1.1. Definitions. In these Conditions, the following definitions apply:
1.2. In these Conditions, the following rules apply:
1.2.1. a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.2. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed a illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3. a reference to writing or written includes faxes and emails.
2. Basis of Contract
2.1. The Order shall only be deemed to be accepted when EatFishDesign issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.2. The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of EatFishDesign which is not set out in the Specification.
2.3. Any samples, drawings, descriptive matter or advertising issued by EatFishDesign, and any descriptions or illustrations contained in the EatFishDesign’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. Any quotation given by EatFishDesign shall not constitute an offer, and is valid for a period of 60 (sixty) days from its date of issue.
3. Supply of Services
3.1. EatFishDesign shall provide the Services (and the Deliverables) to the Client in accordance with the Specification.
3.2. EatFishDesign shall use reasonable endeavours to meet any performance dates for the Services specified in the Contract. Time shall not be of the essence. EatFishDesign shall not be liable where performance dates are not met for reason of (including but not limited to) the Client’s delay in providing the Input Material or commentary upon any draft Deliverable provided to it by EatFishDesign.
3.3. EatFishDesign shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and EatFishDesign shall notify the Client in any such event.
3.4. EatFishDesign shall provide the Services will be provided using reasonable care and skill.
3.5. For Services which are not web design services, it is anticipated that the process from the Commencement Date to Sign Off will (except for negligence or manifest error) incorporate not greater than three iterations of the Deliverables, following consultation upon each prior version of them. Upon receiving the third (and proposed final) iteration of the draft Deliverables, should the Client require further consultation upon and variations to the draft Deliverables, EatFishDesign shall (at its discretion) be entitled to adjust the level of Charges accordingly to take into account (without limitation) the additional time required to complete the performance of the Services, the variations required to the Deliverables to achieve Sign Off , and the costs to it of any Third Party Product or services.
4. Web Design Services
4.1. For Services which are not web design services, it is anticipated that the process from the Commencement Date to Sign Off will (except for negligence or manifest error) incorporate not greater than three iterations of the Deliverables, following consultation upon each prior version of them. Upon receiving the third (and proposed final) iteration of the draft Deliverables, should the Client require further consultation upon and variations to the draft Deliverables, EatFishDesign shall (at its discretion) be entitled to adjust the level of Charges accordingly to take into account (without limitation) the additional time required to complete the performance of the Services, the variations required to the Deliverables to achieve Sign Off , and the costs to it of any Third Party Product or services.
4.2. Once EatFishDesign has completed the design and development of the Website in accordance with the Specification, EatFishDesign and the Client shall run those acceptance tests required to test and verify that the Website operates substantially in accordance with the Specification (“Acceptance Tests”).
4.3. If any Acceptance Tests are not passed, the failures that cause the relevant tests to be failed ("Defects") shall be drawn up and documented by EatFishDesign and presented to the Client for discussion as to how best to rectify such Defects.
4.4. If the Website fails to pass the Acceptance Tests due to the act or omission of the Client, then the Client shall pay the Company for all such additional charges (on a time and material basis) at EatFishDesign’s then current rates for time spent by the Company in remedying the same and undertaking further Acceptance Tests.
4.5. EatFishDesign shall remedy any Defects promptly in order to ensure that the Website passes the Acceptance Tests on a retest.
4.6. If such a retest demonstrates that the Website is still not in accordance with the Specification, the Client may, by written notice to EatFishDesign, elect at its sole option:
4.6.1. to fix (without prejudice to its other rights and remedies) a new date for carrying out further tests on the Website on the same terms and conditions as the retest). If the Website fails such further tests, the Client shall be entitled to proceed under clause 4.6.2 or clause 4.6.3 ;
4.6.2. to accept the Website subject to an abatement of the Charges, such abatement to be an amount that is reasonable, taking into account the circumstances. In the absence of written agreement as to abatement within 14 days of the date of the notice given by the Client pursuant to this clause 4.6.2 , the Client shall be entitled to reject the Website in accordance with clause 4.6.3 ; or
4.6.3. to reject the Website as not being in conformity with the Contract, in which event the Contract shall automatically terminate and EatFishDesign shall refund to the Client all sums already paid to EatFishDesign under the Contract.
