The definitions and rules of interpretation in this clause apply in these terms and conditions.
Acceptance: the acceptance or deemed acceptance of the Artefacts by the Client pursuant to clause 7.
Acceptance Tests: the tests to be carried out on the Artefacts as set out in clause 7.
Artefacts: all products and materials developed by MPL in relation to the Project in any media, including, without limitation, applications, images, illustrations, logos, websites, animations, computer programs, data, diagrams, reports and specifications (including drafts).
Brief: the brief agreed between MPL and the Client broadly defining the Project and any anticipated Project Milestones (if relevant) prior to the submission of a purchase order in advance of entering into the Contract.
Business Day: means a day (other than Saturday or Sunday) on which banks are ordinarily open for business in the City of London.
Contract: the Client’s purchase order and MPL’s acceptance of it under condition 3.
Client: the person, firm or company who purchases Services from MPL.
Client’s Project Manager: the Client’s manager for the Project appointed in accordance with condition 5.1(a).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation 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.
Long Project: any Project that is a long term project incorporating Project Milestones and which shall be payable in accordance with clause 7.2.
MPL: Muddy Publishing Limited, Company Registration Number 06528458, 117 Crewe Road, Alsager, Stoke-on-Trent, Staffordshire, ST7 2JE.
MPL’s Project Manager: MPL’s manager for the Project, appointed in accordance with condition 4.3.
Pre-existing Materials: materials which existed before the commencement of the Project.
Project: the project as described in the Project Plan.
Project Milestone: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan.
Project Plan: the detailed plan describing the Project and setting out the estimated timetable (including without limitation Project Milestones) and responsibilities for the provision of the Services by MPL in accordance with the Contract.
Proposal: MPL’s initial proposal produced for the Client based on the Brief.
Services: the services to be provided by MPL under the Contract including but not limited to the development of the Artefacts and server hosting and testing.
Short Project: any Project that is a sole, short term project and which shall be payable in accordance with clause 7.3.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and email.
1.9 References to clauses are to the clauses of this agreement.
2. Application of conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on MPL unless in writing and signed by a director of MPL.
3. Proposals and purchase orders
3.1 Proposals are not legally binding. They are estimates of the Services to be provided only and of the costs to be incurred (unless otherwise confirmed in writing by a director of MPL based on the Brief. They shall be available for acceptance for period of 20 Business Days unless otherwise confirmed in writing by a director of MPL. Proposals may be withdrawn by MPL Agency at any time during this period by notice from MPL.
3.2 The Client’s purchase order constitutes an offer by the Client to purchase the Services specified in it on these conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by MPL, or MPL’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these conditions. The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
3.3 MPL reserves the right to refuse to accept any purchase order.
4. MPL’s obligations
4.1 MPL shall use reasonable endeavours to manage and complete the Project, and to deliver the Artefacts to the Client, in accordance in all material respects with the Project Plan.
4.2 MPL shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 MPL shall appoint MPL’s Project Manager who shall have authority to contractually bind MPL on all matters relating to the Project. MPL shall use reasonable endeavours to ensure that the same person acts as MPL’s Project Manager throughout the Project, but may replace him or her from time to time where reasonably necessary in the interests of MPL’s business and/or the requirements of the Project Plan.
5. Client’s obligations
5.1 The Client shall:
(a) co-operate with MPL in all matters relating to the Project and appoint the Client’s Project Manager, who shall have the authority to contractually bind the Client on matters relating to the Project; and,
(b) provide in a timely manner such information as MPL may request, and ensure that such information is accurate in all material respects.
5.2 If MPL’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Client shall in all circumstances be liable to pay to MPL on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to MPL confirming such costs, charges and losses to the Client in writing.
5.3 The Client shall not, without the prior written consent of MPL, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from MPL or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of MPL.
5.4 Any consent given by MPL in accordance with condition 5.3 shall be subject to the Client paying to MPL a sum equivalent to 20% of the then current annual remuneration of MPL’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to such employee or sub-contractor.
6. Change control
6.1 The Client’s Project Manager and MPL’s Project Manager shall meet at least once to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, MPL shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any variations to MPL’s charges arising from the change;
(c) the likely effect of the change on the Project Plan; and
(d) any other impact of the change on the terms of the Contract.
6.3 If MPL requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
6.4 If the Client wishes MPL to proceed with the change, MPL 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 the Contract to take account of the change.
