Brownstone Advertising and Marketing Ltd
TERMS & CONDITIONS OF SALE
The following conditions of sale shall govern all transactions between any party (“The Customer”) and Brownstone Advertising and Marketing Ltd (“BAAM”) (except as otherwise specifically agreed in writing by an authorised person from BAAM) to the exclusion of any other conditions. By placing an Order the Customer is accepting the terms and conditions stated in these Terms and Conditions. These terms and conditions apply to all transactions conducted with BAAM for website software development both online and offline.
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
The date on which the Software and the Website is accepted (or deemed to be accepted) by the Customer and signed off pursuant to clause 6.3
The testing of the Software leading up to acceptance of the Software and sign off by the Customer
Any additional services requested by the Customer to be provided by BAAM
A request for a change made by the Customer or BAAM
Shall include, but not necessarily be limited to, all information which is not publicly known including the business, finances, technology (including without limitation the Software and the Documentation) trade secrets, and any other commercially sensitive information of either party regardless of its nature
The person for the time being or from time to time duly appointed by the Customer and notified in writing to BAAM who is to act as the Customer’s representative for the Project
Any documentation supplied by BAAM as part of the Project
Software development, procurement, consulting and computer programming services for the purpose of creating the Website for use on the World Wide Web service of the Internet
‘Distinctive Customer Features’
Specific elements which do not form part of the generic functionality of the Software and which implement unique visual features or layouts created at the specific request of the Customer
The service provided by BAAM for the hosting of the Website on the World Wide Web service of the Internet using an internet service provider, domain name registration and services related thereto as specified in the Order or as otherwise agreed
The price charged by BAAM for the Hosting Service
The timing and sequence of events agreed between the Customer and BAAM as set out in the Order
‘Intellectual Property Rights’
All copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trade marks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world
The order form agreed between the Customer and BAAM or as otherwise wagered between the parties specifying the Software, Support Services and Hosting Services
The payment terms as set out in the Order
‘Planned Acceptance Date’
The date specified in the Implementation Plan on which the Software is intended to be accepted by the Customer in accordance with these Terms and Conditions
The fixed, all inclusive price for the provision of the Software, design of the artwork for the Website, the Licence and the Documentation
The development, delivery and testing of the Software
The estimate supplied by BAAM to the Customer detailing the Specification and the Price
The software being developed or customised by BAAM to the specification of the Customer forming a major part of the Website
The specification of the Software set out in the Quotation
Those services specified in the Order
The period of two months after the Acceptance Date
The www site comprising all website pages including functionality, graphics, audio-visual effects and other digital content as detailed in the Specification
2 Services to be provided
2.1 BAAM shall:
2.1.1 supply the Development Services to the Customer;
2.1.2 test the Software;
2.1.3provide, if applicable, the Documentation;
2.1.4 provide the Support Services and carry out any Additional Services agreed by the parties.
2.2 BAAM shall carry out the obligations set out in clause 2.1 in accordance with the Implementation Plan.
2.3 Provided that the Customer has fully and properly complied with all of its obligations under these Terms and Conditions, BAAM shall supply to the Customer within 21 days the object and source code of the Software when requested by the Customer.
BAAM shall ensure that all of its personnel engaged in the Project:
3.1 have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the computer industry for similar services;
3.2 comply with the provisions in these Terms and Conditions relating to Confidential Information.
4 Customer’s obligations
The Customer shall:
4.1 make available to BAAM, free of charge, such computer facilities including office and secretarial services as are necessary to enable BAAM to carry out its obligations under these Terms and Conditions;
4.2 ensure that its employees and other independent contractors co-operate reasonably with BAAM and its employees in carrying out the Project;
4.3 promptly furnish, and in any event by any agreed date, BAAM with such information and documents as it may reasonably request for the proper performance of its obligations under these Terms and Conditions; and
4.4 ensure that the Customer Representative is available as reasonably required by BAAM.
5 Change control
5.1 If either party identifies a requirement for a change, a Change Request will be sent to the other party detailing the change requirements. If sent by BAAM, the Change Request shall state the effect such a change shall have on the Software, the Implementation Plan and the Price. If sent by the Customer, the receipt of the Change Request by BAAM will constitute a request to BAAM to state in writing the effect such a change shall have on the Software, the Implementation Plan and the Price. BAAM shall use all reasonable endeavours to supply the necessary details within 10 working days from receipt of the Change Request or such other period as may be agreed.
