"Kit Builder" is a Trading Name of Magnetize Consultants LTD
Magnetize Consultants Ltd,
The Lancaster Centre,
Meteor Business Park, Staverton, GL2 9QL
Tel: 08453 304 307
Magnetize Consultants Ltd (“the Contractor”) carries on business providing programming and technical services for the development and hosting of sites on the World Wide Web.
The Company wishes to engage the Contractor to perform programming and related technical services, including designing, developing, creating, testing, delivering and hosting the company's World Wide Web site (the "Website") and certain other programming materials as described herein.
“Budget” means the budget annexed hereto containing details of all projected costs and expenses for developing the Deliverables and hosting the Website in accordance with this Agreement.
“Code” means all computer programming code (both object and source, unless otherwise specified), as modified or enhanced from time to time by the Contractor, including, without limitation, all interfaces, navigational devices, menus, menu structures or arrangements, icons, help, operational instructions, script, commands, syntax, HTML (hyper-text mark-up language), design, templates, source code written in Microsoft .NET or other programming or scripting languages, and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content whether created or licensed from third parties by the Contractor including without limitation, any Intellectual Property Rights in such material.
“Confidential Information” means in relation to either party any information which is disclosed to that party by the other party (whether or not developed by the other) including, without limitation (a) the preparation and Specifications of the Deliverables, (b) pre-existing or new information that relates to all ideas, designs, methods, discoveries, improvements, produce or other results of consulting services, (c) trade secrets, (d) product data, (e) proprietary rights, (f) business and financial affairs, (g) product developments, and (h) customer and employee information.
“Content” means all text, graphics, animation, audio and/or digital video components and all other components of the Deliverables and the selection and arrangement thereof, other than the Code whether created by the Contractor or provided by the Company for purposes of developing the Deliverables, including without limitation any Intellectual Property Rights therein.
“Deliverables” means all Code (other than source code), Content and other online materials to be produced by the Contractor hereunder, including all documentation such as logic manuals, flow charts, principles of operation, technical manuals and other written materials that relate to the object code.
“Intellectual Property Rights” means any patent, copyright, trademark and design rights (in either case registered or unregistered) format rights, topography rights, trade secrets, moral right, right of attribution or integrity right to confidentiality know-how or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction (including, without limitation, all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals).
“Pre-existing Work” means any pre-existing original works of authorship contained in the Content.
“Specifications” means the requirements for the development of the Deliverables, including operational and functional capabilities and performance.
“Term” means the period of this Agreement as described in Clause 4.1 subject to earlier termination in accordance with this Agreement.
“Website” means the Company's World Wide Web site to be developed by the Contractor pursuant to this Agreement.
“World Wide Web” means a global computer network of servers and files containing text and graphics accessible through use of hypertext transfer protocol.
“Work Programme” means the timetable for the development of the Deliverables as set out in the Order Confirmation.
“Order Confirmation” means the document sent to the Company confirming the commencement of work and their acceptance of this agreement.
1.2.1. “writing", and any cognate expression, includes a reference to any communication effected by facsimile transmission or similar means;
1.2.2. a ''working day" is a reference to any day other than Saturday or Sunday which Is not a bank or public holiday (in the territory of either party);
1.2.3. a statute or a provisions of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.4. "this agreement" is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.5. a Schedule is a schedule to this Agreement; and
1.2.6. a clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.3.1. any reference to the parties includes a reference to their respective personal representatives, successors in title and permitted assignees;
1.3.2. any reference to a person includes anybody corporate, unincorporated association, partnership or any other legal entity;
1.3.3. words importing the singular number include the plural and vice versa; and
1.3.4. words importing any gender include any other genders.
1.4 The headings in this Agreement are for convenience only and shall not affect its interpretation.
The Contractor shall author, design, create, develop, test and produce the Deliverables and host the Website. At any time during the term of this Agreement, the Company may request additional services to be performed by the Contractor in connection with the Website, including any updates or upgrades. Such additional work shall be agreed upon in writing by the parties, shall be subject to the terms of this Agreement and become effective upon execution, by authorized representatives of both parties, of a written statement of the revision. Additional costs may apply.
