Programming & Development Terms and Conditions

1. Definitions and interpretation

1.1 In the Agreement:

Acceptance Criteria” has the meaning given to it in Clause [5.2];

Acceptance Period” means the period of [10] Business Days beginning on the date of actual delivery of the Website to the Customer;

Agreement” means the agreement between the Developer and the Customer incorporating these Web Development Terms and the Proposal, and any amendments to it from time to time;

Business Day” means any week day, other than a bank or public holiday in England;

Business Hours” means between 09:00 and 17:30 GMT on a Business Day;

CCN” means a change control notice issued in accordance with Clause [6];

CCN Consideration Period” means the period of [number] Business Days following the receipt of a CCN sent by the other party;

Change” means any change to the terms of the Agreement (including for the avoidance of doubt any change to Website specification in the Proposal);

Charges” means the amounts payable by the Customer to the Developer under or in relation to the Agreement (as set out in the Proposal);

Confidential Information” means the Customer Confidential Information and the Developer Confidential Information;

Credit” means a credit for the Developer on the Website, in the form specified in the Proposal;

Customer” means the customer for services under the Agreement as specified in the Proposal;

CustomerConfidential Information” means:

(a) any information disclosed by the Customer to the Developer during the Term / before the end of the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked as “confidential”; or (ii) should have been reasonably understood by the Developer to be confidential; and

Customer Works” means the works and materials provided to the Developer by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;

Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors; or

(b) an incompatibility between the Website and any other application, program or software (other than the Customer Works and the Third Party Works);

Delivery Date” means the date for delivery of the Website specified in the Proposal;

Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:

(a) the Customer Works; and

(b) the Third Party Works;

Developer” means ruralwebsites ltd (trading as clickcreations), a company incorporated in [England and Wales] (registration number 5991664) having its registered office at 13 Beech Ave, Nottingham, Notts, NG7 7LJ;

DeveloperConfidential Information” means:

(a) any information disclosed by the Developer to the Customer [during the Term / before the end of the Term] (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked as “confidential”; or (ii) should have been reasonably understood by the Customer to be confidential; and

Effective Date” means the date of execution of the Proposal;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, denial of service attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Personal Data” has the meaning given to it in the Data Protection Act 1998;

Proposal” means the proposal document issued by the Developer detailing the scope of the Services and other matters relating to the Agreement, often this takes the form of an invoice;

Services” has the meaning given to it in Clause [3.1];

Software Elements” means the Website excluding:

(a) the Design Elements;

(b) the Customer Works; and

(c) the Third Party Works;

Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);

Term” means the term of the Agreement; and

Website” means the website or web application to be developed by the Developer for the Customer under the Agreement.

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. Term

The Agreement will come into force on the Effective Date and will continue in force until the later of:

(a) the acceptance of the Website by the Customer in accordance with Clause [5]; and

(b) the receipt by the Developer of all amounts due to be paid by the Customer to the Developer under the Agreement,

upon which it will terminate automatically, unless terminated earlier in accordance with Clause [14].

3. The Services

3.1 The Developer will:

(a) design, develop and deliver the Website;

(b) incorporate the Customer Works specified in the Proposal or agreed in writing by the parties, together with the Third Party Works, into the Website; and

(c) deliver the Website and the files comprising the Website to the Customer in accordance with Clause [5],

(the “Services”).

3.2 The Developer will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, the Developer does not guarantee that that timetable will be met.

4. Customer obligations

4.1 The Customer will provide the Developer with:

(a) such co-operation as is required by the Developer (acting reasonably) to enable the performance by the Developer of its obligations under the Agreement; and

(b) all information and documents required by the Developer (acting reasonably) in connection with the provision of the Services.

4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by the Developer to enable the Developer to fulfil its obligations under the Agreement.