5.2 Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Order. The parties will then decide whether or not to implement the change. If the change is implemented, the amended Software, Implementation Plan or Price shall then become the Software, Implementation Plan and Price for the purpose of these Terms and Conditions.
5.3 BAAM shall not implement any changes unless instructed to do so by the Customer Representative.
6 Acceptance Tests
6.1 The Acceptance Tests shall be agreed by the parties in accordance with the Implementation Plan.
6.2 BAAM shall use its reasonable endeavours to ensure that the Software is ready for acceptance testing by the Planned Acceptance Date. In any event, BAAM shall give to the Customer 5 working days prior notice in writing of the date when it will be ready to commence the Acceptance Tests.
6.3 The Customer shall accept, and confirm by way of signing off, the Software immediately after the Software has passed the Acceptance Tests.
6.4 If the Software fails to pass the Acceptance Tests, repeat tests shall be carried out until the earlier of the following occurs:
6.4.1 the Software passes the Acceptance Tests;
6.4.2 the Acceptance Tests have been repeated 3 times; or
6.4.3 a 30-day period from the Planned Acceptance Date has expired.
6.5 If the Software has not been accepted by the Customer on or after the occurrence of the events specified in clause 6.4.2 or 6.4.3, then the Customer Representative and BAAM shall meet and use their best endeavours to agree the implementation of necessary actions to pass the Acceptance Test.
6.6 If at any time the Customer shall commence live running of the whole or any part of the Software (other than in the Acceptance Tests) then the Customer shall be deemed to have accepted the Software.
7 Representatives and progress meetings
The Customer shall nominate within 7 days of the signing of the Order the person who will act as the Customer Representative for the purposes of the Project.
8.1 BAAM warrants that:
8.1.1 It is entitled to enter into the agreement with the Customer for the Project and that it is entitled to grant the license pursuant to clause 10 in accordance with these Terms and Conditions.
8.1.2 The Software shall perform substantially in accordance with the Specification minor interruptions and errors excluded;
8.1.3 The Development Services will be carried out in a professional manner conforming to best industry practices.
8.2 BAAM shall not be liable under clause 8.1.2 if a failure to meet the warranties set out in that clause is caused by:
8.2.1 software other than the Software; or
8.2.2 modifications or customisation made by or on behalf of the Customer to the Software, without the authorisation of BAAM.
8.2.3 hosting difficulties as set out at clause 9 of these Terms and Conditions.
8.3 If BAAM receives a written notice from the Customer identifying a breach of the warranties set out in clause 8.1, or otherwise becomes aware of its failure to comply with the warranties set out in clause 8.1, then BAAM shall, at its own expense, promptly remedy such breach or failure provided that BAAM shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.
8.4 To the extent permitted by applicable law, BAAM:
8.4.1 excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Software (and any new release) and any Documentation, either express or implied, that are not expressly stated herein, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;
8.4.2 makes no warranty that the Software is error free or that its use will be uninterrupted and the Customer acknowledges and agrees that the existence of such errors shall not constitute a breach of these Terms and Conditions;
8.4.3 does not give any warranty in respect of third party products. BAAM will pass on to the Customer the benefit of any third party warranty supplied by a third party manufacturer or supplier.
9.1 If the Customer wishes to host the Website or application on a server other than one recommend by BAAM Additional Services shall be incurred in respect of any technical issues arising such as the configuration of the Customers server or work and advice given to make the Website function correctly.
9.2 Whilst BAAM recommends hosting companies to host websites, no guarantees can be made as to the availability or interruption of this hosting service. BAAM shall not be liable for any loss or damage of any nature whatsoever caused by the unavailability, malfunction or interruption of the hosting service.
9.5 If a special server is required time spent by BAAM in configuring and setting up the server shall be Additional Services and be chargeable accordingly.
10 Grant of rights
10.1 Upon payment in full of the Price, BAAM grants to the Customer a worldwide non-exclusive, non-transferable right and license to use the Software and any Documentation.
