FORM OF AGREEMENT
DESIGN AND HOSTING SERVICES
Please read these terms and conditions carefully, by placing an order with us (Scorch Media Ltd, a company registered in England and Wales under number 03593406 whose principal place of business is at Bardsley Buildings, Globe Lane, Dukinfield, Cheshire, SK16 4RG ("Scorch")), you are indicating your agreement to be bound by these terms. In these terms you are referred to as 'Client'.
1. This agreement ("Agreement") between Scorch and Client comprises this form of agreement and Schedules 1 to 3 together with any changes to the same made in accordance with this agreement.
2. This Agreement sets out the terms and conditions on which Scorch shall provide Services (as defined in Schedule 1) to Client in relation to the Site (as defined in Schedule 1) and Client shall purchase such Services for the Fees (as defined in Schedule 3).
Schedule 1 - Terms and Conditions
1. Definitions and Interpretation
1.1 In this Agreement the following words and expressions shall have the following meanings unless the context otherwise requires:
"Act"
means the Data Protection Act 1998 as amended from time to time;
"Agreement"
is defined on the first page of this Agreement and includes any amendments which are in writing and signed by duly authorised representatives of the parties;
"Commencement Date"
means the date on which this Agreement commences being the date that Client places an order with Scorch for the Services;
"Fees"
the fees due to Scorch from Client as described in Schedule 3 as may be changed from time to time in accordance with this Agreement;
"Force Majeure"
means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Agreement, including without limitation act of God, fire, flood, lightning, war, revolution, act or terrorism, strikes, lock-outs or other industrial action and where the Site is not available as a result of the actions or inaction of a third party including but not limited to unavailability of any infrastructure being provided by a third party such as a telecoms provider or a provider of services to Scorch;
"IPR"
means any rights in or to intellectual property including, but not limited to, copyright, patents, design right, utility model, trade mark, service mark, brand name, trade name, business name, chip topography right, know-how or confidential information and any other rights in respect of any other industrial or intellectual property, whether registrable or not and wherever existing in the world and including without limitation all rights to apply for any of the foregoing rights;
"Personal Data"
means personal data as defined in the Act;
"Services"
means the services described in Schedule 2;
"Site"
means the web site or web sites in respect of which Scorch is to provide the Services; and
"Third Party Software"
means the software owned by a third party and which is used to deliver the Services.
2.2 This Agreement starts on the Commencement Date and unless terminated on the terms of this Agreement shall continue thereafter unless terminated by Client: (a) by not less than three months' notice to expire on or after the anniversary of the Commencement Date; or (b) if Client wishes to reject the terms of this Agreement, by notice given to Scorch within 7 days of the Commencement Date in which case Client shall be entitled to a refund of all sums paid under this Agreement and the parties shall have no further liability to each other.
3.2 If Scorch fails to properly deliver the Services (in this Clause 3.2, "Failure"), Client shall be entitled to terminate this Agreement upon giving Scorch not less than 1 month's written notice provided that this entitlement shall expire 2 months following any Failure and shall constitute the entire liability of Scorch and the sole remedy of Client for any Failure.
3.3 Client shall ensure that the total data traffic from the Site will not exceed 1 gigabyte in any calendar month and shall be responsible for any additional cost incurred by Scorch should this limit be exceeded.
3.4 If Scorch registers a domain name on behalf of Client, Scorch will notify Client as to the renewal date of the domain name but Scorch will otherwise have no responsibility in relation to the renewal of the domain name.
4.1 The fees shall be paid by Client by direct debit or standing order unless otherwise agreed in writing. Interest at the rate of four per cent per annum above the base rate for the time being of National Westminster Bank plc will be payable by Client on all sums remaining unpaid after the due date for payment as provided for in this Agreement. Without prejudice to any other right under this Agreement, Scorch may suspend the Services or any part of the Services if Client defaults in making any payment of Fees (or part thereof).
4.2 The Fees are exclusive of Value Added Tax and governmental or other charges which shall be added to such payments if applicable and shall be paid by Client in addition to the Fees.
4.3 Where Scorch notifies Client of an increase to the Fees in accordance with this Agreement, Client shall have the right to terminate this Agreement on written notice to Scorch, provided such notice is given 30 days prior to the increase becoming effective.
