In these terms and conditions the following expressions shall have the following meanings (unless the context otherwise requires):
“Acceptance” means the acceptance or deemed acceptance of the Site(s) pursuant to condition 6;
“Acceptance Tests” means the tests to be carried out on the Site(s) as set out in condition 6;
“Charges” means the charges in respect of the Services set out in a Quotation, together with any charges arising from any Change (as defined in condition 15) and any additional expenses incurred by Delicious Media at the request of the Customer (e.g. for plugins or stock photography);
“Contract” means the Quotation, the Customer’s written or oral request to provide the Services and Delicious Media’s acceptance of such request under condition 3;
“Customer” means the person named on the Quotation and/or for whom Delicious Media has agreed to provide the Services in accordance with these conditions where ‘person’ includes a natural person and a corporate or unincorporated body (whether or not having separate legal personality);
“Delicious Media” means Delicious Media Limited (company registration number 07758596) with registered office address at C/O High Royd Business Services Limited, 2 High Royd Lane, Hoylandswaine, Sheffield, South Yorkshire, S36 7JR;
“Domain(s)” means the domain name(s) for the Site(s) as agreed between Delicious Media and the Customer;
“Downtime” means an outage causing interruption or failure to the provision of the Hosting Services;
“Hosting Services” means the services provided by Delicious Media to allow the Customer to access and use the Site(s) on the Server;
“Intellectual Property Rights” means 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, trade marks, 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;
“Materials” means the content provided to Delicious Media by the Customer from time to time for incorporation in the Site(s);
“Order” shall mean either: (a) a purchase order from the Customer; or (b) an order for Services in such form (written or oral) as may be accepted by Delicious Media from time to time;
“Project” means the provision by Delicious Media of the Services as set out in a Contract;
“Quotation” means the quotation provided by Delicious Media to the Customer in respect of the Services or, in the absence of any written (including electronic version) of any quotation, the then current prices specified by Delicious Media on its website from time to time;
“SEO Services” means the provision of search engine optimisation consultancy services including but not limited to campaign management and campaign optimisation as further detailed in the Quotation;
“Server” means a computer server administered by Delicious Media or the Customer’s nominated computer server;
“Services” means such services as may be specified in a Quotation which Delicious Media is obliged to deliver to the Customer under any Contract;
“Site(s)” means the website(s) to be developed by Delicious Media pursuant to a Contract and hosted at the Domain;
“Site Specification” means the specification for each Site agreed between the parties;
“Third Party Materials” means the content provided to Delicious Media by any third party from time to time for incorporation in the Site(s);
“Visitor” means a visitor to the Site(s); and
“Website Development Services” means the provision of website design and development services all as further detailed in the Quotation.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 Any variation of the Contract shall be agreed in writing (which shall include email).
3. EFFECT OF ORDER
The Order constitutes an offer by the Customer to purchase the Services specified in it on these conditions; accordingly, the execution and return of an acknowledgement of the Order by Delicious Media, or Delicious Media’s commencement or execution of work pursuant to any Order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any Order shall not govern the Contract.
4.1 The provisions of conditions 4.2 to 4.4 apply where there is a Contract for the provision of Website Development Services.
4.2 Delicious Media shall supply the Website Development Services.
4.3 Delicious Media shall use reasonable endeavours to ensure the majority of Visitors can view the Site(s), which shall be designed to work with latest versions of the then most popular web browsers (including but not limited to Internet Explorer, Safari, Mozilla Firefox and Google Chrome). The Customer acknowledges that Delicious Media cannot guarantee that the Site(s) will function correctly with all browsers across all operating systems.
4.4 The Customer acknowledges that following Acceptance of a Site, updates to or new versions of any web browser, third party software, Domain setup changes or hosting setup changes may affect the functionality and display of such Site. At the Customer’s request, Delicious Media shall provide a Quotation for any work required to update any Site(s) to cater for such changes.
4.5 The provisions of conditions 4.6 to 4.12 apply where there is a Contract for the provision of Hosting Services.
4.6 Subject to the provisions set out in conditions 4.7 to 4.12 inclusive, Delicious Media shall use reasonable endeavours to make the Hosting Services continually available.
4.7 Notwithstanding the above, the Hosting Services may be suspended for so long as is reasonably necessary subject to prior notification to the Customer:
(a) to enable either party to comply with an order or request from a governmental, or other competent regulatory body or administrative authority; or
(b) to enable Delicious Media to carry out work which is necessary in its reasonable opinion to maintain or improve the Hosting Services; or
(c) to carry out standard maintenance and support,
provided that Delicious Media shall use reasonable endeavours to schedule Downtime during hours of low usage of the Hosting Services in order to minimise impact on the Hosting Services, and to ensure that there is no permanent material degradation of the Hosting Services.
