Design & Software Terms and Conditions
You indicate acceptance of these terms and conditions of service by placing an order with Digital Assassins Ltd. These terms and conditions will not be varied for individual customers.
1. Definitions
| “Acceptance” | The acceptance or deemed acceptance of the Website by the Client pursuant to clause 7; |
“Acceptance Certificate” |
The form of certificate served on Digital Assassins by the Client to acknowledge Acceptance; |
“Acceptance Date” |
The date on which the Website is accepted (or deemed to be accepted) by the Client pursuant to clause 7; |
“Acceptance Test” |
The tests to be carried out by the Client to check that the Website is operating in accordance with the Proposal; |
“Business Day” |
means a day (excluding Saturdays) on which banks generally are open in the City of London for the transaction of normal banking business; |
“Client” |
Means the person firm or company who buys or agrees to buy services from Digital Assassins as set out in the Proposal; |
“Conditions” |
Means the terms and conditions of sale set out in this document and any special terms and conditions agrees in writing by Digital Assassins; |
“Contract” |
Means any contract for the sale and purchase of the Services; |
“Digital Assassins” |
Means Digital Assassins trading as Digital Assassins Unit 14/15 The Arches, 79 Park Road, Hartlepool, TS24 7PW |
“Inappropriate Material” |
Material that under the laws of any jurisdiction where the material can be accessed if or may be any of the following: unlawful, threatening, abusive, harmful, obscene. Pornographic, malicious, profance, libellous, defamatory, infringes any Intellectual |
“Property Rights” |
constitutes or encourages a criminal offence or contains a virus, |
“Intellectual Property Rights” |
all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off; |
“Material” |
text, graphics, images, sound, video or any other content supplied by the Client to Digital Assassins from time to time for incorporation in the Website; |
“Modification” |
Means (i) any change or amendment to, or upgrade or new version of, the Software; or (ii) any new release of the Software which (in either case) from time to time is publicly marketed and offered for purchase by Digital Assassins in the course of its normal business; |
“Price” |
Means price of service |
“Proposal” |
means the proposal submitted to the Client for the design and development of the Website, Support Services or provision of other services as may be agreed between Digital Assassins and the Client; |
“Server” |
A computer server administered by Digital Assassins |
“Services” |
Means the Website design, development and Support Services to be provided by Digital Assassins to the Client pursuant to this Agreement; |
“Software |
The software belonging to Digital Assassins forming a major part of the Website; |
“Support Services” |
The Hosting Services; |
"Website" |
Means the website designed by Digital Assassins as part of the Services; |
2. Conditions Applicable
2.1 These Conditions shall apply to contracts for the supply of Services by Digital Assassins to the Client to the exclusion of all other terms and conditions including any terms and conditions which the Client may purport to apply under any purchase order confirmation or similar document
2.2 All orders for Services shall be deemed to be an offer by the Client to purchase the Services pursuant to these Conditions.
2.3 Any variation of the Conditions (including special terms and conditions agreed between Digital Assassins and the Client) shall not be applicable unless agreed in writing by Digital Assassins.
3. Services to be provided
3.1 Digital Assassins agrees during the continuance of this Agreement to supply the Services to the Client.
3.2 Digital Assassins shall carry out the obligations set out in clause 3.1 in accordance with the Proposal. Time for delivery of the Services shall not be of the essence of the Contract.
4. Client's Responsibilities
4.1 The Client shall:
4.1.1 Make available to Digital Assassins, free of charge, such computer facilities and the Materials as are necessary to enable Digital Assassins to carry out its obligations under this Agreement;
4.1.2 Ensure that its employees and other independent contractors co-operate reasonably with Digital Assassins and its employees in carrying out the Services;
4.1.3 Be solely responsible for the security and proper use of all passwords used in connection with the Website (including changing passwords on a regular basis) and must take all steps to ensure they are kept confidential, secure, used properly and not disclosed to unauthorised people;
4.1.4 In all respects comply with all relevant statutory provisions and regulations which exist or come into force at any time with regard to the content, conduct or operation by the Client of the Website.
4.2 Except where material is provided by Digital Assassins for inclusion on the Website the Client shall be responsible for the accuracy and legality of all Material contained on the Website and the Client shall indemnify and keep indemnified Digital Assassins against any action claim proceedings damages costs expenses or other liabilities suffered or incurred by Digital Assassins arising directly or indirectly out of or in respect of any Inappropriate Material contained on the Website (including but not limited to any claim for defamation or malicious falsehood or any allegation that such material is obscene offensive illegal or in breach of copyright or a third party's intellectual property rights)
4.3 The Client recognises that Digital Assassins has no control over any content placed on the Website by others and does not purport to monitor the content of the Website. Digital Assassins reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Material. Digital Assassins shall notify the Client promptly if it becomes aware of any allegation that content on the Website may be Inappropriate Material.
