Project Agreement and Standard Terms & Conditions of Business
This Agreement is made between:
| (“we“, “us” and/or “our”) | (“you” and/or “your”) |
| Nameless Media Group Ltd (company no. 03839411)28 Broad StreetBristolBS1 2HG | [Full company name] (company no. [ ])[Address] |
This Agreement relates specifically to:
[ ] (“the Project”)
[ ] (“the Start Date”)
It is agreed as follows:
- The terms of this Agreement are comprised in this cover sheet, the attached Schedules and Standard Terms and Conditions.
- If any Special Conditions are agreed between the Parties, these shall be set out in Schedule 4 and shall prevail over any contrary provision in the standard Terms and Conditions.
- With effect from the Start Date we agree that we will provide services to you relating to the Project on and subject to the provisions set out in the attached Schedules and Standard Terms and Conditions.
- Both parties agree that they have read the terms comprised in this coversheet, the attached Schedules and Standard Terms and Conditions and agree to be bound by them alone. No conduct by either party shall be deemed to constitute acceptance of any other terms.
This Agreement has been signed by the parties’ duly authorised representatives on the dates shown below.
| Date | Date: | |||
| Signed: | Signed: | |||
| Name: | Name: | |||
| Party: | Nameless Media Group Ltd | Party: |
Schedule 1 – Project
This Agreement relates specifically to
[ ] (“the Project”)
Project summary As detailed in the Scope of Work
Specification
Full details and costs of the Project and additional work will be described in the Specification, which may include the following documents if applicable:
Functional Specification;
Technical Specification;
Design Specification;
Project Schedule.
When these Specification documents have been approved by both parties they will form part of this Agreement.
Schedule 2 – Charges
This Agreement relates specifically to [ ]
Project Cost
£[] excluding VAT –as detailed in the Scope of Work.
Payment
30% of the Project Cost will be invoiced to you upon signature of this Agreement and must be paid to us before we start any of the Services, and in any event within 14 days of the date of the invoice (“the Initial Charge”).
20% of the Project Cost will be invoiced to you when we deliver the Specification to you and this must be paid within 14 days of the date of the invoice.
20% of the Project Cost will be invoiced to you when we deliver the [design layouts][templates] to you and this must be paid within 14 days of the date of the invoice.
30% of the Project Cost will be invoiced to you when the Works have been accepted by you in accordance with Clause 5 of the Standard Terms and Conditions, and this must be paid within 14 days of the date of the invoice.
Bank details
Acc. Name: Nameless Media Group Ltd
Bank: HSBC
Sort code: 40 17 32
Account no: 11381261
Additional work
If you require any additional work not covered in the Specification we will advise you in advance of the additional cost for such work, in accordance with Clause 4 of the Standard Terms and Conditions. Any additional work will be charged at our hourly rate plus VAT. We will also notify you of any consequential issues. Any additional work that you request will not delay the payment terms detailed above. Additional work will be implemented only when we have your approval to proceed in accordance with Clause 4 of the Standard Terms and Conditions.
Hourly rate (for Additional work)
£100 per hour
VAT
VAT will be charged. Costs shown in this Agreement exclude VAT.