4.8 If the Hosting Service requires immediate correction to enable it to run effectively or for immediate compliance with a governmental or regulatory requirement, Delicious Media may suspend the Hosting Service without advance warning for so long as reasonably necessary to implement the correction or to ensure compliance.
4.9 In the event of Downtime as specified in conditions 4.7 or 4.8, Delicious Media will provide online status reports to the Customer at http://status.delicioushosting.co.uk/
4.10 Where Delicious Media provides Hosting Services, the Customer acknowledges that it shall remain responsible for making adequate provisions for recovery of lost or corrupted data, files or software.
4.11 The Customer shall ensure that the Hosting Services are not utilised to host any Inappropriate Content (as defined in condition 12.1) or for file sharing or any illegal purposes.
4.12 The Customer acknowledges that any username, password or any other piece of information provided by Delicious Media to access the Hosting Service is to be treated as confidential and the Customer agrees not to disclose such information to any third party. Delicious Media may disable any username or password, whether chosen by the Customer or allocated by Delicious Media, at any time, if in the opinion of Delicious Media, there has been any failure to comply with this condition 4.12.
4.13 The provisions of conditions 4.14 to 4.15 apply where there is a Contract for the provision of SEO Services.
4.14 The Customer agrees that to maximise the benefit of the SEO Services:
(a) no third party other than Delicious Media shall undertake any search engine optimisation services on the Site(s);
(b) the Customer will promptly advise Delicious Media in advance of any major or substantive changes to the Site(s);
(c) the Customer will promptly advise Delicious Media of any historic search engine optimisation work carried out by any third party, particularly where this has had a material or negative impact on the Site(s).
4.15 The Customer acknowledges and accepts that:
(a) provision of the SEO Services alone will not guarantee a high ranking in natural search engine results;
(b) regular, high quality, original content is key to securing a strong ranking in natural search engine results;
(c) natural search engine rankings will vary between individuals and machines;
(d) continual evolution of the ranking algorithms used by search engine providers may impact on search results; and
(e) Delicious Media recommends that the Customer follows the guidelines provided by search engine providers and cannot be held responsible for the results of any request to undertake SEO Services that deviate from such guidelines.
5. CUSTOMER RESPONSIBILITIES
5.1 The Customer acknowledges that Delicious Media’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to Delicious Media. Accordingly, the Customer shall provide Delicious Media with access to, and use of, all information, data and documentation reasonably required by Delicious Media for the performance by Delicious Media of its obligations under any Contract. The Customer acknowledges that the timetable for providing the Services may be rescheduled by Delicious Media where the Customer fails to comply with the provisions of this condition 5.1.
5.2 The Customer shall be responsible for:
(a) the accuracy and completeness of the Materials on the Site(s) in accordance with condition 13 (where Website Development Services are being provided);
(b) making adequate provisions for recovery of lost or corrupted data, files or software; and
(c) the maintenance, renewal and accuracy of any registration of any Domain.
5.3 Where a Server is not provided by Delicious Media, the Customer shall procure that Delicious Media is granted full read/write access to a Server via FTP during any period in which Delicious Media is providing the Website Development Services. The Customer acknowledges that the specification of the Server (including any software, database and scripts) must comply, as a minimum, with that reasonably specified by Delicious Media.
6. DEVELOPMENT & ACCEPTANCE
6.1 The provisions of conditions 6.2 to 6.5 apply where there is a Contract for the provision of Website Development Services.
6.2 Once Delicious Media has completed the design and development of the Site(s), Delicious Media shall run the Acceptance Tests. The procedure set out in this condition 6 shall be repeated in respect of any further development works agreed by the parties from time to time.
6.3 The Acceptance Tests shall test compliance of the Site(s) with the relevant Site Specification.
6.4 Acceptance of the Site(s) shall occur when the Site(s) have passed the Acceptance Tests. Delicious Media shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing. The Customer shall confirm its Acceptance or rejection of the Site(s) within 7 (seven) days of the date on which Delicious Media confirms successful completion of the Acceptance Tests. Where the Customer rejects the Site(s) the provisions of condition 9.3 shall apply.