The Contractor agrees to use commercially reasonable efforts to complete the Deliverables in a timely manner according to the Work Programme but the obligations with respect to meeting the Work Programme are subject to delays caused by unforeseen circumstances, by any voluntary action of the Company, or of any third parties beyond the control of the Contractor. The Contractor agrees to notify the company promptly of any event coming to its attention that may cause any material delay in delivery of the Deliverables. The Contractor shall not be in breach of this Agreement as a result of a reasonable delay in delivering the Deliverables occurring for any reason.
The Contractor shall accept any reasonable change requests made by the Company that reduce the cost of performance; provided, however, that an equitable adjustment in compensation is made for the out of pocket costs of any performance or preparation already undertaken, and that the total reduction shall not be more than 50% of the amount originally agreed to by the parties. The Contractor shall make reasonable efforts to accommodate (but shall not be required to accept) any change requests made by the Company that increase the cost or magnitude of performance, provided that the proposed changes are reasonable in scope and the Company establishes a commensurate increase in compensation.
Amounts and modes of payment for the Deliverables, hosting of the Website and any related services shall be set forth in the Order Confirmation.
This Agreement will remain in effect through the period during which the Contractor hosts the Website.
4.2.1 Either party may terminate this Agreement not less than six (6) months after the Website has been developed and commissioned by giving to the other not less than one (1) months’ written notice.
4.2.2 Either party may forthwith terminate this agreement by giving written notice to the other party if:
188.8.131.52 any sum owing to that party by that other party under any of the provisions of this Agreement is not paid within 30 days of the due date for payment;
184.108.40.206 that other party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
220.127.116.11 an encumbrancer takes possession, or (where that other party is a company) a receiver is appointed, of any of the property or assets of that other party;
18.104.22.168 that other party makes any voluntary arrangement with his or its creditors or (being a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
22.214.171.124 that other party (being an individual or firm) has a bankruptcy order made against him or it or (being a company) goes into liquidation (except for the purposes of amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
126.96.36.199 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party;
188.8.131.52 that other party ceases to carry on business; or
184.108.40.206 control of that other party is acquired by any person or Connected Persons not having control of that other party on the date of this Agreement.
4.3. For the purposes of Clause 220.127.116.11, a breach shall be considered capable of remedy lf the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
4.4. The rights to terminate this Agreement given by this Clause 4 shall not prejudice any other right to remedy of either party in respect of the breach concerned (if any) or any other breach.
Upon the termination of this Agreement for any reason:
5.1. any sum owing by the Company to the Contractor under any of the provisions of this Agreement shall be immediately payable and the Company will pay the Contractor for all unpaid invoices and uncompensated staff time and expenses up to the date of termination; provided, however, that if the Deliverables and/or hosting services are being performed on a fixed price billing basis, all staff time and expenses shall be paid as if on a time and material billing basis;
5.2. each party shall forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other party any documents in its possession or control which contain or record any Confidential Information;
5.3. any provision of this Agreement which is expressed to continue in force after termination shall continue in full force and effect; and
5.4. subject as provided in this Clause 5 and except in respect of any accrued rights, neither party shall be under any further obligation to the other.
6.1. The Company shall (i) furnish information requested by the Contractor, (ii) provide adequate access to personnel of the Company, and (iii) maintain the accessibility and operability of the Website to the extent reasonably necessary for the Contractor to fulfil its responsibilities under this Agreement. Any delays attributable to the Company's failure to respond to reasonable requests by the Contractor will extend any and all deadlines for an amount of time equal to the Company's delay. The Company reserves the right to make any necessary equipment or software upgrades, changes or modifications.
6.2. The Company shall maintain such rights in the property described in Clause 9.2 and any third party software during the Term as necessary to carry out the purposes of this Agreement.
The Contractor shall deliver the Deliverables at the times and in the manner specified in the Order Confirmation document.
The procedure for acceptance of any Deliverable shall be as follows:
7.2.1. The Company shall have the time shown in the Order Confirmation to inspect and test each such Deliverable when received. Upon completion of such testing, the Company shall issue to the Contractor notice of acceptance or rejection of the Deliverables (provided that in any event unless the Company has notified the Contractor of its rejection of any Deliverables within fourteen (14) days following delivery thereof, the same shall conclusively be deemed accepted)
7.2.2. The Company may only reject Deliverables for material failure to comply with the applicable specification. In the event of rejection, the Company shall give its reasons for rejection to the Contractor in reasonable detail. The Contractor shall then have the time allotted in the Order Confirmation to use commercially reasonable efforts to correct any deficiencies or non-conformities from the applicable Specifications and resubmit the receded items as promptly as reasonably possible until the Deliverables are accepted; provided, however, that upon the third or and subsequent rejection, the Contractor or the Company may terminate this Agreement by thirty (30) days' notice unless the Deliverables are accepted during the notice period.