Schedule 3 – Contact details
| YOU | |
| Contact: | |
| Company: | |
| Post: | |
| Tel:Email: | |
| Email: |
| US | |
| Contact: | [ ] |
| Company: | Nameless Media Group Ltd |
| Post: | 28 Broad Street, Bristol BS1 2HG |
| Tel: | 0117 927 3113 |
| Email: | [ ]@nameless.co.uk |
Schedule 4 – Special conditions
[None][New Intellectual Property]Standard Terms and Conditions
1 Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following words have the following meanings:
| “Agreement” | together the coversheet, these Terms and Conditions, the attached Schedules and, when approved in accordance with Clause 3, the Specification; |
| “Change” | a modification, improvement, extension or cancellation |
| “Charges” | the charges to be paid by you to us, including the Initial Charge referred to in Schedule 2; |
| “Close Company” | a close company within the meaning ascribed to such expression by Section 414 of the Income and Corporation Taxes Act 1988; |
| “Communication Service Failure” | any failure or interruption in any satellite, any telecommunication or fibre link, or any other equipment not owned or controlled exclusively by us or any acts or omissions of providers of telecommunications or Internet services (including Internet Service Providers and Internet registration authorities); |
| “Confidential Information” | all information disclosed by one party to the other or obtained by a party pursuant to or in connection with this Agreement, or relating to the clients or business of the other, or relating to the subject matter of this Agreement, and whether expressed to be confidential or not; |
| “Drupal” | an Open Source Software, as described at: http://drupal.org/about; |
| “Group Company” | in relation to any body corporate, a Close Company, a Holding Company or Subsidiary of such body corporate or any Subsidiary of a Holding Company of such body corporate; |
| “Holding Company” | a holding company within the meaning ascribed to such expression by Section 1159 of the Companies Act 2006; |
| “Initial Charge” | as set out in Schedule 2; |
| “Intellectual Property” | all copyright, design rights, database rights, trade marks, domain names, patents, know-how and all other similar and corresponding intellectual property rights anywhere in the world, whether registered, registerable or not; |
| “Magneto” | an Open Source Software, as described at: http://www.magentocommerce.com/product/faq; |
| “New Intellectual Property” | Intellectual Property in:1. the specific elements of the Works listed in Schedule 4 (if any) under the heading of “New Intellectual Property”; and2. any other elements of the Works excluding:· Intellectual Property in computer code except any computer code covered in 1 above or that the parties agree in writing shall be owned by You;· Intellectual Property in Our Pre-existing Material;· Intellectual Property in Proprietary Material; and· Third Party Intellectual Property; |
| “Open Source Software” | Drupal, Magneto, WordPress and any other software that complies with the definition of open source software set out at: http://www.opensource.org/docs/osd; |
| “Open Source Software Licence” | GNU General Public License (http://www.gnu.org/copyleft/gpl.html), Version 3 or later, OSL 3.0 (http://www.opensource.org/licenses/OSL-3.0) or later or any other similar Open Source Software licence such as those listed at: http://www.opensource.org/licenses/alphabetical; |
| “Our Pre-existing Material” | all documents, products and materials produced and/or provided by Us for use in the supply of the Services which existed prior to the commencement of the Agreement including, all copy, layouts, artworks, graphics, scripts, media schedules, designs, logos, trade marks, brand names, symbols, slogans, beta test websites, Software, computer programs and data; |
| “Project Cost” | means the figure detailed in Schedule 1 that may be varied in accordance with these Standard Terms and Conditions; |
| “Proprietary Material” | shall be as described at clause 12.3 below; |
| “Scope of Work” | the scope of work document attached to Schedule 1 detailing the general requirements and objectives for the Project; |
| “Services” | the services to be carried out by us under this Agreement as more particularly described in Clause 3 but which may include the supply of the Works, design of artwork and technical software development; |
| “Software” | the software or databases (if any) agreed to be created, developed or adapted referred to in the Specification; |
| “Special Conditions” | as set out in Schedule 4; |
| “Specification” | the detailed requirements for the Project to be agreed in accordance with the terms of Clause 3, which may include some or all of the following documents; (i) functional specification; (ii) technical specification; (iii) design specification; and (iv) project schedule, and as detailed in Schedule 1; |
| “Start Date” | the date of this Agreement set out on the cover sheet; |
| “Subsidiary” | a subsidiary undertaking within the meaning ascribed to such expression by Section 1159 of the Companies Act 2006; |
| “Third Party Intellectual Property” | any Intellectual Property owned by a third party; |
| “WordPress” | an Open Source Software, as described at: http://wordpress.org/about/; |
| “Works” | all copy, layouts, artworks, graphics, scripts, media schedules, designs, logos, trade marks, brand names, symbols, slogans, beta test web sites, Software and other materials to be provided by us as set out in the Specification; and |
| “Your Pre-existing Material” | all documents, products and materials produced and/or provided and/or uploaded by You for use in the Services including, all copy, layouts, artworks, graphics, scripts, media schedules, designs, logos, trade marks, brand names, symbols, slogans, beta test websites, Software, computer programs and data. |
1.2 In this Agreement:
1.2.1 words importing the singular shall include the plural and vice versa and words of each gender shall include each other gender;
1.2.2 reference to “including” shall be construed without limitation;
1.2.3 any reference to a statute or a provision of statute shall be construed as a reference to that statute or provisions as amended, re-enacted or extended at the relevant time; and
1.2.4 the headings are inserted for ease of reference only and shall not affect the construction of this Agreement.