5. Amendments
Any amendments or additions to the specification or structure of the Website set out in the Proposal including but not limited to any associated cost changes shall be agreed in writing between the parties by letter facsimile or electronic mail prior to such amendment or addition being carried out.
6. Training
Digital Assassins shall provide the training to such employees of the Client as are agreed. Further training at the request of the Client can be provided by Digital Assassins at Digital Assassins then current fees and prices.
7. Acceptance of the Website
7.1 Once Digital Assassins has completed the design and development of the Website Digital Assassins shall invite the Client to carry out the Acceptance Tests ("Digital Assassins Notification").
7.2 The Client shall within 10 Business days of Digital Assassins Notification carry out the Acceptance Tests and once the Acceptance Tests have been successfully completed the Client will confirm their acceptance to Digital Assassins by signing an Acceptance Certificate or in writing.
7.3 In the event that any Acceptance Tests are not passed, the failures which cause the relevant test to be failed (“Defects”) shall be drawn up and documented by the Client and presented to Digital Assassins for discussion as to how best to rectify such Defects.
7.4 If any such failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client or by one of the Client’s sub-contractors or agents for which Digital Assassins has no responsibility (“Non-Digital Assassins Defects”), the Website shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Digital Assassins Defect and the Client shall sign and return the Acceptance Certificate to Digital Assassins within ten Business Days of Digital Assassins Notification. Digital Assassins shall provide assistance reasonably requested by the Client in remedying any Non-Digital Assassins Defects by supplying additional services or products. If so requested, the Client shall pay Digital Assassins in full for all such additional services and products at Digital Assassins then current fees and prices.
7.5 Acceptance of the Website shall be deemed to have occurred on whichever is the earliest of:
7.5.1 The Client uses any part of the Website “live” (that is for any revenue-earning purposes or to provide any services to third parties other than for test purposes); or
7.5.2 The Client signs and returns the Acceptance Certificate.
8. Intellectual Property Rights
8.1 The Intellectual Property Rights in the Software (including the source and object code), Modifications and all other Intellectual Property Rights of whatever nature in the Website created or developed for the Client shall be and shall remain vested in Digital Assassins.
8.2 On payment in full of the Price, Digital Assassins grants to the Client a non-exclusive, non-transferrable right to use the Software, Modifications and all other Intellectual Property Rights in conjunction with the Services. The Client is not permitted to sub-license any rights granted under the Contract to any third party. The Client agrees that it will not itself, or through a third party:
8.2.1 Reverse engineer, decompile, disassemble or otherwise attempt to derive source code from the Software except as permitted by law;
8.2.2 Sell, lease, license, transfer or sub-licence the Software or associated documentation; or
8.2.3 Write or develop any derivative or other software programs based, in whole or part upon the Software or any confidential information belonging to Digital Assassins.
8.3 All Intellectual Property Rights in the Materials shall remain the absolute property of the Client.
8.4 If the Client's use or possession of the Software or any part thereof in accordance with this Agreement, is held by a court of competent jurisdiction to constitute an infringement of a third party's Intellectual Property Rights, then Digital Assassins shall:
8.4.1 Procure for the Client the right to continue using and possessing the Software or the infringing part; or
8.4.2 Modify or replace the Software (or part thereof) without detracting from the overall performance of the Software, so as to avoid the infringement;
PROVIDED THAT:
8.4.3 The Client shall promptly notify Digital Assassins in writing of any alleged infringement;
8.4.4 The Client shall make no admissions without Digital Assassins prior written consent;
8.4.5 The Client shall allow Digital Assassins to conduct any negotiations or litigation and/or settle any claim and give Digital Assassins all reasonable assistance in doing so.
8.5 In relation to any materials, the Intellectual Property Rights in which are owned by a third party, the performance by Digital Assassins of its obligations under the Contract is in all respects conditional upon the Client entering into and complying with the terms of an end-user licence agreement with the third party as may be required by such third party.
9 Price
9.1 Payment of the Price will be payable on the terms set out in the Proposal and due within 30 days of the date of the invoice and by cheque made payable to Digital Assassins ltd. or by BACS or credit card. Time for payment shall be of the essence of the Contract
9.2 The charges for the Support Services for the first year are as set out in the Proposal and thereafter as notified by Digital Assassins to the Client in writing not less than 30 days before the commencement of each year.
