Please read these Terms and Conditions carefully. All contracts that the
Developer may enter into from time to time for the provision of the Developer's
services shall be governed by these Terms and Conditions. By engaging the
Developer, the Customer agrees to the acceptance of these Terms and Conditions.
TERMS AND CONDITIONS
1. Definitions
1.1 In these Terms and Conditions, except to the extent
expressly provided otherwise:
"Assignment Works" means those elements of the Website such as
the visual appearance of the Website (including page layouts, artwork,
photographs, logos, graphics, animations, video works and text comprised in the
Website, as applicable) together with the source-code, all mark-ups and style
sheets comprised in or generated by the Website (excluding any Third Party
Materials and the Customer Materials) the rights in which are to be assigned
(rather than licensed) by the Developer to the Customer under Clause 6, as
specified in Section 3 of the Statement of Work;
“Acceptance Period” means up to 30 day after the Licensed work is provided to the
Customer. During these 30 days, The Developer will carry out any tweaks and bug
fixes reported by the Customer to ensure the website is working in conformity
with Section 2 of the Statement of Works. proposal or quotation agreed with the
Customer (This excludes any support hours.)
“Acceptance Period” means a maximum of 30 days after the Assignment Works is
provided to the Customer. During these 30 days, the Developer will carry out any
tweaks and bug fixes reported by the Customer to ensure the Assignment Works will
be in conformance with the Statement of Works, Proposal or Quotation (as
applicable) agreed by the Customer.
"Charges" means:
(a) the amounts specified in Section 7 of the Statement of Work
and elsewhere in these Terms and Conditions.
(b) such other amounts as may be agreed in writing by the
parties from time to time; and
(c) amounts calculated by multiplying the standard time-based
charging rates of the Developer (as notified by the Developer to the Customer
before the date of the Contract) by the time spent by the personnel of the
Developer performing the Services (rounded down by the Developer to the nearest
quarter hour.
"Contract" means a particular contract made under these Terms
and Conditions between the Developer and the Customer.
"Customer" means the person or entity identified as such in
Section 1 of the Statement of Work;
"Customer Materials" means all works and materials supplied by
or on behalf of the Customer to the Developer for incorporation into or
integration with the Website, or for use in connection with the Services.
"Developer" means Big Tech Platforms Inc, a company incorporated in
England and Wales (registration number 08904981) having its registered
office at , 8101 College Blvd Suite 100, Overland Park, KS 66210;
"Developer Credit" means a textual credit for the Developer
incorporating a link to the website of the Developer, in a form agreed by the
parties acting reasonably (generally at the footer of the website);
"Development Services" means the design and development of the
Website by the Developer;
"Documentation" means the documentation for the Website produced
by the Developer, if any, and delivered or made available by the Developer to the
Customer;
"Effective Date" means the date of execution of the Contract;
"Force Majeure Event" means an event, or a series of related
events, that is outside the reasonable control of the party affected (including
failures of the internet or any public telecommunications network, hacker
attacks, denial of service attacks, virus or other malicious software attacks or
infections, power failures, industrial disputes affecting any third party,
changes to the law, disasters, epidemics, pandemics, explosions, fires, floods,
riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property
rights wherever in the world, whether registrable or unregistrable, registered or
unregistered, including any application or right of application for such rights
(and these "intellectual property rights" include copyright and related rights,
database rights, confidential information, trade secrets, know-how, business
names, trade names, trade marks, service marks, passing off rights, unfair
competition rights, patents, petty patents, utility models, semi-conductor
topography rights and rights in designs);
"Licensed Works" means the Website excluding the Third Party
Materials and the Customer Materials;
"Services" means any services that the Developer provides to the
Customer, or has an obligation to provide to the Customer, under these Terms and
Conditions;
"Source Code" means software code in human-readable form,
including human-readable code compiled to create software or decompiled from
software, but excluding interpreted code;
"Statement of Work" means a written statement of work agreed by
or on behalf of each of the parties;
"Term" means the term of the Contract, commencing in accordance
with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing
the provisions of the Contract, namely the main body of these Terms and
Conditions and the Statement of Work, including any amendments to that
documentation from time to time;
"Third Party Materials" means the works and/or materials
comprised in the Website excluding the Customer Materials, the Intellectual
Property Rights in which are owned by a third party, and which are specified in
Section 5 of the Statement of Work or which the parties agree in writing shall be
incorporated into the Website;
"Website" means the website developed or to be developed by the
Developer for the Customer under the Contract, as specified in the Statement of
Work, including all the Source Code for that website created by the Developer in
the course of providing the Services;
"Website Defect" means a material adverse effect on the
appearance, operation, functionality, security or performance of the Website, but
excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person
authorised by the Customer to use the Website;
(b) any use of the Website contrary to the intended use by the
Customer or any person authorised by the Customer to use the Website;
(c) a failure of the Customer to perform or observe any of its
obligations in these Terms and Conditions; and/or
(d) an incompatibility between the Website and any other
system, browser types and versions, network, application, program, hardware or
software not specified as compatible in the Website Specification; and
"Website Specification" means the specification for the Website
set out in Section 2 of the Statement of Work, or in the Quotation or Proposal
(as the case may be) as it may be varied by the written agreement of the parties
from time to time.
