Terms and Conditions
This Agreement sets out the standard terms and conditions of contract in relation to the provision of Website and/or other design services and/or software and/or Website hosting as specified in our agreed schedule. It applies in place of any earlier agreement or understanding and supersedes prior correspondence.
1.1 In this Agreement the following words shall have the following meanings set against them below:
"Agreement" means this Agreement including any Schedules attached;
"Browser" means a computer software application enabling a Website's pages to be viewed;
"CGI" means Common Gateway Interface;
“Charges” means the charges that Cattini Designwill make to the Client and the Client will pay for the Services and for any other work undertaken by Cattini Designfor the Client;
"Database" means a software format for storing data, in this instance the content used in the Services and Supplies;
"Email" means Electronic mail - messages, usually text, sent from one person to another via computer;
"Force Majeure" means any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party and without limiting the generality there of shall include the following:
a) strikes, lock-outs or other industrial action;
b) civil commotion, riot, invasion, war, threat or preparation for war;
c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster;
d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
e) the downtime of a telecommunications network;
f) political interference with the normal operations of any party.
"GUI" means Graphical User Interface;
"Hosting" means storage of Website files on the server;
"HTML" means Hyper Text Markup Language;
"Internet" means the global network of interconnected computer systems, accessed via Nodes run by ISPs;
"ISP" means Internet Service Providers;
"LAN" means Local Area Network - a distributed data processing Network spanning a single site or group of co-located users not using public telecommunications Networks;
"Network" means a set of computing systems connected by data communications links via which they communicate and co-operate;
"Schedule of Works" means a procedural plan that indicates the time and sequence of events associated with the execution of a project;
"Server" means a computer that serves files to other computers connected to it by LANs or WANs;
"Services" means the development by Cattini Designfor the Client the work set out in the Third Schedule and such other work as the Client shall request from time to time;
"Supplies" means all data, information, programs and other materials of software which Cattini Designprovide to the Client, but does not include material which Cattini Designobtained from the Client;
"WAN" means Wide Area Network - a distributed data processing Network spanning multiple sites;
"Webpage" means a constituent page of a Website that consists of text, graphics, video, sound and any other media;
"Webserver" means a Server which delivers Webpages to a computer;
"Website" means a collection of Webpages located on the www;
"www" means the "World Wide Web" which is a network of interconnected Servers on the Internet, accessed by a Browser for accessing and viewing Webpages;
1.2 Reference in this Agreement to any statute, licence or other regulation includes a reference to that statute, licence or other regulation as re-enacted or amended from time to time.
1.3 Where the context so admits, words denoting the masculine gender shall include the feminine or the neuter and vice versa and words denoting the singular shall include the plural and vice versa.
1.4 The clause headings are for the purpose of reference only and do not form part of this Agreement, nor do they affect the validity or enforceability of this Agreement.
2.1 The Services CATTINI DESIGN shall provide to the Client, the agreed time scales and the Charges are set out in Schedule 3 and in section 3 - 'Payment Terms and Other Charges'.
2.2 Where alterations to the Services to be provided are proposed by the Client or CATTINI DESIGN during the course of the Contract Period, these changes and any necessary changes to the Completion Date shall be agreed by both parties in writing before the work proceeds as set out in Clause 4.
2.3 CATTINI DESIGN undertakes to use reasonable endeavours to abide by dates agreed for delivery of Services to the Client but time shall not be of the essence in relation to the Services.
2.4 CATTINI DESIGN will not be responsible and shall not be liable for any delay or failure to deliver Services under this Agreement caused by circumstances beyond its control, such as Force Majeure strikes or failure of subcontractors or suppliers to provide material or services required. Where such delay occurs CATTINI DESIGN's obligations under this Agreement shall be suspended for the period of such delay.
2.5 The Client undertakes to use reasonable endeavours to supply material requested by CATTINI DESIGN and required for CATTINI DESIGN to perform its work under this Agreement as set out in section 4 of Schedule 3 by the date stipulated in section 5 of Schedule 3. CATTINI DESIGN will not be liable for losses incurred by the Client or any third party, where failure to commence and/or complete the Services by the agreed date is caused by the Client's delay.