9.3 All charges in respect of the Support Services will be invoiced and payable annually in advance. If additional charges are due under this Contract then they shall be payable within 30 days after the date of Digital Assassins invoice.
9.4 If the Client fails to pay any amount payable by it, Digital Assassins shall be entitled to charge the Client interest on the overdue amount, payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum above the base rate for the time being of Lloyds Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. Digital Assassins reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.5 The Price is exclusive of VAT, which shall be due at the rate ruling on the date of Digital Assassins invoice.
9.6 If the Client fails to make any payment on the due date and without prejudice to any of Digital Assassins other rights Digital Assassins may suspend or cancel performance of any Services due to the Client.
9.7 The Price covers permitted bandwidth as stated in the Proposal. If the Client exceeds this limit then Digital Assassins reserves the right to make additional charges for usage above the limit at its then prevailing rate. Digital Assassins will endeavour to let the Client know if its bandwidth use exceeds the agreed level, however it is the Client's responsibility to monitor the bandwidth being used by it from time to time.
10. Modifications and Maintenance
10.1 Digital Assassins will inform the Client of any Modifications and will offer to sell such Modifications to the Client upon the terms on which they are generally made available to Digital Assassins customers by Digital Assassins.
10.2 Digital Assassins agrees to provide maintenance and support to the Client at Digital Assassins then current fees and prices. Maintenance and support shall not include services for problems arising out of
(a) tampering, modification, alteration, or addition to the Software or the Website which is undertaken by persons other than Digital Assassins or
(b) Programs or hardware supplied by the Client.
11. Terms and Termination
11.1 The Contract shall be effective commencing on the date contained in the Proposal for a period of one year and thereafter from year to year subject to earlier termination as set out in this clause.
11.2 In the event of cancellation or termination by the Client part way through any 12 month period of the Contract, the Client remains obliged to pay for the Services for the entire 12 month period.
11.3 Digital Assassins may (without prejudice to any other remedy available) terminate the Contract by written notice forthwith if:-
11.3.1 The Client fails to pay any sums due to Digital Assassins (howsoever arising) on the due date of payment;
Or
11.3.2 The Client commits a material breach of any of its obligations under the Contract or these Conditions (and in the case of a breach capable of being remedied) fails within fourteen days after receipt of a request in writing from Digital Assassins to remedy the breach to the satisfaction of Digital Assassins;
11.3.3 The Client ceases to carry on business or a substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt, enters into liquidation (whether compulsory or voluntary other than for the purpose of amalgamation or reconstruction), compounds with its creditors generally, has a receiver or manager appointed over all or any part of its assets, suffers execution or distress, becomes unable to pay its debts as they fall due or is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
12. Limitation of Liability
12.1 Nothing in this Agreement shall operate to exclude or limit Digital Assassins liability for death or personal injury caused by its negligence or any other liability which cannot be excluded or limited under applicable law.
12.2 Digital Assassins its officers, shareholders, employees and agents shall not be liable to the Client under any circumstances whatsoever (including for breach of contract, tort including negligence or breach of statutory duty, or otherwise) for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any special, indirect or consequential loss or damage suffered by the Client, even if such loss was reasonably foreseeable or Digital Assassins had been advised of the possibility of the Client incurring the same, that;
12.2.1 Result in any way from the Client's use or inability to access or use the Website or the Software, or from a customer's use or inability to access or use the Website; or
12.2.2 Result from errors, defects, omissions, delays in operation or transmission or any other failure or performance of the Website or the Software; Or
12.2.3 Are otherwise incurred or sustained by the Customer in connection with this Agreement.
12.3 Subject to Clause 12.1 and save as aforesaid, the entire liability of Digital Assassins (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Client whether in respect of any breach of any term of this Agreement or any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement (“Default”) shall not exceed the total sums paid or payable by the Client under this Agreement in respect of the year (being a 12 month period beginning with the first day of the Acceptance Date or an anniversary of that date) during which the Default occurs.