2. Term
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force from the effective
date until the end of the Acceptance Period, upon which the Contract shall
terminate automatically. The contract can also be terminated in accordance with
Clause 12 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing,
each Statement of Work shall create a distinct contract under these Terms and
Conditions.
3. Development Services
3.1 The Developer shall provide the Development Services to the
Customer.
3.2 The Developer shall use reasonable endeavours to ensure
that the Development Services are provided in accordance with the timetable set
out in Section 6 of the Statement of Work, and that copies of the Website and any
Documentation are delivered to the Customer by means of a secure online sharing
hyperlink, in accordance with that timetable.
3.3 The Customer acknowledges that a delay in the Customer
performing its obligations under these Terms and Conditions may result in a delay
in the performance of the Development Services; and subject to Clause 11.1 the
Developer will not be liable to the Customer in respect of any failure to meet
the Development Services timetable to the extent that that failure arises out of
a delay in the Customer performing its obligations under these Terms and
Conditions.
3.4 The Developer shall keep the Customer reasonably informed
of the progress of the Development Services and, in particular, shall inform the
Customer of any substantial obstacles or likely delays in the performance of the
Development Services.
3.5 The Developer shall supply to the Customer a current
development version of the Website for the purposes of enabling the Customer to
assess the progress of the Development Services and provide feedback to the
Developer regarding the Website.
3.6 If the Contract terminates (for whatever reason) before the
delivery of the completed Website to the Customer, the Developer must within 30
days following such termination deliver to the Customer all work in progress
towards the Website.
4. Customer obligations
4.1 Save to the extent that the parties have agreed otherwise
in writing, the Customer must provide to the Developer, or procure for the
Developer, such:
(a) co-operation, support and advice;
(b) information, content, images and documentation; and
(c) governmental, legal and regulatory licences, consents and
permits,
as are reasonably necessary to enable
the Developer to perform its obligations under the Contract.
4.2 The Customer must provide to the Developer, or procure for
the Developer, such access to the Customer's computer hardware, software,
networks and systems as may be reasonably required by the Developer to enable the
Developer to perform its obligations under the Contract.
5. Customer Materials
5.1 The Customer must supply to the Developer the Customer
Materials specified in Section 4 of the Statement of Work, in accordance with any
timetable specified in Section 6 of the Statement of Work.
5.2 The Customer hereby grants to the Developer a non-exclusive
license to copy, reproduce, store, distribute, publish, export, adapt, edit and
translate the Customer Materials to the extent reasonably required for the
performance of the obligations of the Developer and the exercise of the rights of
the Developer under these Terms and Conditions.
5.3 The Customer warrants to the Developer that the Customer
Materials will not infringe the Intellectual Property Rights or other legal
rights of any person and will not breach the provisions of any law, statute or
regulation, in any jurisdiction and under any applicable law.