5.2 Client hereby grants Scorch a non-exclusive non-transferable licence to use the IPR in the Site (to the extent such IPR is not owned by Scorch) for the purposes of providing the Services.
5.3 Client acknowledges that Scorch may use Third Party Software to carry out the Services, and that such Third Party Software will remain vested in the third party proprietor of such software. Client further acknowledges that Scorch gives no warranties or undertakings in relation to Third Party Software.
6. Warranties
6.1 Client warrants and represents to Scorch that it has all the necessary rights to grant the licence in Clause 5.2 and to any other materials it provides to Scorch and in connection with any domain name registered for Client. Client hereby indemnifies Scorch and keeps Scorch fully and effectively indemnified on demand and shall hold Scorch harmless against any loss or damage suffered or incurred by Scorch arising from any action for infringement of IPR arising from a breach of this warranty.
6.2 Scorch acknowledges that data supplied to it for the purposes of this Agreement may comprise Personal Data and undertakes that Scorch shall use the Personal Data solely for the purposes of this Agreement and in accordance with the instructions of Client provided that Scorch's obligations in relation to the security of the Personal Data shall be only as specified in this Agreement.
6.3 Client warrants that it is not a consumer and that the Service will only be used in connection with a business.
6.4 The express terms of this Agreement are instead of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
7. Liability
7.1 Nothing in this Agreement shall be construed as excluding or limiting either party's liability to the other for:
7.1.1 death or personal injury resulting from negligence;
7.1.2 breach of any condition as to title or quiet enjoyment implied by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982; and/or
7.1.3 for fraud (including fraudulent misrepresentation).
7.2 Scorch's liability to Client in each calendar year under or in relation to this Agreement (whether for delict, breach of contract or otherwise) shall be limited in aggregate to a sum equivalent to the 80% of the Fees paid by Client during such calendar year.
7.3 Whether or not it has been advised of the possibility, Scorch shall not be liable to Client under or in relation to this Agreement (whether for negligence, breach of contract or otherwise) for any:
7.3.1 loss of sales, loss of profit, loss of capital, loss of turnover, loss of bargain, loss of opportunity, loss of use of computer equipment, loss of data or loss of time; and/or
7.3.2 indirect or consequential loss.
7.4 Client hereby indemnifies Scorch and keeps Scorch fully and effectively indemnified on demand and shall hold Scorch harmless against any loss or damage suffered or incurred by Scorch arising from any action brought by a third party in connection with Scorch's delivery of the Services.
9. Confidentiality
9.1 The parties recognise that during the course of the performance of the Services, they may each receive the trade secrets and confidential or proprietary information of the other party ('Confidential Information'). Each party agrees not to divulge Confidential Information belonging to the other to any of its employees who do not need to know it and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party. This obligation shall survive the termination of this Agreement for a period of 3 years or until such earlier time as the Confidential Information enters the public domain other than through the receiving party's own fault.
9.2 The provisions of Clause 9.1 shall not apply to the whole or any part of the Confidential Information to the extent that it is already in the other's possession or in the public domain other than as a result of a breach of this Clause 9 or which the other is required to disclose by reason of a statutory or regulatory requirement having the force or law or by reason of an order of a court of competent jurisdiction.
10. Termination
10.1 This Agreement shall commence on the Commencement Date and shall continue until terminated at any time by notice in writing:
10.1.1 by either party if the other party is in material breach of any of its obligations under this Agreement and fails to remedy the breach (if capable of remedy) within a period of 30 days after receipt of written notice by the other party; or
10.1.2 by Scorch if Client ceases trading, or becomes apparently insolvent or has a trustee in sequestration appointed, combines with its creditors, or has a liquidator, receiver or administrator appointed over all or any of its assets other than for the purposes of amalgamation or reconstruction or undergoes any analogous act or proceeding under foreign law; or
10.1.3 by Scorch if Client fails to pay any sums due within 21 days of the due date without prejudice to any other provisions relating to late payment in this Agreement; or
10.1.4 by the Client on three months' written notice given in accordance with Clause 2.2 or by Scorch on three months' written notice.
