The Internet Marketeer Terms and Conditions of Business
The Client agrees to be bound fully by the covenants specified on this Agreement and any attachments herein, including but not limited to the Copyright Warranty Agreement and Hosting Service terms. Under the terms and conditions of this Agreement Octopus Enterprises Limited an independent contractor and the Client agree as follows:
1.0 Invoice and Payment of Fees Terms
1.1 This agreement represents the order for all services and development costs herein. This agreement shall have a term of 18 months unless otherwise terminated under clause 5 (Interpretation of Agreement Terms). At the end of such term, a new agreement shall be entered into.
1.2 The Client shall pay for all solutions, services and any other costs specified in this Agreement and in the attached Internet Solution Proposal (“Proposal”). The Client agrees to pay a non-refundable deposit rate of fifty (50%) percent upon execution of the Agreement. Balance due upon delivery of the relevant solution or service or after 90 days if the website has not been completed because the Client has not provided content as agreed.
1.3 Octopus Enterprises Limited will invoice the Client for hosting fees as agreed in this Agreement and attached Proposal. The annual hosting fee shall become due one month in advance of the first month when hosting is scheduled to begin and Octopus Enterprises Limited shall invoice the Client at this time. The Client shall make all payments due under such invoice within 30 days of receipt of invoice.
1.4 Any additions, changes, upgrades or enhancements outside the specifications of this Agreement and attached Proposal are exclusive of this Agreement and subject to further charges. The Client agrees to sign a new agreement and the Octopus Enterprises Limited reserves the right to apply new fees.
1.5 Third Party Service Providers may update their service, processors and products from time to time affecting the functionality of the Client’s complete Internet Solution post-completion. These changes are beyond the Octopus Enterprises Limited’s control. Upon fulfilment of the Proposal outlined herein, Octopus Enterprises Limited under this agreement shall not be responsible to upgrade or modify the Internet Solution to comply with such updates. Any such upgrades are subject to a new Agreement with applicable fees to be agreed between the parties.
1.6 Prices quoted are exclusive of value added tax or other applicable sales tax and are in sterling unless otherwise agreed. The Client shall be invoiced on a monthly or annual basis for Consultancy, Maintenance Services, Subscription Fees or Leasing Payments as outlined under these terms and conditions. The Client agrees to make payment to the Client within 30 days of receipt of an invoice and understands that services may be suspended or terminated upon non-payment without prejudice to any other rights the Octopus Enterprises Limited may have. The Octopus Enterprises Limited also reserves the right to charge interest on overdue accounts, such interest to be calculated on a day-to-day basis on the amount outstanding at the rate of [four per cent (4%)] above the base rate of Lloyds TSB Bank PLC.
1.7 Value added tax or other applicable sales tax shall be invoiced separately to, and paid by, the Client.
1.8 The Client acknowledges and agrees that the Octopus Enterprises Limited reserves the right to change the fees at any time providing 30 days’ notice to the Client and such increases must be acceptable to both parties failing which either the Client or the Octopus Enterprises Limited may terminate this Agreement on the expiry of such 30 day notice if agreement has not been met.
2.0 Internet Solution Development, Consulting Services and Maintenance Terms
2.1 The Client acknowledges and agrees that Octopus Enterprises Limited may provide websites to other businesses including those in the same or similar line of business as the Client. Octopus Enterprises Limited shall ensure that in providing such services to other businesses, it shall not infringe any of the registered trade marks of the Client.
2.2 Website production time-lines may vary due to many dependencies including but not exclusive to, delay of Client input and approvals at each stage of the development process. Client changes to the Proposal during the development process will also delay time-lines and will be subject to additional charges not outlined herein this Agreement to be agreed between the parties.
2.3 Except in respect of death or personal injury resulting from its negligence or fraud (in respect of which no limit shall apply):
2.3.1 In no event shall Octopus Enterprises Limited, or its agents, be liable to the Client for any indirect, consequential or special damages;
2.3.2 In no event shall Octopus Enterprises Limited, or its agents, be liable for any: (a) loss of goodwill; (b) injury to reputation; (c) loss of actual or anticipated profits; (d) loss of business opportunity; (e) loss or damage incurred as a result of third party claims;
2.3.3 In no event shall Octopus Enterprises Limited, or its agents, be liable to the Client for any error, omission, defect or deficiency in any service or solution, which may result from, but not exclusive to, the Client’s failure to provide complete, accurate and current information to Octopus Enterprises Limited; and
2.3.4 the total aggregate liability of Octopus Enterprises Limited, and its agents during any 12 month period, shall not exceed the value of the fees paid by the Client to Octopus Enterprises Limited under this Agreement in such 12 month period
whether arising from negligence, breach of this Agreement or otherwise, and whether or not it has been made aware of the likelihood of any such loss or damage and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law.
