Terms and Conditions
1. Definitions and Interpretation: In these Terms and Conditions, the following expressions have the following meanings:
"Client" means the individual, firm or corporate body purchasing the Software. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to enter into this Contract on behalf of that business and the business shall be the Client in the context of this Contract;
"Company" means Web Alliance Limited, a company registered in England under number 08306747, of 32 Thruxton Drive, Northampton, Northamptonshire, NN3 6ES
"Contract" means the contract formed as detailed in clause 2, which includes the acceptance of these Terms and Conditions; and
"Quotation" means the written quotation to provide the Services, which remains open for acceptance for a period of 30 days and shall constitute our entire scope of works;
"Services" means the web and/or software development and/or hosting services to be provided to the Client and any other services as to be agreed within the Quotation.
"Software" means the software provided by the Company.
1.1 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.1.1 "we", "us"; and "our" is a reference to the Company;
1.1.2 "you" and "your" is a reference to the Client;
1.1.3 "writing" and "written" includes emails and similar communications;
1.1.4 a statute is a reference to that statute as amended or re-enacted at the relevant time;
1.1.5 "these Terms and Conditions" is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.1.6 a clause refers to a clause of these Terms and Conditions;
1.1.7 a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
1.2 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation.
1.3 Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. References to persons shall include corporations.
2. The Contract
2.1 We will provide a Job Specification and a Quotation for all Services. The acceptance of our Quotation, electronically or otherwise, or the placement of an order, creates a legally binding Contract between the Company and the Client and includes the acceptance of these Terms and Conditions, which shall apply between us.
2.2 These Terms and Conditions shall:
2.2.1 apply to and be incorporated in the Contract;
2.2.2 apply to all dealings relating to the Services being supplied by us;
2.2.3 and prevail over any terms or conditions contained in or referred to by the Client's purchase order, confirmation of order or specification, or implied by law, trade custom, practice or course of dealing, subject to clause 8 below.
2.3 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on us unless in writing and signed by a duly authorised representative of ours.
2.4 The Client shall be responsible for the accuracy of any information submitted to us and for ensuring that our Quotation reflects the requirements of the Client. Our Quotation is based on the information provided to us at the time of its preparation. Should any errors or discrepancies become evident which affect our order value, we reserve the right to make adjustments to it.
2.5 Our Quotation shall constitute our entire scope of works but shall be subject to amendment as detailed below.
2.6 Our Quotation will be valid for a period of 30 days only unless otherwise stated, and we may withdraw it at any time by giving notice to the Client.
2.7 The licence granted under these Terms and Conditions shall commence on the launch date of the website, system or platform developed by the Company for the Client, under the project.
2.8 The Contract for hosting or support services will be for an initial term of 3 months and thereafter will be automatically renewed, on a rolling monthly basis, on these same terms and conditions (with the exception of the price) unless written notice to terminate is given by either party in accordance with clause 10 below.
2.9 Once the Contract is formed, and provided payment (where necessary) is made in accordance with clause 6, we will immediately grant you a non-exclusive, non-transferrable licence to use our Software in object code form only solely for your own internal business operations, within the bounds of these Terms and Conditions.
3. Software: The following clause 3 shall apply to Software only.
3.1 It is your responsibility to ensure that your employees, agents and other parties under your control who will use the Software do so in accordance with these Terms and Conditions and are accordingly notified of the same.
3.2 All proprietary rights in the Software remain with us. You shall not:
3.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit, or distribute all or any portion of the Software in any form or media or by any means;
3.2.2 attempt to reverse compile, disassemble, or reverse engineer all or any part of the Software;
3.2.3 access all or any part of the Software in order to build a product or service which competes with the Software;
3.2.4 vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software;
3.2.5 sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party unless expressly authorised by us; or
3.2.6 attempt to obtain, or assist third parties in obtaining, access to the Software other than as provided under this clause 3.
3.3 We do not warrant that your use of the Software will be uninterrupted or error-free; nor that the Software will meet your requirements.
