Terms and conditions

AGREEMENT FOR PROVISION OF DIGITAL AND SUPPORTING SERVICES

THIS AGREEMENT is made

BETWEEN:

(1) Connected-UK.Com LLP whose registered office is at Heritage House, 34 North Cray Road, Bexley, Kent, DA5 3LZ, Registered Number OC302554 (‘Connected’); and
(2) The customer whose details (including full corporate name, Registered Number and Registered Office address are as set out in Schedule 1 of this Agreement (‘the Customer’).

NOW IT IS AGREED as follows:

RECITALS

(A) Connected is engaged in the business of offering the Services (as defined below).
(B) The Customer wishes to engaged Connected to provide such Services and Connected agree to accept the engagement under and in accordance with the Terms and Conditions set out in this Agreement.

1. DEFINITIONS AND INTERPRETATION

1.1 In this agreement unless the context otherwise requires:

Acceptance Testsmeans the tests prepared pursuant to clause 5;
Acceptance Datemeans the date on which the Website Design is accepted pursuant to clause 5;
Additional Servicesmeans the work, effort, jobs, and services performed by Connected on behalf of the Customer which are not included in the Charges for the Services detailed in Schedule 1 and which are to be paid for by the Customer in addition to the Charges at Connected’s then current standard rates;
Agreementmeans this contract between Connected and the Customer and its Schedules;
Availability Datemeans the date upon which the Website has been made available to the internet community or if any acceptance procedures have been agreed the date upon which the Website is accepted by the Customer in accordance with those procedures;
Change Ordermeans any changes that the parties agree to make to this Agreement in accordance with Clause 4 which are to be substantially in the format set out and prescribed in Schedule 2 of this Agreement;
Chargesmeans the sums to be paid by the Customer to Connected as specified in Schedule 1 in consideration of the performance of the Project;
Commencement Datemeans the date on which this Agreement shall become effective and legally binding on the parties which shall be the earlier of either the date which is set out in Schedule 1 of this Agreement or the date on which Connected commences the provision of the Services;
Confidential Informationmeans all business, technical, financial or other information created or exchanged between the parties in the course of the Project including the existence of the Project;
Contentmeans all text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials featured, displayed or used or to be featured, displayed or used in or in relation to the Website;
Customer Contentmeans the Content provided to Connected by the Customer for use in accordance with this agreement;
Escrow Agreementmeans the Escrow Agreement, if any, as attached in Schedule 3;
Initial Periodmeans the period of 3 years from the Commencement Date;
Intellectual Property rights means any and all patents, trade marks, rights in domain names, rights in designs, copyrights, skill, knowledge, know-how, literary rights and database rights (whether registered or not and any applications to register or rights to apply for registration of any of the foregoing) rights in confidential information and all other intellectual property rights of a similar or corresponding character which may subsist now or in the future in any part of the world;
Internet Websitemeans a logical space that is connected to the internet and can be publicly read by other internet connected machines;
Open Source means the distribution of software that will allow any person to read, amend and modify the source code of the Website;
Platform means the launch facility which allows the software utilised within the Project and the performance of the Services to function properly;
Proposal means the document submitted to the Customer by Connected, (and in the absence of this document it shall mean the contents of the order form) plus any additional items listed as detailed in Schedule 1 as amended from time to time upon agreement between the parties;
Project means the delivery of the Website, the Website Design, the design and development of the Tool Kit and the production of the Web Pages as set out in Schedule 1;
Project Co-ordinatormeans the person appointed by the Customer to act as the Customer’s Authorised  Representative for the purpose and supervision of the Project;
Project Managermeans the person appointed by Connected to act as Connected’s Authorised Representative for the purpose and supervision of the Project;
Servicesmeans the provision of a Website facility, registration of the Website, management and ongoing maintenance and support of the Website and associated software the Additional Services (where appropriate) and all other work, effort and/or labour performed by Connected, including without limitation those items detailed in the Proposal as may be varied by way of a Change Order;
Tool Kitmeans a set of guidelines, rules, templates, pages, files, code and documentation required by the Customer to enable the building of the Website and all of the Web Pages in accordance with the Website Design in a consistent style, look and feel;
Vitesmeans the integrated web platform developed and owned by Connected which enables the serving of content and recording of visitor activity within the Website and includes the subsequent product family VNX;
Web Pagesmeans the pages of the Website containing the Content described in the Specification and built using the Tool Kit;
Websitemeans the website to be designed by Connected for the Customer;
Website Designmeans the graphical, technical and navigational design as described in the Specification as set out in Schedule 1.

