Mediaworks

Development and Apps - Terms and Conditions

  1. Interpretation
    • The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions):
Acceptance, Accepted written confirmation from the Customer to the Supplier that the Deliverables satisfy the Specification;
Additional Fees fees that the Supplier may charge over and above those quoted in the Services Order or Specification as set out in these conditions, calculated in accordance with the Supplier’s standard day rates, as amended from time to time;
Build Services the development of the Deliverables which will commence upon acceptance by the Customer of the final Specification;
Charges the charges payable by the Customer for the provision of the Services in accordance with condition 7;
Contract the contract between the Supplier and the Customer for the purchase of Services in accordance with these Conditions;
Customer the person, firm or company who purchases Services from the Supplier and whose details are set out in the Services Order;
Deliverables all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees, specifically for the Customer, in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts);
Deployment the promotion of the Deliverables into a live environment following Acceptance;
Discovery Services the scoping and design stage of the project, during which the Specification will be revised and fine-tuned;
Document includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
Input Material all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications;
Intellectual Property Rights all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
Post Delivery Services the services to be supplied by the Supplier following delivery of the Deliverables, which may include hosting, support or training;
Pre-existing Materials all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications;
Services the services to be provided by the Supplier under the Contract as set out in the relevant Services Order;
Services Order the written instructions from the Customer to the Supplier to purchase the Services from the Supplier, in the standard form of the Supplier incorporating these Conditions;
Specification the description of the Deliverables set out in the Services Order and which will be developed and/or amended during the Discovery Services;
Supplier Mediaworks UK Limited, incorporated and registered in England and Wales with company number 6309397 with registered office at 398A Princesway North, Team Valley Trading Estate, Gateshead, NE11 0TU;
VAT value added tax chargeable under English law for the time being and any similar additional tax.

 

  • Headings in these Conditions shall not affect their interpretation.
  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and reference to a party includes their successors and permitted assigns.
  • A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
  • Save as expressly provided in these Conditions, a reference to writing or written includes faxes and e-mail.
  • Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
  • References to conditions are to the conditions of the Contract.

 

  1. Application and Conditions
    • These Conditions shall form part of and be incorporated into each Contract and these Conditions and the Services Order shall form the entire agreement between the Customer and the Supplier and shall apply to the exclusion of any other terms and conditions contained in or referred to in any correspondence from the Customer or implied by law, trade custom, practice or course of dealing.
    • A Services Order shall prevail over any inconsistent terms or conditions contained, or referred to, in these Conditions.
    • A Services Order shall constitute an offer by the Customer to purchase the Services on these Conditions. No Contract shall come into force until a Services Order has been signed by the Supplier and the Customer or, if earlier, by the Supplier starting to provide Services under a Services Order.

 

  1. Commencement and Duration
    • The Services supplied under a Contract shall be provided from the date specified in the Services Order until the termination of the Contract in accordance with these Conditions.

 

  1. Scope of Services
    • In consideration for the payment of the Charges, the Supplier shall deliver the Services as set out in the Services Order, which shall comprise (where appropriate):
      • the Discovery Services;
      • the Build Services;
      • the Post Delivery Services
    • Upon completion of the Discovery Services, the Supplier shall provide a Specification which will include details of the revised Charges for the Build Services (if applicable) and estimated timescales. Upon receipt of the Customer’s written acceptance of the Specification and payment of such Charges due for payment in accordance with condition 7, the Supplier shall commence the Build Services.
    • Upon completion of the Build Services and delivery of the Deliverables, the Customer shall provide its Acceptance. The Customer must notify the Supplier of any failure of the Deliverables to satisfy the Specification within seven days of the Supplier confirming that the Deliverables are ready for Acceptance. If such notification is not received within seven days, the Deliverables will be deemed to have been Accepted.
    • If the Deliverables are not Accepted, the Customer shall explain in writing which part(s) of the Specification have not been satisfied by the Deliverables. Upon such notification, the Supplier shall investigate and, if it confirms that a fault is present, take reasonable corrective measures to ensure that the Deliverables satisfy the Specification at no further cost to the Customer.
    • Any further work that the Supplier is requested to perform following Acceptance by the Customer, or any other modifications or enhancements requested by the Customer after the Specification has been agreed, may be subject to Additional Fees and such work will only be undertaken by the Supplier upon written acceptance of those Additional Fees by the Customer.
    • The Supplier warrants that the Deliverables will perform substantially in accordance with the Specification during the period of 6 months following the date of Deployment (“Warranty Period”). The Supplier will take reasonable corrective measures to resolve any defects of the Deliverables to perform in accordance with the Specification identified during the Warranty Period. The Supplier shall have no liability in respect of any defects identified which result from the Customer’s improper use of the Deliverables or any changes made to the Deliverables by the Customer or any third party.
    • The Post Delivery Services (where appropriate) will commence upon completion of the Build Services and delivery of the Deliverables. Any monthly support services to be supplied as part of the Post Delivery Services cannot be carried forward from one month to the next, and cannot be combined to cover other development work.

