THIS AGREEMENT is made the day of acceptance to the service contract and its terms and conditions.
(1) Add Media (Group) Ltd.
(2) The client.
(1) At all material times the Company is engaged in the business of providing a website for The Client.
(2) The Company hereby agrees to provide its services to the Client subject to the terms and conditions of this Agreement.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Client” The person, firm or company who purchases Services from Add Media (Group) Ltd.
“Company” “Add Media (Group) ltd
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
[“Charges”] means the consideration payable to the Company for the website as defined in clause 5.
[“Initial Fee”] means the first sum payable to the Company.
“Intellectual Property Rights” means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights;
“Website Services” 1.2 means the Website services to be provided by the Company to the Client in accordance with the terms and conditions of this Agreement as defined in the agreement, it includes and is not limited to website development and website hosting, all these services may be amended by Add Media (Group) Ltd.
1.2.1 Unless the context otherwise requires, each reference in this Agreement to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time; “this Agreement” is a reference to this Agreement a “Party” or the “Parties” refer to the parties to this Agreement.
The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement. Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender.
1.3 In the event that any action required by the Company hereto does not occur on a business day, the action shall be taken on the next succeeding business days thereafter.
2. Engagement of the Company
2.1 The Client hereby engages the Company to provide the Website Services.
2.2 The Client shall provide all Required Information to the Company within 5 working days of acceptance of this agreement.
3. Nature of Engagement
3.1 The Company shall at all times be responsible for organising how and in what order the website Services are performed. The engagement under this Agreement is mutually non-exclusive and the Company shall be entitled, at its own expense, to subcontract the performance of the Website Services.
4. The Website Services
4.1 The Company shall provide the Website Services specified in this agreement in accordance with the Agreement.
4.2 The Client shall provide, within 5 working days in all circumstances, all information required by The Company to fulfill it’s obligations in providing the Website services. The required information will include, but is not limited to content, images, product information, hosting information, website access details and DNS details.
The Client understands and acknowledges the following:
4.2.1 Any delay in providing required information to the Company will result in the website being completed without the Client’s authorisation.
4.2.2 Any changes to the information that has been provided to the Company, including but not limited to: designs, content, images, product information or functionality will result in additional charges being applied.
4.3 The Client shall provide the required access credentials including, but not limited to FTP details, Google Logins and Website access details, no later than 5 working days from agreement to this service supplied by the company.
4.4 Any alterations to the Website services specification, or additional work that may be required by the Company to meet the Company’s obligations to fulfill the services provided, that were not disclosed by The Client upon agreeing the contract may result in additional charges being applied.
4.5 Unless explicitly agreed otherwise The Company will produce up to two website concepts for you. Additional concepts may result in additional charges being applied. Conceptualising is the process of producing website concepts for clients. Concepts can include site mock ups, graphics and design proposals.
5.1 In consideration of the Website Services the Client shall pay to the Company the Initial Fee of as set out in the Company’s services agreement and agrees to the monthly payment structure as confirmed.
5.2 The initial payment shall be made on date of agreement to the services provided by the company.
5.3 The first monthly service payment shall be made on or after 28 days from initial payment.
5.4 The charges specified are only relevant to your service order or contract agreement. Any additional requirements will result in additional charges being applied.
5.5 Payments will be collected by Direct Debit or by recurring card payment.
5.6 All payments made under this Agreement shall be expressly exclusive of any value added tax chargeable thereon.
5.7 Without prejudice to any other right or remedy that Add Media (Group) Ltd may have, if the Customer fails to pay Add Media (Group) Ltd on the due date Add Media (Group) Ltd may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of national Westminster Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Add Media (Group) Ltd may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
5.7.1 Without prejudice to any other right or remedy that Add Media (Group) Ltd may have, if the Customer fails to pay Add Media (Group) Ltd within 14 days of the due date Add Media (Group) Ltd may delete website from its servers. Retrieving the website from back up files and reinstating the website will result in additional charges being applied.5.8 All payments payable to Add Media (Group) Ltd under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract. 5.1.9 Add Media (Group) Ltd may, without prejudice to any other rights it may have, set off any liability of the Customer to Add Media (Group) Ltd against any liability of Add Media (Group) Ltd to the Customer.
5.9 The Direct Debit Guarantee: This Guarantee is offered by all Banks and Building Societies that take part in the Direct Debit Scheme. The efficiency and security of the Scheme is monitored and protected by your own Bank or Building Society. If the amounts to be paid or the payment dates change Add Media (Group) LTD will notify you 10 working days in advance of your account being debited or as otherwise agreed. If an error is made by Add Media (Group) LTD or your Bank or Building Society, you are guaranteed a full and immediate refund. You can cancel a Direct Debit at any time by writing to your Bank or Building Society. Please also send a copy of your letter to us.
6. Intellectual Property
6.1 Upon receipt in full by the Company of all sums due under Clause 5, the copyright and any and all other Intellectual Property Rights subsisting in any and all materials created by the Company in the course of providing the Website Services shall be deemed to be assigned to the Client and the Company shall be deemed to have waived all moral rights in respect of such work arising out of Chapter IV of the Copyright Designs and Patents Act 1988.
6.2 The Company further warrants that any and all Intellectual Property Rights subsisting in any and all materials created for or on behalf of the Company by third party consultants, contractors, sub-contractors or similar, shall be assigned to the Company by such third parties and will, where relevant, be subject to the requirements of sub-Clause 6.1.
