TERMS OF BUSINESS
The definitions and rules of interpretation in this clause apply in this agreement.
Webstraxt: WEBSTRAXT LIMITED incorporated and registered in England and Wales with company number 09973985 whose registered office is at Balderton Hall, Balderton, Newark, NG24 3JR Email: firstname.lastname@example.org
Acceptance: the acceptance or deemed acceptance of the work by the Customer pursuant to clause 4.
Business Day(s): a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Charges: the charges in respect of the Services set out in the Quotation.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, orally or by inspection of documents or during 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.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: the content provided to Webstraxt by the Customer from time to time for incorporation in the Site.
Quotation: the quotation for the provision of the Services provided by Webstraxt to the Customer.
Services: the design, development and ongoing services to be provided pursuant to this agreement as set out in clause
Site: the Customer’s website.
Support Hours: 9am to 5pm on Business Days only.
Third Party Product: any product owned or licensed by a third party.
Visitor: a visitor to the Site.
1.2 Clause headings do not affect the interpretation of this agreement.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.7 Writing or written includes fax and email.
2.1 In consideration for the Charges, Webstraxt shall provide the following Services and as described in the remainder of General Terms of Business) in respect of the Site to Customer.
2.2 The Services comprise:
2.2.1 bug fixing, errors and issues affecting the operation of the Site in line with the original specification;
2.2.2 online Site browser compatibility;
2.2.3 daily backup of the Site during the term of this Agreement. This backup will be delivered to the Customer in full as soon as reasonably practicable after termination of this Agreement;
2.2.4 user support, questions and queries including remote support;
2.2.5 M2E user support excluding upgrades. Technical issues will be passed to M2E for resolution;
2.2.6 minor content changes, not to exceed 40% of the content on a single page of the Site;
2.2.7 maintenance of test server environment; and
2.2.8 source code management through GitHub.
2.3 For the avoidance of doubt, the following matters are not included in the Services:
2.3.1 populating Site content with product data and pricing;
2.3.2 system and security patches
2.3.3 Site re-design, re-alignment or redevelopment;
2.3.4 web and system upgrades;
2.3.5 paid software upgrades;
2.3.6 new module installations;
2.3.7 search engine optimisation services;
2.3.8 Site content generation and changes;
2.3.9 CMS design or integration including but not limited to blogs, shopping carts and web forums, which shall be the subject of a separate design agreement;
2.3.10 any support or maintenance services provided outside of the Support Hours.
2.4 The parties agree that Webstraxt is being appointed as an exclusive supplier of the Services.
The Site is inoperable (or critical functions of Site are inoperable, e.g. payment, i.e. anything that materially affects Customer processing transactions though the Site
Important areas of the Site are inoperable (i.e. not working but not adversely affecting normal business process)
The request is not critical and the Site can operate for normal business (i.e. minor fault, minimum impact)
3 Business Days
All other (i.e. cosmetic changes)
1 Business Day
7 Business Days
3.1 The Customer acknowledges that Webstraxt’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide) and any information and data the Customer provides to Webstraxt. Accordingly, the Customer shall provide Webstraxt with access to, and use of, all information, data and documentation reasonably required by Webstraxt for the performance by Webstraxt of its obligations under this agreement.
3.2 In order that Webstraxt may carry out the Services the Customer:
3.2.1 hereby authorises Webstraxt to access their Site hosting account;
3.2.2 shall provide Webstraxt with any active user name and/or password combinations for access to the relevant server using FTP, SSH and Admin Access and ensure that the necessary write permissions are in place on Customer’s Site hosting account;
3.2.3 shall co-operate with Webstraxt’s personnel in diagnosis of any error or defect in the Site; and
3.2.4 shall make available to Webstraxt all reasonable information and facilities as requested.
3.3 In the event that the Customer fails to deliver any information and data in a full and timely manner, Webstraxt reserves the right to amend the timescales for delivery of the Services.
3.4 Any text provided by the Customer shall be in a Microsoft Word document. Photographs and graphics shall be in a .gif, .jpeg, .png or .tiff format. Webstraxt cannot guarantee that images in other media or printed material provided can be returned.
3.5 The Customer shall be responsible for the accuracy and completeness of the Materials on the Site (including content grammar and spelling) in accordance with clause 11.
4.Development and acceptance
4.1 In the event that the Customer wishes to make changes to the scope of work then the Customer shall email details of the changes to Webstraxt who shall provide the customer with a Quotation for the Charges for the additional work.
4.2 Once Webstraxt has completed the design and development of the Site Webstraxt shall notify the Customer that the Site is ready for User Accepted Testing (UAT).
4.3 The Customer shall complete the UAT without delay and in a timely manner.
4.4 Subject to clause 4.5 acceptance of the Site shall occur when the Customer notifies Webstraxt that the UAT has been completed.
4.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) the Customer has not notified Webstraxt of completion of the UAT within 28 days of the Site becoming ready for UAT .