1.2 The words and phrases within this Agreement starting with capital letters are defined terms which, in this Agreement, shall have the meanings attributed to them in Clause 1.1 above.

1.3 This Agreement is intended to set out as follows possible arrangements between the parties to ensure the proper performance of the Agreement.  The Schedules form part of this Agreement.

1.4 All orders for Services shall be subject to the terms of this Agreement, except to the extent that:

1.4.1 Any provision of a Change Order detailing those Services is inconsistent with the terms of this Agreement, in which event, on condition that a Change Order has been properly executed; the Change Order shall prevail;
1.4.2 This Agreement or any Change Order are expressly varied by agreement between the Parties and evidenced in writing.

2. THE SERVICES, ADDITIONAL SERVICES AND CONNECTED’S OBLIGATIONS

2.1 In consideration of the payment by the Customer of the Charges and subject to the terms and conditions of this agreement, Connected shall perform the Services as detailed in Schedule 1.

2.2 In pursuance of the objectives set out in clause 3.1, Connected shall use all reasonable skill and care to:

2.2.1 advise the Customer on all matters relating to the Project;
2.2.2 to develop and deliver the Website;
2.2.3 to create and deliver the Web Pages; and
2.2.4 to develop and deliver the Tool Kit;
2.2.5 comply with the timetables specified in the Project Proposal, subject to the provisions of clause 14.

2.3 The Services do not include the Additional Services and Connected is not obliged to provide the Additional Services unless or until the Customer has paid or agreed to pay by duly executing the relevant Change Order the additional charges associated with such Additional Services.

3. PROJECT MANAGEMENT

3.1 Connected shall appoint the Project Manager and make him available to manage the Project and the Customer shall appoint the Project Co-ordinator and make him available to co-ordinate with the Project Manager.

3.2 The parties shall ensure that the Project Manager and the Project Co-ordinator:

3.2.1 organise regular meetings at which they shall review the progress of the Project and agree a report of it; and
3.2.2 provide all information and documentation required by Connected and review the development of the Project and Services for proper performance of the Project and the Services using Connected’s prescribed methodologies as detailed in Schedule 1 and/or as agreed between the parties from time to time.

3.3 Connected shall provide or procure the provision of the services of the Project Team and such other persons as are necessary from time to time in order to complete the Project.

3.4 Throughout the period of this Agreement:

3.4.1 the Customer and Connected shall afford each other’s personnel such access to their respective premises as the personnel reasonably require to comply with and otherwise fulfil their duties and obligations under this agreement and
advise the other’s personnel and other nominees of the rules and regulations in force from time to time for the conduct of personnel at his premises. Each party shall ensure that the other’s personnel and nominees comply with any such rules and regulations; and,
3.4.2 the Customer shall afford Connected’s personnel remote access to the Customer’s computer systems in order to perform the Services under this Agreement.

4. VARIATIONS

4.1 Subject to the provisions of clause 4.3 below, any amendments to this Agreement which are decided upon by the parties and agreed between the Customer and Connected either at a meeting or otherwise shall be recorded by way of a Change Order to be executed either at the time of the relevant meeting or within 7 days of the date of the relevant meeting of which the Change Order was agreed between the Customer and Connected.

4.2 In order for a Change Order to be effective it must be substantially in the form set out in  Schedule 2 of this Agreement and it must be executed by an Authorised Representative  of each of the Customer and Connected respectively.

4.3 In the Absence of a Change Order pursuant to Clauses 4.1 and 4.2 above:

4.3.1 the Customer may at any time request variations to the Website and/or Project;  and,
4.3.2 Connected shall indicate in writing to the Customer acknowledgement of such request and confirmation of the terms upon which it will perform the variation; and,
4.3.3 if Connected agrees to perform the variation upon the terms already agreed with the Customer, this Agreement shall be deemed to have automatically amended so as to include the variation in question; or,
4.3.4 if Connected agrees to perform the variation on terms different to those already agreed between the parties, the Customer shall, within 5 days of Connected’s confirmation under sub clause 4.3.2 above confirm whether or not he wishes the confirmation to proceed.

4.4    The Customer’s requirement to carry out any amendments, modifications, corrective or remedial work under Clause 5 below shall not constitute a variation within the meaning of this clause 4.

5. TESTING AND ACCEPTANCE

5.1 The Customer shall commence the preparation of the Acceptance Tests at the dates set out in Schedule 1. Selection of the Acceptance Tests shall be at the discretion of the Customer but is subject to the approval of Connected such approval not to be     unreasonably withheld or delayed.

