Last updated 30th April 2024.
1. Definitions
The following phrases shall, unless the context requires otherwise, have the following meanings.
1.1. Company refers to This Company (Digital) Limited.
1.2. Services describes the work and capabilities of the Company including but not limited to: business analysis, project management, technical consultancy, visual design, technical design, technical development, testing, hosting and networking.
1.3. Client means the organisation or person that purchases Services from the Company.
1.4. Resource refers to a person employed or otherwise engaged by the Company during the period of delivering Services for the Client.
1.5. Proposal refers to the document which describes the Services to be delivered for the Client.
1.6. Product describes completed work as signed-off after all Services in a Proposal have been delivered.
1.7. Project refers to the timeline and activities required to deliver a Product.
1.8. Milestone refers to a package of work within a Project that constitutes a key deliverable, activity or combination thereof.
1.9. Sign Off means that the Client has approved the relevant deliverable and that it can be carried forward in the Project without any further revision.
1.10. Product Launch refers to the date on which the Product is made available for general use by the full set of the Product's intended users and groups.
1.11. Initial Purpose describes the original, intended use of the Product as described in the Proposal and as defined by, but not limited to, the users and groups, revenue generating nature, functionality, data storage and data processing capabilities at the time of Product Launch.
1.12. Agreement refers to an accepted Proposal that is subject to these Terms and Conditions.
2. Supply of Services
2.1. The Company agrees to supply to the Client the Services specified in the Proposal.
2.2. The Company undertakes that the Services performed under these Terms and Conditions shall be carried out using reasonable skill, judgement, control and care and shall be of a quality conforming with generally accepted industry standards.
3. Client Obligations
3.1. The Client agrees to provide the Company with all information, permissions and consents deemed necessary for the successful undertaking of the Project.
3.2. The Client agrees to comply with such other obligations as may be set out in the Proposal, notably testing of the Product, and it is further agreed that failure to comply with such obligations shall absolve the Company of responsibility for errors or inadequacies.
3.3. Where the Client specifically waives any requirement to test the Product, the Company is indemnified by the Client against any and all errors in the finished Product.
3.4. Changes to a finished Product, beyond the scope of error correction under warranty, will incur an extra cost which will be charged to the Client.
3.5. The Client accepts that its failure to comply with its obligations may have an adverse impact on the ability of the Company to complete the Project as agreed in the Proposal, and may in certain circumstances constitute a Termination of the Project.
3.6. If the Client's actions or omissions prevent or delay the Company from undertaking or complying with any of its obligations under these Terms, then the Company's obligations shall be modified accordingly.
3.7. Where a Milestone requires Sign Off, the Company reserves the right to suspend further work until the Milestone in question is completed.
4. Non-compete and Accreditation
4.1. The Client may not approach any Resource, directly or indirectly, to commission work or submit estimates without the express written consent of the Company, nor encourage the submission of these directly or indirectly in any way.
4.2. Any solicitation of direct work for the Client by a Resource must be notified immediately to the Company.
4.3. Nothing in these terms is intended to, nor shall it, confer any rights on a third party, and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
4.4. The Company reserves the right (whilst fully respecting any confidential elements of the Project) to identify, describe and otherwise use the image, visual or otherwise, of the product and the name of the Client in Company publicity.
4.5. The Company reserves the right to be identified, by it's name, logo and website address, as the creator of the Product in Client marketing material and publicity relating to the Product, including award submissions.
5. Intellectual Property (IP)
5.1. Intellectual Property created by the Company or any of its agents, affiliates or employees during the course of a Project will remain at all times the property of the Company.
5.2. Following payment in full of the cost of the Project, the Client will be granted a licence by the Company to use the IP created for the Initial Purpose for which it was created. Permission to use the IP for purposes other than the Initial Purpose will not be unreasonably withheld but may incur an additional cost.
5.3. If the Client introduces any material into the Project which infringes the IP of another party, then the Client agrees to indemnify the Company completely against any claims, costs and/or expenses which may arise as a result, whether directly or indirectly.
6. Fees
6.1. The Client shall pay to the Company fees in the manner set out in the Proposal for the period during which the Company provides Services in accordance with the Agreement.
6.2. All fees will be estimated in GBP and paid by the client in GBP, unless detailed otherwise.
6.3. Payment of each invoice shall be made by the Client within 14 days of the date of issue.
6.4. Late payment may incur additional fees and accrue interest at a rate of 8% per annum above base rate in accordance with Late Payment of Commercial Debts Regulations 2013.
6.5. If the Client fails to pay any sum due under the Agreement, the Company may, without prejudice to any other remedy, wholly withdraw the provision of the Services or any part thereof until payment is made. In such circumstances the full costs and expenses occasioned by such withdrawal shall be borne by the Client.
6.6. Should Project timings extend beyond those set out in the Proposal, the Company reserves the right to review and revise the fees estimated for it's Services.
6.7. The Client agrees to pay any withholding taxes that may be due on overseas payments.
7. Warranty
7.1. The Company agrees to remedy, without charge, any errors or issues raised within 30 days of Product Launch that prevent the Product from performing identically to the Product as previewed, tested and Signed Off prior to Product Launch.
9. Confidentiality
9.1. The Company agrees that neither it nor its Resources, agents or affiliates will disclose to any third party without the Client's prior written consent any confidential information or documentation, materials, drawings, designs, software or information relating to the business, technology, know how, finances and affairs of the Client which may be disclosed to or become known to the Company and/or it's Resources, agents or affiliates.
10. Termination
10.1. A Project may be terminated with 30 days written notice by either party subject to the provisions of Section 10.2.
10.2. The Client will be liable for all costs and expenses incurred by the Company up to the point of termination.
10.3. Either party may terminate a Project immediately without incurring any further liability if the other:
10.3.1. Commits any material breach of any term of the Agreement (and/or its associated Proposal) or obligations under them and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified of the breach; or
10.3.2. Becomes bankrupt or insolvent or makes any assignment for the benefit of creditors or ceases its operations.
10.3.3. Termination shall not affect any rights or claims which have accrued prior to the date of termination and/or which are expressed to survive the termination of the Agreement and the associated Proposal.
11. Force Majeure
11.1. In this Clause Force Majeure refers to events or circumstances outside either party's reasonable control, including but not limited to; acts of God, strikes, lock outs, accidents, war, fire, pandemics, act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority.
11.2. Either Party shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to a Force Majeure event.
12. General
12.1. By agreeing in writing and/or by email to a Proposal, the Client also agrees to these Terms and Conditions.
12.2. The validity, enforceability, construction and interpretation of the Agreement may be amended only by written agreement between the Client and the Company.
12.3. The Agreement shall be governed by English law and the Client and the Company shall submit to the exclusive jurisdiction of the Courts of England and Wales.
12.4. No Agreement may be assigned by either party without the prior written consent of the other party.
12.5. These Terms and Conditions along with any accepted Proposal constitute the entire Agreement between the Client and the Company and cancels and supersedes any prior understandings and Agreements.
12.6. The Company reserves the right to change these Terms and Conditions from time to time as may be necessary to reflect changes in legislation, to clarify existing terms and to add or remove terms as the Company sees fit for the purposes of protecting the best interests of the Company and the Client. Any such changes will be notified to the Client in writing.