DEVELOPMENT AGREEMENT
This Development Agreement (“the Agreement”) is entered into as of the day and year first above written by and between the Company and the Client.
WHEREAS, the Client wishes to engage the Company for Development on the terms set forth below.
NOW THEREFORE, the parties agree as follows:
1. DEFINITION
The following terms shall, where the context allows, have the following meanings whether such terms shall appear in lower case or with the first letter of each word capitalized (the foregoing shall apply to all other defined terms used herein):
1.1. "Agreement" means the Contract for the supply of the Products or for the provision of the Services by the Company to the Client, together with the terms of any applicable Service Specification;
1.2. "Client" means the organisation or person purchasing Services from the Company;
1.3. “Company” means Ewave Designs (UK) a trading style of Ewave Computers Limited located at 46E Micro Business Park, London, E1 5NP;
1.4. “Development” means the period from starting the Client’s development and/or design to its handover.
1.5. "Service Specification" means a statement of work, quotation or other similar documents describing the services to be provided by the Company;
1.6. “Products” means goods of any description (including but not limited to websites, web applications, printed items, and graphics in any physical form, designs, promotional items, or hardware) which the Company is to supply in accordance with the Agreement.
1.7. “Services” means the Services which the Company is to supply in accordance with the Agreement
1.8. “Terms” means the Standard Terms of trading of the Company set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Company and the Client.
1.9. “Agreement Letter” means the covering letter accompanying these terms. Words defined in the Agreement Letter have the same meanings as stated in this Agreement.
2. GENERAL
2.1. These Terms and Conditions shall apply to all contracts for the supply of Products or Services by the Company to the Client.
2.2. Before the commencement of the Services the Company shall submit to the Client a Service Specification and Agreement Letter which shall specify the Services to be performed and the fees payable. The Client shall notify the Company immediately if the Client does not agree with the contents of the Service Specification. All Service Specifications shall be subject to these Terms and Conditions.
2.3. The Company shall use all reasonable endeavours to complete the Services within estimated time frames but time shall not be of the essence in the performance of any Services.
2.4. The Company reserves the right to make any changes to the Service Specification which are required to conform with any applicable statutory or European Union Requirements or, where the same are to be supplied to the Client’s specification, which do not materially affect their quality or performance.
2.5. No order which has been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall indemnify the Company in full against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
3. DUTIES AND RESPONSIBILITIES
3.1. The Company will carry out the services set out in this Agreement with the Client and will not be obliged to provide any other advice or Services unless expressly agreed. The Company shall devote its best efforts to the performance of the Services.
3.2. The Company shall use its best efforts to furnish competent agents possessing a sufficient working knowledge of the Client’s requirements, to fulfil the Company’s obligation. Any agent of the Company who, in the sole opinion of the Client, is unable to adequately perform any services shall be replaced by the Company within seven days after written receipt of notice from the Client of its desire to have the agent replaced.
3.3. Personnel supplied by the Company to provide services to the Client under this Agreement will be deemed the Company’s employees or agents and will not for any purpose be considered employees or agents of the Client. The Company assumes full responsibility for the actions of such personnel while performing services pursuant to this Agreement, and shall be solely responsible for their supervision, daily direction and control, provision of employment benefits (if applicable), and payment of salary (if applicable).
4. TERM
The term of this agreement shall commence as of the day and year first above written and shall continue for the duration of the Development, unless sooner terminated as provided for herein. Unless this Agreement is extended or amended by written agreement, the Term shall automatically be terminated, unless either party extends the Term by written notice to the other party at least thirty (30) days prior to the expiration of the then existing Term.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. The Company retains the right to re-use, and maintain copyright of, code structures, photographs, and graphics ("the Content") not supplied by, or previously under copyright ownership of, the Client on further projects that are in no way connected to the Client.
5.2. All Content produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Company, and the Client shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments. This expressly does not include intellectual property rights of any trademark or logo owned by the Client or created on behalf of the Client.
5.3. The Company may make such copies of the Client Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content.
6. CONFIDENTIALITY
6.1. (“Proprietary Information”) is all information and any idea in whatever form, tangible or intangible, pertaining in any manner to the business of the Client or any affiliated company, or to its clients, consultants, or business associates, unless:
6.1.1. the information is or becomes publicly known through lawful means;
6.1.2. the information was rightfully in Company’s or its agents’ possession or part of its general knowledge prior to the commencement of the Agreement; or
6.1.3. the information is disclosed to Company or its agents without confidential or proprietary restrictions by a third party who rightfully possesses the information (without confidential or proprietary restriction) and did not learn of it, directly or indirectly, from the Client.