4.3 The Customer will supply to the Developer all those Customer Works that are specified in the Proposal.

4.4 The Customer will fulfil its obligations under Clause [4.3] in accordance with the timetable set out in the Proposal or, if no timetable is set out, promptly following the receipt of a written request for the relevant Customer Works from the Developer. The Developer shall not be in breach of the Agreement by virtue of any delay in the performance of its obligations under the Agreement arising out of a breach by the Customer of this Clause [4.4].

4.5 The Customer hereby grants to the Developer a licence to copy and use the Customer Works during the Term for the purposes of fulfilling its obligations and exercising its rights under the Agreement.

5. Delivery and acceptance

5.1 The Developer will use reasonable endeavours to deliver the Website to the Customer for acceptance testing on or before the Delivery Date. The Developer hereby grants to the Customer a licence to use the Software Elements and Design Elements during the Acceptance Period only for the purpose of carrying out tests under this Clause [5].

5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:

(a) whether the Website conforms in all material respects with the specification of the Website in the Proposal; and

(b) whether the Website has any Defects,

(the “Acceptance Criteria”).

5.3 If in the Customer’s reasonable opinion the Website meets the Acceptance Criteria, the Customer need not do anything.

5.4 If in the Customer’s reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria.

5.5 If the Developer (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, the Developer will have a further remedial period (of 30 Business Days) to modify the Website so that it meets the Acceptance Criteria.

5.6 The Website will be deemed to have been accepted by the Customer if:

(a) the Customer does not give any notice to the Developer under either Clause [5.3] or Clause [5.4] during the Acceptance Period; or

(b) the Customer publishes the Website or uses the Website for any purpose other than testing.

6. Change control

6.1 The provisions of this Clause [6] apply to all Changes requested by a party.

6.2 Either party may request a Change at any time.

6.3 When requesting a Change, the requesting party will notify the other party and provide a CCN. The CCN will set out (as a minimum):

(a) details of the impact on the timetable for the provision of the Services;

(b) details of any Customer Works and Third Party Works that will be required as a result of the Change; and

(c) details of any variation to the Charges consequent upon the Change.

6.4 The other party will consider any proposed Change and respond to any CCN within the CCN Consideration Period.

6.5 Either party may:

(a) accept or reject a CCN issued by the other party;

(b) request further information concerning any aspect of a CCN issued by the other party; and/or

(c) request amendments to a CCN issued by the other party.

6.6 Following agreement of a CCN, each party will confirm its agreement to the CCN by:

(a) signing a copy of the CCN and sending the signed CCN to the other party; or

(b) otherwise sending its written acceptance of the CCN to the other party.

6.7 Until a CCN recording a proposed Change has been signed or agreed in writing by each party, the proposed Change will not take effect.

7. Unlawful content

7.1 The Customer must ensure that the Customer Works will not:

(a) infringe any person’s Intellectual Property Rights or other legal rights;

(b) breach any laws or regulations; or

(c) give rise to a cause of action against any person,

in each case under any applicable law.

7.2 Any breach by the Customer of Clause [7.1] will be deemed to be a material breach of the Agreement for the purposes of Clause [14].

7.3 The Customer hereby indemnifies and undertakes to keep indemnified the Developer against any and all damages, liabilities, cost, losses and expenses (including legal expenses) suffered or incurred by the Developer and arising out of any breach [or alleged breach] by the Customer of Clause [7.1].

8. Charges and payment

8.1 The Developer will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Proposal, or (if earlier) upon the acceptance of the Website by the Customer.

8.2 The Customer will pay the Charges to the Developer within 14 days of the date of issue of an invoice issued in accordance with Clause [8.1].

8.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.

8.4 Charges must be paid by debit or credit card, direct debit, bank transfer or by cheque (using such payment details as are notified by the Developer to the Customer from time to time).

8.5 If the Customer does not pay any amount properly due to the Developer under or in connection with the Agreement, the Developer may:

(a) charge the Customer interest on the overdue amount at the rate of [8]% per year above the base rate of [HSBC Bank Plc] from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

8.6 Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal (unless the parties agree otherwise).