3.4 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.5 Should you be on our service contract, we reserve the right to carry out maintenance at such times as may be necessary at our discretion but will endeavour to give you advance notice where possible.
3.6 If you have opted not to be in our service contract and an error occurs we will price up the works accordingly. Should any data be lost as a result of such error we will use reasonable endeavours to recover any data lost but under no liability if no recovery available.
3.7 The Client undertakes that it will ensure that each authorised user keeps their password confidential. The Client will also ensure that each password is reasonably strong and secure, containing a combination of letters, numbers and symbols, and is changed regularly, no less frequently than once every three months.
3.8 The Client shall not store, distribute or transmit any viruses, or any material on the Client's website or during the course of its use of the Software that:
3.8.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.8.2 facilitates illegal activity;
3.8.3 depicts sexually explicit images;
3.8.4 promotes unlawful violence;
3.8.5 is knowingly discriminatory based on race, gender, religious belief, sexual orientation, disability, or any other illegal activity; or
3.8.6 causes or may cause damage or injury to any person or property and we reserve the right, without liability to the Client, to remove any content that breaches the provisions of this clause.
3.9 The rights provided under these Terms and Conditions are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client without our written permission.
3.10 The Client shall own all rights, title and interest in and to all content and data uploaded by the Client and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality. For the avoidance of doubt, we do not monitor, and will have no liability for the contents of, any content or communications transmitted by the Client using the Software.
4. Web Hosting Services: The following clause 4 shall apply to web hosting services only.
4.1 Payment shall be made in accordance with clause 7.2 below.
4.2 The contract for any web hosting and domain agreements will be automatically renewed, with the exception of the price, on the same terms and conditions as set out in this agreement on a rolling basis unless a written notice to terminate is given by either party in accordance with clause 10 of this agreement. Any such price increase shall be notified by the Company to the Client in accordance with these terms and conditions.
4.3 The Client will pay for any additional services provided by us that are not specified in the Quotation. These additional services shall be charged in accordance with our current, applicable hourly rate in effect at the time of the performance or such other rate as may be agreed. Payment shall be due within 14 days of the date of the relevant invoice.
4.4 Should payment not be received in accordance with this clause 3, we reserve the right to suspend the Services and charge interest on the overdue sum in accordance with clause 5.6 below. Further, should any payments remain outstanding for a period of 3 months or more, we reserve the right to shut the website down and/or reuse the domain name at our sole discretion.
4.5 We will use our best endeavours to ensure the web hosting Services are uninterrupted, however, should interruptions occur due to unforeseen circumstances, we will refund the hosting fees on a pro rata basis for any period of downtime encountered during the month. This shall be our sole liability and we shall accept no liability for any loss of profit or any consequential losses in accordance with clause 18.1.
4.6 In addition, we cannot be held responsible for events that occur outside our control, including, but not limited to, loss of data and hacking. The Client is responsible for backing up any images and data on the website and we accept no liability for the same.
5.1 The Client agrees to pay the fees in accordance with the terms of payment herein.
5.2 Payment for web hosting, SEO and any other ongoing monthly services shall be made by way of monthly instalments in advance on the 1st of each calendar month by standing order. It is the Client's responsibility to set up and maintain the standing order payments
5.3 Unless otherwise stated in our Quotation, our standard payment terms are as follows:
30% of the Fee is due upon acceptance of our Quotation. We will not schedule or commence the works until this deposit is paid in full. This deposit is non-refundable.
40% of the Fee will be due when the test link for the website/software is sent.
30% of the Fee is due upon the launch of the website, or within 3 months of sending the test link, if the completion is delayed for any reason through no fault of our own.
5.4 For larger projects, we may agree a monthly payment schedule which will be paid via standing order for the same amount each month over a set period of time as detailed in our Quotation. It will be your responsibility to set up and maintain the standing order for the agreed term.
5.5 All invoices are payable within 15 days of the date of invoice, in pounds sterling, without set-off, withholding or deduction. All prices are exclusive of VAT.