7.2.3. Upon acceptance of the Deliverables by the Company, the Specifications for such Deliverables shall automatically be deemed to be amended to conform to the Deliverables as accepted by Company.
The Company shall be responsible for the editorial content of the Website. The Contractor will not be responsible for reviewing the text, graphic, animation, audio and/or digital video components prior to uploading such content onto the Website. The Company shall ensure that the content shall be and remain fully compatible with the Website; provided, however, upon request from the Company, and at the Company's sole expense, the Contractor shall make commercially reasonable efforts to assist the Company in resolving any content-related compatibility problem.
The Contractor shall be responsible for all aspects of hosting and operation of the Website.
The Company shall be solely responsible for collecting any and all required sales, use and value added taxes and other governmental charges and duties from users of the Website.
The Contractor may publish credits, disclaimers or other materials on the Website as the Contractor reasonably deems appropriate. In addition, the Contractor shall have the right, but not the responsibility, to review the Website from time to time and remove or edit content which, in its sole discretion, the Contractor considers offensive, libellous, obscene or otherwise unlawful or objectionable (including without limitation, hyperlinks, framed content or meta tags which the Contractor considers potentially infringing of third party intellectual property rights); provided, however, that the Contractor shall attempt to contact the Company prior to removing or editing such content. The parties will attempt to meet in good faith to resolve any such issues. If the parties are unable to resolve such issues or the Contractor is unable to contact the Company, after using reasonable efforts, the Contractor may remove such content in its reasonable discretion.
All Deliverables and other items and materials delivered by the Contractor to the Company hereunder, and all Intellectual Property Rights associated with any of the foregoing, shall be owned exclusively by the Contractor, and no right title or interest in or to any of the same, other than the licence granted to the Company pursuant to section 9.3 is granted, transferred or assigned to the Company by this Agreement. At the Contractor's expense, the Company shall (a) co-operate with the Contractor in its efforts to obtain available protection for the Deliverables under domestic and foreign laws and to secure such certifications, registrations or licences as may be appropriate for the better protection of the same in the United Kingdom and/or the United States or any foreign county; and (b) take such further action as the Contractor may reasonably request (including, without limitation, the execution of affidavits and other documents) to effect, perfect or confirm the Contractor's interests as set forth in this section 9. The Company may make one archival or backup copy of the Deliverables. The Company shall not make any other copies of any Deliverables, without the written permission of the Contractor.
The Company’s logos, trademarks, trade names, copyright materials and the Company's Pre-existing Work remain the Company's sole property. The Contractor agrees that the service mark [i.e., "company's Website,"] and uniform resource locator ("URL") [i.e., www.company.com"] will remain the sole property of the Company.
The Contractor agrees to identify the Company's trademarks, copyrights and other Intellectual Property Rights in the Website by including appropriate symbols and notices as reasonably requested by the Company.
Subject to the terms and conditions of this Agreement, each party (the "Owner") hereby grants the other a non-exclusive, non-transferable (except with written permission from the Owner), non-sub-licensable worldwide licence (i) to use any third party software used by the Contractor or provided to the Contractor by the Company or (ii) use, reproduce and/or modify the Owner's property, as described above, solely in connection with the operation of the Website during the Term.
All rights in and to the Deliverables and any other items and materials delivered by the Contractor to the Company which are not expressly granted to the Company under section 9.3 above are reserved to the Contractor.
Without limiting the generality of the foregoing, the Company shall not assist, authorize or encourage any third party to:
9.4.1 use or transmit any Deliverables on or to any other Internet Website or network not owned by the Contractor;
9.4.2 reverse engineer, decompile or disassemble any Deliverables or otherwise attempt to discover any Source Code or trade secrets related to any Deliverables;
9.4.3 distribute, license, rent, sell, lease or otherwise transfer any Deliverables;
9.4.4 modify or create derivative works based on any Deliverables; or
9.4.5 remove, obscure or alter any notice of copyright, trademark or other proprietary notices present on or in any Deliverables.