5.Third party product
5.1 Webstraxt provides enterprise resource planning software to the Customer under
licence through the Webstraxt Magento Module (WMM). In the event that Webstaxt ceases to provide Services to the Customer the licence to use the WMM shall terminate, provided that Webstraxt shall licence the use of the WMM to the Customer upon payment of the Webstraxt licence fee.
5.2 Webstraxt grants to the Customer a non-exclusive, non transferable licence of any
Third Party Product, including the WMM to enable the Customer to make use of the
6.1 Webstraxt shall host the Site for an initial term of 12 months subject to payment by the Customer of the webhosting fees. Thereafter, the webhosting service shall continue on a month to month basis until brought to an end by the Customer on thirty (30) days written notice to Webstraxt or in accordance with Clause 13.
6.2 The Customer shall receive a reminder 30 days before any domain name renewals
Any complaints need to be emailed to our Helpdesk or phone 01636 351960. Our Helpdesk run a ticket system. Email address is email@example.com
Please report any Domain Name Abuse to firstname.lastname@example.org
Webstraxt adheres to Nominet terms and conditions for any .uk registered domains. Customers can review Nominet terms and conditions at http://www.nominet.uk/go/terms
6.3 Webstraxt reserves the right to suspend its webhosting service in the event that its Charges have not been paid within 15 days.
7.Charges and payment
7.1 Webstraxt shall issue a VAT invoice in respect of the Charges, and the Customer shall pay to Webstraxt the Charges set out in such Supplier’s invoice within 15 days of the date of Webstraxt’s invoice.
7.2 All Charges are exclusive of VAT.
7.3 The parties agree that any fees and/or expenses comprising the Charges payable pursuant to this Agreement shall be reviewed annually by Webstraxt and may be increased by Webstraxt with effect from 1 January in each year following the first anniversary of this Agreement. Webstraxt shall notify the Customer of such increase at least 30 days prior to the effective date of increase.
7.4 If the Customer fails to make any payment due to Webstraxt under this agreement by the due date for payment, then, without limiting Webstraxt’s remedies under clause 13, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank PLC base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
8.2 Webstraxt shall perform the Services with reasonable care and skill.
8.3 This agreement sets out the full extent of Webstraxt’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 this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
9.Limitation of liability
9.1 Nothing in this agreement shall operate to exclude or limit Webstraxt’s liability for:
(a) 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
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
9.2 Webstraxt shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of functionality, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
9.3 Subject to clause 9.1, Webstraxt’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £3,000 in respect of any one claim or series of related claims.
10.Intellectual property rights
10.1 All Intellectual Property Rights in the Work (including in the content of the Site and the Site Software), but excluding the WMM software provided on licence by Webstraxt, arising in connection with this agreement shall become the property of the Customer.
10.2 Subject to and in consideration of the Customer’s compliance with the terms of this agreement and payment of the Charges, Webstraxt shall assign and transfer all Intellectual Property rights in the Work to the Customer.
10.3 Webstraxt may include an acknowledgement and link to Webstraxt on the home page of the Site in a form to be agreed and the website developed may be presented in Webstraxt’s portfolio.
10.4 The Customer shall indemnify Webstraxt 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.
10.5 Webstraxt shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 10.4.
10.6 The indemnities in clause 10.4, clause 10.5 and clause 11.2 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.
10.7 The indemnities in clause 10.4, clause 10.5 and clause 11.2 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.
11.1 The Customer acknowledges that Webstraxt has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Webstraxt reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Webstraxt shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
11.2 The Customer shall indemnify Webstraxt against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
12.1 Webstraxt warrants that, to the extent it processes any Personal Data on behalf of the Customer:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
12.2 In this clause 12, Personal Data has the meaning given in the Data Protection Act 2018.
13.Term and termination
13.1 This agreement shall commence on the date of this agreement and shall (subject to earlier termination under this clause 13) continue until brought to an end by either party giving to the other not less than 3 months’ notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(k) any warranty given by the other party in clause 8 of this agreement is found to be untrue or misleading.
13.3 On termination of this agreement by Webstraxt under clause 13.2, all licences granted by Webstraxt under this agreement shall terminate immediately.
13.4 On expiry or termination of this agreement otherwise than on termination by Webstraxt under clause 13.2, Webstraxt shall provide a scope and details of their costs for the return of all Materials to the Customer, and shall provide to the Customer an electronic copy of the Site (including all content on the Site). Webstraxt shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another service provider, subject to the payment in advance of Webstraxt’s costs.
13.5 On expiry or termination of this agreement, all provisions of this agreement 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.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 months, either party may terminate this agreement by giving 14 days’ written notice to the affected party.
15.1 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.
15.2 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.
15.3 The obligations set out in this clause 15 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 clause 15; 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; or
(d) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
15.4 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this agreement.
16.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number or sent by email to the address specified in at the head of this agreement.
16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
(c)if sent by fax or email, at 9.00 am on the next Business Day after transmission.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.Third party rights
19.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19.2 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
22.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.