5.2 Following delivery and installation of the Website, the Customer shall carry out the Acceptance Tests or procure the carrying out of them at the agreed time . If the Project Co-ordinator in his sole discretion considers that the Website has materially failed to pass the Acceptance Tests, he shall within 7 days give written notice to Connected specifying why he considers that the Website has failed.

5.3 On receipt of this notice Connected shall, subject to clause 5.4,  determine the causes for the failure and advise the Customer of them, and make the changes to the Website (including corrections or enhancements to the software used) necessary to ensure that it will pass the Acceptance Tests and perform in accordance with the specifications set out in the Proposal.  Following the making of any such changes the Customer shall repeat or procure the repetition of such of the Acceptance Tests as are necessary on the same terms as set out above in this clause 5.

5.4 If the Website fails the Acceptance Tests and on investigation pursuant to clause 5.3 this proves to be as a result of an error by the Customer, Connected shall be entitled to charge for the costs of investigation and of making the changes as an Additional Service.

5.5 Notwithstanding any provisional acceptance or use of the Website by the Customer, successful completion of the Website shall take place on the Acceptance Date and shall be without prejudice to any of the Customer’s rights set out in this Agreement.

5.6 Risk of loss or damage  to the Website, the software used, the Content or the Toolkit related to it shall pass to the Customer upon the Acceptance Date.

6. CHARGES AND PAYMENT OF THE CHARGES

6.1 The Customer shall pay the Charges due pursuant to this Agreement to Connected:

6.1.1 an initial payment of 50% (fifty percent) of the Charges quoted for the Project upon submission of an order by the Customer;
6.1.2 a final payment of 50% (fifty percent) of the Charges quoted for the Project upon completion prior to the Availability Date;
6.1.3 In pounds sterling;
6.1.4 within 28 days of the date of the valid VAT invoice from Connected which shall detail the Charges for the Services to be provided or for the Additional Services which have already been provided by Connected.

6.2 Payment of the Charges for the Services does not include;

6.2.1 the provision of the Additional Services by Connected which shall be charged for by Connected separately and invoiced to the Customer accordingly at the rate set out in Schedule 1 and more specifically the relevant Change Order and payable within 28 days from the date of invoice;
6.2.2 the costs and expenses incurred by Connected or its personnel in the performance of the Services or the Additional Services which shall be charged for by Connected separately and invoiced to the Customer accordingly at the rate set out in Schedule 1 of this Agreement and payable within 28 days from the date of invoice;
6.2.3 such reasonable incidental expenses for materials used during the Project and for third party goods and services supplied to the Project, subject to the following provisions and the Customer shall pay Connected such Additional Expenses in accordance with Clause 6.1 above.

6.3 The Customer will be given 90 days notice in writing of any increased made to the Charges before any increase becomes effective.  If such increase to the Charges is made:

6.3.1 the Customer may cancel without liability the Agreement (in accordance with the Notice Period set out in Clause 14.3) in relation to which the price is to be increased provided that the Notice of Cancellation is received by Connected before the price increase becomes effective;
6.3.2 if the Customer does not cancel the Agreement for provision of the Services or Additional Services within the specified time period then the increase shall take effect for the Services or Additional Services performed under this Agreement.

6.4 All Charges are exclusive of VAT, which will be added to the invoice total and paid by the Customer, but inclusive of any other form of tax and/or import duties applicable from time to time.

6.5 If any invoice is disputed by the Customer, then:

6.5.1 the Customer shall notify Connected in writing of the disputed invoice within 7 days of the date of the invoice in dispute, and such notice shall evidence in writing nature and the Customer’s reasons for disputing the invoice in detail;
6.5.2 the parties shall resolve the disputed payment without delay and in any event within 30 days from the due date for that invoice;
6.5.3 the undisputed parts (if any) of the relevant invoice shall be paid by the Customer in accordance with the provisions of Clause 6.1 above;
6.5.4 subject to sub-clause 6.5.5 below, Connected shall not charge the Customer interest on the amount disputed;
6.5.5 where it transpires that the dispute is unwarranted and the Customer did not have just cause for raising such dispute and/or withholding payment of that invoice (or any part thereof) then Connected may charge the Customer interest from the due date until the actual date for payment in addition to any legal costs or increased administration costs (on a full indemnity basis) in respect of the disputed amount and incurred by Connected in resolving such dispute.

6.6 If the Customer fails to pay Connected for the Services in accordance with the provision of this section 6, then Connected shall be entitled to charge any reasonable additional administration costs and/or interest (both before and after Judgment) on any undisputed payments at 2% above the base rate of Lloyds TSB Plc (or other such clearing bank as Connected may nominate from time to time) compounded monthly or the then prevailing rate under the Late Payment of Commercial Debts (Interest) Act 1998 whichever is the higher, and for the purposes of this Clause any part of a month shall be treated as a full month.