6. Intellectual Property Rights
6.1 The Developer hereby assigns to the Customer with full
title guarantee all of the Intellectual Property Rights in the Website, whether
those Intellectual Property Rights exist on the Effective Date or come into
existence during the Term. This assignment is for the full term of the assigned
rights, including all extensions, renewals, reversions and revivals, and includes
the right to bring proceedings for past infringements of the assigned rights.
This assignment shall take effect in respect of a work upon the delivery of that
work to the Customer.
6.2 Subject to any express written agreement between the
parties, the Developer shall ensure that the Third Party Materials are:
(a) licensed to the Customer in accordance with the relevant
licensor's standard licensing terms (which the Customer acknowledges may be open
source or Creative Commons licensing terms);
(b) licensed to the Customer on reasonable terms notified by
the Developer to the Customer;
(c) sub-licensed by the Developer to the Customer on reasonable
terms notified in writing by the Developer to the Customer; or
6.3 To the maximum extent permitted by applicable law:
(a) the Developer irrevocably and unconditionally waives all
moral rights (including rights of paternity and rights of integrity) in respect
of the Website to which the Developer may at any time be titled; and
(b) the Developer undertakes to ensure that all individuals
involved in the preparation of the Website will irrevocably and unconditionally
waive all moral rights (including rights of paternity and rights of integrity) in
respect of the Website to which they may at any time be entitled.
6.4 The Developer must use reasonable endeavors to:
(a) do or procure the doing of all acts; and
(b) execute or procure the execution of all documents,
that the Customer may reasonably
request from time to time in order to perfect or confirm the Customer's ownership
of the rights assigned by these Terms and Conditions.
7. Developer Credit
7.1 The Developer may include the Developer Credit on each page
of the Website footer in the form of a link pointing to the Developer’s website.
7.2 The Customer must retain the Developer Credit on the
Website and any adapted version of the Website, must not interfere with the
Developer Credit in any way which will have or may reasonably be expected to have
a negative impact upon the value of the Developer Credit to the Developer, and
may only remove the Developer Credit at the Developer's request.
8. Charges
8.1 The Customer shall pay the Charges to the Developer in
accordance with these Terms and Conditions.
8.2 If the Charges are based in whole or part upon the time
spent by the Developer performing the Services, the Developer must obtain the
Customer's written consent before performing Services that result in any estimate
of time-based Charges given to the Customer being exceeded or any budget for
time-based Charges agreed by the parties being exceeded; and unless the Customer
agrees otherwise in writing, the Customer shall not be liable to pay to the
Developer any Charges in respect of Services performed in breach of this Clause
8.2.
8.3 All amounts stated in or in relation to these Terms and
Conditions are, unless the context requires otherwise, stated exclusive of any
applicable value added taxes, which will be added to those amounts and payable by
the Customer to the Developer.
8.4 The Developer may elect to vary any element of the Charges
by giving to the Customer written notice of variation in the relevant element of
the Charges after discussing with, and agreeing by the Customer.
9. Payments
9.1 The Developer shall issue invoices for the Charges to the
Customer from time to time during the Term as agreed between the Developer and
the Customer.
9.2 The Customer must pay the Charges to the Developer within
the period of the receipt of an invoice issued in accordance with this Clause 9.
9.3 The Customer must pay the Charges by debit card, credit
card, direct debit, bank transfer or cheque using such payment details as are
notified by the Developer to the Customer from time to time.
9.4 If the Customer does not pay any amount properly due to the
Developer under these Terms and Conditions, the Developer may:
(a) charge the Customer interest on the overdue amount at the
rate of 8% per annum above the Bank of England base rate from time to time (which
interest will accrue daily until the date of actual payment and be compounded at
the end of each calendar month; or
(b) claim interest and statutory compensation from the Customer
pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Warranties
10.1 The Developer shall provide the Services with reasonable skill and
care.
10.2 The Developer warrants to the Customer that:
(a) the Developer has the legal right and authority to enter
into the Contract and to perform its obligations under these Terms and
Conditions;
(b) the Developer will comply with all applicable legal and
regulatory requirements applying to the exercise of the Developer's rights and
the fulfilment of the Developer's obligations under these Terms and Conditions;
and
(c) the Developer has or has access to all necessary know-how,
expertise and experience to perform its obligations under these Terms and
Conditions.
