1. Definitions and interpretation
1.1 In this Schedule:
“Acceptance Criteria” has the meaning given to it in Paragraph 3.2;
“Acceptance Period” means the Agreement (including the Schedules) and any amendments to it from time to time;
“Customer Material” means all works and materials provided by or on behalf of the Customer to the Company for incorporation into the Deliverables;
“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Deliverables but excluding any defect, error or bug caused by or arising as a result of:
- (a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors
- (b) an incompatibility between the Deliverables and any other application, program or software (other than the Customer Materials and the Third Party Works);
“Design Element” means the visual appearance of the Deliverables (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Deliverables) together with all mark-ups and style sheets comprised in or generated by the Deliverables, but excluding:
- (a) the Customer Materials; and
- (b) the Third Party Works;
“Development Charge” means the Charges specified in Paragraph 6;
“Development Service” means the Services to be provided under this Schedule, as detailed in Paragraph 2.1
“Deliverable” means the website(s), web application(s), software and/or database(s) to be developed by the Developer for the Customer under this Schedule;
“Delivery Date” means the date specified in the Statement of Work;
“Software Elements” means the Deliverables excluding:
- (a) the Design Elements
- (b) the Customer Materials; and
- (c) the Third Party Works; and
“Specification” means the specification for the Deliverables, as detailed in the corresponding specifications brief;
“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party and which are specified in the corresponding specifications brief (excluding the Customer Materials).
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated
2. Development Services
2.1 The Company will:
- (a) design, develop and deliver the Deliverables;
- (b) incorporate the Customer Materials and Third Party Works into the Deliverables
- (c) keep the Customer informed of the progress of the development of the Deliverables; and
- (d) provide the Customer with reasonable access to the Deliverables during their development
(the “Development Services”).
2.2 Subject to Paragraph 2.3, the Company will use reasonable endeavours to perform the Development Services in accordance with the timetable set forth in the corresponding Statement of Work.
2.3 Without prejudice to the provisions of Paragraph 2.2, the Company does not guarantee that that timetable referred to in Paragraph 2.2 will be met.
3. Delivery and acceptance
3.1 The Company will use reasonable endeavours to deliver the Deliverables to the Customer for acceptance testing on or before the Delivery Date.
3.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
- (a) whether the Deliverables conform in all material respects with the Specification; and
- (b) whether the Deliverables have any Defects,
(the “Acceptance Criteria”).
3.3 If the Deliverables meet the Acceptance Criteria, the Customer will send to the Company a written notice during the Acceptance Period confirming acceptance of the Deliverables
3.4 If the Deliverables do not meet the Acceptance Criteria
- (a) the Customer will send to the Company a written notice during the Acceptance Period setting out in detail the respect(s) in which the Deliverables do not meet the Acceptance Criteria; and
- (b) the Company will have a further remedial period (of 20 Business Days) to modify the Deliverables so that they meet the Acceptance Criteria.
3.5 The Deliverables will be deemed to have been accepted by the Customer if the Customer does not give any notice to the Company under either Paragraph 3.3 or 3.4 during the Acceptance Period.
4. Intellectual Property Right
4.1 From the date of acceptance of the Deliverables by the Customer, the Company hereby assigns to the Customer with full title guarantee all Intellectual Property Rights in the Design Elements. These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.
4.2 All Intellectual Property Rights in the Software Elements will, as between the parties, be the property of the Company and, from the date of acceptance of the Deliverables by the Customer, the Company grants to the Customer a non-exclusive worldwide licence to use the Software Elements in connection with the Deliverables, subject always to the other terms of the Agreement, and providing the Customer must not:
- (a) sell (save when combined with the original deliverables as part of a sale of the business by the Customer), resell, rent, lease, supply, distribute or redistribute the Software Elements;
- (b) use the Software Elements in connection with any website, web application, script, computer program or software (other than the Deliverables); or
- (c) alter or adapt or edit the Software Elements.
and the Customer may only sub-license the rights licensed under this Clause for the limited purposes, and subject to the express restrictions, specified in this Paragraph.
4.3 The Third Party Works will be (as agreed between the parties)
- (a) supplied in accordance with the relevant licensor’s standard terms for online use;
- (b) supplied on licence terms notified by the Company to the Customer;
- (c) sub-licensed by the Company to the Customer on terms notified by the Company to the Customer.
4.4 Notwithstanding any other provision of the Agreement, the assignments and licences granted by the Company under this Schedule are subject to the payment by the Customer of all amounts owing to the Company under this Schedule in full and on time. In the event that the Customer owes any amount to the Company under this Schedule and fails to pay that amount to the Company within 30 days of receiving a notice
- (a) requiring it to do so; and
- (b) specifying that the assignments will revert and the licences will terminate if the amount remains unpaid;
then the Company may immediately revert the assignments and terminate the licences granted by the Company under this Schedule by giving written notice of reversion and termination to the Customer.
4.5 Subject to Paragraph 4.4, upon and following the termination of the Agreement, any licence granted by the Company to the Customer will continue notwithstanding termination, and this Paragraph 4 will continue to apply.
4.6 Without prejudice to Paragraph 4.7, the Company waives (and will use reasonable endeavours to seek to ensure that its employees and subcontractors waive) any moral rights they may have in the Deliverables arising under Chapter 4 of the Copyright, Designs and Patents Act 1988 and, so far as is legally possible, any broadly equivalent rights anywhere in the world.
4.7 The Company may include the statement “Website by Vu” or “Ecommerce by Vu” or similar together with a small and discreet logo and a link to the Company’s website on any or all pages of any website comprised in the Deliverables in the footer area of the pages. The Customer will retain any such credits and links in any adapted version of any website comprised in the Deliverables, and the Customer will (and will only) remove any such credits and links at the Company’s request.
5. Additional Warranties
5.1 The Company warrants to the Customer:
- (a) the Deliverables will meet the Specification as at the date of actual delivery to the Customer;
- (b) that the use of the Deliverables (excluding the Customer Materials) by the Customer in accordance with the terms of the Agreement will not infringe the Intellectual Property Rights of any third party; and
- (c) that the Deliverables will continue to operate without any Defects for a period of 12 months from the date of acceptance of the Deliverables (and if the Deliverables do not so operate, the Company will, for no additional charge, carry out any work necessary in order to ensure that the Deliverables operate without any Defects during this period).
5.2 The Customer acknowledges that the Company will design the Deliverables to work with the following web browser and web server technologies:
Internet Explorer 8 and higher
Firefox 3.0 and higher
Adobe Flash Player / Macromedia Shockwave Version 6 or higher
Red Hat Linux
and the Company does not warrant that the Deliverables will work with any other web browser or web server technologies.
6. Development Charge
The Development Charges, and dates upon or after which the Company may issue invoices for the Development Charges, are as follows
|Development Charges||Invoice Date|
|30% of agreed total||On the Effective Date|
|20% of agreed total||On completion of the DEFINE phase of the project.|
|20% of agreed total||On completion of the DESIGN phase of the project.|
|20% of agreed total||On completion of the BUILD phase of the project.|
|10% of agreed total||On completion of the LAUNCH phase of the project.|
7. Term of Schedule
7.1 This Schedule will come into force on the Effective Date, and will continue in force until cancelled in accordance with Paragraph 7.2
7.2 This Schedule will be automatically cancelled:
- (a) upon the later of:
- (i) the acceptance of the Deliverables by the Customer in accordance with Paragraph 4; and
- (ii) the payment of all Charges due to the Company under this Schedule by the Customer; or
- (b) on the date of effective termination of the Agreement under Clause 13