6.7 Payment of the Charges will not be deemed to have been made by the Customer until Connected has received either payment in cash or cleared funds for the full amount outstanding under this Agreement or any other agreement between the Customer and Connected.

6.8 Subject to the provisions of Clause 6.6 above the Customer shall pay all Charges payable to Connected without any set off, counterclaim, deduction and any other withholding of monies.

6.9 Connected shall be entitled to raise an invoice at any time for the payment of the Charges in relation to the provision of the Services or Additional Services.

6.10 If payment of the Charges is not made in full by the Customer to Connected when due, then Connected may withhold or suspend provision of the Services under this Agreement  (and the Customer will be deemed as having no rights under this Agreement for the period of such suspension) until further notice and without liability on behalf of Connected to the Customer for such suspension.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 OWNERSHIP OF THE CUSTOMER CONTENT

7.1.1 Subject to the provisions of clause 9 below, all title and rights including Intellectual Property rights in and to the Customer Content are and will remain the property of the Customer or its third party licensors.
7.1.2 Connected has and will have no rights including any Intellectual Property rights in or to the Customer Content except as expressly set out in this Agreement or as otherwise provided by law.
7.1.3 The Customer grants to Connected a royalty-free, world-wide, non-exclusive licence to use the Customer Content for the purposes of the Project.

7.2 OWNERSHIP OF THE PLATFORM

7.2.1 All title and rights including Intellectual Property rights in and to the Platform are and will remain the exclusive property of Connected or its third party licensors.
7.2.2 All title and rights including, Intellectual Property rights in and to the Platform owned by Connected, created after the date of this Agreement will vest in Connected immediately on its creation.

7.2.3 If the Customer uses Platform provided by:

7.2.3.1 a third party licensor, the Customer shall be required to enter into a licence agreement with the third party in question;
7.2.3.2 Connected, the Customer shall be required to enter into a licence agreement with Connected.

7.3 OWNERSHIP OF VITES

7.3.1 All title and rights including Intellectual Property rights in and to Vites and any and all modifications, enhancements and amendments to the Vites shall vest in Connected upon creation and will remain the exclusive property of Connected.

7.4 OWNERSHIP OF OPEN SOURCE SOFTWARE

7.4.1 Connected grants The Customer a perpetual, non-exclusive royalty free licence to use (including modify) the Open Source Software in relation to the Customer’s receipt of the Services or use of the Open Source Software.
7.4.2 The Customer shall not be entitled to assign, sub-license, pledge and/or dispose of the Open Source Software to any third party under any circumstances without the express written consent of Connected.
7.4.3 For the avoidance of doubt, the termination or expiry of this Agreement will not affect the continuation in force of the licences granted under this Clause 7.

7.5 OWNERSHIP OF KNOWLEDGE, SKILL AND INFORMATION

7.5.1 All title and rights including Intellectual Property rights in and to all skill, knowledge, information and know how developed and/or acquired during the performance of the Services by Connected shall remain the exclusive property of Connected.
7.5.2 The Customer shall be required to enter into a separate agreement in to use and implement (and to authorise any Replacement Supplier to use) all skill, knowledge, information and know how developed and/or acquired during the performance of the Services by Connected whether or not such know-how or information was produced specifically or used exclusively to provide the Services, the terms of such agreement to be determined by Connected at its sole discretion.

8. WARRANTIES

8.1 Connected warrants to the Customer that:

8.1.1 the Website developed in the course of the Project does not infringe the Intellectual Property rights of a third party;
8.1.2 the Customer’s use and operation of the Website Design, Web Pages, Tool Kit or the Content delivered by Connected in accordance with the terms of this agreement does not infringe the Intellectual Property rights of any third party; and
8.1.3 all services provided to the Customer by Connected shall be provided in a timely and orderly fashion by skilled and experienced personnel acting with all due care and skill and in accordance with best industry practice.

8.2 The Customer warrants and represents to Connected that Connected’s use of the Customer Content in accordance with the terms of this agreement will not infringe the Intellectual Property rights of any third party.

8.3 All warranties, terms, conditions and duties implied by law relating to compatibility with the Customer’s computer system, fitness, quality or adequacy are excluded to the fullest extent permitted by law.

9. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY

9.1 Without prejudice to the provisions of Clause 9.2 below the Customer shall indemnify and keep indemnified Connected against any and all losses, proceedings, lost profits, damages (including any damages or compensation, compromise or settlement of any claim paid by Connected on the advice of its legal advisors), loss of contracts, loss of opportunity, business interruption, damage to goodwill, economic or other similar losses, awards, expenses, claims (actual or threatened), costs (including increased administration costs and legal costs on the a full indemnity basis), actions and any other losses and/or liabilities suffered by Connected and arising from or due to:

9.1.1 any performance or non-performance by the Customer of its obligations under this Agreement; and/or
9.1.2 any tortious act and/or omission and/or any breach of statutory duty and/or any wilful misconduct by the Customer; and/or
9.1.3 any wilful, neglectful or reckless provision of incorrect, inaccurate or incomplete information, data and/or details provided to Connected by the Customer; and/or
9.1.4 any act or omission by they Customer, acting otherwise than in strict accordance with Connected’s written instructions and/or the Toolkit, whether intentionally or otherwise that directly or indirectly adversely affects any of Connected’s related or unrelated business operations.

9.2 Connected agrees to indemnify the Customer against any and all direct liability, loss, damage, costs, legal costs, professional and other expenses of any nature incurred or suffered by the Customer arising out of any dispute or contractual, tortious or other claims or proceedings (‘claims) brought by a third party alleging infringement of his intellectual property rights by the Website Design, the Web Pages, the Tool Kit or the Content (as delivered by Connected) (‘the Package’) provided that:

9.2.1 this indemnity shall not apply to any infringement of the third party’s Intellectual Property rights arising as a direct result of any alteration or modification to the Package or any part of it by the Customer or as a result of the use of the Package or any part of it in combination with hardware and/or software not supplied or approved by Connected;
9.2.2 where an injunction restraining use by the Customer of the Package or any part of it is in the opinion of the Customer’s legal advisers likely to be granted by the court to a third party alleging infringement of its Intellectual Property rights (and that opinion is communicated in writing to Connected), Connected shall either:

9.2.2.1 do all acts and things required to render the Package or the appropriate part of it to be non infringing without affecting any of Connected’s other duties and obligations under this Agreement; or,
9.2.2.2 obtain a licence from a third party granting the Customer the right to continue using the Package or the part it infringes; and,
9.2.2.3 the Customer gives written notice to Connected of any claim as soon as reasonably possible following receipt of it; and,
9.2.2.4 the Customer makes no admission of liability and gives Connected sole authority to defend or settle claims at Connected’s cost and expense; and,
9.2.2.5 the Customer gives Connected all reasonable assistance in connection with any claim at Connected’s expense.

10. CONFIDENTIALITY

10.1 Each party shall treat as confidential all Confidential Information obtained from the other party pursuant to this Agreement.

10.2 Both parties shall use the other party’s Confidential Information only for the purposes of this Agreement and shall not divulge any part of the Confidential Information to any third party (without the other party’s prior written consent).

10.3 Both parties will establish and maintain such security measures and procedures to provide for the safe custody of the other party’s Confidential Information and data in its possession using the same or similar security measures it would afford its own Confidential Information so as to prevent unauthorised access to or use thereof.

10.4 A party’s Confidential Information shall not include any information which:

10.4.1 the other party can prove by documentary evidence produced within 28 days of disclosure was information already in its possession and at its free disposal;
10.4.2 the other party can prove by producing documentary evidence was independently developed by it without reference to that party’s Confidential Information;
10.4.3 is after the date of this agreement disclosed to the other party  in writing without any obligations of confidentiality by a third party who is not in breach of any duty of confidentiality in doing so;
10.4.4 is or becomes generally available to the public in printed publications in general circulation through no act or default on the part of the other party; or
10.4.5 is required to be disclosed by law on condition that the other party gives the party whose Confidential Information it is 7 working days advance notice of such disclosure.

10.5 Each party will:

10.5.1 allow access to the other party’s Confidential Information only to those employees who need to see and use it for the purposes of this Agreement; and
10.5.2 at the other party’s request made at any time deliver up to the other party all documents, material and/or other media which may be in its possession, power or control which comprises or contains any part of the other party’s Confidential Information.