6.5 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom Delicious Media has no responsibility (a “Third Party Defect”), the Site(s) shall be deemed to have passed the Acceptance Tests notwithstanding such Third Party Defect. Delicious Media shall provide assistance reasonably requested by the Customer in remedying any Third Party Defect by supplying additional services or products. The Customer shall pay Delicious Media in full for all such additional services and products at Delicious Media’s then current fees and prices.
6.6 Acceptance of each Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Customer uses any part of such Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) the Customer fails to confirm acceptance or rejection of the Site(s) in accordance with the provision of condition 6.4.
7. PROJECT CONTACTS
Each party shall appoint a contact for the Project who shall:
(a) provide professional and prompt liaison with the other party; and
(b) have the authority to commit the relevant party.
8. CHARGES AND PAYMENT
8.1 Delicious Media shall issue a VAT invoice in respect of the Charges, and the Customer shall pay to Delicious Media the Charges set out in such Supplier’s invoice within 14 days of the date of such invoice by bank transfer to the bank account specified on such invoice.
8.2 50% of all Charges for Website Development Services shall be payable on commencement of the Project; and 50% shall be payable prior to upload of the Site(s) to the Server. 100% of all Charges for Hosting Services shall be payable annually in advance. 100% of all Charges for SEO Services shall be payable on commencement of each Project.
8.3 All Charges are exclusive of VAT.
8.4 If the Customer fails to pay any amount payable by it under any Contract, Delicious Media shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer 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 Barclays Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. Delicious Media reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform each Contract.
9.2 Delicious Media shall perform the Services with reasonable care and skill.
9.3 Delicious Media warrants that, where Website Development Services have been provided, the Site(s) will perform substantially in accordance with the applicable Site Specification for a period of 14 (fourteen) days from Acceptance. If the relevant Site does not so perform, Delicious Media shall, for no additional charge, carry out any work necessary in order to ensure that the affected Site substantially complies with the Site Specification.
9.4 In the event of breach of the Services warranty the Customer shall notify Delicious Media and Delicious Media shall re-perform the Services so as to comply with the warranty above, within 30 days of notification from the Customer.
9.5 The correction of any Site to substantially comply with the Site Specification, or re-performance of Services shall, if correctly undertaken, be the Customer’s sole remedy in respect of breach of the relevant warranty.
9.6 The warranty set out in condition 9.3 shall not apply to the extent that any failure of any Site(s) to perform substantially in accordance with the Site Specification is caused by any Materials.
9.7 These conditions set out the full extent of Delicious Media’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into any Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
10. LIMITATION OF REMEDIES & LIABILITY
10.1 Nothing in these conditions shall operate to exclude or limit Delicious Media’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
10.2 Delicious Media shall not be liable to the Customer 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 indirect or consequential loss or damage.
10.3 Subject to condition 10.1, Delicious Media’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with any Contract or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Charges payable by the Customer to Delicious Media under such Contract in that calendar year.
11. INTELLECTUAL PROPERTY
11.1 Where Website Development Services have been provided, all Intellectual Property Rights in the Site(s) (including in the content of the Site(s)) and the Domain(s) (where provided by Delicious Media), but excluding the Materials and Third Party Materials, arising in connection with any Contract shall be the property of Delicious Media until such time as the Charges have been paid in full.
11.2 Upon receipt, in cleared funds, of all Charges payable in respect of the Site(s), Delicious Media shall assign to the Customer all Intellectual Property Rights in the Site(s) (but excluding the Materials and the Third Party Materials) and the Domain.
11.3 Delicious Media shall procure that the Customer is granted a non-exclusive licence to use any Third Party Materials on the Site(s) from the third party owner of such rights, strictly limited to the purpose of operating the Site(s) only and expressly excluding any right to transfer or assign such Third Party Materials to any third party.
11.4 The Customer shall indemnify Delicious Media against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
11.5 Delicious Media shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Site(s) and any Third Party Materials infringe any Intellectual Property Rights of a third party in the UK, other than infringements referred to in condition 11.4.
11.6 The indemnities in condition 11.4, condition 11.5 and condition 12.4 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
11.7 The indemnities in conditions 11.4, 11.5 and 12.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
12. SITE CONTENT
12.1 The Customer and/or Delicious Media may update the Site(s) with Materials from time to time. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
12.2 Delicious Media shall grant the Customer access to the Server in order to update information held on the Site(s).
12.3 Delicious Media shall include only Materials on the Site(s). The Customer acknowledges that Delicious Media has no control over any content placed on the Site(s) by Visitors and does not purport to monitor the content of the Site(s). Delicious Media reserves the right to remove content from the Site(s) where it reasonably suspects such content is Inappropriate Content. Delicious Media shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site(s) may be Inappropriate Content.