10.2 Any termination of this Agreement under this Clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination nor shall termination affect any rights or obligations of the parties which due to the nature thereof are to be observed or performed after such termination.
11. General
11.1 Client shall not be permitted to assign this Agreement without the prior written consent of Scorch. Scorch shall be entitled to sub-contract its obligations under this Agreement without the consent of Client.
11.2 This Agreement contains the entire agreement between the parties in relation to the subject matter hereof and supersedes all previous negotiations, representations, undertakings and agreements both written and oral made between the parties with respect to the subject matter hereof.
11.3 The relationship between the parties is as set out in this Agreement and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the parties and neither shall have the power to bind the other.
11.4 All formal notices to be given under this Agreement may be given by e-mail, or personally or by recorded delivery post or by facsimile, in either case to the address of the party in question as specified on the front of this Agreement or as may be notified to the other party from time to time in writing.
11.5 This Agreement shall be governed by and construed according to the law of England.
11.6 If a dispute arises out of or in connection with this Agreement, the parties will, with the help of the Centre for Dispute Resolution (CEDR) seek in good faith to resolve it by alternative dispute resolution. If the parties fail to agree terms of settlement within twenty eight days of the commencement of the procedure then either party shall have the option of commencing litigation and the parties hereby submit to the jurisdiction of the English Courts. The commencement of the procedure is defined as the commencement of the first dispute resolution meeting.
Schedule 2 - Services
(a) The design of the Site the form of which will be based on one of the following models depending on the level of service required by Client:
(i) BizCard;
(ii) BizSite; and
(iii) BizSite Extra;
(b) the registration of a domain name (Scorch cannot guarantee that any domain name will be available).
(c) the hosting of the Site on a server connected to the internet.
Schedule 3 - Fees
The Fees shall be those notified to the Client whether orally or otherwise at the time the Client places an order with Scorch. Scorch may increase the Fees after the expiry of a 12 month period from the Commencement Date and thereafter not more than once in any 12 month period upon 60 days written notice. Increases will not exceed the percentage increase in average earnings (AEI) for the UK over the preceding 12 months for the category, 'computer programming and electrical engineering', (or similar category).
Please read these terms and conditions carefully, by placing an order with us (Scorch Media Ltd, a company registered in England and Wales under number 03593406 whose principal place of business is at Bardsley Buildings, Globe Lane, Dukinfield, Cheshire, SK16 4RG ("Scorch")), you are indicating your agreement to be bound by these terms. In these terms you are referred to as 'Client'.
1. This agreement ("Agreement") between Scorch and Client comprises this form of agreement and Schedules 1 to 3 together with any changes to the same made in accordance with this agreement.
2. This Agreement sets out the terms and conditions on which Scorch shall provide Services (as defined in Schedule 1) to Client in relation to the Site (as defined in Schedule 1) and Client shall purchase such Services for the Fees (as defined in Schedule 3).
Schedule 1 - Terms and Conditions
1. Definitions and Interpretation
1.1 In this Agreement the following words and expressions shall have the following meanings unless the context otherwise requires:
"Act"
means the Data Protection Act 1998 as amended from time to time;
"Agreement"
is defined on the first page of this Agreement and includes any amendments which are in writing and signed by duly authorised representatives of the parties;
"Commencement Date"
means the date on which this Agreement commences being the date that Client places an order with Scorch for the Services;
"Fees"
the fees due to Scorch from Client as described in Schedule 3 as may be changed from time to time in accordance with this Agreement;
"Force Majeure"
means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than payment) under this Agreement, including without limitation act of God, fire, flood, lightning, war, revolution, act or terrorism, strikes, lock-outs or other industrial action and where the Site is not available as a result of the actions or inaction of a third party including but not limited to unavailability of any infrastructure being provided by a third party such as a telecoms provider or a provider of services to Scorch;
"IPR"
means any rights in or to intellectual property including, but not limited to, copyright, patents, design right, utility model, trade mark, service mark, brand name, trade name, business name, chip topography right, know-how or confidential information and any other rights in respect of any other industrial or intellectual property, whether registrable or not and wherever existing in the world and including without limitation all rights to apply for any of the foregoing rights;
"Personal Data"
means personal data as defined in the Act;
"Services"
means the services described in Schedule 2;
"Site"
means the web site or web sites in respect of which Scorch is to provide the Services; and
"Third Party Software"
means the software owned by a third party and which is used to deliver the Services.