9. Intellectual Property Rights

9.1 From the date of acceptance of the Website by the Customer, the Developer hereby assignsto the Customer all its Intellectual Property Rights in the Design Elements. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

9.2 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of the Developer and, from the date of acceptance of the Website by the Customer, the Developer grants to the Customer a non-exclusive worldwide licence to use the Software Elements in connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not:

(a) sell, resell, rent, lease, supply, distribute or redistribute the Software Elements;

(b) use the Software Elements in connection with any website, web application, script, computer program or software (other than the Website); or

(c) alter or adapt or edit the Software Elements,

and the Customer may only sub-license the rights licensed under this Clause for the limited purposes, and subject to the express restrictions, specified in this Clause.

9.3 The Third Party Works will be (at the option of the Developer):

(a) supplied in accordance with the relevant licensor’s standard terms for online use;

(b) supplied on licence terms notified by the Developer to the Customer;

(c) sub-licensed by the Developer to the Customer on terms notified by the Developer to the Customer; and/or

(d) sub-licensed by the Developer to the Customer on the basis of a non-exclusive, worldwide, royalty-free licence to use the Third Party Works in connection with the Website.

9.4 Notwithstanding any other provision of the Agreement, the assignments and licences granted by the Developer under the Agreement are subject to the payment by the Customer of all amounts owing to the Developer in full and on time. In the event that the Customer owes any amount to the Developer and fails to pay that amount to the Developer within 14 days of receiving a notice:

(a) requiring it to do so; and

(b) specifying that the assignment will revert and the licences will terminate if the amount remains unpaid,

then the Developer may immediately revert the assignments and terminate the licences granted by the Developer under the Agreement by giving written notice of reversion and termination to the Customer.

9.5 Subject to Clause [9.4], upon and following the termination of the Agreement, any licences granted by the Developer to the Customer under this Clause [9] will continue notwithstanding termination.

9.6 The Developer may include the Credit together with a link to the Developer’s website on [each page] of the Website in a position and in a form to be determined by the Developer acting reasonably. The Customer will retain any such Credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such Credit and link from the Website at the Developer’s request.

9.7 The Customer grants to the Developer a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing the Developer’s services to third parties providing that the Developer will only disclose or demonstrate the Website to a third party under the terms of a written and reasonably comprehensive confidentiality agreement.

10. Warranties

10.1 The Customer warrants to the Developer that it has the legal right and authority to enter into and perform its obligations under the Agreement.

10.2 The Developer warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;

(b) that it will perform its obligations under the Agreement with reasonable care and skill;

(c) that the Website (excluding the Customer Works and Third Party Works) will not infringe any person’s Intellectual Property Rights under English law; and

(d) that the Website will operate without any Defects upon the date of acceptance of the Website.

10.3 If the Customer demonstrates to the Developer that the Website suffers from any Defect during the period of 60 days following the date of acceptance, the Developer will, for no additional charge, carry out any work necessary in order to remedy the Defect.

10.4 The Customer acknowledges that the Developer will design the Website to work with the web browser and server technologies specified in the Proposal, and the Developer does not warrant that the Website will work with any other web browser or server technologies.

10.5 Without prejudice to the warranty in Clause [10.2(c)], the Customer further acknowledges that the Developer does not purport to provide any legal advice under the Agreement or in relation to the Website and the Developer does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

10.6 All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out herein. To the maximum extent permitted by applicable law and subject to Clause [11.1], no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

11. Limitations and exclusions of liability

11.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable law.