11. EXCLUSIONS AND LIMITATIONS OF LIABILITY

11.1 Connected shall have no liability to the Customer:

11.1.1 for defects in the Website where the defect has been caused or contributed to by the Customer, to the extent so contributed;
11.1.2 for defects in the Website where payment has not been made in full by the due date for payment;
11.1.3 for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of the Website after a defect has become apparent or suspected or should reasonably have become apparent to the Customer;
11.1.4    to the extent that the Customer is covered by any policy of insurance and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against Connected;
11.1.5 for any matters which are outside Connected’s reasonable control;
11.1.6 for any consequential losses; loss of profits; and/or damage to goodwill; economic and/or other similar losses; special damages and indirect losses; business interruption; loss of business; contracts; opportunity and/or production;
11.1.7 for non-performance (including delay) of the Services where the non-performance or delay of the provision of the Services is wholly or partly attributed to the provision of incomplete or inaccurate information supplied by the Customer to Connected where the provision of the Services is reliant upon the provision of correct and accurate information by the Customer;
11.1.8 for any loss or damage sustained or incurred by the Customer or any third party resulting from any failure or inadequate performance of the Website or third party software due to defects, failure, inadequate specification or configuration of Customer’s computer systems;
11.1.9 for any loss arising out of any failure by the Customer to keep, in accordance with best industry and computing practice, full and up-to-date security copies of the software in Escrow if advised by Connected and/or if agreed between the parties.

11.2 The Customer shall give Connected a reasonable opportunity to remedy any matter for which Connected is liable before the Customer incurs any costs and/or expenses in remedying the matter itself.  If the Customer does not do so Connected shall have no Liability to the Customer.

11.3 The Customer shall be under a duty to mitigate any losses and where reasonable produce to Connected written evidence of any claims for which it is alleged that Connected is liable together with written details of how the loss was caused by Connected and the steps the Customer has taken to mitigate the loss before Connected shall have any liability for the claim by the Customer.

11.4 Connected will make reasonable endeavours to register the Website with search engines but makes no guarantee, warranty or representation to the order of the ranking of the Website within each search engine.

11.5 Connected’s total liability to the Customer under this entire Agreement shall not exceed £1,000,000.00 (one million pounds).  To the extent that any of Connected’s liability to the Customer would be met by any insurance of Connected the Connected’s liability shall be extended to the extent that such liability is met by such insurance.

11.6 Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision of each of:

11.6.1 Liability for breach of contract;
11.6.2 Liability in tort (including negligence);
11.6.3 Liability for breach of statutory duty; and
11.6.4 Liability for breach of Common Law
except Clause 11.5 above which shall apply once only in respect of all the said types of liability.

11.7 Nothing in this Agreement shall exclude or limit the Liability of for death or personal injury due to its negligence or any liability which is due to Connected’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law.

11.8 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.

11.9 The Customer shall be liable under this Agreement for the acts or omissions of its personnel (and the personnel of its Affiliates, the other members of the Customer’s group and/or of a third party who is under the Customer’s direct control (whether or not they remain as your or their personnel) as if they were the Customer’s own acts or omissions.

12. SERVICE PERIOD SUSPENSION AND TERMINATION

12.1 Subject to the provisions of Clause 12.5 the Services shall be provided by Connected to the Customer under and in accordance with the terms of this Agreement for the Initial Period and unless terminated under and in accordance with the terms of this Agreement shall remain in force until either party serves six months written notice on the other party, such notice not to expire before the Initial Period.

12.2 If the Customer:

12.2.1 fails to make payment to Connected when due;
12.2.2 breaches the terms of this Agreement and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
12.2.3 persistently breaches any one or more terms of this Agreement;
12.2.4 pledges or charges any Intellectual Property which is the property of Connected, or ceases or threatens to cease to carry on business, or proposes to compounds with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction;
12.2.5 exceed the credit limit set by Connected;
12.2.6 appears to Connected due to the Customer’s credit rating to be financially inadequate to meet its obligations under this Agreement; and/or
12.2.7 appears reasonably to Connected to be about to suffer any of the above events;
12.2.8 then Connected shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in Clause 12.3 below.

12.3 If any of the events set out in Clause 12.2 above occurs in relation to the Customer then:

12.3.1 Connected may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where the Toolkit, any software, Content or any other ancillary products owned by Connected may be and repossess the same which are found and which are owned by Connected;
12.3.2 Connected may withhold the performance of any Services and cease any Services in progress;
12.3.3 Connected may immediately cancel, terminate and/or suspend without liability to the Customer this Agreement and any other contract with the Customer; and/or
12.3.4  all monies owed by the Customer to Connected shall forthwith become due and payable;
12.3.5 the Customer shall immediately delete from the Customer’s computer systems all software and any other ancillary products and the Toolkit and copies thereof; and
12.3.6 all outstanding invoices issued or to be issued by Connected to the Customer during any notice period shall become immediately due for payment and where Connected continue to provide Services during the notice period Connected shall be entitled to render an invoice in full to the Customer for those Services performed and the terms of this Agreement shall continue to apply to the Customer to the extent necessary to ensure that Connected are paid in full by the Customer for such Services and any other unpaid or outstanding invoices issued by Connected to the Customer, whether issued before or after the beginning of the relevant notice period.