2.4 Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party’s reasonable control (including, without limitation, any strike, lockout or other industrial action, act of God, war or threat of war, accidental or malicious damage, or prohibition or restriction by governments or other legal authority)..
2.5 With the exception of trade marked, copyrighted or other proprietary information regarding pictures, images or logos that directly identify the Client, the Client grants to Octopus Enterprises Limited an irrevocable, royalty-free, unrestricted right to use, transfer, modify and maintain content prepared by Octopus Enterprises Limited on the Client’s website while Hosted with Octopus Enterprises Limited.
2.6 The Client agrees to be solely responsible for the content of its website and accuracy of all information provided.
2.7 The Client agrees that Octopus Enterprises Limited has fulfilled the Internet Solution outlined in the Proposal upon written acceptance of the Internet Solution (“Final Client Sign Off”).
2.8 The Client agrees to hold no ownership rights to web development code of Leased or Subscription Solutions or Services.
3.0 Hosting and ASP Services Terms
3.1 Under no circumstances shall Octopus Enterprises Limited or its agents be liable to the Client for any network interruptions beyond Octopus Enterprises Limited’s control, including without limitation, any downtime regarding computer servers or interruption of Internet Service Providers.
3.2 Octopus Enterprises Limited reserves the right to control and restrict any content on the Client’s website which is deemed by Octopus Enterprises Limited to be illegal, tortuous, false, misleading, fraudulent, libellous, immoral, offensive or otherwise not in conformity with the policies and style of Octopus Enterprises Limited or are unlawful or violates any applicable local, state, national or international law, ordinance or regulation having the force of law or by-law and further, Octopus Enterprises Limited shall have sole discretion to terminate Hosting and or ASP services in such circumstances, without advance notice. The Client acknowledges that Octopus Enterprises Limited may unilaterally write or re-write reasonable rules and regulations necessary for the orderly operation of Octopus Enterprises Limited and that the Client will be bound accordingly to these terms and all other terms outlined in Octopus Enterprises Limited’s Hosting SLA.
3.3 Octopus Enterprises Limited will provide reasonable levels of hosting resources, including disk storage and bandwidth to the Client. In the event that Octopus Enterprises Limited deems that resource utilisation by the Client is in excess of what Octopus Enterprises Limited deems reasonable, Octopus Enterprises Limited reserves the right to terminate the hosting services component of this agreement or levy such additional hosting fees, as it deems appropriate upon providing the Client with 30 days’ written notice.
3.4 The Client agrees to provide Octopus Enterprises Limited 30 (thirty) days’ written notice to terminate Hosting or ASP Services.
3.5 The Client agrees that Octopus Enterprises Limited reserves the right to terminate Hosting and or ASP Services without advance notice if the Client’s web solution is detrimental to the Hosting environment including acts of Spam or if the web solution negatively affects server performance or other web solutions on the Hosting environment.
3.6 The Client warrants that it has obtained all licences, consents and approvals necessary, including without limitation those necessary for the use of personal data under the Data Protection Act 1998, for the inclusion of all data and other materials to be hosted by Octopus Enterprises Limited under this Agreement.
3.7 The Client warrants that it has complied and shall continue to comply with the Data Protection Act 1998.
Copyright Warranty Agreement Terms
The Client represents and warrants that: (a) the use, as contemplated by this Agreement, of the material supplied by the Client as described in the attached Proposal shall not infringe any copyright, trade mark, trade secret or other third party proprietary right; and: (b) there is no impediment to the Client’s performance of its obligations hereunder.
The Client hereby grants to Octopus Enterprises Limited, unlimited license to use all items described herein, in all Internet formats now known or devised in the future. Licensing rights for all items described herein, except those deemed proprietary to the Client, are assigned Octopus Enterprises Limited. The Client further warrants that the Client named herein, will save and hold harmless Octopus Enterprises Limited, its agents, suppliers or affiliates from any and all copyright infringement judgments resulting from the unlawful use of images and property listed.
