product, or any other name in which the Client holds prior intellectual property rights.
7.4 Upon termination of this Agreement (or at any other time) and at the sole discretion of the Developer, the Developer may offer to sell the domain or any variations thereof to the Client. The sale price of any such domain name shall be determined solely by the Developer.
7.5 The Developer undertakes to offer the domain names to the Client first, before making them available to any third party. However, the Developer reserves the right to offer and sell the domain names to any third party should the Client be unable or unwilling to purchase the domain name or names at the price stated by the Developer.
8.1 The Project web site (including both the design and underlying code) and any variations thereof shall remain the sole property of the Developer both during the term of this Agreement, upon termination of this Agreement and thereafter. The Client will not obtain any rights to the Project web site over time, nor upon the termination of this Agreement or thereafter.
8.2 Ownership of the Project web site shall not include any logos, designs or graphics provided by the Client direct to the Developer for incorporation into the Project web site.
8.3 Upon termination of this Agreement (or at any other time) and at the sole discretion of the Developer, the Developer may offer to sell the Project web site to the Client. The sale price of the Project web site to be determined solely by the Developer.
8.4 Upon any sale the Client shall grant the Developer an ongoing and royalty-free license to reuse or alter for subsequent reuse the underlying code of the Project web site for subsequent projects undertaken by the Developer. For the avoidance of doubt this license only extends to the underlying code and expressly excludes the design and appearance of the Project web site.
9.1 The Client undertakes to deliver all the content and materials required for the Project and in the formats requested to the Developer before commencement of the Project.
9.2 Where this is not possible the Client will deliver such outstanding content and materials to the Developer within 30 days of the start of the Project.
9.3 The Client will notify the Developer in writing (as soon as possible) of any delays in delivering content and materials required for the Project and provide the Developer with a revised timetable for supplying such content and materials.
9.4 The Developer will not be responsible for any delays, missed milestones (where specified in the Project) or additional expenses incurred due to the late delivery or non-delivery of content and materials by the Client where required by the Developer for the Project.
10.1 Any notice given by either of the parties under this Agreement shall be served on the other party and addressed to that party’s signatory by email, personal delivery, pre-paid recorded delivery, first-class post, or facsimile transmission to the receiving party as set out in this clause 10:
Digital Snowball Ltd
Tel: 0208 533 3356
Address: Unit 9B Queens Yard, White Post Lane, London E9 5EN
10.2 Any such notice shall be deemed to be effectively served as follows:
10.2.1 In the case of service by pre-paid recorded delivery or first-class post 48 hours after posting.
10.2.2 In the case of service by email, or facsimile transmission on the next working day.
11.1 Both parties shall keep confidential the specific terms of this Agreement and Project and not disclose them save to such employees or contractors as need to know the relevant information for the purposes of performing the Project detailed in this Agreement. The parties agree that all information marked “Confidential”, or where not marked it is reasonable to judge such information as confidential, shall not be disclosed at any time during the Project or for a minimum period of 2 years after the completion of the Project, except where such disclosure is required by law or by order of a court in the jurisdiction of England. The parties further agree that all information marked as a “Trade Secret” and reasonably judged to constitute a trade secret shall not be disclosed at any time during or after the expiry of this Agreement, except where such disclosure is required by law or by order of a court in the jurisdiction of England. Confidential information and Trade Secrets shall consist of, but not necessarily be limited to: technical, commercial, financial, operational, marketing or promotional information or data.
12.1 The Project web site homepage will include a link to the Developer’s homepage by way of a logo or graphic image as supplied by the Developer or alternatively by way of a text hyperlink in the form, “designed by (developer’s name)”. Such link to appear at the foot of the Project web site homepage.
12.2 Subject to clause 11 above the Client shall be able to refer to their working relationship with the Developer for press and publicity purposes after receiving the written approval of the Developer regarding the content of any such material.
12.3 Subject to clause 11 above the Developer shall be able to refer to their working relationship with the Client for press and publicity purposes after receiving the written approval of the Client regarding the content of any such material.
13.1 The Client undertakes to secure all copyright and any other appropriate licences, clearance or consents where required for the content and materials to be incorporated into the Project web site by the Developer.
13.2 The Client grants to the Developer for the term of this Agreement and Project a non-exclusive, revocable, royalty-free licence to use its name, logos, trade marks or devices (“Intellectual Property”) for the purposes of creating the Project web site.
13.3 The Developer retains all rights to the design and underlying code used to create the Project web site. Such rights will be retained after the termination of this Agreement, subject to any sale as detailed in clause 8 of this Agreement.
