- DEFINITIONS AND INTERPRETATION
- APPLICATION OF CONDITIONS
- COMMENCEMENT AND DURATION
- LW DESIGN LTD’S OBLIGATIONS
- CUSTOMER’S OBLIGATIONS
- CHARGES AND PAYMENT
- INTELLECTUAL PROPERTY RIGHTS
- CONFIDENTIALITY AND LW DESIGN LIMITED’S PROPERTY
- LIMITATION OF LIABILITY
- DATA PROTECTION
- FORCE MAJEURE
- STATUS OF PRE-CONTRACTUAL STATEMENTS
- NO PARTNERSHIP OR AGENCY
- RIGHTS OF THIRD PARTIES
- GOVERNING LAW AND JURISDICTION
- DOMAIN NAME SPECIFIC TERMS
1. Definitions and Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions (The “Conditions”).
AUP: The Acceptable Use Policy which governs the Customers’ use of all LW design Ltd services, located at The Studio, 164 South Street, Dorking, Surrey, RH4 2ES
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed by LW design Ltd in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Input Material: all Documents, information and materials provided by the Customer relating to the Services including, computer programs, data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by LW design Ltd relating to the Services which existed prior to the commencement of this Agreement including computer programs, data, reports and specifications or any other existing materials.
Services: the services to be provided by LW design Ltd under this Agreement including the electronic transmission of information, graphics, sound and any other form of information transfer through LW design Ltd servers and lines of telecommunication internet services, hosting of internet servers, space on internet servers, hosting of virtual internet servers, website, domain names, electronic transfer of information, design, construction and work involved in the production of such and any other services and products supplied to the Customer and purchased from LW design Ltd, together with any other services which LW design Ltd provides or agrees to provide to the Customer from time to time.
SLA: Service Level Agreements which dictate the level of service LW design Ltd shall provide, located at http://www.LW design Ltdinternet.co.uk/servers/dedicated/sla.cfm.
LW design Ltd’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by LW design Ltd or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate Agreement between the parties under which title passes to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Words in the singular shall include the plural and vice versa.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to writing or written includes faxes but not e-mail.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
References to conditions and schedules are to the conditions and schedules of this Agreement.
2. Application of Conditions
|2.1||These Conditions (including the AUP and any relevant SLA) shall prevail over any inconsistent terms or conditions contained, or referred to, in any purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.|
|2.2||The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by LW design Ltd, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the LW design Ltd other than:
|2.3||No changes to these Conditions shall be binding unless made with the prior written consent of a Director of LW design Ltd. Unless notified to the contrary, no agent of, or person employed by or under contract with LW design Ltd, has any authority to alter or vary these Conditions in any way.|
|2.4||The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern this Agreement.|
|2.5||Quotations are given by LW design Ltd on the basis that no Agreement shall come into existence except in accordance with this condition 2. Any quotation is valid for a period of 30 days from its date, provided that LW design Ltd has not previously withdrawn it.|
|2.6||LW design Ltd may alter these Conditions at any time with notification to You via email. Your sole remedy in the event that You do not agree to amendments made to the Conditions shall be to serve 3 months written notice of contract termination without any right to damages or service credit.|
|2.7||Unless otherwise expressly agreed, the Conditions apply to any future work the Customer provides to LW design Ltd.|
3. Commencement and Duration
|3.1||The Services supplied under this Agreement shall be provided by LW design Ltd to the Customer from the date of acceptance by LW design Ltd of the Customer’s offer in accordance with condition 2.|
|3.2||The Services supplied under this Agreement shall continue to be supplied for a period of 12 months (the “Initial Period”) and, after that, shall continue to be supplied unless this Agreement is terminated by one of the parties giving to the other not less than 3 months’ notice, unless this Agreement is terminated in accordance with condition 11|
4. LW design Ltd’s Obligations
|4.1||LW design Ltd shall use best endeavours to supply the Services, to the Customer.|
|4.2||LW design Ltd shall use best endeavours to meet any agreed performance dates but any such dates shall be estimates only and time shall not be of the essence of this Agreement.|
|4.3||LW design Ltd, via our supplier TITAN Internet, will undertake planned service outages as required. Customers will be notified of planned outages via the system status page on the website plus email. During these planned outages LW design Ltd cannot guarantee availability of the Service.LW design Ltd will give advance notice of no less than 7 (seven) days prior to the commencement of the downtime.LW design Ltd reserve the right to undertake planned outages at any time and without notice in order to resolve emergency service faults, however LW design Ltd will endeavour to provide notice of any planned outages that are necessary.|
|4.4||LW design Ltd, via our supplier TITAN Internet, shall insure all servers and associated equipment provided that the Customer acknowledges LW design Ltd does not maintain insurance cover against the risk of loss of software or data from servers.|