 

  1. Supplier’s Obligations
    • The Supplier warrants that any Services provided under a Contract shall be provided with reasonable skill and care and using appropriate experienced personnel.
    • The Supplier shall use reasonable endeavours to meet any performance dates specified in the Services Order or Specification but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Contract.
    • The Supplier gives no guarantee or warranty whatsoever to the Customer that the provision of the Services shall lead to any sales, revenue, profit, business, opportunity or similar for the Customer or that it shall lead to any increase in sales, revenue, profit, business, opportunity or similar for the Customer.
    • The Supplier shall have no liability for any matters outside of its direct control including, but not limited to, down time on the server hosting the Supplier’s domains or software.
    • The Supplier shall be entitled at its absolute discretion to refuse to create a business profile for a Customer which it considers to be unfit for publication on the internet including, but not limited to, sites containing adult oriented material, sites which promote ethnic, social or religious discord and sites which infringe any copyright or other laws or regulations.
    • Nothing in this Contract shall prevent the Supplier from being engaged, concerned or having any financial interest in any capacity in any other similar business, other business, trade, profession or occupation during the Term provided that such activity does not cause a breach of any of the Supplier’s obligations under this Contract.

 

  1. Customer’s Obligations
    • If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, (including but not limited to their failure to provide data or Input Material required by the Supplier to provide the Services or failure by the Customer to hold the relevant licences or permissions to use Input Materials), the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay and the Supplier reserves the right to charge Additional Fees to the Customer as a result of any such delays or interruptions.
    • The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services. If consent is given by the Supplier in accordance with this clause then the Customer shall pay to the Supplier a sum equivalent to 25% of the then current annual remuneration of the Supplier’s employee.

 

  1. Charges and Payment
    • Charges in respect of the Services shall be payable by the Customer to the Supplier in accordance with the Services Order and the Specification. Unless agreed otherwise in the Services Order, the Charges for the Discovery Services and Build Services shall be paid by the Customer to the Supplier in the following instalments:
      • 40% upon acceptance of the Services Order and prior to the commencement of the Discovery Services;
      • 30% upon acceptance of the Specification and prior to the commencement of the Build Services;
      • 30% upon Acceptance of the Deliverables and prior to Deployment.
    • Charges in respect of the Post Delivery services shall be payable in monthly instalments which shall be invoiced in advance.
    • The Supplier may incur certain expenses in connection with the delivery of the Services including but not limited to the cost of: hotels, subsistence, travel, materials and third party services. The Supplier may seek reimbursement of such expenses, materials and third party services from the Customer, which shall be agreed in advance and shall be invoiced by the Supplier to the Customer at cost.
    • The Customer shall pay invoices relating to the Discovery Services and Build Services in accordance with the milestones outlined in clause 7.1 above, and shall pay invoices relating to the Post Delivery Services within 30 days of the date of the invoice. Invoices shall be paid by direct debit (or such other payment method as the Supplier shall agree to from time to time in writing) to the bank account nominated by the Supplier in writing in the Services Order.
    • All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
    • Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may suspend all Services until payment in full has been made. The Supplier may also 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 Lloyds Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. Alternatively, the Supplier may as its discretion claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
    • Following the suspension of the Services pursuant to condition 7.6, when the Contract recommences, it is acknowledged by the Customer that the Term shall be automatically extended by a period equivalent to the suspension (rounded up to a month if the period of suspension is less than one month or ended part way through a month) unless the Supplier agrees in writing that the Term shall not be extended.
    • The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

 

  1. Intellectual Property Rights
    • Subject to condition 8.3, and unless agreed otherwise in writing prior to the commencement of the Services, the Supplier is and shall be the owner of all existing and future Intellectual Property Rights in the Deliverables, the Services and the Pre-existing Materials and all materials embodying these rights, to the fullest extent permitted by law.
    • The Supplier hereby grants to the Customer a non-exclusive, irrevocable, non-transferable licence to use the Intellectual Property Rights in the Deliverables and the Pre-existing Materials upon receipt in cleared funds by the Supplier of the fees relating to the Discovery and Build Services, or as otherwise agreed in writing by the Supplier.
    • The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in those Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
    • The Supplier shall be free to use any ideas, concepts, or know-how developed or acquired by the Supplier during the provision of the Services and nothing in these conditions shall be construed to preclude the Supplier from using the Pre-existing Materials for use with third parties for the benefit of the Supplier.
    • The Customer shall retain ownership of any Intellectual Property Rights that may subsist in the Input Materials. The Customer hereby grants to the Supplier a non-exclusive, irrevocable, worldwide, royalty-free licence to use the Input Materials to enable the Supplier to provide the Services. The Customer warrants that any Input Materials will not infringe the Intellectual Property Rights or any other rights of any third party.

