Coffeeblack Ltd trading as Coffee Black – Website Design Terms and Conditions
Please read these Website Design Terms carefully, as they set out our and your legal rights and obligations in relation to our website design services.
- Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 17:00 on a Business Day;
“Charges” – the charges payable by the Client set out in the Proposal and any additional payments;
“Company” means Coffeeblack Ltd trading as Coffee Black having its office at 131 Abbotts Street, Walsall, West Midlands WS3 3BN.
“Customer” means the customer for services under the Agreement as specified in the Proposal;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Other Products” – other products set out in the Proposal;
“Printed Products” – printed products set out in the Proposal;
“Products” – Website, Printed Products and Other Products set out in the Proposal;
“Services” – creating the Products;
“Software” – software used for the operation of the Website;
“Third Party Materials” – any image, text or other material that is owned by a third party and used in the creation of the Products;
“Website” – graphical, technical and navigational design as set out in the Proposal as amended and updated from time to time by prior mutual agreement in writing or verbally;
- Supply of Services
The company shall supply the Services and create the Products in consideration for the Charges.
- Acceptance of Website
3.1 In the event that the Client identifies a defect which is caused by the error or omission of the Company then the Company shall use best endeavours to correct such defect so that the Website is in accordance with any milestone including the finished product set out in the Proposal.
3.2 The Client shall have two working days from the date of delivery of the finished product Website to satisfy itself that it conforms to the estimate provided that in any event the Client shall be deemed to have accepted the Website if any part thereof is put into live use.
- Acceptance of Printed Products
4.1 The Client acknowledges and agrees that the images and/or colours of any Printed Product may differ from any sample proof delivered on any media and for the avoidance of doubt any sample supplied shall not constitute a sale by sample.
4.2 Subject to clause 4.1, the Client shall have two working days from the date of delivery of the final Printed Product to satisfy itself that it conforms to the Printed Product requested provided that in any event the Client shall be deemed to have accepted the Printed Products if any part thereof is sold or used in any way.
4.3 Subject to clause 4.1, The Company shall use reasonable endeavours to correct any defects in the Printed Products.
4.4 The Client acknowledges and agrees that the Company may supply to the Client a final amount of Printed Products that is ten percent over or under the actual number ordered and that the Client shall pay for any excess.
- Acceptance of Other Products Acceptance of Other Products shall be deemed to occur at the time of delivery.
- Charges and Payment
6.1 The Company shall invoice the Client for the amount of the Charges agreed in the Proposal and the Client shall pay the amount of the Charges invoiced within 30 days of receipt of such invoice.
6.2 The Client acknowledges and agrees that estimates given may be subject to change and that a balancing payment(s) may be required to pay the Charges in full.
6.3 The Company shall have the right to suspend and/or terminate the performance of any of its obligations under this Agreement in the event of any non payment by the Client or breach of the Client’s obligations pursuant to clause 8.
6.4 The Company shall have the right to charge interest on overdue payments of Charges at the rate of 3% per year above the base rate of Lloyds Bank plc calculated from the date when the Charges becomes due for payment up to and including the date of actual payment, whether before or after judgment.
6.5 The Company will retain rights to any website development work until full payment has been made in regards to that specific work. The Company will retain rights to remove any completed development work from The Client website in the event of non payment.
- Third Party Materials
The Company shall notify the Client of any Third Party Materials that it intends to use in the Products and the Client acknowledges and accepts that the Third Party Products shall be supplied to the Client in accordance with the respective copyright licensor’s terms.
- Client Responsibilities
8.1 The Client acknowledges that The company’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide) as well as the accuracy and completeness of any information and data the Client provides to The Company.
8.2 The Client warrants that it owns all Intellectual Property Rights in all materials that it supplies to The Company for the provision of the Services and use in the Products.
8.3 The Client acknowledges and accepts that it takes full responsibility and accepts all liability for the use of and any registration (save for initial domain name registration if requested pursuant to clause 14) and upkeep thereof of any name or logo that The Company uses or develops as part of the Services and Products (whether at the request of the client or otherwise) including (without limitation) any claim by any third party for infringement of Intellectual Property Rights.
- Intellectual Property Rights
9.1 The Company warrants that to the best of its knowledge and belief that Intellectual Property Rights (other than Third Party Products or materials supplied by the Client) in the Products are original to The Company provided that The Company cannot be, and is not, responsible for compliance of the Intellectual Property Rights with laws of all jurisdictions of the world. It is the Client’s responsibility to satisfy itself of such compliance.
9.2 In consideration of and subject to receipt of the Charges in cleared funds in full The Company grants to the Client a non-exclusive non assignable licence of the Intellectual Property Rights in the Products owned by The Company and the object code version of the Software provided always that The Company reserves the right to veto any use outside the scope of this licence (including any purported sub-licensing, on-selling or assigning) and the Client shall not reverse engineer or decompile the Software save as permitted by law.