3. Payment Terms and Other Charges
3.1 Unless otherwise agreed in writing, payment to CATTINI DESIGN for the work undertaken under this Agreement is due and as set out in section '7.' of Schedule 3. All Charges are payable in accordance with the terms of the invoice plus value added tax at prevailing rates.
3.2 No Website will be placed on CATTINI DESIGN's Webserver, nor will a digital copy of the Services be provided, until CATTINI DESIGN has received payment of all Charges due and owing to it for the Services in cleared funds. Access to work in progress will be granted during development of the website produced pursuant to the Services.
3.3 CATTINI DESIGN allow for normal day to day expenses within the prices/fees set out on the Schedule. However CATTINI DESIGN reserves the right to charge for reasonable out of pocket expenses, including, but not limited to, travel expenses to and from the Client's premises, purchase of consumables, telephone charges, print-outs, couriers, third party-art work, third party coding and any additional expenses incurred in meeting unforeseen Client demands during the completion of the work.
4. Changes in Scope / Variation Orders
4.1 Significant requests for changes by the Client to the Services agreed upon in the Schedule, will trigger additional charges based on CATTINI DESIGN's current daily rates.
4.2 CATTINI DESIGN reserves the right to make an additional charge to recover costs incurred by failure on behalf of the Client, to deliver material in the agreed, readily intelligible format.
4.3 CATTINI DESIGN also reserves the right to make an additional charge where the Client has delayed delivery of material the Client agreed to provide pursuant to this Agreement.
5. Cancellation Charges
5.1 Cancellation by the Client must be made in writing and is brought into effect by CATTINI DESIGN's receipt of such written notice. CATTINI DESIGN reserves the right to make a cancellation charge of 10% of the Charge it would have made for Services scheduled but not yet completed.
5.2 In addition, CATTINI DESIGN reserve the right to invoice the value of the Services already completed by CATTINI DESIGN, regardless of the reason for cancellation. Any software licenses purchased by CATTINI DESIGN on behalf of the Client and as yet not invoiced and unpaid for by the Client shall be invoiced to and paid for by the Client.
6. Intellectual Property Rights
6.1 CATTINI DESIGN warrants that to the best of its knowledge and belief the Supplies are original to CATTINI DESIGN, however CATTINI DESIGN is not, responsible for compliance of the Supplies with laws of all jurisdictions of the world to which users of any relevant Website have access. It is the Client's responsibility to satisfy itself of such compliance.
6.2 Ownership of any HTML, programming code and GUI produced for or acquired on behalf of the Client will not pass to the Client to use on the www and will not become the property of the Client until such time as CATTINI DESIGN receives payment of all Charges outstanding from the Client to it in cleared funds.
6.3 Common gateway interface (CGI) programming, server side programming and any custom scripts will remain the sole property of CATTINI DESIGN.
6.4 CATTINI DESIGN grant the Client a licence to use CATTINI DESIGN's code referred to in 6.3 for the life of the website.
6.5 Notwithstanding clause 6.3, Supplies may only be used in the form for the purpose defined. Should the Client wish to make further or different use of Suplies other than that which has been agreed pursuant to this Agreement, the Client must first contact CATTINI DESIGN and seek its agreement in writing to such use and the cost that CATTINI DESIGN will charge the Client for such additional use.
6.6 CATTINI DESIGN asserts its moral rights in the Supplies and the Client confirms that it shall not alter, reuse or otherwise exploit or jeopardise the artistic integrity of the Supplies without CATTINI DESIGN's prior written consent.
6.7 The Client shall ensure that any copyright notice of CATTINI DESIGN shall not be removed or obscured on the Supplies or any other documents, designs, services and/or materials it supplies to the Client.
6.8 Where the Client is licensed with computer software, under this Agreement such licence shall be of object code version of the software only and the Client shall not reverse engineer or decompile such software save as permitted under statute.
6.9 Where CATTINI DESIGNprovides Supplies to the Client on removable media , CATTINI DESIGN retain ownership of this removable media and all data and programmes held on it. No hire of the removable media is permitted by CATTINI DESIGN.