4.7. Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events (the “Acceptance Date”):
4.7.1. the date on which the Website passes the Acceptance Tests;
4.7.2. the Client uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes or the Website otherwise goes live as a consequence of the act or omission of the Client; or
4.7.3. the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of fifteen Business Days from the date on which the EatFishDesign is ready to commence running such Acceptance Tests or retests.
4.8. EatFishDesign shall host the Website on the Server from the date the Website is available for Acceptance Tests. The hosting shall be in accordance with the third- party provider’s terms and conditions. Upon Acceptance, if required, EatFishDesign and the Client shall take all steps required to facilitate the hosting of the service to the Client or any third party nominated by it.
4.9. Any Third-Party Products shall be supplied in accordance with the relevant third party’s standard terms. Any fees incurred by EatFishDesign in respect of the same shall be chargeable to the Client provided that these charges have been notified in writing to the Client before they are incurred. Where the Client acquires its own licence to use Third Party Products it shall ensure that such licence is adequate for the performance of the Services and is fully paid up.
4.10. The Client acknowledges and accepts that websites in general are not error, fault or bug free nor secure from persons wishing to misuse, tamper with, erase, alter or in any other way corrupt websites, and the data, information and records they display, retrieve, collate, transfer or disseminate and the Client agrees with EatFishDesign that EatFishDesign shall have no liability to anyone for any such occurrences arising in respect of or in relation to the Website.
5. Client’s Obligations
5.1. The Client shall:
5.1.1. ensure that the terms of the Order and the information it provides in the Specification defined are complete and accurate. The Deliverables shall be provided in the format specified in the Order;
5.1.2. co-operate with EatFishDesign in all matters relating to the Services;
5.1.3. ensure that all and any Input Material is complete, correct and accurate, in the format requested by EatFishDesign, and free from any Virus. EatFishDesign shall not be obliged proof read and copy or otherwise account to the Client for errors in the Input Material (whether typographical or otherwise). Further, the Client grants to EatFishDesign a revocable, royalty-free, right to use and maintain the Input Material. The Client warrants that:
18.104.22.168. the use, as contemplated by the Contract, of the Input Material shall not infringe any third party’s Intellectual Property Rights; and
22.214.171.124. the Input Material does not contain any Inappropriate Content;
5.1.4. provide EatFishDesign with such information and materials as EatFishDesign may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.5. be responsible for checking, on receiving work, that all details contained on or in the Deliverables are accurate in all respects, including (but not restricted to) spelling, colours, information and advert placements.
5.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
5.1.7. refrain from making any alteration to the Deliverables which would materially affect their quality.
6. Charges and Payment
6.1. The charges for Services shall be those set out in the Order
6.2. EatFishDesign shall invoice the Client at those times and intervals that it deems appropriate or are otherwise set out in the Specification.
6.3. The Client shall pay each invoice submitted by EatFishDesign:
6.3.1. within 30 days of the date of the invoice (or such other time stipulated in writing by EatFishDesign (“Due Date”); and
6.3.2. in full and in cleared funds to a bank account nominated in writing by EatFishDesign
6.4. All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract EatFishDesign to the Client, the Client shall, on receipt of a valid VAT invoice from EatFishDesign, pay to the EatFishDesign such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.5. Without limiting any other right or remedy of EatFishDesign, if the Client fails to make any payment due to EatFishDesign under the Due Date , EatFishDesign shall have the right to charge interest on the overdue amount at the rate of 5 (five) percent per annum above the then current Lloyds Bank plc’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.6. The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against EatFishDesign in order to justify withholding payment of any such amount in whole or in part EatFishDesign may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by EatFishDesign to the Client.