5.6 If we either provide any services not included within the Services originally quoted for or provide the Services outside of our normal business hours at the request of the Client, we shall charge for the same at our then current hourly rate.
5.7 Time for payment shall be of the essence of the Contract. If the Client fails to make payment in full on the due date, agreed standing order date or fails to comply with the Client's obligations as listed in clause 4, the whole of the balance of the Quotation then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to us, we shall be entitled to:
5.7.1 appropriate any payment made by the Client to any outstanding sum;
5.7.2 charge interest on the amount outstanding from the due date to the date of receipt by us (whether before or after judgment), at the annual rate of 8% above the then current Bank of England base lending rate, accruing daily and compounded quarterly;
5.7.3 suspend all further provision of Services until the Client remedies the default;
5.7.4 shut the website/software down and/or reuse the domain name at our sole discretion, should any payments remain outstanding for a period of 3 months or more;
5.7.5 not be held liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from our failure or delay in performing any of our obligations as a result; and
5.7.6 be entitled to claim for any costs or losses sustained or incurred by us arising directly or indirectly from the Client's default.
6. Intellectual Property Rights, Claims and Disputes
6.1 The Software, together with any and all intellectual property rights of whatever nature which now or in the future subsist in the Software are and shall remain our property. This Contract does not constitute a sale of the original Software or any copies thereof.
6.2 You must notify us immediately if you become aware of any unauthorised use of the whole or any part of the Software by any person.
6.3 We will defend, at our own expense, any claim brought against you alleging that the use of the Software infringes the intellectual property rights of a third party and we shall pay all reasonable costs and damages awarded or agreed to in settlement of such a claim provided that you:
6.3.1 give us the sole authority to defend or settle the claim;
6.3.2 furnish us with prompt written notice of the alleged claim; and
6.3.3 provide us with reasonable assistance in respect of the claim.
6.4 We shall have no liability for any such claim resulting from any modification of any part of the Software by any party other than us or an authorised agent of ours.
6.5 Should you wish to use a different hosting
7. Our Obligations
7.1 We warrant that the Software will operate as described, when used properly.
7.2 We warrant that we will use all reasonable care and skill in fulfilling our obligations under this Contract and that all personnel have qualifications and experience appropriate for the tasks to which they are allocated.
7.3 We will ensure that we and our servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Software.
7.4 If we receive written notice from you, after the Contract is formed, of any breach of our obligations then we shall remedy the defect or error in question at our own expense and as soon as reasonably possible.
7.5 When notifying us of a defect or error, please (where possible) provide us with a documented example of such defect or error.
7.6 Defects or errors should be made known to us within 24 hours of becoming aware of the defect or error.
7.7 Our obligations are subject to you complying with your obligations under the terms of this Contract and shall also be subject to the limits and exclusions of liability set out in clause 14. In particular, they shall not apply if any defect in the Software arose or was exacerbated as a result of:
7.7.1 incorrect use, operation or corruption of the Software;
7.7.2 any unauthorised modification or alteration of the Software; or
7.7.3 use of the Software with other software or on equipment with which it is incompatible.
8. Client's Obligations
8.1 The Client agrees, where applicable, to:
8.1.1 provide us with any information, advice and assistance relating to the services as we may reasonably require within sufficient time to enable us to perform the services;
8.1.2 provide us with suitable and sufficient material and images to enable us to perform the services;
8.1.3 ensure any staff are trained in the proper use and operation of any system provided by us;
8.1.4 virus-check all data and material supplied to us and ensure data is backed up regularly;
8.1.5 keep secure from third parties any passwords issued by us to the Client in connection with the services;
8.1.6 nominate a suitably qualified individual to act as the Client's representative to liaise with us regarding the services;
8.1.7 obtain and maintain all necessary licences, permissions and consents in connection with the services; and
8.1.8 comply with all applicable Health and Safety legislation and regulations whilst we are working at the Client's premises.