2 Duration
2.1 This Agreement shall commence on the Start Date and shall continue until completion of the Services subject to the provisions for earlier termination contained later in this Agreement.
3 The Services
3.1 In consideration of the Charges, we shall provide the Services to you in accordance with the terms of this Agreement.
3.2 We will initially follow the Scope of Work in order to provide the Services to you.
3.3 As soon as reasonably practical following the signature of this Agreement, and based on the detail set out in the Scope of Work, we will begin to formulate the Specification.
3.4 Upon completing the Specification or any part of it, the Specification and any increase to the Charges/Project Cost will be submitted to you for your approval. You must either confirm your approval in writing or provide your suggested amendments or comments as soon as reasonably possible, following which we will discuss your amendments or comments with you and finalise the Specification for your approval.
3.5 Upon the Specification being approved by both parties, it shall be attached to and incorporated into Schedule 1 of this Agreement. We will then provide the Services in accordance with the Specification.
3.6 You agree that the Scope of Work and Specification are working documents and may change in accordance with Clause 4 during the course of the Project.
4 Change Requests
4.1 You shall be entitled to request a Change to the Services and we shall promptly advise you of any material Changes required to be made to the Scope of Work or a Specification previously approved by you as well as any resulting Changes to the Charges.
4.2 The party requesting the Change shall provide the other with full written particulars of any requested Change and such further information as the other party shall reasonably require.
4.3 As soon as reasonably practicable following receipt of a requested Change the party responding to the requested Change shall inform the other in writing whether such Change is acceptable or feasible and in our case, whether any increase to the Charges are necessary.
4.4 If we reasonably believe the Change to be feasible and that the requested Change will not result in any increase to the time or resources estimated in contemplation of the Charges and therefore an increase to the Charges is not necessary, the Change will automatically be incorporated into this Agreement and the Scope of Work and/or Specification is to be considered amended accordingly.
4.5 In the event that Clause 4.4 does not apply, if the requesting party confirms its agreement to proceed with a Change that would result in an increase to the Charges then:
4.5.1 the Scope of Work and/or Specification and the Charges (if applicable) shall be amended and the amended documents shall be incorporated into this Agreement; and
4.5.2 if such Change reasonably affects third party charges or expenses to which we are committed, then you shall indemnify us for such charges and expenses and shall in addition pay our Charges accrued to date and approved reasonable expenses for actual Services performed by us in respect of the matter Changed.
5 Development & Approval of Works
5.1 The provisions of this Clause 5 shall apply where we have agreed to create, develop or adapt any Works as part of the Services.
5.2 Prior to the full production of any Works, we shall submit drafts of the Works to you for your approval.
5.3 Your approval of all draft Works submitted in accordance with Clause 5.2 shall constitute your acceptance that the draft Works conform with the Specification, that you accept them in that form, and shall be authority for us to deliver the Works in that form.
5.4 You may only reject draft Works to the extent that they fail to comply in a material respect with the Specification. You may only reject Works to the extent that they fail to comply in all material respects with the approved draft Works or the Specification.
5.5 In the case of draft Works and Works, you must either confirm your approval in writing or provide your explanation of why you believe the draft Works or Works do not comply with the Specification/approved draft Works. If you fail to provide any explanation of non-compliance within 14 days of us making the draft Works/Works available to you, you shall be deemed to have approved the draft Works/Works.
6 Payment
6.1 Details of the Charges are shown in Schedule 2. On signature of this Agreement or before we start to provide any of the Services, you will pay us the Initial Charge.