6.2. The Company and all agents of the company agree to hold all Proprietary Information in strict confidence and trust for the sole benefit of the Client and not to, directly or indirectly, disclose, use, copy, publish, summarize, or remove from Client’s premises any Proprietary Information (or remove from the premises any other property of the Client), except
6.2.1. during the period of this Agreement to the extent necessary to carry out Company’s responsibilities under this Agreement, and
6.2.2. after termination of this Agreement as specifically authorised in writing by the Client. The obligation contained within this clause shall survive termination of this Agreement.
7. FEES AND PAYMENTS
7.1. The fees for the performance of the Services are as set out in the Service Specification. The Company shall invoice the Client for the Services.
7.2. Invoiced amounts shall be due and payable within thirty (30) days of receipt of invoice. The Company shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of the base rate of the Bank of England. In the event that the Client’s procedures require that an invoice be submitted against a purchase order to payment, the Client shall be responsible for issuing such purchase order before the services are rendered.
7.3. Payments are accepted in GBP (Great Britain Pounds Sterling) only unless otherwise agreed.
7.4. The Company will require a fifty (50) % deposit to be paid prior to commencement of work on account of fees likely to be incurred.
7.5. In the event of a cancellation before a website has been completed no refund shall be given on the initial deposit of fifty (50) %, however the final fifty (50) % charge will be wavered. Partially completed work will not be supplied.
7.6. Clients from all over the world are welcome, any export duties, taxes or country specific regulatory obligations are the responsibility of the Client.
7.7. The following payment terms shall apply unless specifically varied in writing by the Company, upon confirmation by the client: all fees quoted are exclusive of VAT, VAT is chargeable in respect of any goods, work or services supplied by the Company, at 17.5% and will be added to payments otherwise due.
7.8. An invoice for the remaining 50% of the fees will be presented to the Client on completion of the services provided and will be due for payment strictly within 10 days of submission.
7.9. Additional features to any Products or Services that are not included in the quotation are subject to surcharge. In the event a feature is required which has not been included in the quotation the Company will give notice prior to implementation and seek acceptance of the surcharge. The cost will be added to the final invoice unless the amount exceeds £100 + VAT, in this case an interim 50% invoice shall be issued with payment due before completion, and the remaining 50% will be added to the final invoice.
7.10. In the event that full payment is made later than required or if only partial payment is made, the Company may at its discretion charge for administration costs and interest on any monies owed at either the rate of 2% interest per month, calculated weekly and compounded monthly. Failure to apply such charges does not constitute a waiver of the option to charge.
7.11. The Company reserves the right, by giving written notice to the Client at any time before delivery, to increase the price of the Product or Service to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alterations of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Product or Service which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions.
8. CLIENT’S OBLIGATIONS
8.1. To enable the Company to perform its obligations under this Agreement the Client shall:
8.1.1. co-operate with the Company;
8.1.2. provide the Company with any information reasonably required by the Company;
8.1.3. obtain all necessary permissions and consents which may be required before the commencement of the services; and
8.1.4. comply with such other requirements as may be set out in the Service Specification or otherwise agreed between the parties
8.2. The Client shall be liable to compensate the Company for any expenses incurred by the Company as a result of the Client’s failure to comply with Clause 8.1.
8.3. Without prejudice to any other rights to which the Company may be entitled, in the event that the Client unlawfully terminates or cancels the services agreed to in the Service Specification, the Client shall be required to pay to the Company as agreed damages and not as a penalty the full amount of any third party costs to which the Company has committed and in respect of cancellations on less than five working days’ written notice the full amount of the Services contracted for as set out in the Service Specification, and the Client agrees this is a genuine pre-estimate of the Company’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 8.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
8.4. In the event that the Client or any third party, not being a sub-contractor of the Company, shall omit or commit anything which prevents or delays the Company from undertaking or complying with any of its obligations under this Agreement, then the Company shall notify the Client as soon as possible and:
8.4.1. the Company shall have no liability in respect of any delay to the completion of any project;
8.4.2. if applicable, the timetable for the project will be modified accordingly;
8.4.3. the Company shall notify the Client at the same time if it intends to make any claim for additional costs.