8.2 If the Client fails to meet any of the provisions of this clause 9, without limiting our other rights or remedies, we shall:
8.2.1 have the right to suspend performance of the services until the Client remedies the default; and
8.2.2 not be held liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from our failure or delay in performing any of our obligations as a result;
8.2.3 be entitled to claim for any costs or losses sustained or incurred by us arising directly or indirectly from the Client's default.
9. Errors or Discrepancies: The Client shall be responsible for the accuracy of any information submitted to us and for ensuring that the Quotation or contract reflects the requirements of the Client. Our Quotation is based on the information provided to us at the time of preparing such Quotation. Should any errors or discrepancies become evident which affect the order value, we reserve the right to make any adjustments to it.
10. Variation and Amendments
10.1 If the Client wishes to vary the services to be provided, they must notify us as soon as possible. We shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
10.2 If, due to circumstances beyond our control, we have to make any change in the arrangements relating to the provision of the services, we shall notify the Client immediately. We shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
10.3 Any agreed variation or amendment will be carried out in accordance with these terms and conditions and any price increase necessitated as a result of an agreed variation or amendment shall be payable in accordance with the terms for payment herein.
11.1 As detailed in clause 2.8 above, the Contract for services will be for an initial term of 3 months and thereafter shall be automatically renewed, with the exception of the price, on the same terms and conditions as set out in this Contract on a rolling monthly basis unless a written notice to terminate is given by either party in accordance with this clause 13. Such notice is to be given a minimum of 30 days before the end of the then-current Term, and shall be effective only at the end of that Term.
11.2 We may terminate this Contract at any time by giving the Client a minimum of 30 days’ written notice.
11.3 Either Party may terminate the Contract immediately by giving written notice to the other if the other Party commits any serious breach of any term of this Contract and (if the breach is capable of being remedied) has failed to remedy the breach within 14 days after receiving a written request from the other Party to do so.
11.4 In the event of any breach or suspected breach by the Client, we reserve the right to immediately disable the Client’s account and access to any Software provided by us, until we have investigated the breach.
11.5 Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Contract shall survive termination on a pro-rata basis.
11.6 The rights to terminate this Contract given by this clause 12 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
12.1 Upon acceptance of the Quotation for the one-off service, the Client shall no longer be entitled to cancel the Services to be provided, except with our agreement in writing and provided that the Client indemnifies us in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by us as a result of the cancellation.
12.2 Subject to clause 12.1, either party may terminate this Contract:
12.2.1 forthwith on giving notice in writing to the other if one party commits any serious breach of any term of this Contract and (in the case of a breach capable of being remedied) shall have failed, within 7 days after the receipt of the request in writing from the other to do so, to remedy the breach;
12.2.2 if the other party goes into bankruptcy, liquidation or administration either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation), if a receiver is appointed in respect of the whole or any part of its assets, or if the other party ceases, or threatens to cease, to carry on business.
12.3 We may terminate this Contract forthwith:
12.3.1 if the Client fails to pay any sum due under the terms of this Contract and such sum remains unpaid for 14 days after we give written notice that such sum has not been paid; or
12.3.2 If we give the Client 14 days’ written notice whereby there will be no continuing liability by either Party.
12.4 Upon termination of this Contract for any reason, we will invoice the Client for the complete Services as quoted for and such sum shall become immediately due and payable.
12.5 Termination of the Contract, howsoever arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.
13.1 Nothing in these Terms and Conditions excludes or seeks to exclude our liability for death or personal injury caused by our negligence, or for fraud or fraudulent misrepresentation.
13.2 Except as provided in clause 12.1 above, we will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our servants or agents or otherwise) in connection with the performance of our obligations under the Contract. All warranties or conditions whether express or implied by law are hereby expressly excluded to the maximum extent permitted by law.
13.3 In the event of a breach by us of our express obligations under these Terms and Conditions, the remedies of the Client will be limited to damages, which in any event, shall not exceed the fees paid by the Client for the use of the Software in the 12 months preceding the date on which the alleged claim arose.