12.4 Connected shall have a lien over all property or goods belonging to the Customer which may be in Connected’s possession in respect of all sums due from the Customer to Connected.

12.5 If the Customer purports to terminate this Agreement  under and in accordance with Clause 12.1 above earlier than 30 months into the Initial Period then the Customer will indemnify and keep Connected indemnified against any and all lost profits, costs (including increased administration costs and legal costs on a full indemnity basis), expenses, damages and any other loss and/or liability suffered by Connected as a result of such premature termination to be not less than the amount of the Charges that would have been due to Connected during the Initial Period from the Customer but for such premature termination.

12.6 Upon the termination of this Agreement for any reason if any monies due to Connected from the Customer have not been paid within 14 days of such termination Connected may sell any property or goods over which it has a lien in accordance with Clause 12.4 above (and the Customer agrees that Connected may give good title for such property and/or goods) and shall apply the proceeds of sale firstly in discharging any costs or expenses of sale, secondly in repaying any interest owed by the Customer to Connected, thirdly in payment of any principal sums owed to Connected and fourthly Connected shall account to the Customer for the remainder (if any).

12.7 Termination of this Agreement by the parties shall operate to automatically and simultaneously terminate any Change Order made and executed under and in accordance with this Agreement, unless the terms of that particular Change Order expressly provide to the contrary.

12.8 Termination of a Change Order made and executed under and in accordance with this Agreement, shall not operate to automatically and simultaneously terminate this Agreement unless the terms of that termination, as evidenced in writing and agreed between the parties expressly provides to the contrary.

13. DISPUTE RESOLUTION

13.1 All disputes at any time arising between the parties that cannot be resolved by the Project Manager and the Project Co-ordinator may in the first place be referred to the finance directors of the parties. If they are unable to resolve the dispute, it may be referred to an expert.

13.2 The expert shall have appropriate qualifications and practical experience to resolve the particular dispute and be agreed by the parties, or if they fail to agree shall be appointed by the President for the time being of the Law Society.

13.3 The parties shall promptly furnish to the expert all information reasonably requested by such expert relating to the particular dispute, imposing appropriate obligations of confidence.

13.4 The expert shall be required by the parties to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible so soon thereafter as may reasonably be practicable and the parties shall co-operate fully with the expert to achieve this objective.

13.5 The parties shall share the fees and the expenses of the expert equally.  The decision of the expert shall be final and binding upon each of the parties.

13.6 The dates set out in Schedule 1 shall be postponed by a period to be agreed between the parties or determined by an expert.

13.7 For the avoidance of doubt the provisions of this clause provide for a form of advanced dispute resolution and are not a reference to arbitration.

14. MISCELLANEOUS PROVISIONS

14.1 The Customer acknowledges that it has read and accepts the terms of this Agreement.

14.2 This Agreement shall be governed by and construed in accordance with the laws of England and the Customer hereby submits to the exclusive jurisdiction of the courts of England.

14.3 Any notices which are required to be given pursuant to this Agreement shall be in writing to the Party in question at the address detailed in this Agreement or to such other address as may be notified by the Parties in writing from time to time for the purposes of this clause.  Any such notice may be delivered by hand or by first class prepaid letter and shall be deemed to have been served if by hand when delivered and if by first class post 48 hours after posting.

14.4 Neither party shall assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other.

14.5 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.

14.6 Connected shall not be liable to the Customer for any loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements or undertakings confirmed by an Authorised Representative of Connected in writing or expressly incorporated or referred to in this Agreement except that this shall not and shall not be deemed as attempting to exclude any liability of Connected due to any fraudulent misrepresentation.

14.7 This Agreement shall supersede all prior agreements, arrangements and undertakings between the parties and shall constitute the entire agreement between the parties relating to the subject matter hereof.

14.8 The Customer shall not, at any time during the Term of this Agreement or for a period of six months following the date of termination of this Agreement, whether on its own behalf or in conjunction with or on behalf of any person, firm, company, business entity or other organisation and whether as employee, director, principal, agent, consultant, shareholder or in any other capacity induce, solicit, entice or procure any person who is an employee of Connected (or who was at any time during the period of this Agreement been an employee of Connected) to leave such employment or accept into employment or otherwise engage or use the services of any such person.

14.9 No forbearance, delay or indulgency on the part of either party hereto in enforcing any provision of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of any of its rights operate as a waiver of any subsequent breach.

