Services Terms & Conditions
Last updated: 7th December 2011
These Services Terms contain the terms and conditions upon which we provide our services.
We will ask you to agree to these Services Terms, and one or more Statements of Work, before we begin working with you.
1. Definitions and interpretation
1.1 In the Agreement:
“Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company, firm or individual;
“Agreement” means the Agreement (including the Schedules) and any amendments to it from time to time;
“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” means the amounts payable by the Customer to the Company under or in relation to the Agreement (as set out in the Schedules);
“Company” means Vu Online Ltd, a limited company incorporated in England and Wales (registration number 07413911) having its registered office at 16 High Street, Totnes, Devon TQ9 5RY;
“Confidential Information” means:
- (a) any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential; and
- (b) information about the working of, information about the source code of and the source code itself of any of our web applications, in particular VuCommerce (shopping cart software) and the VuCMS (content management system software) (which is confidential to the Customer but not the Company);
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the company, firm or person specified in the Statement of Work;
“Effective Date” means the date of execution of the Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“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, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means the period of 1 Year starting on the Effective Date;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedules” means the schedules attached to the Agreement;
“Services” means the services provided under the Agreement as specified in the Schedules;
“Statement of Work” means a statement of work signed by each of the parties specifying the scope of the Services and other matters relating to the Agreement;
“Term” means the term of the Agreement; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
- (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- (b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
The Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 13, upon which it will terminate automatically, unless terminated earlier in accordance with Clause 13.
The Company will provide to the Customer during the Term some or all of the Services specified in the following Schedules:
- Schedule 1 (Development Services);
- Schedule 2 (Hosting Services);
- Schedule 3 (Support and Maintenance Services);
- Schedule 4 (Domain Name Services);
- Schedule 5 (SSL Certificate Services);
- Schedule 6 (Web Marketing Services).
4. Customer obligations
4.1 The Customer will provide the Company with all co-operation, information and documentation reasonably required for the provision of the Services, and the Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.
4.2 Save as expressly provided in the Agreement, the Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
4.3 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify the Company immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
4.4 The Services are provided to the Customer only, and the Customer must not resell or otherwise provide or make available the Services to any third party.
5. Use of the Services
5.1 The Customer must not use any of the Services:
- (a) to host, store, send, relay or process any:
- (i) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against the Company or the Customer or any third party;
- (ii) pornographic or lewd material; or
- (iii) messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;
- (b) for any purpose which is unlawful, fraudulent, or infringes any third party rights;
- (c) in any way which may put the Company in breach of a contractual or other obligation owed by the Company to any internet service provider.
5.2 The Customer must ensure that all materials provided to the Company by or on behalf of the Customer in connection with the Agreement, and the use of those materials by the Company in accordance with the terms of the Agreement will not infringe any person's Intellectual Property Rights or other legal rights, will not breach any applicable laws or regulations, and will not give rise to a cause of action against any person in any jurisdiction.
5.3 Where the Company reasonably suspects that there has been a breach of the provisions of this Clause 5, the Company may:
- (a) delete or amend the relevant materials; and/or
- (b) suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
5.4 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of the Agreement for the purposes of Clause 13.
6. Charges and payment
6.1 The Company will issue invoices for the Charges to the Customer on or before the relevant date(s) set out in the relevant Schedule(s).
6.2 The Customer will pay the Charges to the Company:
- (a) on or before the dates set out in the relevant Schedule(s); or
- (b) where no such dates are set out in the relevant Schedules(s), within 30 days of the date of issue of an invoice in accordance with Clause 6.1. 6.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
6.4 Charges must be paid by bank transfer to account number 86503288 (sort code 72-00-01) at Santander (IBAN: GB18 ALEI 7200 0186 5032 88 - SWIFT: ALEIGB22) or by cheque in the name of Vu Online Ltd (or using such payment details as are notified by the Company to the Customer from time to time).
6.5 If the Customer does not pay any amount properly due to the Company under or in connection with the Agreement, the Company may:
- (a) charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of Santander Business Rates from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); or
- (b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.8 The Company may vary the Charges by giving to the Customer written notice of the variation.
7.1 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.
7.2 The Company warrants to the Customer:
- (a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
- (b) that it will perform its obligations under the Agreement with reasonable care and skill.