7. Intellectual Property Rights
7.1. All Intellectual Property Rights in the Input Material shall remain with the Client
7.2. All of the Intellectual Property Rights in the EatFishDesign Material, the Services and the Deliverables shall remain with, and vest in, EatFishDesign
7.3. Upon payment in full by the Client to EatFishDesign of all sums due under the Contract, Eat Fish Design shall be deemed to have granted to the Client a fully paid-up, worldwide, revocable, non-exclusive, royalty-free licence to use, copy and modify the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business.
7.4. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 7.3 .
8.1. Each party undertakes that it shall not at any time during the duration of the Contract, and for a period of five years after termination its termination or expiry, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 8.2.
8.2. Each party may disclose the other party’s confidential information:
8.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 8 ; and
8.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
9. Limitation of Liability
9.1. Nothing in these Conditions shall limit or exclude EatFishDesign’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
9.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
9.1.5. defective products under the Consumer Protection Act 1987.
9.2. Subject to clause 9.1 EatFishDesign shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any
9.2.1. loss of profit
9.2.2. loss of agreements or contracts
9.2.3. loss of use or corruption of software, data or information
9.2.4. losses arising out of or connected with a breach by the Client of the Data Protection Legislation
9.2.5. losses arising out of or connected to the use of the Deliverables by the Client; or
9.2.6. for any indirect or consequential loss arising under or in connection with the Contract.
9.3. Subject to clause 9.1, a party’s total liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement, for damage to property caused by its negligence shall be limited to £100,000.00
9.4. This clause 9 shall survive termination of the Contract.
10.1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving them written notice to the other party if:
10.1.1. the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
10.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.3. the other party (being an individual) is the subject of a bankruptcy petition or order;
10.1.4. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.5. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
10.1.6. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable.
10.2. Without limiting its other rights or remedies, EatFishDesign may terminate the Contract:
10.2.1. by giving the Client one months’ written notice;
10.2.2. with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the Due Date.
10.3. Without limiting its other rights or remedies, EatFishDesign shall have the right to suspend the supply of Services under the Contract or any other contract between the Client and EatFishDesign if the Client fails to make pay any amount due under this Contract on the Due Date.
11. Consequences of Termination
On termination of the Contract for any reason:
11.1. the Client shall immediately pay to EatFishDesign all of EatFishDesign’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, EatFishDesign shall submit an invoice, which shall be payable by the Client immediately on receipt;
11.2. the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
11.3. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. Data Protection
12.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 12 , Applicable Laws means (for so long as and to the extent that they apply to EatFishDesign) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
12.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and EatFishDesign is the processor.
12.3. Without prejudice to the generality of clause 12.1 , the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to EatFishDesign for the duration and purposes of the Contract.
12.4. Without prejudice to the generality of clause 12.1 , EatFishDesign shall, in relation to any personal data processed in connection with the performance by EatFishDesign of its obligations under the Contract:
12.4.1. process that personal data only on the documented written instructions of the Client unless EatFishDesign is required by Applicable Laws to otherwise process that personal data. Where EatFishDesign is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, EatFishDesign shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit EatFishDesign from so notifying the Client;
12.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.4.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
12.4.4. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client.
13.1. Force majeure:
13.1.1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of EatFishDesign including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.1.2. EatFishDesign shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.1.3. If the Force Majeure Event prevents EatFishDesign from providing any of the Services for more than three weeks, EatFishDesign shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
13.2. Assignment and subcontracting:
EatFishDesign may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, by email or sent by fax to the other party’s main fax number.
The Client agrees that they will not, either on their own account or in partnership or association with any person, firm, company or organisation or otherwise, whether directly or indirectly and during or for a period of six months from the end of the term of the Contract, solicit or entice away or attempt to entice away, or contract directly with, any employee of EatFishDesign who has worked on the Services provided under the Contract.
13.5. Third parties:
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by EatFishDesign.
13.7. Governing law and jurisdiction:
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.