10.2 BAAM shall not be involved in the creation of a website that uses trade names, trade marks, or any Distinctive Customer Features that results in such site being confused by Internet users with any site maintained by or for the benefit of the Customer using the Software.
11 Proprietary rights
11.1 The Intellectual Property Rights in the Software (including the source and object code) and the Documentation shall be and remain vested in BAAM.
11.2 BAAM will indemnify the Customer on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the Software infringes the intellectual property rights of any third party subject to the following conditions:
11.2.1 The Customer shall promptly notify BAAM in writing of any allegations of infringement of which it is aware and shall not make any admissions without BAAM’s prior written consent.
11.2.2 The Customer, at BAAM’s request and expense, shall allow BAAM to conduct and/or settle all negotiations and litigation resulting from any such claim subject to BAAM taking over such conduct within 10 working days after being notified of the claim and providing that BAAM diligently pursues the settlement of any such claim; and
11.2.3 The Customer shall, at the request of BAAM, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by BAAM on demand for all expenses incurred in doing so.
11.3 If the Customer’s use or possession of the Software or any part thereof in accordance with these Terms and Conditions, is held by a court of competent jurisdiction to constitute an infringement of a third party’s intellectual property rights, then BAAM shall promptly and at its own expense:
11.3.1 procure for the Customer the right to continue using and possessing the Software or the infringing part; or
11.3.2 replace or, with the prior written consent of the Customer, modify the Software (or part thereof) without detracting from the overall performance of the Software, so as to avoid the infringement.
12.1 The Price and the Hosting Price (if any) shall be paid by the Customer in accordance with the Payment Terms as provided in the Order.
12.2 The Price and other charges payable under these Terms and Conditions are exclusive of any applicable VAT and other sales tax which shall be payable by the Customer at the rate and in the manner prescribed by law against submission of a valid tax invoice.
12.3 Any charges payable by the Customer under these Terms and Conditions in addition to the Price and the Hosting Price shall be paid within 30 days after the receipt by the Customer of BAAM’s invoice in relation thereto.
12.4 BAAM shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of HSBC Bank calculated from the date when payment of invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
12.5 The Customer shall also pay or procure the payment to BAAM of all reasonable traveling and other out-of-pocket expenses incurred in the course of the Project subject to a maximum amount of £100 per item of expenditure excluding all travel costs.
12.6 With effect from the beginning of each year commencing on the Acceptance Date, BAAM may increase the Hosting Price and the Rates in effect during the previous year provided that not less than 10 working days prior written notice has been given to the Customer by BAAM.
13.1 BAAM shall indemnify the Customer for personal injury or death caused by the negligence of its employees in connection with the performance of their duties in undertaking the Project or by defects in any product supplied pursuant to these Terms and Conditions.
13.2 Save in respect of claims for death or personal injury arising from BAAM’s negligence, in no event will BAAM be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of BAAM whether such damages were reasonably foreseeable or actually foreseen.
13.3 Except as provided above in the case of personal injury and death, BAAM’s maximum liability to the Customer under these Terms and Conditions or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to a sum equivalent to the price paid to BAAM for the products or services that are the subject of the Customers ‘s claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Customer in obtaining alternative products and/or services.
13.4 The parties acknowledge and agree that the limitations contained in this clause 12 are reasonable in the light of all the circumstances.
13.5 The Customer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in these Terms and Conditions is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, BAAM includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.
14.1 Both BAAM and the Customer undertake, except as provided below, to treat as confidential and keep secret all information marked ‘confidential’ or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Software, the Specification and other information supplied by the Customer or BAAM (in these Terms and Conditions collectively referred to as ‘the Information’) with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to the Order or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
14.2 Neither party shall without the prior written consent of the other party divulge any part of the other party’s Information to any person except:
14.2.1 to their own employees and then only to those employees who need to know the same;
14.2.2 to either party’s auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the other party and then only in pursuance of such right duty or obligation;
14.3 Both parties undertake to ensure that persons and bodies referred to in clause 14.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party.
14.4 Each party shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
14.5 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the license or these Terms and Conditions.
14.6 The provisions of this clause shall survive the termination of these Terms and Conditions but the restrictions contained in clause 13.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
14.7 Nothing in this clause 13 shall prevent BAAM from exploiting any inventions or software that it develops during the course of the Project.