Each party undertakes that, except as provided in Clause 9.6 or as authorized in writing by the other party, it shall at all times during the continuance of this Agreement and [for five years] after its termination:
9.5.1 use its best endeavours to keep confidential all Confidential Information;
9.5.2 not disclose any Confidential Information to any other person;
9.5.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
9.5.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.5.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of 9.5.1 to 9.5.4 above.
9.6 Either party may:
9.6.1 disclose any Confidential Information to:
18.104.22.168 any sub-contractor or supplier of that party;
22.214.171.124 any governmental or other authority or regulatory body; or
126.96.36.199 any employee or officer of that party or of any of the aforementioned persons;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in 2 above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made and
9.6.2 use any restricted Information for any purpose, or disclosure It to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that party, provided that in doing so that party does not disclose any part of that Confidential Information which is not public knowledge.
9.7 The provisions of Clauses 9.5 and 9.6 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
10.1 The following representations and warranties are provided solely for the benefit of the parties to this Agreement and no other person or entity.
10.1.1 The Contractor warrants that the Deliverables and software it creates or licenses to the Company shall (i) perform reasonably as stated 'in the Specifications and (ii) perform all work called for in the Order Confirmation in compliance with applicable law.
10.1.2 The Contractor warrants that any part of the Company's Website and Content developed solely by the Contractor (i) will be original and will not infringe on any patent, copyright, trade secret or other proprietary rights of others, and (ii) will not be defamatory to any third party or violate any third parties rights of privacy or publicity.
10.1.3 The Company warrants that no part of the Website, including all related materials and Content provided by the Company in the profusion of the Deliverables, (i) will infringe any intellectual property rights of others, nor (ii) be defamatory to any third party or violate any third parties rights of privacy or publicity.
10.1.4 The Company warrants that it is the owner of all rights in, or has obtained any written permission necessary to authorize the Contractor's use pursuant to this Agreement of, any part of the Website, materials and content provided by the Company.
10.1.5 The Company shall be solely responsible for the adequacy and accuracy of all Content, information and data provided to the Contractor. The Company shall review the accuracy of all Content, information and data once the Contractor has included the same in the Website. The Company shall be solely responsible for the Content and information within the Website, and shall be responsible for all changes to the content of the Website. Accordingly, the Contractor shall not be responsible for screening, policing, editing, or monitoring any content or additional materials added by the Company or any third party to any Deliverable or included services. If notified of allegedly infringing, defamatory, damaging, obscene, illegal or offensive material, the Contractor's sole obligation will be to inform the Company of such allegations. The Company shall defend, indemnify and hold the Contractor harmless from all liability and expenses (including but not limited to attorneys’ fees) arising from such claim unless said liability is due to gross negligence or wilful default by the Contractor in carrying out its obligations under this Agreement.
10.1.6 The Contractor will not create or change any pages of the Website or the content therein without the Company's written authorization, which shall be sent to the Contractor pursuant to Clause 14.
10.1.7 Each party has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights described herein to the other party.
10.1.8 The Contractor does not warrant any Deliverable or included services against failure of performance due to failure of computer hardware or communication system for whatever reason other than the Contractor's default. Except as specifically provided in this Agreement, the Contractor hereby rejects and the Company hereby waives all other warranties, express or implied, with respect to the Deliverables and all services provided hereunder, arising by law or otherwise, including without limitation:
10.1.8.1 any implied warranty of merchantability, fitness for a particular purpose or non-infringement arising from course of dealing, course of performance or usage of trade; and
10.1.8.2 any obligation, liability, right, remedy, claim in tort (notwithstanding any fault) negligence, strict liability or product liability of the Contractor (whether active, passive or imputed).
The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk.
In addition to its rights of termination, the Company's exclusive remedies for the Contractor's default hereunder shall be to obtain the repair, replacement or correction of the defective services, software or equipment to the extent warranted under this Agreement. lf such remedy is not economically or technically feasible or effective, then the Company may obtain an equitable radial or full credit or refund of amounts paid with respect to the defective services or Deliverable, subject to the limitation set forth immediately below.