5. Customer’s Obligations
|5.1||The Customer shall:
|5.2||If LW design Ltd’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, LW design Ltd shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.|
|5.3||The Customer shall be liable to pay to LW design Ltd all reasonable costs, charges or losses sustained or incurred by LW design Ltd arising directly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to LW design Ltd confirming such costs, charges and losses to the Customer in writing.|
|5.4||Nothing in this Agreement excludes the liability of either party:
|5.5||If either party requests a change to the scope or execution of the Services, LW design Ltd shall, within a reasonable time, provide a written estimate to the Customer of:
|5.6||If the Customer wishes LW design Ltd to proceed with the change, LW design Ltd has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of this Agreement to take account of the change.|
|5.7||LW design Ltd may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 6.|
|5.8||LW design Ltd may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements. If LW design Ltd requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.|
6. Charges and Payment
|6.1||Condition 6.2 shall apply if LW design Ltd provides the Services on a time and materials basis. Condition 6.3 shall apply if the LW design Ltd provides the Services for a fixed price. The remainder of this condition 6 shall apply in either case.|
|6.2||Where the Services are provided on a time and materials basis:
|6.3||Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Sales Order. The total price shall be paid to LW design Ltd (without deduction or set-off) in instalments, as set out in the Sales Order, LW design Ltd shall invoice the Customer on commencement of the services for the charges that are then payable, together with expenses (agreed in advance), the costs of materials and VAT, where appropriate.Any fixed price and daily rate contained in the Sales Order excludes:
|6.4||The Customer shall pay each invoice submitted to it by LW design Ltd, in full and in cleared funds, within 30 days of receipt.|
|6.5||Without prejudice to any other right or remedy that it may have, if the Customer fails to pay LW design Ltd on the due date, LW design Ltd may:
|6.6||Time for payment shall be of the essence of this Agreement.|
|6.7||All sums payable to LW design Ltd under this Agreement shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.|
|6.8||LW design Ltd may, without prejudice to any other rights it may have, set off any liability of the Customer to LW design Ltd against any liability of LW design Ltd to the Customer.|
7. Intellectual Property Rights
|7.1||As between the Customer and LW design Ltd, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by LW design Ltd.|
|7.2||The Customer acknowledges that, where LW design Ltd does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on LW design Ltd obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle LW design Ltd to license such rights to the Customer.|
|7.3||All Intellectual Property Rights in the Deliverables or any other works arising in connection with the performance of the Services by LW design Ltd shall be the property of LW design Ltd, and LW design Ltd hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights for the purposes only of using the Services.|
|7.4||This licence will not extend to:
|7.5||If this Agreement is terminated, this licence will automatically terminate.|
|7.6||LW design Ltd shall indemnify the Customer against all damages, losses and expenses arising as a result of any successful action for infringement of the Intellectual Property Rights of a third party brought in respect of the Pre-existing Material or the Deliverables provided that such infringement is in no way attributable to the IPR contained in the Input Materials.|
|7.7||The indemnity in clause 7.6 is subject to the following conditions:
|7.8||The Customer shall indemnify LW design Ltd against all damages, losses and expenses arising as the result of any successful action for infringement of the Intellectual Property Rights of a third party in the Input Materials.|
|7.9||The indemnity in clause 7.7 is subject to the following conditions:
8. Confidentiality and LW design Ltd’s Property
|8.1||Both parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other, its employees, agents or sub-contractors and any other confidential information concerning its business or its products which the other party may obtain (“Confidential Material”). Both parties shall restrict disclosure of such Confidential Material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the party’s obligations under this Agreement, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the parties.|
|8.2||All materials, equipment and tools, drawings, specifications and data supplied by LW design Ltd to the Customer (including Pre-existing Materials and LW design Ltd’s Equipment) shall, at all times, be and remain the exclusive property of LW design Ltd, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to LW design Ltd, and shall not be disposed of or used other than in accordance with LW design Ltd’s written instructions or authorisation.|
|8.3||This condition 8 shall survive termination of this Agreement, however arising.|
9. Limitation of Liability
YOUR ATTENTION IS DRAWN SPECIFICALLY TO THE LIMITATIONS TO LIABILITY IN THIS CLAUSE 9
|9.1||This condition 9 sets out the entire financial liability of LW design Ltd (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
|9.2||All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.|
|9.3||Nothing in these Conditions limits or excludes the liability of LW design Ltd:
|9.4||Subject to condition 9.2 and condition 9.3 LW design Ltd shall not be liable for:
LW design Ltd’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services.