8.5. The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving the Company any necessary information relating to the Product within a sufficient time to enable the Company to perform the Agreement in accordance with its terms.
9. ALTERATIONS TO THE SERVICE SPECIFICATION
9.1. The parties may at any time mutually agree upon and execute new Service Specifications. Any alterations in the scope of Services to be provided under this Agreement shall be set out in the Service Specification, which shall reflect the changed services and fees and any other terms agreed between the parties.
9.2. The Client may at any time request alterations to the Service Specification by notice in writing to the Company. On receipt of the request for alterations the Company shall advise the Client by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
9.3. Where the Company gives written notice to the Client agreeing to perform any alterations on terms different to those already agreed between the parties, the Client shall advise the Company by notice in writing whether or not it wishes the alterations to proceed.
9.4. Where the Company gives written notice to the Client agreeing to perform alterations on terms different to those already agreed between the parties, and the Client confirms in writing that it wishes the alterations to proceed on those terms, the Service Specification shall be amended to reflect such alterations and thereafter the Company shall perform this Agreement upon the basis of such amended terms.
10. INTERNET SPECIFIC
10.1. The Company shall use its reasonable endeavours to make the website available to the Client one hundred (100) % of the time but because the website is provided by means of computer and telecommunications systems, the Company makes no warranties or representations that the website will be uninterrupted or error-free.
10.2. The Company uses third party organisations for website hosting. This is to ensure that the client receives the best possible hosting package at a reasonable cost. Bandwidth allowances are included in hosting; any excess charges relating to the amount of traffic generated by Client’s websites are fully payable by the Client. No guarantees of service can be made by the Company on behalf of the host. The Company will not be held responsible for the failure in any of the services provided by a third party to the Company for the Client, this may include but is not restricted to website hosting, internet promotions, third party multimedia provisions.
10.3. In the event of a problem with the Client’s website the Company will endeavour to solve the discrepancy as quickly as possible.
10.4. The Client is given a grace period of 3 (three) months to make changes to their website after which the Client shall assume sole liability for all content displayed on their website. Any further alterations to the website will be billed to the Client at the Companies standard rate.
10.5. All data and information stored in an online database remains the property of the Client along with any rights associated.
10.6. All websites are built to be compatible with Internet Explorer 6.0 and above, websites are also compatible with Opera and Mozilla, however advanced features may not be supported. All websites are built for optimal viewing in 990 x 750 resolutions.
10.7. It is hereby agreed between the Company and the Client that in the event that any monies are owed and overdue to the Company, the Company will withdraw its Services. The Company may remove any material stored upon any computer or server and shall retain such material, and shall not be liable for any loss monetary or otherwise and not be under any obligation to return or provide access to, any and all documents, papers, etc. belonging to the Client until payment is made in full.
10.8. All completed websites become the property of the Client, subject to all accounts being paid, with the following restrictions on use:
10.8.1. Only one instance of a website can be made available on the World Wide Web or any Intranets / Extranets unless a licensing agreement has been reached;
10.8.2. Database Connection strings will not be divulged to the Client due to security risks. (These strings would in any event need amending if the site was to be moved to an alternative host / server);
10.8.3. No portion of the coding can be copied / duplicated or redistributed in any form electronic or otherwise unless a licensing agreement has been reached; Please note that upon request website files and database structure and content can be provided via electronic mail, or on CDR media (surcharge of £10 +VAT). These files can then be used to install the website on another suitable server of another company subject to their being only one instance of the website being available on the World Wide Web or any Intranets / Extranets unless a licensing agreement has been reached. Unless otherwise agreed such files will not include any Content Management System or admin panel to amend the website which remains the property of the Company.
11. GRAPHIC AND PRINT SPECIFIC
11.1. The Client is required to sign for all document proofs before they are sent for commercial printing.
11.2. The company shall not be liable for any errors or mistakes in the Products once the Client has approved and signed off the proof for print.
11.3. The Client’s requirements for proofs or samples for approval shall be as agreed in the Agreement Letter or as later agreed in writing before the start of the Company’s production of the same or the ordering of special materials. Changes required by the Client after approval of proofs or samples shall be on condition that it meets the additional costs incurred by the Company as a result.