6.2 As set out in Schedule 2, further charges shall be made at key stages during the Project. These Charges must be paid within 14 days of the date of invoice.
6.3 A final Charge will be made on completing the Works. This Charge must be paid within 14 days of the date of invoice.
6.4 In the event that you fail to make any payment due under this Agreement on the due date we may:
6.4.1 charge interest on the overdue sums at the rate of 8% above the base rate of HSBC from time to time in force from the due date until the overdue sums have been received by us in cleared funds; and/or
6.4.2 suspend the performance of any Services or obligations required to be performed by us under this Agreement until such time as the overdue sums (together with any interest due) have been received by us in cleared funds; and/or
6.4.3 terminate the Agreement by 30 days written notice to you.
6.5 In addition to the Charges and upon us giving you reasonable prior notice, you shall reimburse us for travelling and accommodation expenses reasonably incurred by or on behalf of us in the performance of the Services.
7 Your Obligations
7.1 You shall provide us with all such information, assistance and materials as we may reasonably require for the performance of our obligations, including creation of the Works and/or provision of the Services under this Agreement.
7.2 If, within 14 days of a written request, you fail to provide us with any information, approval, assistance or materials that we may reasonably require for the performance of our obligations under this Agreement, we will not be deemed to have breached any terms of this Agreement and we may, at our discretion, invoice you for all work carried out, with any such invoice being payable immediately.
7.3 You warrant and shall procure that any information or materials provided to us for the purposes of this Agreement (including any Works, editorial content, brands or logos) are free from any defamatory or unlawful content and that they do not infringe any rights (including Intellectual Property rights) of any third party.
7.4 Subject to Clause 7.5, all materials supplied by you to us for the purposes of this Agreement shall remain your property. As soon as reasonably practicable following the completion or termination of this Agreement we shall return such materials to you.
7.5 We shall have a general and particular lien over all materials in our possession that have been supplied by you for the purposes of this Agreement until such time as all Charges, expenses and other sums due to us under this Agreement (together with any interest accrued in accordance with Clause 6.4.1 above) have been paid in full.
8 Intellectual Property
8.1 Subject to clauses 8.2 to 8.4 below, the New Intellectual Property shall be owned by you. To the fullest extent possible, all rights (including current and future rights) in the New Intellectual Property, shall vest in you on payment of all Charges (including any interest) due to us from you. We agree, that at your request and cost, we will execute any assignment to assign to you any New Intellectual Property that is properly vested in you by this clause.
8.2 You acknowledge that any Third Party Intellectual Property subsisting in any of the Works is not owned by us and that this may be made available for use by you under licence only. You acknowledge that we may use any Open Source Software for the purpose of completing some or all of the Works, and your use of any items that make use of any Open Source Software will be governed by the terms of the relevant Open Source Software Licence.
8.3 You acknowledge and agree that some parts of the Works may include or be created through use of programming tools, scripts and elements of code which are generic to our business and which we need to reuse as part of our business (“Proprietary Material“).
8.4 The parties agree that nothing in this Agreement shall be deemed to assign to you any rights of ownership or other Intellectual Property rights existing or arising in the Proprietary Material or our Pre-existing Material and you acknowledge that we shall be entitled to use our Proprietary Material and your Pre-Existing Material for clients other than you. We hereby grant to you a perpetual (subject to you not being in breach of this Agreement) non-exclusive, transferable, worldwide, royalty free licence to use our Pre-existing Material and Proprietary Material for the express purposes for which the Works are provided to you. If you intend to transfer this licence to a competitor of ours, you must first seek our prior consent to such transfer.
8.5 The parties agree that nothing in this Agreement shall be deemed to assign any rights of ownership or other Intellectual Property existing or arising in your Pre-existing Material to us and we acknowledge that we shall be entitled to use your Pre-existing Material solely for the purposes of providing the Services and/or supplying the Works to you. You hereby grant to us a revocable, non-exclusive, non-transferable, worldwide, royalty free licence to use your Pre-existing Material for the purposes of complying with our obligations under this Agreement.