6.10 The termination of this Agreement shall not affect the provisions of this clause 6 which shall continue in effect thereafter.
7. Acceptance of Services and Supplies
7.1 The Client will confirm acceptance of the Services and Supplies, in writing, within 14 days of completion of the Services.
7.2 Where the Client does not confirm in writing acceptance of the Services and Supplies within 14 days of delivery to the Client, the Services and Supplies shall be deemed to be accepted by the Client at the earlier of either the expiry of such 14 day period or the Client's first live use.
7.3 The Client may only reject the Services and/or the Supplies in the event that they do not comply materially with the specification set out in Schedule 3. Where the Services and/or the Supplies are rejected by the Client, whether in whole or in part, CATTINI DESIGN shall endeavour to correct the Services and Supplies to ensure compliance with this Agreement following which the Client will be deemed to accept them in the absence of material defects in the Services and/or the Supplies.
8. Website Hosting
8.1 The Client undertakes to pay CATTINI DESIGN for website Hosting as specified inSchedule 3.
8.2 CATTINI DESIGN reserves the right to review the Charges, on the anniversary of the publication of the Website and shall notify the Client in writing of any increase or decrease in such Charges and such increase or decrease shall take effect from the date specified in such notification.
8.3 Hosting charges will be payable for the minimum period of 12 months, notwithstanding any earlier termination of this Agreement. The Client, if renting Server space, can choose to notify CATTINI DESIGN of their intent to terminate giving 3 months written notice.
8.4 CATTINI DESIGN cannot guarantee uninterrupted hosting of the Client’s Website due to the need for essential network maintenance/powerouts. CATTINI DESIGN will endeavour to keep such 'downtime' to a minimum but it will aim to limit the maintenance to 90% availability.
8.5 CATTINI DESIGN’s scheduled maintenance period is from 4am to 7am on a Tuesday and when any maintenance work to the Server is required it will be scheduled, where possible, in this period.
8.6 If the downtime exceeds the periods set out in 8.4 during any calendar month, the Client will be refunded, upon request in writing, an amount equal to the Charge for Hosting for that calendar month. Any down-time that the site is unavailable due to essential maintenance is included in the availability calculations above.
8.7 CATTINI DESIGN reserves the right to suspend the Services if at any time the Client fails to make payment of any Charges until such a time as all outstanding payment is received in clear funds.
9.1 The Client warrants that to the best of its knowledge and belief any material provided by the Client for its Website or other material it porovides to CATTINI DESIGN or work which it instructs to undertake under this Agreement is not obscene, blasphemous or defamatory and does not infringe any English law or regulation and does not adversely reflect on CATTINI DESIGN's public perception or image.
10. Indemnity and Limitation of Liability
10.1 The Client agrees that it shall indemnify CATTINI DESIGNagainst all claims, demands, losses, damage, costs or expenses incurred by CATTINI DESIGNas a resu lt of 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 material which the Client has supplied to CATTINI DESIGN or incorporated with the Supplies or through CATTINI DESIGN's involvement with the Client under this Agreement. The Client shall be responsible for ensuring all registrations and formalities are complied with in relation to any Website CATTINI DESIGN prepares for the Client, including without limitation, registration of trade marks and under data protection laws.
10.2 Save as provided above, the Client agrees that no matter how many claims are made and whatever the basis of such claims CATTINI DESIGN's maximum aggregate liability for breach of this Agreement and any other liability of CATTINI DESIGN to the Client shall be limited to the annual total value of the Charges and that all implied terms, conditions or other legal provisions are hereby excluded to the fullest extent possible; save that neither party shall exclude or limit its liability to the other for death or personal injury caused by negligence. The parties agree that the exclusion and limitation of liability in this clause is reasonable, reflects the respective financial positions of the parties and that the price agreed reflects the position on liability. In no event shall CATTINI DESIGN be liable to the Client for indirect, financial, consequential loss, loss of profit, loss of data, loss of revenue, wasted management time, any infection by computer virus (whether emanating from the Supplies or not) and/or loss goodwill whether or not such loss has been discussed by the parties pre-contract or for any account of profit, costs or expenses arising from such damage or loss.