14.1 Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by one party to the other. Each party shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging its obligations under the Contract and shall ensure that such employees are subject to corresponding obligations of confidentiality.
14.2 This clause 9 shall survive termination of the Contract, however caused.
15. No Employment
15.1 Nothing in this Contract shall render or be deemed to render us an employee or agent of yours or you an employee or agent of ours.
15.2 Nothing in this Contract shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Contract. Neither Party shall have the authority to act in the name of or on behalf of, or otherwise to bind, the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16. Data Protection
16.1 If any Personal Data (as defined by the Data Protection Act 1998) is passed to us under this Contract then the parties agree that the Client is the Data Controller and that we are the Data Processor.
16.2 We shall:
16.2.1 process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by law or any regulatory body;
16.2.2 implement appropriate measures to protect the Personal Data against unauthorised or unlawful processing or loss, destruction, damage, alteration or disclosure; and
16.2.3 take reasonable steps to ensure the reliability and confidentiality of any of our personnel who have access to the Personal Data.
16.3 We may transfer and store Personal Data outside of the European Economic Area ("EEA"). If this is to occur, we will advise the Client in advance. The Client is entitled to request that Personal Data is not transferred or stored outside of the EEA, however, this would be an additional cost.
16.4 In addition, we cannot be held responsible for events that occur outside our control including, but not limited to, loss of data and hacking. You are responsible for backing up any personal data and we accept no liability for this.
17. Force Majeure
17.1 We shall not be liable to the Client for any breach of our obligations under this Contract if such breach is due to an act, event, omission or accident beyond our reasonable control (Force Majeure Event). Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond our reasonable control.
17.2 If a Force Majeure Event occurs, we shall inform the Client as soon as possible and take all reasonable steps to mitigate the effects of the Force Majeure Event and resume performance of our obligations as soon as possible.
18. Waiver: No failure or delay by either Party in exercising any of its rights under this Contract shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
19. Entire Agreement
19.1 This Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
19.2 None of our employees are authorised to make any contractually binding representations concerning the Services. In entering into the Contract, the Client acknowledges that it does not rely on, and waives any claim for breach of, any such statement, representation, assurance or warranty (whether made negligently or innocently) which has not been confirmed in writing by an authorised officer of ours.
20.1 The Client shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract, without the consent of the Client.
21. Third Party Rights: The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
22.1 Any notice required to be given pursuant to this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or by e-mail to the address of the party as set out in these terms and conditions, or such other address as may be notified by one party to the other.
22.2 A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. An e-mail shall be deemed to have been delivered within 24 hours from the time of being sent, provided that no "non-deliverable" notice is received by the sender.
23. Severance: In the event that one or more of the provisions of this Contract is found to be unlawful, invalid or otherwise unenforceable, that/those provision(s) shall be deemed severed from the remainder of this Contract. The remainder of this Contract shall be valid and enforceable.
24. Law, Jurisdiction and Dispute Resolution
24.1 This Contract and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of England and Wales.
24.2 The Client recognises that our business relies upon the protection of our Intellectual Property Rights ("IPR"). In the event of a breach or threatened breach of IPR, we will be caused irreparable damage and may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of our IPR.
24.3 With respect to all other disputes which are not IPR related, the following clauses 19.4 – 19.6 shall apply.
24.4 Where there is a dispute, the aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the issue. A senior representative of each of the Parties shall communicate within 7 days of the date of the written notification in order to reach an agreement about the nature of the issue and the corrective action to be taken by the respective Parties.
24.5 If the Parties cannot resolve a dispute in accordance with clause 19.4, they shall seek to resolve the dispute or difference amicably using an Alternative Dispute Resolution ("ADR") procedure acceptable to both Parties before pursuing any other remedies available to them. If either Party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute is not resolved to the satisfaction of both Parties within 30 days after it has arisen, the matter shall be settled in accordance with the procedure below.
24.6 If the Parties cannot resolve the dispute by the procedure set out above, the Parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Contract.