6.3 Nothing in this Agreement shall vest any rights in the Website in the Company and sub-Clause 6.1 shall effect the assignment of any Intellectual Property Rights which may arise to the benefit of the Company in the Website to the Client.
6.4 In situations where The Client provides images, text, animations or any other content for their website they are legally responsible for ensuring that this material does not infringe any copyright. Certain images provided by The Company in the construction of the website may have been purchased under licence from stock image suppliers. These images are generally only licensed for use on a single website and may not be used in publicity material. The website owner is legally responsible for ensuring that this does not happen. If you wish to use any images from the site for other purposes please contact us for clarification.
6.5 The Client grants the Company a royalty-free, world-wide, non-exclusive licence to use the Client Material within our marketing and promotional literature. For the avoidance of doubt, these terms do not transfer or grant to Add Media Group any right, title, interest or Intellectual Property Rights in the Client Material.
7. Client’s Warranties and Indemnity
7.1 The Client represents, warrants, undertakes, and agrees with the Company as follows:
7.1.1 the Website shall be original to or otherwise owned by the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person;
7.1.2 the Website shall not, under the laws England and Wales be obscene, blasphemous, offensive to religion, or defamatory of any person and shall not contain any material which has been obtained in violation of the Data Protection Act 1998, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Official Secrets Act 1989, or any analogous domestic or foreign legislation and nothing contained in the Website will constitute a contempt of court;
7.1.3 the Client shall not enter into any agreement or arrangement which might conflict with the Company’s rights under this Agreement or might interfere with the Company’s performance of its obligations under this Agreement;
7.1.4 [subject to sub-Clause 8] the Client hereby undertakes to indemnify the Company and keep the Company at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Company on a solicitor and own-client basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Client of any of the Client’s undertakings, warranties, or obligations under this Agreement.
7.1.5 The Client ensures that the website is visible at all times by the search engines.
7.1.6 – The client ensures that their website, associated email accounts and the computers used to work on them are protected from malicious software, spyware, viruses and website hacking. The Company cannot be held responsible for problems that develop on completed websites as a result of illegal activity and reserve the right to terminate any hosting arrangement without notice where other customers’ service delivery is being affected.
8.1 Except as expressly provided in this Agreement the Company shall not be liable to the Client or any third party, whether in contract, tort (including negligence) or otherwise for:
8.1.1 any amount in excess of the amount paid by the Client to the Contractor for any services during the (4) months prior to the event giving rise to the alleged claim; or
8.1.2 any loss of revenue, business contracts, anticipated savings or profits, or any loss of use of facilities; or
8.1.3 any special indirect or consequential loss howsoever arising.
8.2 in clause 8.1.2 “anticipated savings” means any expense which either party expects to avoid incurring or to incur in a lesser amount than would otherwise have been the case by reason of the use of the services and facilities provided by the Contractor under this Agreement.
9.1 Both Parties undertake that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and after its termination:
9.1.1 keep confidential all Confidential Information;
9.1.2 not disclose any Confidential Information to any other party;
9.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 9.
9.2 Subject to sub-Clause 9.3, either Party may disclose any Confidential Information to:
9.2.1 any of their sub-contractors, substitutes, or suppliers;
9.2.2 any governmental or other authority or regulatory body; or
9.2.3 any of their employees or officers or those of any party described in sub-Clauses 9.2.1 or 9.2.2;
9.3 Disclosure under sub-Clause 9.2 may be made only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 9.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
9.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
9.5 When using or disclosing Confidential Information under sub-Clause 9.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
9.6 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
10.1 Either Party may terminate this Agreement by giving to the other not less than 30 days written notice, subject to the completion of the minimum contract term as set out within your service order or contract agreement.
10.2 Without prejudice to the generality of sub-Clause 10.1, this Agreement shall terminate, notwithstanding any other rights and remedies the Parties may have, in the following circumstances:
10.2.1 either Party fails to comply with the terms and obligations of this Agreement and such failure, if capable of remedy, is not remedied within 30 day of written notice of such failure from the other Party;
10.2.2 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.2.3 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.2.4 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
10.2.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.2.6 the other Party ceases, or threatens to cease, to carry on business; or
10.2.7 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 10, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.2.8 The other party does not wish to renew the hosting. In this instance the Company will (subject to a one off charge) transfer files, associated data and arrange for the domain name to be transferred to the client’s registrar account.
10.2.9 The termination of this Agreement shall be without prejudice to any rights which have already accrued to either of the Parties under this Agreement.
11. Nature of the Agreement
11.1 This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) [or sub-license] any of its rights hereunder, [or sub-contract] or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
11.2 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
11.3 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.4 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
12. Force Majeure
The company shall not be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
14. Alternative Dispute Resolution
14.1 Any dispute or difference arising between the Parties relating to this Agreement or its subject matter shall be referred to a single arbitrator to be agreed upon by the Parties or, failing such agreement, to be appointed by the then President of the Law Society, such arbitrator to have all of the powers conferred upon arbitrators by the laws of England and Wales.
14.2 The Parties hereby agree that the decision of the Arbitrator shall not be final and binding on both Parties.
15. Law and Jurisdiction
15.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
15.2 Subject to the provisions of Clause 14, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
16. Changes to these Terms and Conditions
Add Media Group Ltd reserves the right to add, delete, or modify any provision of these Terms
and Conditions at any time without notice. Failure to receive notification of a change does not
make those changes invalid. These Terms and Conditions will always be available to download
or print from our website.
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