13.4 The Client shall not copy or copy and subsequently alter the coding of the Project web site or any other coding carried out as part of the Project with a view to creating a separate web site without the prior written consent of the Developer or subject to any sale as detailed in clause 8 of this Agreement.
13.5 Neither party shall make any claim to the other party’s content, materials or services during or after the expiry of this Agreement.
13.6 Neither party shall make any claim to the other party’s trademarks or register or cause to be registered or apply for a materially similar trademark or imitation of a trademark during or after the expiry of this Agreement.
13.7 Neither party shall register or cause to be registered any company name materially similar to that of the other party.
14.1 The Client confirms that to the best of their knowledge and belief that the content and materials supplied by the Client for the purposes of the Project are not blasphemous, defamatory or obscene and do not breach any applicable law or regulation.
15.1 Neither party shall be liable to the other under this Agreement in contract, tort, or otherwise (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential or loss whatsoever.
15.2 The Client agrees to indemnify the Developer against any claims, damages, losses, costs and expenses which the Developer may sustain or incur in relation to any content and materials which the Client provides, such indemnity applying in respect of any claims for any breach of applicable law or regulation or any infringement of any intellectual property rights.
15.3 The Client acknowledges that it is for the Client to ensure that the resulting Project web site does not infringe the laws of any jurisdiction within which it is actively promoted.
15.4 The Developer agrees to indemnify the Client against any claims, damages, losses, costs and expenses which the Client may sustain or incur in relation to breaches of clauses 11 and 13 of this Agreement committed by the Developer.
15.5 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.
16.1 Either party may terminate this Agreement immediately in the event that:
16.1.1 Either party commits a serious, grave or material breach or persistent breaches of this Agreement including non-performance, default or neglect of its duties, responsibilities and obligations under this Agreement, and
16.1.2 Such breach remains unremedied for a period of 30 days from written notice given by the other party specifying the breach and requiring its remedy.
16.2 Furthermore this Agreement may be terminated in the event that:
(a) Either party is unable to pay or has no reasonable prospects of paying their debts the amount or aggregate amount of which equals or exceeds the bankruptcy level within the meaning of the Insolvency Act 1986, or
(b) Being a company becomes subject to an administration order or goes into liquidation, (other than for the purpose of amalgamation or reconstruction), or
(c) Has a receiver appointed to administer any of its property or assets, or
(d) Ceases or threatens to cease to carry on business, or
(e) Makes any voluntary agreement or enters into a compromise for the benefit of its creditors, or
(f) Fails to make any payment in accordance with the terms of this Agreement.
16.3 Subject to any sale as detailed in clause 8 of this Agreement, on the termination of this Agreement the Developer will retain all intellectual property rights to the Project web site, including (but not limited to) the web site design, underlying coding and any domain names.
16.4 Any termination of this Agreement shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the date of (or giving rise to) such termination and to those provisions of this Agreement which are by their construction intended to survive such termination (including, without limitation, clauses 11, 13 and this clause 16).
17.1 Neither party may assign or otherwise transfer this Agreement or any rights, duties and obligations hereunder without the prior consent in writing of the other party.
18.1 Neither party shall be liable for delay or failure to perform any obligation under this Agreement if the delay or failure is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil disorder or industrial dispute. If such delay or failure continues for a period of at least 30 days, the party not subject to the force majeure shall be entitled to terminate this Agreement by notice in writing to the other.
19.1 Nothing in this Agreement shall be construed as creating a partnership, joint venture or an agency relationship between the parties and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party.
20.1 The Client undertakes during the period of this Agreement (and subsequent renewals of this Agreement) and for a period of six months after its termination not to directly or indirectly solicit or induce any of the Developer’s employees to leave the employment of the Developer whether to work on a freelance or consultancy basis or to be directly employed by the Client.
21.1 Failure by either party to enforce any accrued rights under this Agreement is not to be taken as or deemed to be a waiver of those rights unless the waiving party acknowledges the waiver in writing.
21.2 It is hereby declared that the foregoing paragraphs, sub-paragraphs and clauses of this Agreement shall be read and construed independently of each other. Should any part of this Agreement or its paragraphs, sub-paragraphs or clauses be found invalid it shall not affect the remaining paragraphs, sub-paragraphs and clauses.
21.3 No addition to or modification of any clause in this Agreement shall be binding on the parties unless made by a written instrument and signed by the signatories to this Agreement or their duly authorised representatives.
21.4 This Agreement sets out the entire agreement and understanding of the parties and is in substitution of any previous written or oral agreements between the parties.