9 Confidentiality
9.1 Except as provided by Clauses 9.2 and 9.3, the party who receives the Confidential Information (“the Receiving Party”) from the party who discloses the Confidential Information (“the Disclosing Party”) shall at all times during the continuance of this Agreement and after its termination undertake to the Disclosing Party to:
9.1.1 use its reasonable endeavours to keep all Confidential Information confidential and accordingly (subject to the provisions of Clause 9.2) not to disclose any Confidential Information to any other person;
9.1.2 not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement;
9.1.3 not copy reproduce or record any of the Confidential Information except to the extent reasonably necessary in accordance with the terms of this Agreement; and
9.1.4 promptly on the Disclosing Party’s request return any and all copies or recordings of the Confidential Information save to the extent such is necessary to enable the Receiving Party to exercise its rights or perform its obligations under this Agreement.
9.2 Any Confidential Information may be disclosed by the Receiving Party to:
9.2.1 any governmental or other authority or regulatory body; or
9.2.2 any employees of the Receiving Party (or any of the Receiving Party’s sub-contractors or agents);
9.2.3 to such extent only as is necessary for the purposes contemplated by this Agreement, or as is required by law and subject in each case to the Receiving Party using its reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
9.3 This Agreement shall not apply to any Confidential Information that:
9.3.1 is or becomes public knowledge (other than as a result of the default of the Receiving Party or any other person to whom the Confidential Information is disclosed under the terms of this Agreement);
9.3.2 is known to the Receiving Party before the Confidential Information is disclosed;
9.3.3 lawfully becomes available to the Receiving Party from a third party without breach of this Agreement;
9.3.4 is required to be disclosed by law.
10 Warranties and Liability
10.1 Subject to Clauses 10.2 to 10.7 we warrant that we will perform the Services with reasonable care and skill. This warranty is given instead of any warranties implied by law.
10.2 The Charges are determined on the basis of the exclusions and limitations of liability contained in this Clause 10. These are included because there is a disproportionate relationship between the Charges and the benefits the Services provide. In the unlikely event that we breach this Agreement, and such exclusions and limitations were not included, our exposure would be disproportionate to any revenue received under this Agreement.
10.3 We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for the following types of loss whether direct or indirect and howsoever caused: loss of profit; loss of revenue; loss of goodwill, loss of business; loss of business opportunity; loss of anticipated saving; loss or corruption of data; or any special, indirect or consequential damage or loss suffered by you which arises out of or in relation to this Agreement.
10.4 We are not liable to you either in contract, tort (including negligence) or otherwise for any Communication Service Failure.
10.5 We shall not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the provision of the Services, if the delay or failure was due directly or indirectly to war, strikes, lock outs or other labour troubles, breakdowns, accidents, fire, governmental prohibition or restriction, or other circumstances beyond our reasonable control.
10.6 Our entire liability under or in connection with this Agreement shall not exceed the total Charges received by us at the time any claim is made.
10.7 Nothing in this Agreement shall have the effect of limiting or excluding our liability for death or personal injury arising out of our negligence or otherwise as prohibited by law.
11 Indemnities
11.1 You shall indemnify us and keep us indemnified against all costs, claims, expenses, losses and other liabilities arising out of or in connection with any breach by you of the provisions of Clauses 7 and 9.
12 Termination
12.1 Either party shall be entitled to terminate this Agreement on 3 months’ written notice.
12.2 Either party shall be entitled immediately to terminate this Agreement by written notice to the other if:
12.2.1 that other party commits a material breach of any provisions of this Agreement and in the case of a breach capable of remedy fails to remedy the same within 30 days after receipt of a written notice requiring it to be remedied; or
12.2.2 an encumbrancer takes possession or a receiver manager administrator or administrative receiver is appointed over any of the property or assets of that party; or
12.2.3 that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; or
12.2.4 that other party passes a resolution that other party goes into liquidation (except for the purposes of a solvent reconstruction where the company resulting therefrom assumes the obligations imposed on that other party by this Agreement); or
12.2.5 that other party ceases to carry on business.