9.3 The Company asserts its moral rights in the Products and the Client confirms that it shall not alter, reuse or otherwise exploit or jeopardise the artistic integrity of the Products without The Company’s prior written consent.
- Limitation of Liability
10.1 The following provisions set out the entire financial liability of The Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
10.1.1 any breach of this Agreement; and
10.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Agreement.
10.2 All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from this Agreement.
10.3 Nothing in this Agreement excludes or limits the liability of The Company for death or personal injury caused by The Company’s negligence or fraudulent misrepresentation.
10.4 Subject to Clauses 10.2 and 10.3
10.4.1 The Company shall not be liable to the Client for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with this Agreement; and
10.4.2 The company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with this Agreement shall be limited to the amount actually received by The Company pursuant to the terms of this Agreement.
The Client agrees that it shall indemnify and keep indemnified The Company against all claims, demands, losses, damage, costs or expenses incurred by The Company as a result of a breach by the Client of any provision of this Agreement, law or regulation and as a result of any third party legal action or threatened action in relation to Intellectual Property Rights infringement whatsoever and howsoever arising.
12.1 In consideration of The Company entering into this Agreement the Guarantor, at the request of the Client, hereby unconditionally guarantees to The Company as primary obligor the due and punctual performance and observance by the Client of all the Client’s obligations and the punctual discharge by the Client of all the Client’s liabilities to The Company contained in or arising under this Agreement.
12.2 If the Client shall make default in the payment when due of any amount payable to The Company under this Agreement, the Guarantor shall forthwith on demand by The Company unconditionally pay to The company an amount equal to the amount payable by the Client.
12.3 As an independent and primary obligation, without prejudice to clause 12.1 the Guarantor hereby irrevocably agrees that it shall indemnify and keep indemnified The Company against all claims, losses, damage, costs or expenses that The company incurs arising from failure by the Client to comply with the indemnity given in clause 11.
12.4 The Guarantor shall not be exonerated or discharged nor shall its liability be affected by any forbearance, whether as to payment, time, performance or otherwise howsoever, or by any other indulgence being given to the Client.
- Non Solicitation
13.1 The Client agrees and undertakes that for the duration of this Agreement and the period of one year after the termination of this Agreement it (or any Client group company or related person) shall not directly or indirectly approach, use the Services of or employ any employee of The Company or former employee with whom it has come into contact in connection with this Agreement in any regard.
13.2 The Client agrees and undertakes that if it (or any Client group company or related person) acts in breach of clause 13.1 or without The Company’s prior written consent then (without limitation to any other remedy available to The Company) the Client shall pay an introduction fee amounting to the amount paid to the employee for the last two years of his or her employment.
- Domain Name
The Client hereby appoints The Company as its agent and The Company hereby agrees to act as the Client’s agent solely in relation to obtaining any domain name for and on behalf of the Client and in the Client’s name subject always to the Client being bound by Nominet’s or any such other provider’s terms and conditions and provided always that any such purchase is subject to availability and the Client agrees and acknowledges that it shall await confirmation or otherwise from the Client.
- Source Code
The Company shall have no obligation to provide any source code to the Client. In the event that the Client wishes to enter into hosting and maintenance Agreements with a third party then the Client acknowledges that The Company has no ongoing obligation to provide any support or maintenance of any form.
16.1 The Client hereby grants to The Company an irrevocable licence to use its name and any of the Products as part of its advertising and in The Company’s portfolio.
16.2 The Client agrees and undertakes to display on pages of the website the following wording “this site was designed by The Company” or words to similar effect.
No variation of this Agreement (including without limitation the Proposal) shall be effective unless it is in writing and refers specifically to this Agreement and is duly executed by each party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by pre-paid first class post or email, for the attention of the relevant person, and to the relevant address or email address given in the Proposal (or as notified by one party to the other in accordance with this Clause).A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):(a) where the notice is delivered personally, at the time of delivery;(b) where the notice is sent by post, 48 hours after posting; and(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
- Invalidity and Severability
If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
- Entire Agreement
The Company shall not be liable to the Client for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this Agreement other than those expressly incorporated in this Agreement.
22.1 The Company shall have the right to assign this Agreement or all or any of its rights and obligations hereunder at its sole and absolute discretion.
22.2 The Client shall not be entitled to assign this Agreement or all or any of its rights and obligations hereunder without the prior written consent of The company.
22.3 The Company may sub-contract the performance of any of its obligations under this Agreement.
- Relationships of Parties
Nothing in this Agreement shall create or be deemed to create a partnership, or the relationship of employer and employee between the parties.
- the Agreement will constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
- neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement; and
- neither party will have any liability other than pursuant to the express terms of the Agreement.
Save insofar as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of VAT.
- No Rights of Third Parties
The Parties to this contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999.
- Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales
- Definitions and Interpretation