11.4. Where the Client requires colour reproduction to a specific standard or to match a sample supplied, it shall be supplied with a colour proof (subject to cost) prior to placing the order and to the Agreement coming into force. Execution of the order will not proceed until an agreement in writing approving the colour proof has been received from the Client and such approval shall form part of the Agreement.
12. ADDITIONAL SERVICES / TERMS
12.1. Unless otherwise specifically agreed in writing, all works will carry the Company’s imprint, which will be positioned at its discretion.
12.2. The Company shall not be required to produce any Product or perform a Service which in its opinion is or may be of an illegal, obscene or libellous nature.
12.3. From time to time the Company shall use material which may not specifically be supplied to the Company by the Client which the Company shall use for the purpose of testing and sampling. In all cases Client must inform the Company if any such material must be removed. The Client shall indemnify the Company of any liability remaining on the Clients website post the 3 (three) months of website launch.
12.4. Whilst the Company shall take all reasonable care of the Client’s Content or property whilst in its possession, it cannot guarantee that, where the Agreement requires such Content or item to be subject to any process, it might not be damaged by such process. Accordingly the Company shall have no liability in respect of Content or property lost or damaged through any process providing it has taken reasonable care to avoid or minimise such loss or damage and the Client acknowledges that it should ensure it retains copies of any Content of a valuable or irreplaceable nature.
12.5. Without prejudice to other remedies, the Company shall in respect of all monies owing from the Client have a general lien on all goods and property of the Client in its possession (including Content and whether worked on or not) and shall be entitled on the expiration of fourteen days notice, dispose of such goods or property as it thinks fit and to apply any proceeds towards such debts.
13. WARRANTY AND INDEMNITY
13.1. The Company warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
13.2. Without prejudice to Clause 13.1, and subject as expressly provided in these Terms and except where the Products or Services to be provided by the Company are sold to a person dealing as a consumer (within in the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.3. The Client warrants that all text, graphics, photos, designs, trademarks, materials or Content provided by the Client to the Company for the said Development are owned or licensed to the Client for use therein, and may be used lawfully on the Internet or within any other medium.
13.4. The Client shall indemnify the Company against all claims, costs and expenses (including legal fees) which the Company may incur and which arise, directly or indirectly, from the Client's breach of any of its obligations under this Agreement, including any claims brought against the Company alleging that any Products or Services provided by the Company in accordance with the Service Specification infringes a patent, copyright or trade secret or other similar right of a third party, including any claims arising from content either text, graphic, image, audio, or video.
13.5. The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions failure to following the Company’s instructions (whether oral or in writing) misuse or alteration or repair of any Products without the Company’s approval;
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14. LIMITATION OF LIABILITY
14.1. Nothing in these Terms shall exclude or limit the Company’s liability for death or personal injury resulting from the Company’s negligence or that of its employees, agents or sub-contractors.
14.2. Except the Terms in Clause 14.1, The entire liability of the Company to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the fees paid by the Client; less any fees for costs already incurred and for Services completed by the Company up until the time of claim.
14.3. In no event shall the Company be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Company had been made aware of the possibility of the Client incurring such a loss.
14.4. Any advice or recommendation given by the Company or its employees or agents to the Client or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Company is followed or acted upon entirely at the Client’s own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
14.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
15. TERMINATION
15.1. Either party may terminate this Agreement forthwith by notice in writing to the other if:
15.1.1. The other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
15.1.2. The other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
15.1.3. The other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
15.1.4. The other party ceases to carry on its business or substantially the whole of its business; or
15.1.5. The other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
15.2. The Client shall pay the Company the compensation to which the Company is entitled for any work already undertaken as part of the Agreement, and thereafter all obligations of the Client shall terminate.
16. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
17. INDEPENDENT CONTRACTORS
The Company and the Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Company may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve the Company of its obligations under this Agreement
18. ASSIGNMENT
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Company.
19. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
20. WAIVER
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
21. NOTICES
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Service Specification or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
22. GOVERNING LAW
The Agreement Letter and these terms are governed by and should be construed in accordance with English law and the Company and the Client irrevocably submit to the jurisdiction of the British courts in connection with any matter arising out of them.
23. NO THIRD PARTIES
For the purpose of the Contracts Act 1999 (Rights of Third Parties), the Contract is not intended to, and does not, give any person who is not a party to it except as maybe specifically stated in the Agreement, any right to enforce any of its provisions.
24. AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.