12.4 Digital Assassins shall have no liability (whether for breach of warranty or representation or otherwise) arising from the Client’s use of the Website (or any part thereof) other than in accordance with the provisions of this Agreement or resulting in particular from:
12.4.1 The Client’s non-compliance with any instruction or recommended procedure of Digital Assassins;
12.4.2 Any repair, adjustment, alteration or modification of any part of the Software or the Website not undertaken by Digital Assassins or the merger, incorporation or use of any part of the Software with any software, hardware or other equipment not supplied or approved in writing by Digital Assassins for use in connection with the Website;
12.4.3 Any defect in the Website or the Services arising from any drawing detail specification design or other information supplied by the Client;
12.4.4 Any defect in the Website arising from wilful damage negligence abnormal working conditions improper installation or connection (unless carried out by Digital Assassins) failure to follow Digital Assassins instructions (whether oral or in writing) failure to observe any maintenance requirements misuse or alteration or repair of the Website (unless carried out by Digital Assassins or with Digital Assassins prior written consent);
12.4.5 Any tampering of the Website by an unauthorised third party as the result of passwords which allow access to the back end of the Website not being used or insecure passwords being used; or
12.4.6 Any defect in the Website where the Client has failed to notify Digital Assassins of such defect forthwith upon the Client becoming aware of the same
12.5 The parties acknowledge and agree that the limitations contained in this Clause 9 are reasonable in the light of all the circumstances.
13 Warranties
13.1 Digital Assassins shall perform the Services with reasonable care and skill.
13.2 Digital Assassins warrants that the Website will perform substantially in accordance with the Proposal for a period of three months from the Acceptance Date. Subject to clause 7.4 if the Website does not so perform, then Digital Assassins shall for no additional charge ensure that the Website substantially complies with the Proposal.
13.3 The warranty set out in clause 13.2 shall not apply to the extent any failure to perform is caused by any Materials.
13.4 These Conditions set out the full extent of Digital Assassins obligations and liabilities in respect of the supply of the Services. To the extent permitted by applicable law, Digital Assassins:
13.4.1 Excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Software (and any Modification), either express or implied, that are not expressly stated herein, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result, accordingly the Website, Services and any Software are provided on an "as is" and "as available" basis.;
13.4.2 Makes no warranty that the Website is error free or that its use will be uninterrupted and the Client acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement;
13.4.3 Does not give any warranty in respect of third party products.
13.5 The Client acknowledges that the need for routine maintenance and error correction may result in down time and that Digital Assassins cannot control the timing or volume of attempts to access the Server.
14. Client Representative
Digital Assassins shall provide to the Client on the acceptance of the Proposal the name of one of its employees who shall act as a nominated project manager for the Client and who will be the Client's principal point of contact at Digital Assassins in relation to all matters arising out of the Contract. Digital Assassins reserves the right to change the employee nominated from time to time subject to Digital Assassins notifying the Client of such change in writing.
15. Force Majeure
Digital Assassins shall not be under any liability to the Client in any way whatsoever for any failure to perform any of its obligations under the Contract as a result directly or indirectly of war rebellion civil commotion strike lock-out and industrial dispute fire explosion earthquake acts of God flood drought or bad weather electricity or other power failure system failure or the requisitioning or other act or order by any government department council or other constitutional body
16. Entire Agreement
The Contract and these Conditions constitutes the entire agreement between the parties. No variation of the Contract or these Conditions shall be binding upon the parties unless made in writing and signed by a duly authorised representative of each party
17. Assignment and Sub-Contracting
The Client shall not assign sub-contract or otherwise transfer the Contract or any of its rights and obligations under the Contract whether in whole or in part without the prior written consent of Digital Assassins
18 Notice
18.1 Any notice given under the Contract shall be given by prepaid first class post to the address stated in the Contract or such other address as the party shall notify the other party as it s address for service in England. Service of notice may also be effected by delivery by hand to such address or by a facsimile transmission or electronic mail to such facsimile number or electronic address as the party shall notify the other party in writing in accordance with this Condition.
18.2 Notices given by first class post shall be deemed served on the next working day after posting. Notices served by hand shall be deemed served on delivery provided served between 9.00 am and 5.00 pm on a working day failing which it shall be deemed to have been served at 9.00 am on the next working day. Any notice sent by facsimile transmission or electronic mail shall be deemed to have been sent on the date of transmission
19. Invalidity and Unenforceability
In the event of any part of the Contract or any of these Conditions becoming or being declared invalid or unenforceable such party shall cease to have effect but all other parts of the Contract and/or the Conditions shall remain in full force and effect
20. No partnership
The Contract shall not constitute a partnership or agency agreement between Digital Assassins and the Client and neither party shall have the ability to bind the other by contract or otherwise.
21. Law
The Contract and these Conditions shall be governed by and construed in every respect in accordance with the laws of England. Any dispute which may arise between the parties concerning the Contract or these Conditions shall be determined by the English courts and the Client hereby submits to the exclusive jurisdiction of the England courts for such purposes.