14.10 Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute Connected as agent of the Customer for any purpose whatsoever.  Connected shall have no authority or power to bind the Customer or to contract in the name of to create a liability against the Customer in any way or for any purpose.

14.11 Where one party is unable to perform its obligations under this Agreement due to an event of Force Majeure the corresponding obligations of the other Party will be suspended to the same extent.

14.12 For the purposes of clauses 14.11, 14.13 and this clause 14.12, any event of Force Majeure shall mean  any circumstances beyond the reasonable control of a party affecting its ability to perform any of its obligations (other than payment) under this Agreement including, without limitation, any act of God, fire, flood, lightning, ware, revolution, act of terrorism, riot, civil commotion, strike, lock-out or other form of industrial action, whether of the affected party’s own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services.

14.13 Any party that is subject to an event of Force Majeure shall not be in breach of this Agreement provided that:

14.13.1    it promptly notifies the other Parties in writing of the nature and extent of the event of Force Majeure causing its failure or delay in performance;
14.13.2    it could not have avoided the effect of the Force Majeure event by taking precautions which, having regard to all the matters known to it before the event of Force Majeure occurred, it ought reasonably to have taken, but did not; and
14.13.3    it has used all reasonable endeavours to mitigate the effect of the event of Force Majeure to carry out its obligations under this Agreement in any way that is reasonably practicable and to resume the performance of its obligations as reasonably possible.

14.14 If the Force Majeure event prevails for a continuous period of more than 6 months, any party may terminate this immediately upon notice to all the other Parties. On service of this notice, this Agreement will terminate.  Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.

14.14 The Contracts (Rights of Third Parties ) Act 1999 shall not apply to this Agreement and no person other than the parties to this Agreement shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.

SCHEDULE 1

PROJECT PROPOSAL AND SPECIFICATION

Including details of the Project Proposal, Service Specification, Development Programme,  Charges/Hourly Rate, Milestone Dates, Authorised Representative details and/or Project Manager and Project Co-ordinator details, Name and Contact Details of the Customer etc
SCHEDULE 2
CHANGE ORDER

This CHANGE ORDER is made on the                        day of                                               200[17] (“Effective Date”) and is entered into between Connected-UK.com LLP (“Connected”) and [INSERT DETAILS OF CUSTOMER] (“Customer”) pursuant to the Agreement (defined below).

1.    This Change Order is supplemental to and attached and incorporated into and/or amends or varies the Agreement for the Website Design and Supporting Services dated                     day of                                             200[17] by and between Connected and the Customer (“Agreement”).

2.    The terms and conditions of this Change Order shall supersede those terms of the Agreement with effect from the Effective Date set out above.  Where there is a conflict between the terms of this Change Order and the terms of the Agreement, the terms of this Change Order shall take precedence.

3.    Unless otherwise specified in the Change Order:

3.1    the Agreement and all of the terms of the Agreement shall continue in full force and effect; and
3.2    the terms used in this Change Order shall have the same meaning as those defined terms in the Agreement.

4.    [PARTIES NEED TO SET OUT HERE IN FULL DETAIL:

THE TERMS WHICH ARE TO BE VARIED, CANCELLED, CHANGED OR OTHERWISE AMENDED;

EXPRESS REFERENCE TO RELEVANT CLAUSE NUMBERS WILL ASSIST IN INTERPRETATION OF THESE CHANGE ORDERS IN THE FUTURE; AND,

WHERE THE CONTENT OF THESE ORDERS IS DETAILED AND COMPLEX, THE PARTIES SHOULD SERIOUSLY CONSIDER OBTAINING THE ADVICE OF A QUALIFIED LEGAL ADVISOR

[THIS TEXT SHOULD BE DELETED AND REPLACED WITH THE TEXT AGREED UPON BY THE PARTIES.]]

Accepted by:                        Accepted by:
Connected                        Customer:
By: _________________________________    By: _______________________________
Name: _______________________________    Name: ____________________________
Title: _________________________________    Title: ______________________________
Senior Representative                    Senior Representative

SCHEDULE 3

ESCROW AGREEMENT – NOT USED

IN WITNESS of which the parties have executed this Agreement the date set out above.

SIGNED by                     )    ………………………………………………..
Connected acting by a                )      Authorised Representative
Authorised Representative            )    ………………………………………………..
Print Name

SIGNED  by the                )    ………………………………………………..
Customer acting by an                )    Authorised Representative
Authorised Representative             )    ………………………………………………..

Print Name

Page created Dec 2009, last updated Jan 2017.