7.3 All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
The Customer hereby indemnifies and undertakes to keep indemnified the Company against all liabilities, losses, costs, expenses (including legal expenses and amounts paid upon advice in settlement of any legal action) arising out of or in connection with any breach by the Customer of any term of the Agreement.
9. Limitations and exclusions of liability
9.1 Nothing in the Agreement will:
- (a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
- (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
- (c) limit any liability of a party in any way that is not permitted under applicable law; or
- (d) exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
- (a) are subject to Clause 9.1;
- (b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
- (c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
9.3 The Company will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
9.4 The Company will not be liable for any loss of business, contracts or commercial opportunities.
9.5 The Company will not be liable for any loss of or damage to goodwill or reputation.
9.6 The Company will not be liable in respect of any loss or corruption of any data, database or software.
9.7 The Company will not be liable in respect of any special, indirect or consequential loss or damage.
9.8 The Company will not be liable for any losses arising out of a Force Majeure Event.
9.9 The Company’s liability in relation to any event or series of related events will not exceed the greater of:
- (a) £5,000 (five thousand GBP); and
- (b) the total amount paid or (if greater) payable by the Customer to the Company under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.
9.10 The Company's aggregate liability under the Agreement and any collateral contracts will not exceed the greater of:
- (a) £10,000 (ten thousand GBP); and
- (b) the total amount paid or (if greater) payable by the Customer to the Company under the Agreement.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Agreement, and that the processing of that Personal Data by the Company for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998).
10.2 The Company warrants that:
- (a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and
- (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.
11.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 11.
11.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures. 11.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
11.4 These obligations of confidentiality will not apply to Confidential Information that:
- (a) has been published or is known to the public (other than as a result of a breach of the Agreement);
- (b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
- (c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
The Customer will not make any public disclosure relating to the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the Company, not to be unreasonably withheld or delayed.
13.1 Either party may terminate the Agreement at any time by giving at least 30 days' written notice to the other party expiring at any time after the later of:
- (a) the end of the Minimum Term; and
- (b) the end of any minimum period specified in any Schedule.
13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
- (a) commits any material breach of any term of the Agreement, and:
- (i) the breach is not remediable; or
- (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
- (b) persistently breaches the terms of the Agreement.
13.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:
- (a) the other party:
- (i) is dissolved;
- (ii) ceases to conduct all (or substantially all) of its business;
- (iii) is or becomes unable to pay its debts as they fall due;
- (iv) is or becomes insolvent or is declared insolvent; or
- (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);
- (d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
14. Effects of termination
14.1 Termination of the Agreement will not affect either party's accrued rights (including accrued rights to be paid) as at the date of termination.
14.2 Subject to Clause 14.1, upon termination all the provisions of the Agreement will cease to have effect, save that:
- (a) the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.5, 6.6, 6.7, 8, 9, 11, 14, 15 and 17; and
- (b) the provisions of the Schedules expressed to survive and continue to have effect will do so (in accordance with their terms of otherwise indefinitely).
14.3 If the Agreement is terminated under Clause 13.1, or by the Customer under Clause 13.2 or 13.3 (but not in any other case) the Customer will be entitled to a refund of any Charges paid by the Customer to the Company in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Company (such amount to be calculated by the Company using any reasonable methodology).
14.4 Save as provided in Clause 14.3, the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Company.
Neither party will, without the other party's prior written consent, during the Term or for a period of 12 months after the end of the Term, directly or indirectly, either for himself or for any other person, firm or company:
- (a) solicit the business of any person, firm, company or otherwise who is or was a client, customer, supplier, sub-contractor or agent of the other party; or
- (b) engage, employ or otherwise solicit for employment any employee or contractor of the other party involved in the performance of the Agreement.
16.1 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 sent by email, for the attention of the relevant person, and to the relevant address, fax number or email address given in the Statement of Work (or as notified by one party to the other in accordance with this Clause).
16.2 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 first class 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).
17.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
17.2 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).
17.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
17.4 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.5 Either party may freely assign their rights and obligations under the Agreement without the other party's consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
17.6 The Company may subcontract any of its obligations under the Agreement to any third party.
17.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
17.8 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
17.9 Subject to Clause 9.1:
- (a) 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;
- (b) 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
- (c) neither party will have any liability other than pursuant to the express terms of the Agreement.
17.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.