The Client acknowledges that it has no copyright or any other claim nor any rights, title or interest in or to the web development (or other) code of any leased or subscription solutions provided by Service Provider, or in or to any other works or materials provided by Service Provider or in or to any web solution developed by Service Provider for Client. For its part, Service Provider shall have no right, interest or claim whatsoever in or to the ClientÂs trade name, trademark, or logo, or to the external graphic design of any web site specifically designed for the Client by Service Provider.
5.0 Interpretation of Agreement Terms
5.1 Octopus Enterprises Limited may terminate this Agreement immediately if:
5.1.1 the Client fails to pay any sum due under this Agreement on the due date;
5.1.2 the Customer is in breach of any material term of this Agreement and has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
5.1.3 the Client is wound up or becomes insolvent or has a receiver or administrative receiver appointed or suffers the appointment or the presentation of a petition for the appointment of an administrator or any equivalent or analogous event occurs in any other jurisdiction;
5.1.4 The Client shall have no right to a refund of any kind and will be responsible for all costs and legal fees incurred by Octopus Enterprises Limited in connection with Client’s breach of this Agreement.
5.2 The Client agrees to indemnify and keep indemnified Octopus Enterprises Limited and its agents from and against any and all losses, claims and damages, expenses, injury or liability that arise from or in connection with the Client’s website, content or activities, including but not limited to, any legal fees incurred by Octopus Enterprises Limited. The Client, at its own cost and expense, shall defend any and all actions, which may be brought by Octopus Enterprises Limited. The Client’s failure to perform under the terms of this paragraph shall be deemed a waiver of any and all claims, demands for remedies, or causes of action, including specific performance, which the Client might otherwise have against Octopus Enterprises Limited or its agents.
5.3 This Agreement shall be interpreted and construed under the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.
5.4 No right or remedy conferred upon or reserved by Octopus Enterprises Limited is intended, and shall not be deemed, to be exclusive of any other right or remedy provided or permitted herein, by law or by equity, but each right or remedy shall be cumulative of every other right or remedy.
5.5 This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement. Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Agreement. The only remedy available to it for breach of the warranties shall be for breach of contract under the terms of this Agreement. Nothing in this sub-clause shall, however, operate to limit or exclude any liability for fraud.
5.6 The invalidity, illegality or unenforceability of any provision of these conditions should not affect the other conditions.
5.7 A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
5.8 None of the rights or obligations of the Client under the contract may be assigned or transferred in whole or in part without the prior written consent of Octopus Enterprises Limited. Octopus Enterprises Limited shall be entitled to subcontract any work relating to the contract without obtaining the consent of, or giving notice to, the Client.
5.9 This Agreement shall, as to any of its provisions remaining to be performed in whole or in part or capable of having effect following termination, remain in full force and effect despite termination.
5.10 The Client shall ensure that it complies with all laws and regulations applicable to the website, including without limitation, the Disability Discrimination Act 1995 and the Data Protection Act 1998.
5.11 Each of the parties to this Agreement undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entering into of this Agreement or which it has obtained during the course of this Agreement except any information which is:
5.11.1 required to be disclosed by a court of law;
5.11.2 already in its possession other than as a result of a breach of this clause; or
5.11.3 in the public domain other than as a result of a breach of this clause.
5.11.4 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and subcontractors.
6 Confidentiality and Data
6.1 During the Term of this Agreement and for two (2) years thereafter, each party will treat as confidential all information that it obtains concerning, but not limited to, the business, finances, technology and affairs of the other, (“Confidential Information”).
6.2 Each of the parties will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party.
6.3 Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party’s Confidential Information.
6.4 The provisions of this clause 13 shall cease to apply to: (i) information that has come into the public domain other than by breach of this clause or breach of any other duty of confidence; (ii) information that is obtained from a third party without breach of this clause or breach of any other duty of confidence; and (iii) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure.
6.5 In the event of termination or expiration of this Agreement, each party shall return or on request of the other party, destroy the Confidential Information of that party.
6.6 Each party will comply with its obligations pursuant to the Data Protection Act 1998.