Except as expressly provided in this Agreement, the Contractor shall not be liable to the Company or any third party, whether in contract, tort (including negligence) or otherwise for:
11.2.1 any amount in excess of the amount paid by the Company to the Contractor for any services during the six (6) months prior to the event giving rise to the alleged claim, or
11.2.2 any loss of revenue, business contracts, anticipated savings or profits, or any loss of use of facilities, or
11.2.3 any special indirect or consequential loss howsoever arising
11.2.4 in sub-clause 11.2.2 "anticipated savings” means any expense which either party expects to avoid incurring or has to incur in a lesser amount than would otherwise have been the case by reason of the use of the services and facilities provided by the Contractor under this Agreement.
The Company shall maintain on all copies of a Deliverable the copyright notices, confidentiality legends, patent markings and other labels (singularly or collectively "Proprietary Rights Notices") in the exact forms reasonably specified in written notices by the Contractor. The Company shall not remove nor alter any copyright or other Propriety Rights Notices placed by the Contractor.
11.4.1 For the purposes of this Agreement "Force Majeure" means in relation to either party, any circumstances beyond the reasonable control of that party (including without limitation, acts of god, industrial action, civil disturbances. disruption of telecommunications, power or other utilities or interruption or termination of security to the internet access provider being used by the Contractor to link its services to the internet).
11.4.2 If any Force Majeure occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other party as to the nature and extent of the circumstances in question.
11.4.3 Neither party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to other, by reason of any delay in performance or the non-performance of any of its obligations hereunder, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
11.4.4 If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of six months, the parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable, failing which the other party shall be entitled to terminate this Agreement by giving written notice to the party so affected
The Contractor has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be carried out by the Contractor hereunder unless otherwise provided herein. The Contractor may, at the Contractor's own expense, employ such assistants as the Contractor deems necessary to produce the Deliverables. The Company may not control, direct or supervise the Contractor’s assistants or employees and each party shall be responsible for its own taxes or any withholding of benefits on behalf of its employees.
13.1 Each party shall be entitled to perform any of the obligations undertaken by it and to exercise any rights granted to it under this Agreement through any other member of its group, provided that any act or omission of that other member shall, for all the purposes of this Agreement, be deemed to be the act or omission of the party in question.
13.2 Subject to Clause 13.1, this Agreement is personal to the parties and neither party may assign, mortgage or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, except with the written consent of the other party or as specifically permitted under Clause 12 hereof.
13.3 Nothing in this Agreement shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the parties.
13.4 This Agreement contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties.
13.5 Each party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.6 No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13.7 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
14.1 Any notice or other information required or authorized by this Agreement to be given by either party to the other shall be given by:
14.1.1 delivering it by hand; or
14.1.2 sending it by pre-paid registered first class post; or
14.1.3 sending it by email or comparable means of communications.
14.2 Any notice or information given by post in the manner provided by Clause 14.1 which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing it was so posted and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
14.3 Any notice or information sent by email or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent as provided in Clause 14.1.2 to the other party at the address given in Clause 14.4 within 24 hours after transmission.
14.4 Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing it to be delivered to the other party at its registered or principal office, or to such other address as may be notified to it by the other party in writing from time to time.
15.1 Each party shall from time to time (both during the continuance of this Agreement and after its termination) do all such acts and execute all such documents as may be reasonably necessary in order to give effect to the provisions of this Agreement.
15.2 The parties shall bear their own costs of and incidental to the preparation, execution and implementation of this Agreement.
15.3 Neither party shall make or procure or permit any other person to make any press or other public announcement concerning any aspect of this Agreement without first obtaining the agreement to the other party to the text of that announcement.
15.4 This Agreement may be executed in a number of counterparts and shall come into force once each party has executed such a counterpart in identical form and exchanged the same with the other party.
16.1 English law shall apply to the whole of this Agreement.
17.1 Subject to Clause 17.2, any dispute, difference or disagreement between the parties arising out of or in connection with this Agreement shall be referred to the arbitration in Cheltenham Gloucestershire of a single arbitrator appointed by agreement between the parties within 30 days after a request for a reference is made by either party, or failing such nomination, on the application of either party to the president for the time being of the Cheltenham Chamber of Commerce.
17.2 Clause 17.1 shall not:
17.2.1 apply to any dispute, difference or disagreement in respect of which the provisions of this Agreement specify the consequences; or
17.2.2 preclude the making of an application to the Court for injunctive relief.