15.1 BAAM may terminate the agreement between the parties forthwith on giving notice in writing to the Customer if any payment due from the Customer to BAAM is more than 30 days overdue.
15.3 Any termination of the agreement between the parties (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in these Terms and Conditions which is expressly or by implication intended to come into or continue in force on or after such termination.
16 Data protection
The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of these Terms and Conditions.
17.1 In these Terms and Conditions unless the context otherwise requires:
17.1.1 words importing any gender include every gender;
17.1.2 words importing the singular number include the plural number and vice versa;
17.1.3 words importing persons include firms, companies and corporations and vice versa;
17.1.4 references to numbered clauses are references to the relevant clause in or to these Terms and Conditions;
17.1.5 the headings to the clauses, Order and paragraphs of these Terms and Conditions will not affect the interpretation;
17.1.6 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
17.1.7 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
17.1.8 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
17.2 In the case of conflict or ambiguity between any provision contained in the body of these Terms and Conditions and any provision contained in the Order, the provision in the body of these Terms and Conditions shall take precedence.
18 Agency, partnership
The agreement between the parties shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these Terms and Conditions.
These Terms and Conditions may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
No party shall issue or make any public announcement or disclose any information regarding the agreement between the parties or the Project unless prior written consent has been obtained from the other party.
21 Entire agreement
These Terms and Conditions supersede all prior agreements, arrangements and undertakings between the parties and constitute the entire agreement between the parties relating to the subject matter of the Project. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into these Terms and Conditions on the basis of any representation that is not expressly incorporated into these Terms and Conditions.
22 Force majeure
Neither party shall have any liability under or be deemed to be in breach of these Terms and Conditions for any delays or failures in performance which result from circumstances beyond the reasonable control of that party.
22.1 any costs arising from such delay shall be borne by the party incurring the same;
22.2 either party may, if such delay continues for more than,3 months, terminate the agreement between the parties forthwith by giving notice in writing to the other stating the reason of such termination.
23.1 All notices under these Terms and Conditions shall be in writing.
23.2 Notices shall be deemed to have been duly given:
23.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
23.2.2 when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
23.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
23.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
The provisions of the Order shall form part of these Terms and Conditions as if set out here.
If any provision of these Terms and Conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Terms and Conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms and Conditions.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of these Terms and Conditions shall either be or be deemed to be a waiver or in any way prejudice any right of that party under these Terms and Conditions. No right, power or remedy in these Terms and Conditions conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
27 Time of the essence
Time for payment of the Price or any part of it or of the payment of any other sums due to BAAM by the Customer shall be of the essence.
BAAM may perform any or all of its obligations under these Terms and Conditions through agents or sub-contractors, provided that BAAM shall remain liable for such performance and shall indemnify the Customer, subject always to the limits of liability contained in these Terms and Conditions against any loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors.
29 Third parties
Subject to clause 13.5 above, a person who is not a party to these Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
30 Proper law and jurisdiction
35.1 These Terms and Conditions and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law save that:
30.1.1 BAAM shall have the right to sue to recover its fees in any jurisdiction in which the Customer is operating or has assets, and
30.1.2 BAAM shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets (‘IPR’) (whether in connection with these Terms and Conditions or otherwise) in any country where it believes that infringement or a breach of these Terms and Conditions relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of the agreement between the parties is agreed to be England.
30.2 Each party recognises that the other party’s business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
30.3 With respect to all other disputes which are not IPR related pursuant to clauses 30.1 and 30.2 above and its special rules the following procedures in clauses 30.3 to 30.5 shall apply. 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 deficient performance of the other party. A representative from senior management of each of the parties (‘representatives’) shall meet in person or communicate by telephone within 15 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives (or a person of similar seniority) of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
30.4 If the parties cannot resolve a dispute in accordance with the procedure in clause 30.3 above, then they shall with the assistance of the Centre for Effective Dispute Resolution (‘CEDR’), seek to resolve the dispute or difference amicably by 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 or difference is not resolved to the satisfaction of both parties within 90 days after it has arisen, the matter shall be settled in accordance with the procedure below.
30.5 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 these Terms and Conditions or the project generally.