10.3 The Developer warrants to the Customer that:
(a) the Website as provided will conform in all material
respects with the Website Specification.
(b) the Website will be supplied free from Website Defects.
(c) the Website shall incorporate security features reflecting
the requirements of good industry practice.
10.4 The Developer warrants to the Customer that the Website, when used by
the Customer in accordance with these Terms and Conditions, will not breach any
laws, statutes or regulations applicable under English law; providing however
that the Developer shall have no liabilities under this Clause 10.4 in respect of
any such breach caused by the Customer Materials or the Third Party Materials.
10.5 The Developer warrants to the Customer that the Website, when used by
the Customer in accordance with these Terms and Conditions, will not infringe the
Intellectual Property Rights of any person in any jurisdiction and under any
applicable law; providing however that the Developer shall have no liabilities
under this Clause 10.5 in respect of any such infringement caused by the Customer
Materials or the Third Party Materials.
10.6 If the Developer reasonably determines, or any third party alleges,
that the use of the Website by the Customer in accordance with these Terms and
Conditions infringes any person's Intellectual Property Rights, the Developer may
acting reasonably to:
(a) modify the Website in such a way that it no longer
infringes the relevant Intellectual Property Rights, providing that any such
modification must not introduce any Website Defects into the Website and must not
result in the Website failing to conform with the Website Specification; or
(b) procure for the Customer the right to use the Website in
accordance with these Terms and Conditions.
10.7 If the situation in clause 10.6 above is a result of the Customer
Materials, the Customer agrees to pay the Developer any relevant charges
applicable.
10.8 The Customer warrants to the Developer that it has the legal right and
authority to enter into the Contract and to perform its obligations under these
Terms and Conditions.
10.9 All of the parties' warranties and representations in respect of the
subject matter of the Contract are expressly set out in these Terms and
Conditions. To the maximum extent permitted by applicable law, no other
warranties or representations concerning the subject matter of the Contract will
be implied into the Contract or any related contract.
11. Limitations and exclusions of
liability
11.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury
resulting from negligence.
(b) limit or exclude any liability for fraud or fraudulent
misrepresentation.
(c) limit any liabilities in any way that is not permitted
under applicable law; or
(d) exclude any liabilities that may not be excluded under
applicable law.
11.2 The limitations and exclusions of liability set out in this Clause 11
and elsewhere in these Terms and Conditions:
(a) are subject to Clause 11.1; and
(b) govern all liabilities arising under these Terms and
Conditions or relating to the subject matter of these Terms and Conditions,
including liabilities arising in contract, in tort (including negligence) and for
breach of statutory duty, except to the extent expressly provided otherwise in
these Terms and Conditions.
11.3 The Developer shall not be liable to the Customer in respect of any
losses arising out of a Force Majeure Event.
11.4 The Developer shall not be liable to the Customer in respect of any
loss of profits or anticipated savings.
11.5 The Developer shall not be liable to the Customer in respect of any
loss of revenue or income.
11.6 The Developer shall not be liable to the Customer in respect of any
loss of use or production.
11.7 The Developer shall not be liable to the Customer in respect of any
loss of business, contracts or opportunities.
11.8 The Developer shall not be liable to the Customer in respect of any
loss or corruption of any data or database.
11.9 The Developer shall not be liable to the Customer in respect of any
special, indirect or consequential loss or damage.
11.10 The liability of the Developer to the Customer under the Contract in
respect of any event or series of related events shall not exceed the greater of
the total amount paid and payable by the Customer to the Developer under the
Contract in the 12-month period preceding the commencement of the event or
events.
11.11 The aggregate liability of the Developer to the Customer under the Contract
shall not exceed the greater of the total amount paid and payable by the Customer
to the Developer under the Contract.
12. Termination
12.1 Unless otherwise agreed by both parties, the Contract will
automatically terminate at the end of the Acceptance Period as per Clause 2.2
12.2 The Customer may terminate the Contract by giving to the Developer
written notice of termination.