2.2 This Agreement starts on the Commencement Date and unless terminated on the terms of this Agreement shall continue thereafter unless terminated by Client: (a) by not less than three months' notice to expire on or after the anniversary of the Commencement Date; or (b) if Client wishes to reject the terms of this Agreement, by notice given to Scorch within 7 days of the Commencement Date in which case Client shall be entitled to a refund of all sums paid under this Agreement and the parties shall have no further liability to each other.
3.2 If Scorch fails to properly deliver the Services (in this Clause 3.2, "Failure"), Client shall be entitled to terminate this Agreement upon giving Scorch not less than 1 month's written notice provided that this entitlement shall expire 2 months following any Failure and shall constitute the entire liability of Scorch and the sole remedy of Client for any Failure.
3.3 Client shall ensure that the total data traffic from the Site will not exceed 1 gigabyte in any calendar month and shall be responsible for any additional cost incurred by Scorch should this limit be exceeded.
3.4 If Scorch registers a domain name on behalf of Client, Scorch will notify Client as to the renewal date of the domain name but Scorch will otherwise have no responsibility in relation to the renewal of the domain name.
4.1 The fees shall be paid by Client by direct debit or standing order unless otherwise agreed in writing. Interest at the rate of four per cent per annum above the base rate for the time being of National Westminster Bank plc will be payable by Client on all sums remaining unpaid after the due date for payment as provided for in this Agreement. Without prejudice to any other right under this Agreement, Scorch may suspend the Services or any part of the Services if Client defaults in making any payment of Fees (or part thereof).
4.2 The Fees are exclusive of Value Added Tax and governmental or other charges which shall be added to such payments if applicable and shall be paid by Client in addition to the Fees.
4.3 Where Scorch notifies Client of an increase to the Fees in accordance with this Agreement, Client shall have the right to terminate this Agreement on written notice to Scorch, provided such notice is given 30 days prior to the increase becoming effective.
5.2 Client hereby grants Scorch a non-exclusive non-transferable licence to use the IPR in the Site (to the extent such IPR is not owned by Scorch) for the purposes of providing the Services.
5.3 Client acknowledges that Scorch may use Third Party Software to carry out the Services, and that such Third Party Software will remain vested in the third party proprietor of such software. Client further acknowledges that Scorch gives no warranties or undertakings in relation to Third Party Software.
6. Warranties
6.1 Client warrants and represents to Scorch that it has all the necessary rights to grant the licence in Clause 5.2 and to any other materials it provides to Scorch and in connection with any domain name registered for Client. Client hereby indemnifies Scorch and keeps Scorch fully and effectively indemnified on demand and shall hold Scorch harmless against any loss or damage suffered or incurred by Scorch arising from any action for infringement of IPR arising from a breach of this warranty.
6.2 Scorch acknowledges that data supplied to it for the purposes of this Agreement may comprise Personal Data and undertakes that Scorch shall use the Personal Data solely for the purposes of this Agreement and in accordance with the instructions of Client provided that Scorch's obligations in relation to the security of the Personal Data shall be only as specified in this Agreement.
6.3 Client warrants that it is not a consumer and that the Service will only be used in connection with a business.
6.4 The express terms of this Agreement are instead of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
7. Liability
7.1 Nothing in this Agreement shall be construed as excluding or limiting either party's liability to the other for:
7.1.1 death or personal injury resulting from negligence;
7.1.2 breach of any condition as to title or quiet enjoyment implied by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982; and/or
7.1.3 for fraud (including fraudulent misrepresentation).
7.2 Scorch's liability to Client in each calendar year under or in relation to this Agreement (whether for delict, breach of contract or otherwise) shall be limited in aggregate to a sum equivalent to the 80% of the Fees paid by Client during such calendar year.
7.3 Whether or not it has been advised of the possibility, Scorch shall not be liable to Client under or in relation to this Agreement (whether for negligence, breach of contract or otherwise) for any:
7.3.1 loss of sales, loss of profit, loss of capital, loss of turnover, loss of bargain, loss of opportunity, loss of use of computer equipment, loss of data or loss of time; and/or
7.3.2 indirect or consequential loss.