12.3 Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision.
13 Consequences of termination
13.1 The termination of this Agreement howsoever arising will be without prejudice to the rights and duties by the parties accrued prior to termination. The Clauses in this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
13.2 On termination of this Agreement for whatever reason:
13.2.1 outstanding unpaid invoices rendered by us in respect of the Services shall become immediately payable by you and Charges and expenses in respect of the Services provided prior to termination but for which an invoice has not been submitted shall be payable immediately upon submission of the invoice;
13.2.2 promptly following the payment of these sums we will deliver to you all material which is owned by you; and
13.2.3 the licence granted in Clause 8.4 shall terminate.
14 Assignment, Sub-contracting and Group Companies
14.1 You may not assign, transfer, licence or sub-licence your rights under this Agreement without our prior written consent.
14.2 We shall be entitled to assign, licence or sub-contract some or all of our obligations in this Agreement.
14.3 We may perform any of the obligations undertaken by and exercise any of the rights granted to us under this Agreement through any Group Company, and any act or omission of any such Group Company shall for the purposes of this Agreement be deemed to be our act or omission.
14.4 In the event that We use sub-contractors to fulfil any part of our obligations under this Agreement, We will warrant the goods or services supplied by such sub-contractors as if they were supplied by us and were subject to warranties given in clause 10 of these Terms and Conditions.
14.5 We undertake to pay any sub-contractors in accordance with any terms agreed with such sub-contractors subject to any lawful right to withhold payment in the event of a failure by such sub-contractor to fulfil its obligations to us.
14.6 The terms of engagement of any sub-contractor by us shall include an obligation by the sub-contractor not to include any “time bomb” or other device whereby the functionality of the web-site may be deliberately reduced by the sub-contractor without the consent of You in writing.
15 Status
15.1 We shall act in all our dealings with third parties as a principal rather than an agent of you and nothing in this Agreement shall be deemed to create a relationship of principal and agent or partnership between us.
16 VAT
16.1 All amounts stated in this Agreement are expressed exclusive of value added tax and any value added tax arising in respect of the Services shall on our issue of a valid tax invoice be paid to us in addition to the Charges due.
17 Set Off
17.1 All payments required under this Agreement shall be made without set-off or counterclaim of any description.
18 Entire Agreement and Variation
18.1 Save for any documents stated to be incorporated into the Agreement upon their approval by the parties, this Agreement is the entire agreement and understanding between us and the terms of this Agreement shall supersede any previous agreements between us.
18.2 Both parties understand and agree that in entering into this Agreement neither party is relying on and shall have no remedy in respect of any statement representation warranty or understanding (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.
18.3 Nothing in this Agreement shall operate to limit or exclude any liability for fraud.
18.4 Except as expressly set out in Clause 4.4, this Agreement may not be modified except in writing signed by the duly authorised representatives of each party.
18.5 If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
19 Notices
19.1 Any notice or consent required or permitted under this Agreement shall be in writing and shall be sent by first class post, hand delivery, fax or email.
19.2 Subject to Clause 19.3 below any such notice consent or other document shall be deemed to have been duly received:
19.2.1 If despatched by fax or email- 24 hours from the time of the despatch; or
19.2.2 If despatched by prepaid post – 2 days from the time of posting to the relevant party; or
19.2.3 If despatched by hand delivery – at time of actual delivery.
19.3 Unless otherwise notified in writing for the purpose of this Clause the postal and email addresses and fax numbers of the parties are as set out in Schedule 3.
19.4 In proving service by post it will be sufficient unless any relevant part of the postal service is affected by industrial action to prove that the envelope containing the notice was duly stamped addressed and posted to the addresses specified in Clause 19.3 above. In proving service by fax or email it shall be sufficient to prove that it was properly addressed and dispatched to the numbers or address specified in Clause 19.3 above.
20 Law and Jurisdiction
20.1 English Law is the law which applies to this Agreement and the parties irrevocably agree that this Agreement shall be subject to the exclusive jurisdiction of the English courts.