12.3 Either party may terminate the Contract immediately by giving written
notice of termination to the other party if:
(a) the other party commits any breach of the Contract, and the
breach is not remediable;
(b) the other party commits a breach of the Contract, and the
breach is remediable but the other party fails to remedy the breach within the
period of 30 days following the giving of a written notice to the other party
requiring the breach to be remedied; or
12.4 Subject to applicable law, either party may terminate the Contract
immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any
arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator,
receiver, trustee, manager or similar is appointed over any of the assets of the
other party;
(c) an order is made for the winding up of the other party, or
the other party passes a resolution for its winding up (other than for the
purpose of a solvent company reorganisation where the resulting entity will
assume all the obligations of the other party under the Contract); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party
becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or
order.
12.5 The Developer may terminate the Contract immediately by giving written
notice to the Customer if:
(a) any amount due to be paid by the Customer to the Developer
under the Contract is unpaid by the due date and remains unpaid upon the date
that that written notice of termination is given; and
(b) the Developer has given to the Customer at least 30 days'
written notice, following the failure to pay, of its intention to terminate the
Contract in accordance with this Clause 12.5.
13. Effects of termination
13.1 Upon the termination of the Contract, all of the provisions of these
Terms and Conditions shall cease to have effect, save that the following
provisions of these Terms and Conditions shall survive and continue to have
effect (in accordance with their express terms or otherwise indefinitely: Clauses
1, 3.7, 6.1, 6.4, 7, 9.2, 9.4, 11, 13, 15 and 16.
13.2 Except to the extent expressly provided otherwise in these Terms and
Conditions, the termination of the Contract shall not affect the accrued rights
of either party.
13.3 Within 30 days following the termination of the Contract for any
reason:
(a) the Customer must pay to the Developer any Charges in
respect of Services provided to the Customer before the termination of the
Contract; and
(b) the Developer must refund to the Customer any Charges paid
by the Customer to the Developer in respect of Services that were to be provided
to the Customer after the termination of the Contract,
without prejudice to the parties'
other legal rights.
14. Subcontracting
14.1 Subject to any express restrictions elsewhere in these Terms and
Conditions, the Developer may subcontract any of its obligations under the
Contract.
14.2 The Developer shall remain responsible to the Customer for the
performance of any subcontractor obligations.
15. General
15.1 No breach of any provision of the Contract shall be waived except with
the express written consent of the party not in breach.
15.2 If any provision of the Contract is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other provisions of
the Contract will continue in effect. If any unlawful and/or unenforceable
provision would be lawful or enforceable if part of it were deleted, that part
will be deemed to be deleted, and the rest of the provision will continue in
effect (unless that would contradict the clear intention of the parties, in which
case the entirety of the relevant provision will be deemed to be deleted).
15.3 The Contract may not be varied except by a written document signed by
or on behalf of each of the parties.
15.4 Neither party may without the prior written consent of the other party
assign, transfer, charge, license or otherwise deal in or dispose of any
contractual rights or obligations under these Terms and Conditions.
15.5 The Contract is made for the benefit of the parties, and is not
intended to benefit any third party or be enforceable by any third party. The
rights of the parties to terminate, rescind, or agree any amendment, waiver,
variation or settlement under or relating to the Contract are not subject to the
consent of any third party.
15.6 Subject to Clause 11.1, these Terms and Conditions shall constitute
the entire agreement between the parties in relation to the subject matter of
these Terms and Conditions, and shall supersede all previous agreements,
arrangements and understandings between the parties in respect of that subject
matter.
15.7 The Contract shall be governed by and construed in accordance with
English law.
15.8 The courts of England shall have exclusive jurisdiction to adjudicate
any dispute arising under or in connection with the Contract.
16. Interpretation
16.1 In these Terms and Conditions, a reference to a statute or statutory
provision includes a reference to:
(a) that statute or statutory provision as modified,
consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or
statutory provision.
16.2 The Clause headings do not affect the interpretation of these Terms
and Conditions.
16.3 References in these Terms and Conditions to "calendar months" are to
[the 12 named periods (January, February and so on) into which a year is divided.
16.4 In these Terms and Conditions, general words shall not be given a
restrictive interpretation by reason of being preceded or followed by words
indicating a particular class of acts, matters or things.
