Terms and Conditions
Atomic Multimedia Consultants Limited
Terms & Conditions for the Supply of Services
1. Basis of contract
1.1 Your order, signed agreement or other request for services (Order) constitutes an offer by you to purchase application development, website development, hosting, domain name registration, support and maintenance or other agreed services (Services) from us in accordance with these terms and conditions and the terms of any quotation supplied by us to you prior to your Order.
1.2 Your Order shall only be deemed to be accepted when we issue written acceptance at which point and on which date a contract (Contract) shall come into existence between you and us in accordance with these terms and conditions.
1.3 These terms and conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.4 Any quotation given by us shall not constitute an offer capable of acceptance by you, and is only valid for a period of 30 days from its date of issue.
2. Supply of Services
2.1 We shall supply the Services to you in all material respects in accordance with any specification, statement of work, service level agreement or other relevant document agreed in writing between you and us in relation to the Services.
2.2 We shall use our reasonable endeavours to meet any performance dates agreed in writing between us from time to time, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.3 We reserve the right to amend any agreed specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
2.4 We shall use industry standard software to detect and prevent the introduction of viruses and other malicious software into any Deliverables produced by us, but we shall not be responsible for the introduction of viruses or malicious software into your software or systems that does not result from our wilful conduct, negligence or that of any third parties under our control.
2.5 We shall not be required to ensure the compatibility of any website or software with any operating system version or browser version not stated as compatible within the Order. Any request for such compatibility shall be dealt with in accordance with clause 6.
2.6 We warrant to you that the Services will be provided using reasonable care and skill and that the receipt or use of the Services or the Deliverables by you will not infringe the UK intellectual property rights of any third party.
2.7 We warrant that for a period of 30 days after the supply of any software Deliverable, the Deliverable shall in all material respects perform in accordance with any specification or other acceptance criteria agreed in writing between us. Your sole remedy for a breach of the warranty in this clause 2.7 shall be the correction by us (within a period of 3 months of your notification) of any errors that cause the Deliverable not to comply with this warranty, subject to you notifying us within the 30 day period referred to above. For the avoidance of doubt, such 30 day period shall commence upon our supply of the Deliverable and not when you deploy it into a live environment.
3. Your obligations
3.1 You shall:
(a) ensure that the terms of the Order, any specification and any other document agreed between us from time to time (including any statement of work, if applicable) are complete and accurate in all material respects;
(b) co-operate reasonably with us in all matters relating to the Services;
(c) provide us, our employees, agents, consultants and subcontractors, with such access to your websites and other relevant systems as we reasonably require to provide the Services;
(d) ensure that any test data provided to us does not include personal data (within the meaning of the General Data Protection Regulation) save for where it is lawful for you to do so and you shall indemnify us in respect of all costs, losses, expenses, claims and demands we suffer or incur as a result of you breaching the terms of this clause 3.1(d);
(e) provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(f) comply with any additional obligations as may be set out in any specification, statement of work or other document agreed between us in relation to the Services from time to time.
3.2 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 3.2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
4. Charges and payment
4.1 Subject to clause 6, the charges for the Services (Charges) shall be as set out within the Order or as otherwise agreed between us in writing.
4.2 We shall be entitled to charge you for any expenses reasonably and properly incurred by the individuals whom we engage in connection with attending meetings with you or your representatives away from our premises, including travelling expenses, hotel costs, subsistence and any associated expenses.
4.3 In respect of any Charges for ongoing Services, we reserve the right to increase the Charges on an annual basis with effect from each anniversary of the commencement of the Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period. We also reserve the right, by giving 30 days’ notice to you, to increase the Charges to reflect any increase in the cost of the Services to us which is due to any factor beyond our reasonable control (including but not limited to increases in the costs of hosting or other third-party services).
4.4 We shall invoice you at the times set out in the Order (or as otherwise agreed between us in writing) or in the absence of such information, we reserve the right to invoice up to 50% of our Charges prior to undertaking the relevant work and/or to invoice monthly in arrears or on completion of the Services.
4.5 If we agree (in the Order or otherwise) that the Charges are to be invoiced in stages following the completion of certain milestones then you shall not unreasonably withhold or delay your acceptance of any such milestone if all agreed acceptance criteria have been materially achieved, and in the event of any unreasonable delay or withholding of such acceptance we shall be entitled to invoice for such Charges in any event.
4.6 You shall pay each invoice submitted by us:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by us, and
time for payment shall be of the essence of the Contract.
4.7 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.8 If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 11, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.8 shall accrue at the rate set under the Late Payment of Commercial Debts (Interest) Act 1998.
4.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual property rights
5.1 Unless otherwise agreed in writing between you and us, all copyright and other intellectual property rights in or arising out of or in connection with the Services or any deliverables (Deliverables) we supply to you pursuant to the Services (including but not limited to source code, object code, scripts, screen layouts, designs and images), other than intellectual property rights in any source code, documents or other materials provided by you, shall be owned by us or our licensors.
5.2 Notwithstanding anything else agreed in writing between us, we shall always own all copyright and intellectual property rights in our standard libraries of code as may be included within any Deliverable.
5.3 We grant to you, or shall procure the grant to you of, a non-exclusive, royalty-free, perpetual licence to use the Deliverables solely for your own business purposes.
5.4 You shall not sub-license, assign or otherwise transfer the rights granted in clause 5.3. In the case of any Deliverable being software or a website, you have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Deliverable in whole or in part except to the extent that any reduction of the Deliverable to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Deliverable with the operation of other software or systems used by you, unless we are prepared to carry out such action at a reasonable commercial fee or have provided the information necessary to achieve such integration within a reasonable period, and you shall request us to carry out such action or to provide such information (and shall meet our reasonable costs in providing that information) before undertaking any such reduction. The restrictions in this clause do not apply to any website content supplied and intended to be updated by you.