12.4 The Customer shall indemnify Delicious Media against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
12.5 Delicious Media may include the statement “Designed by Delicious Media” on the home page of the Site(s) in a form to be agreed and may include and/or reference the Site(s) in any promotional and marketing materials of Delicious Media.
13. TERM AND TERMINATION
13.1 In respect of Website Development Services each Contract shall commence on the effective date of such Contract and shall terminate automatically on Acceptance of the Site(s) and payment of all Charges.
13.2 In respect of Hosting Services each Contract shall commence on the effective date of such Contract and shall continue for an initial period of 12 months (the “Initial Period”) after which it may be terminated by either party giving to the other not less than three months’ prior notice in writing expiring after the Initial Period.
13.3 In respect of SEO Services each Contract shall commence on the effective date of such Contract and shall terminate automatically on completion of the Project.
13.4 Either party may terminate a Contract immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under the Contract which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade; or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
13.5 On termination of any Contract by Delicious Media pursuant to condition 13.4, all licences granted by Delicious Media under these conditions shall terminate immediately.
13.6 On expiry or termination of any Contract otherwise than on termination by Delicious Media pursuant to condition 13.4, Delicious Media shall promptly return any Materials to the Customer, and shall, where relevant, provide to the Customer an electronic copy of the Site(s) (including all content on the Site(s)). Delicious Media shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of any Site(s) to the Customer or another service provider, subject to the payment of Delicious Media’s expenses reasonably incurred.
13.7 On expiry or termination of any Contract, all provisions of the affected Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
14. CHANGE CONTROL
14.1 Where Delicious Media or the Customer, during the term of any Contract wishes to make any change to any matter in relation to such Contract or these conditions (a “Change”) Delicious Media and/or the Customer may at any time request such a Change and propose an amendment to such Contract or these conditions.
14.2 Delicious Media shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to any fees and charges arising from the change;
(c) the likely effect of the change on the Programme of Work; and
(d) any other impact of the change on the terms of the Contract.
14.3 If Delicious Media requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
14.4 If the Customer wishes Delicious Media to proceed with the change, Delicious Media has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project and any other relevant terms of the Contract and these conditions to take account of the change.
15. FORCE MAJEURE
Neither party shall be liable for any failure or delay in the performance of any of its obligations under any Contract or for any consequence thereof if such failure or delay is due to reasons beyond its control including but not limited to fire, flood, war, nuclear accident or explosion, civil commotion, interruption of power supplies. The time for performance by the party liable to perform shall be extended by a period equal to the period of delay.
16.1 The definition in this condition applies in these conditions.
“Confidential Information” means all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
16.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
16.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
16.4 The obligations set out in this condition 16 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this condition 16; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure.
16.5 The obligations of confidentiality in this condition 16 shall not be affected by the expiry or termination of any Contract.
All notices, including notices of change of address, required to be sent hereunder shall be in writing and may be sent by recorded delivery post, by hand, fax or email and shall be sent to the addresses shown on the Quotation (in the case of Delicious Media) or the Order (in the case of the Customer) (or such other addresses as may be notified under this condition). If sent by recorded delivery post, it shall be deemed to have been received 2 (two) days after posting or on the day of despatch if sent during normal business hours by same day courier, or fax or email.
The Customer may not assign or transfer any of its rights or obligations under any Contract without the prior written consent of Delicious Media, such consent not to be unreasonably withheld or delayed.
19. ENTIRE AGREEMENT
These conditions and each Contract, constitute the entire agreement between the parties and supersede all previous agreements and representations, written or oral, with respect to the subject matter hereof. These conditions and any Contract may not be modified or amended except in writing signed by a duly authorised representative of each party.
20. THIRD PARTY RIGHTS
Each Contract is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
21. VARIATION AND WAIVER
21.1 A variation of these conditions shall be in writing and signed by or on behalf of both parties to the relevant Contract.
21.2 A waiver of any right under these conditions is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
21.3 Unless specifically provided otherwise, rights arising under these conditions are cumulative and do not exclude rights provided by law.
22.1 If any provision (or part of a provision) of any Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. GOVERNING LAW & JURISDICTION
23.1 These conditions (including any Contract) and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these conditions (including any Contract).
Last updated 12.02.2013