 

  1. Confidentiality
    • Each party shall, both during the Term and at all times after termination or expiry of the Contract, keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it (“Recipient”) by the other party (“Disclosing Party”), its employees, agents, consultants or subcontractors and any other confidential information concerning the Disclosing Party’s business or its products which the Recipient may obtain. This clause shall not apply to any information which is or becomes generally available to the public other than as a result of its disclosure by or on behalf of the Recipient in breach of these terms or which was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party or which the parties agree in writing is not confidential or may be disclosed.
    • The Recipient may disclose such information to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out its obligations under the Contract and as may be required by law, court order or any governmental or regulatory authority.
    • The Recipient shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 9.
    • The Recipient shall not use any such information for any purpose other than to perform its obligations under the Contract.
    • All materials, equipment and tools, drawings, specifications and data supplied by the Disclosing Party to the Recipient (including in the case of the Supplier its Pre-existing Materials) shall, at all times, be and remain the exclusive property of the Disclosing Party, but shall be held by the Recipient in safe custody at its own risk and maintained and kept in good condition by the Recipient until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorisation.
    • Unless the Customer withdraws its consent in writing by notice to the Supplier, by entering into the Contract the Customer gives the Supplier permission to use the Customer’s name and logo on its website and for marketing and promotional purposes.

 

  1. Limitation of Liability

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

  • This condition 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of any breach of the Contract, any use made by the Customer of any Services, the Deliverables or any part of them and any representation, statement or tortious act or omission (including negligence and breach of statutory duty) arising under or in connection with the Contract.
  • All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
  • Nothing in these Conditions limits or excludes the liability of the Supplier for death or personal injury resulting from negligence or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
  • Subject to condition 2 and condition 10.3 the Supplier shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use or corruption of software, data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the value of the Charges paid by the Customer for Services under the relevant Contract.

 

  1. Data Protection

The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.

  1. Termination
    • Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
      • the other party fails to pay any amount due under the Contract on the due date for payment and remains in default more than seven days after being notified in writing to make such payment; or
      • the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
      • 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 Act 1986; or
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
      • a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
      • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
      • 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; or
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 1.3 to condition 12.1.9 (inclusive); or
      • the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
      • the other party commits any fraud or acts in any manner which in the reasonable opinion of the terminating party is likely to bring their image into disrepute or is materially adverse to its interests; or
      • the other party commits any offence under the Bribery Act 2010.
    • In relation to the Post Delivery Services, either party may terminate the Contract upon the expiration of no less than six (6) months’ notice in writing to the other. If the Customer has paid for hosting services annually in advance, then upon early termination by the Customer in accordance with this condition, the Customer shall not be entitled to any refund of such charges.
    • On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any interest due thereon and, in respect of services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt and the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
    • On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: condition 8; condition 9; condition 10; condition 12; and condition 22.

 

  1. Force Majeure
    • The obligations on a party under the Contract shall be suspended at any time whilst it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of either 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.

 

  1. Variation
    • The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the applicable charges. If the Supplier requests a change to the scope of Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
    • Subject to condition 1, no variation of the Contract or these Conditions shall be valid unless it is confirmed in advance in writing by the Supplier.

 

  1. Waiver
    • A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
    • Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

 

  1. Severance
    • If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
    • If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

 

  1. Entire Agreement
    • The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
    • Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), unless expressly provided in the Contract.
    • Nothing in this condition shall limit or exclude any liability for fraud.

 

  1. Assignment
    • Neither party shall, without the prior written consent of the other (such consent not to be unreasonably withheld or delayed) assign or deal in any other manner with all or any of its rights or obligations under the Contract but nothing in this clause shall prevent or restrict the Supplier from subcontracting any of its obligations under the Contract.
    • Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person

 

  1. No Partnership or Agency

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

  1. Rights of Third Parties

A person who is not a party to the Contract shall not have any rights under or in connection with it.

  1. Notices
    • Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party or sent by fax or by email and for the attention of the company secretary or as otherwise specified by the relevant party by notice in writing to the other party.
    • Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the company, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, if sent by fax at the time of transmission and if sent by email on receipt by the email server of the recipient of the notice.
    • This condition 21 shall not apply to the service of any proceedings or other documents in any legal action.

 

  1. 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, the law of England and Wales.
    • The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).