10.3 The termination of this Agreement shall not affect the provisions of this clause which shall continue thereafter.
11. Force Majeure
11.1 No failure or omission by either party to carry out or observe any of the stipulations, conditions or obligations to be performed thereunder shall, except as herein expressly agreed to the contrary, give rise to any claim against such party or be deemed to be a breach of contract if such failure or omission arises from Force Majeure.
11.2 If the Force Majeure lasts 30 days or more the parties hereto shall consult and agree upon a course of action, which may include termination of all or part of this Agreement.
12. Confidential Information
12.1 Any information about CATTINI DESIGN or the Client or about CATTINI DESIGN's products or the Client's products or financial or business information shall be treated as confidential, used only for the purpose of performance of obligations under this Agreement and not disclosed save as permitted under this Agreement, without limit as to time. Provided always that information which is in the public domain, otherwise than through the default of the other party, shall not be deemed ‘confidential’ under this clause.
12.2 The Client furthermore agrees to keep all information provided by CATTINI DESIGN in relation to CATTINI DESIGN's business confidential.
12.3 The termination of this Agreement will not affect this clause.
12.4 CATTINI DESIGN shall be entitled to make reference to this Agreement with the Client in it's publicity material.
12.5 Where the Client has signed a confidentiality agreement with CATTINI DESIGN, this shall continue without limit as to time in addition to the provisions in this clause.
13.1 This Agreement shall continue until either:
13.1.1 the Completion Date ;or
13.1.2 where an on-going work commitment is signed may be terminated on 3 months' notice from either party to the other given at any time to expire on the anniversary of signature of this Agreement or any subsequent anniversary of such date save as provided below; or
13.1.3 where one party is in breach of this Agreement the other may serve written notice to terminate the Agreement forthwith, save that where the breach can be remedied 30 days notice to remedy shall first be given and where remedied such termination will not take effect; or
13.1.4 either party may terminate this Agreement forthwith by written notice where the other goes into liquidation or is declared bankrupt or otherwise is unable to pay its debts as they fall due.
13.4 On termination by the Client due to CATTINI DESIGN’s breach or bankruptcy, CATTINI DESIGN shall send to the Client, in accordance with the Client's reasonable directions, any Supplies relating to the Website (where relevant) then in CATTINI DESIGN's possession or control and the licence to use the Supplies shall continue without limit as to time. On termination by CATTINI DESIGN or by the Client on 3 months' notice as provided above, all the Client's rights to use the Supplies shall cease and the Client shall retain no copies thereof.
14.1 No variation of this Agreement will be valid unless agreed in writing by both parties.
14.2 The Client may not assign this Agreement without CATTINI DESIGN's prior written consent.
14.3 This Agreement sets out the entire agreement between the Client and CATTINI DESIGN save for any confidentiality agreement between the parties or other documents referred to in the Schedule.
14.4 All representations, warranties or other assurances made by or on behalf of CATTINI DESIGN to the Client other than as set out in this Agreement do not form part of this Agreement nor shall they be legally enforceable or actionable.
14.5 If any provision of this Agreement is found to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement. all of which shall remain in full force and effect.
14.6 No forbearance or delay by CATTINI DESIGN in enforcing rights under this Agreement will prejudice or restrict rights and no waiver of any breach of such rights or waiver of the rights will be deemed to be a waiver of any other right or of any later breach.
14.7 Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture or the relationship of partnership and agent or employer and employee.
14.8 All notices shall be in writing and sent to the address of the recipient set out in Schedule 1. or such other address as the recipient may designate by notice given in accordance with this provision. Any notice may be delivered personally by first class prepaid letter or facsimile transmission (confirmed by first class post) and shall be deemed to have been served if by personal delivery when delivered, if by first class post 48 hours after posting and if by facsimile transmission when dispatched (with successful transmission report).
14.9 This Agreement shall be governed by English law and both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute under this Agreement.