7.4 Client hereby indemnifies Scorch and keeps Scorch fully and effectively indemnified on demand and shall hold Scorch harmless against any loss or damage suffered or incurred by Scorch arising from any action brought by a third party in connection with Scorch's delivery of the Services.
9. Confidentiality
9.1 The parties recognise that during the course of the performance of the Services, they may each receive the trade secrets and confidential or proprietary information of the other party ('Confidential Information'). Each party agrees not to divulge Confidential Information belonging to the other to any of its employees who do not need to know it and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party. This obligation shall survive the termination of this Agreement for a period of 3 years or until such earlier time as the Confidential Information enters the public domain other than through the receiving party's own fault.
9.2 The provisions of Clause 9.1 shall not apply to the whole or any part of the Confidential Information to the extent that it is already in the other's possession or in the public domain other than as a result of a breach of this Clause 9 or which the other is required to disclose by reason of a statutory or regulatory requirement having the force or law or by reason of an order of a court of competent jurisdiction.
10. Termination
10.1 This Agreement shall commence on the Commencement Date and shall continue until terminated at any time by notice in writing:
10.1.1 by either party if the other party is in material breach of any of its obligations under this Agreement and fails to remedy the breach (if capable of remedy) within a period of 30 days after receipt of written notice by the other party; or
10.1.2 by Scorch if Client ceases trading, or becomes apparently insolvent or has a trustee in sequestration appointed, combines with its creditors, or has a liquidator, receiver or administrator appointed over all or any of its assets other than for the purposes of amalgamation or reconstruction or undergoes any analogous act or proceeding under foreign law; or
10.1.3 by Scorch if Client fails to pay any sums due within 21 days of the due date without prejudice to any other provisions relating to late payment in this Agreement; or
10.1.4 by the Client on three months' written notice given in accordance with Clause 2.2 or by Scorch on three months' written notice.
10.2 Any termination of this Agreement under this Clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination nor shall termination affect any rights or obligations of the parties which due to the nature thereof are to be observed or performed after such termination.
11. General
11.1 Client shall not be permitted to assign this Agreement without the prior written consent of Scorch. Scorch shall be entitled to sub-contract its obligations under this Agreement without the consent of Client.
11.2 This Agreement contains the entire agreement between the parties in relation to the subject matter hereof and supersedes all previous negotiations, representations, undertakings and agreements both written and oral made between the parties with respect to the subject matter hereof.
11.3 The relationship between the parties is as set out in this Agreement and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the parties and neither shall have the power to bind the other.
11.4 All formal notices to be given under this Agreement may be given by e-mail, or personally or by recorded delivery post or by facsimile, in either case to the address of the party in question as specified on the front of this Agreement or as may be notified to the other party from time to time in writing.
11.5 This Agreement shall be governed by and construed according to the law of England.
11.6 If a dispute arises out of or in connection with this Agreement, the parties will, with the help of the Centre for Dispute Resolution (CEDR) seek in good faith to resolve it by alternative dispute resolution. If the parties fail to agree terms of settlement within twenty eight days of the commencement of the procedure then either party shall have the option of commencing litigation and the parties hereby submit to the jurisdiction of the English Courts. The commencement of the procedure is defined as the commencement of the first dispute resolution meeting.
Schedule 2 - Services
(a) The design of the Site the form of which will be based on one of the following models depending on the level of service required by Client:
(i) BizCard;
(ii) BizSite; and
(iii) BizSite Extra;
(b) the registration of a domain name (Scorch cannot guarantee that any domain name will be available).
(c) the hosting of the Site on a server connected to the internet.
Schedule 3 - Fees
The Fees shall be those notified to the Client whether orally or otherwise at the time the Client places an order with Scorch. Scorch may increase the Fees after the expiry of a 12 month period from the Commencement Date and thereafter not more than once in any 12 month period upon 60 days written notice. Increases will not exceed the percentage increase in average earnings (AEI) for the UK over the preceding 12 months for the category, 'computer programming and electrical engineering', (or similar category).