11.2 The limitations and exclusions of liability set out in this Clause [11] [and elsewhere in the Agreement]:

(a) are subject to Clause [11.1];

(b) govern all liabilities arising under the Agreement [or any collateral contract] or in relation to the subject matter of the Agreement [or any collateral contract], including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty;

11.3 The Developer will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

11.4 The Developer will not be liable for any loss of business, contracts or commercial opportunities.

11.5 The Developer will not be liable for any loss of or damage to goodwill or reputation.

11.6 The Developer will not be liable in respect of any loss or corruption of any data, database or software.

11.7 The Developer will not be liable in respect of any special, indirect or consequential loss or damage.

11.8 The Developer will not be liable for any losses arising out of a Force Majeure Event.

11.9 The Developer’s liability in relation to any event or series of related events will not exceed the greater of:

(a) £0.01; and

(b) the total amount paid and payable by the Customer to the Developer under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.

11.10 The Developer’s aggregate liability under the Agreement and any collateral contracts will not exceed the greater of:

(a) £0.01; and

(b) the total amount paid and payable by the Customer to the Developer under the Agreement.

12. Data protection

12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Developer under the Agreement.

12.2 The Developer warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Developer on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organisational) against:

(i) unlawful or unauthorised processing; and

(ii) loss or corruption,

of Personal Data processed by the Developer on behalf of the Customer.

13. Confidentiality and publicity

13.1 The Developer will:

(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause [13]; and

(b) protect the Customer Confidential Information 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.

13.2 The Customer will:

(a) keep confidential and not disclose the Developer Confidential Information to any person save as expressly permitted by this Clause [13]; and

(b) protect the Developer Confidential Information 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.

13.3 Confidential Information of a party may be disclosed by the other party to that other party’s officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.

13.4 The obligations set out in this Clause [13] shall not apply to:

(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Customer Confidential Information that is in possession of the Developer prior to disclosure by the Customer, and Developer Confidential Information that is in possession of the Customer prior to disclosure by the Developer; or

(c) Customer Confidential Information that is received by the Developer, and Developer Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information.

13.5 Nothing in the Agreement shall restrict a party from making any disclosure of Confidential Information that is:

(a) required by law; or

(b) required by a governmental authority, stock exchange or regulatory body,

provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement.

13.6 The Customer will not make any public disclosure relating to the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the Developer.

14. Termination

14.1 The Developer may terminate the Agreement at any time by giving at least 30 days’ written notice to the Customer.

14.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b) fails to pay any amount due under the Agreement in full and on time.

14.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

15. Effects of termination

15.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.3, 8.5, 9.2 to 9.7, 10.3, 11, 13.1 to 13.5, 15 and 16.3 to 16.13].

15.2 Termination of the Agreement will not affect either party’s accrued rights (including the Developer’s accrued rights invoice for and to be paid the Charges) as at the date of termination.

15.3 If the Agreement is terminated under Clause [14.1], or by the Customer under Clause [14.2] or [14.3] (but not in any other case):

(a) the Developer will promptly provide to the Customer an electronic copy of the Website; and

(b) the Customer will be entitled to a refund of any Charges paid by the Customer to the Developer in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Developer (such amount to be calculated by the Developer using any reasonable methodology).

15.4 Save as provided in Clause [15.3(b)], the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Developer.

16. General

16.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or [email address] given below (or as notified by one party to the other in accordance with this Clause).

The Developer

ruralwebsites ltd (trading as clickcreations)

13 Beech Ave

Nottingham, Notts

NG7 7LJ

16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

(b) where the notice sent by recorded signed-for post, 48 hours after posting; and

(c) where the notice sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

16.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

16.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

16.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

16.6 The Agreement may not be varied except:

(a) through the Change control procedure in Clause [6]; or

(b) by a written document signed by or on behalf of each of the parties].

16.7 The Customer hereby agrees that the Developer may freely assign any or all of its contractual rights and/or obligations under the Agreement to any third party. The Customer may not without the prior written consent of the Developer assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any of its contractual rights or obligations under the Agreement.

16.8 The Developer may subcontract any of its obligations under the Agreement to any third party without the Customer’s consent.

16.9 The Customer will not, without the Developer’s prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of the Developer who has been involved in the performance of the Agreement.

16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.

16.11 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

16.12 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause [11.1], each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.

16.13 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.