10. Data Protection
|10.1||The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency.|
|10.2||If The Customer require LW design Ltd to process information about any person that is defined by the Data Protection Act 1998 (as amended from time to time) (“DPA”) as personal data, LW design Ltd will do as a data processor (as defined in the DPA). You shall remain the data controller (as defined in DPA) for the purposes of such processing.|
|11.1||Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other on giving the other not less than three months written notice after the Initial Period; or immediately on giving notice to the other if:
|11.2||On termination of this Agreement for any reason:
12. Force Majeure
|12.1||LW design Ltd shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of LW design Ltd or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of LW design Ltd or sub-contractors.|
|13.1||No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.|
|14.1||A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.|
|14.2||Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.|
|15.1||If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.|
|15.2||If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.|
|15.3||The parties agree, in the circumstances referred to in condition 15.1 and if condition 15.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.|
16. Status of Pre-Contractual Statements
|16.1||Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.|
|17.1||The Customer shall not, without the prior written consent of LW design Ltd, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.|
|17.2||LW design Ltd may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.|
18. No Partnership or Agency
|18.1||Unless expressly stated otherwise nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).|
19. Rights of Third Parties
|19.1||This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.|
|20.1||A notice given under this agreement:
|20.2||The addresses for the service of notice are:
Fax: 01306 770208
|21.1||All media release, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties in writing prior to release.|
22. Governing Law and Jurisdiction
|22.1||This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.|
|22.2||The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.|
|22.3||This Agreement has been entered into on the date stated at the beginning of it.|
|22.4||For the purposes of interpretation of the Terms and Conditions, our operating jurisdiction is England and the time zone is GMT. The operating language is English.|
23. Domain Name Specific Terms
|23.1||LW design Ltd acts as an agent and reseller for different Registrars and Domain name sellers & as your agent when purchasing domain names. The contract for domain name registration is between you and the naming authority. Your use of a domain name, once registered, may be challenged by a third party; if so, the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) or other as amended from time to time and provided by the Registrar responsible shall apply to all registrations or renewals. An example of such is ICANN’s UDRP available at http://www.icann.org/udrp/udrp.htm|
|23.2||We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by You. Accordingly, You should take no action in respect of your requested domain name(s) until You have been notified that your requested domain name has been registered.|
|23.3||The registration of the domain name and its ongoing use is subject to the relevant naming authority’s terms and conditions of use and You are responsible for ensuring that You are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims You may have against LW design Ltd in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by You to LW design Ltd shall be non-refundable in any event.|
|23.4||We accept no responsibility in respect of the use of a domain name by You and any dispute between You and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority. You warrant and undertake that to the best of your knowledge and belief neither the registration of the domain name nor the manner in which it is directly or indirectly used by You or and any licensee directly or indirectly infringes the legal rights of a third party.|
|23.5||You are solely responsible for providing LW design Ltd with accurate and up-to-date contact information and we shall not accept any responsibility for any cancellation or refusal to renew a domain name by the relevant naming authority due to any failure to provide such information. Any changes made by You to your details in any manner whatsoever are your own responsibility. Whilst we will make every effort to remind you when a renewal of a registration is required We are not responsible for the renewals of any domain name registration and You should make your own arrangements for reminding yourself when any name is due for renewal.|