5.5 You acknowledge that certain website themes, images and other media, third-party libraries or other software used by us in the Deliverables may be licensed for single use within the relevant Deliverable. You shall not use (or attempt to use or sub-license or adapt) any such website themes, images or other media, third-party libraries or other software for any other purpose and you shall indemnify us in respect of all costs, losses, expenses, claims and demands we suffer or incur as a result of you breaching the terms of this clause 5.5.
5.6 You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
6. Change control
You may, by giving written notice to us at any time during the term of the Contract, request a change to the Services and/or any relevant specification of the Deliverables. As soon as reasonably practicable we shall prepare for you a written estimate of any increase or decrease in the Charges and of any effect that the requested change would have on the provision of Services. If you wish the requested change to be made then:
(a) where the change is to a specification of the Deliverables then the change may be confirmed in writing between you and us and shall take effect on the effective date confirmed between you and us (or if no effective date is stated, then immediately on the change being agreed); and
(b) in all other cases, you and we shall endeavour to agree a revised Order and the changes shall take effect from the date or dates specified in the revised Order.
7. Non-solicitation and contact with our staff
7.1 You shall not (except with our prior written consent) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from our employment any person employed or engaged by us in the provision of the Services during the term of the Contract or for a further period of 12 months after the termination or expiry of the Contract other than by means of a bona fide national advertising campaign open to all comers and not specifically targeted at any of our staff.
7.2 If you commit any breach of clause 7.1, you shall, on demand, pay to us a sum equal to one year’s basic salary or the annual fee that was payable by us to that employee, worker or independent contractor plus the recruitment costs incurred in replacing such person.
7.3 You shall not contact or communicate with (or attempt to do so) any person employed or engaged by us in the provision of the Services other than your dedicated Account Manager(s) as notified by us from time to time.
8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2. You agree that our confidential information includes (but is not limited to) our source code, our design and development methodologies and all other intellectual property owned by us.
8.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
9. Limitation of liability
9.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1, our total liability to you shall not exceed the Charges paid by you in respect of the Services under the Contract during the previous 12 months (or anticipated to be paid during the first 12 months where the Services have not yet been provided for such period). Our total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
9.3 Subject to clause 9.1, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any special, indirect or consequential loss, loss of goodwill, loss of business, loss of anticipated savings, loss of goods, loss of use, any destruction or corruption of data, damage, costs or expenses (whether or not such losses were in the contemplation of either of us at the date of the Contract) arising under or in connection with the Contract.
9.4 We have given commitments as to compliance of the Services with relevant specifications in clause 2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.6 Where we host your website and you do not enter into a contract with us for support and maintenance Services, you agree that we shall be entitled to host your website on a shared server which is not routinely patched or updated. You agree that we shall have no liability whatsoever for any security or other consequences of such shared server hosting.
9.7 If you do not enter into a contract with us for support and maintenance Services in respect of any software application, you agree that we shall not be required to ensure the compatibility of the software application with any future operating system version or browser version.
9.8 Where the Services include digital marketing (including but not limited to pay-per-click or search engine optimisation (SEO)) you acknowledge and agree that we cannot and do not guarantee any particular results. In respect of SEO you also acknowledge that search engines change their ranking algorithms from time to time and any SEO work undertaken by us is based on current understanding of such algorithms.
9.9 This clause 9 shall survive termination of the Contract.
10. Anti-bribery and anti-corruption
10.1 Each party must:
(a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and maintain in place throughout the term of the Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
(d) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Contract.
10.2 Each party must ensure that any person associated with it who is performing services in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed in this clause 10.
10.3 For the purpose of this clause 10, the meaning of adequate procedures and whether a person is associated with another person will be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act) and section 8 of that Act respectively. For the purposes of this clause 10 a person associated with a party includes any subcontractor of it.
11.1 Without affecting any other right or remedy available to it, either party may terminate Services under a Contract by giving the other party written notice as set out below:
(a) in respect of hosting services, 3 months’ notice to be given no earlier than the first anniversary of the date on which the hosting commenced;
(b) in respect of domain registration services, notice to be given no later than 6 months’ prior to the renewal date of the relevant domain name;
(c) in respect of support and maintenance, 3 months’ notice to be given no earlier than the first anniversary of the date on which the support and maintenance services commenced;
(d) in the case of all other ongoing Services (which for the avoidance of doubt excludes any fixed scope design or development work), 3 months’ notice.
For the avoidance of doubt, any separate written agreement between us in respect of term and notice periods shall take precedence over the provisions of this clause.
11.2 We shall at your request transfer to you (or a third party nominated by you) any domain name registered by us on your behalf subject to your payment of our release administration fee in force from time to time.
11.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.4 Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under the Contract (or any other contract between us) on the due date for payment.
11.5 Without affecting any other right or remedy available to us, we may suspend the supply of Services under the Contract or any other contract between us if you fail to pay any amount due under the Contract on the due date for payment, you become subject to any of the events listed in clause 11.3(b) to clause 11.3(d), or we reasonably believe that you are about to become subject to any of them.
12. Consequences of termination
12.1 On termination of the Contract, you shall pay to us (immediately where we terminate under clause 11.3) all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable as set out in this clause.
12.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13.1 Interpretation. In these terms and conditions:
(a) Any words following the terms including, include, 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.
(b) A reference to writing or written includes email.
13.2 Force majeure. We shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control.
13.3 Assignment and other dealings.
(a) We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Contract.
(b) You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract.
13.4 Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.5 Variation. Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of the Contract 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 the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to the email address specified in the Order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.9 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.10 Governing law. The Contract, 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.
13.11 Jurisdiction. 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 the Contract or its subject matter or formation.