7. Development and Acceptance
7.1 Once MPL has completed the design and development of the Artefacts as part of either a Short Project or as part of a Long Project in accordance with any particular Project Milestone of the Project Plan, MPL shall run the Acceptance Tests. The procedure set out in this clause 7 shall be repeated in respect of each Project Milestone if MPL is undertaking a Long Project, and any further development works agreed by the parties from time to time.
7.2 The Acceptance Tests shall test compliance of the Artefacts against the agreed Project Plan.
7.3 Acceptance of the Artefacts shall occur when the Artefacts have passed the Acceptance Tests. MPL shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing (Completion Date).
7.4 MPL will carry out amendments which it considers to be minor (at its sole discretion) during an acceptance period of 14 days from the Completion Date, (Acceptance Period) free of charge. The Client will pay for any amendments after the Acceptance Period or non-minor amendments or any amendments due to Non-MPL Defects (as defined below) at MPL’s then current fees and prices.
7.5 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom MPL has no responsibility (Non-MPL Defect), the Artefacts shall be deemed to have passed the Acceptance Tests notwithstanding such Non-MPL Defect. MPL shall provide assistance reasonably requested by the Client in remedying any Non-MPL Defect by supplying additional services or products. The Client shall pay MPL in full for all such additional services and products at MPL’s then current fees and prices.
7.6 Acceptance of the Artefacts shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Client confirms in writing in a form agreed by MPL that the Artefacts comply with the Project Plan; or
(b) the Client uses any part of the Artefacts for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
the Client unreasonably delays the start of any relevant Acceptance Tests or any retests for a period of seven working days from the date on which MPL is ready to commence running such Acceptance Tests or retests.
8. Charges and payment
8.1 The total price for the Services shall be based on the cost estimate set out in the Project Plan.
8.2 For Long Projects, the total price shall be paid to MPL in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone, unless otherwise agreed in writing by a director of MPL. On achieving a Project Milestone, MPL shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 8.4.
8.3 For Short Projects, the total price shall be payable to MPL upon completion of the Services and Acceptance of the Artefacts, unless otherwise agreed in writing by MPL. On Acceptance MPL shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 8.4.
8.4 All amounts due under this agreement shall be paid by the Client to MPL in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Any cost estimate contained in the Project Plan excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by MPL for the supply of the Services. Such expenses, materials and third party services shall be invoiced by MPL; and
(b) VAT, which MPL shall add to its invoices at the appropriate rate.
8.5 The Client shall pay each invoice submitted to it by MPL in full, by bank transfer to such bank account as is nominated by MPL to the Client, within 20 Business Days of the date of invoice.
8.6 Without prejudice to any other right or remedy that MPL may have, if the Client fails to pay MPL on the due date MPL may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment, or the then prevailing rate of interest under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), whichever is the higher; and
(b) suspend all Services in progress until payment has been made in full.
8.7 Time for payment shall be of the essence of the Contract.
8.8 All payments payable to MPL under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 MPL may, without prejudice to any other rights it may have, set off any liability of the Client to MPL against any liability of MPL to the Client.
9. Intellectual Property Rights
9.1 All Intellectual Property Rights in the Artefacts (including in the content of the any website and related software), but excluding the Pre-existing Materials, arising in connection with the Contract shall be the property of MPL, and MPL hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of using and/or operating the Artefacts.
9.2 The Client shall indemnify MPL against all damages, losses and expenses arising as a result of any action or claim that the Pre-existing Materials (or any other materials provided to MPL by the Client) infringe the Intellectual Property Rights of a third party.
9.3 MPL shall indemnify the Client against all damages, losses and expenses arising as a result of any action or claim that the Artefacts produced by MPL under the Contract infringe any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 9.2.
9.4 The indemnities in clause 9.2 and clause 9.3 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.
9.5 The indemnities in clause 9.2 and clause 9.3 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.
9.6 MPL may at its sole discretion assign the Intellectual Property Rights in the Artefacts to the Client, such assignment to be documented in writing.
10. Confidentiality and MPL’s property
10.1 The Client 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 the Client by MPL or its agents, and any other confidential information concerning MPL’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Client’s obligations to MPL, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
10.2 All materials, equipment and tools, drawings, specifications and data supplied by MPL to the Client shall at all times be and remain the exclusive property of MPL, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to MPL, and shall not be disposed of or used other than in accordance with MPL’s written instructions or authorisation.
10.3 This condition 9 shall survive termination of the Contract, however arising.
11. Limitation of liability
11.1 The following provisions set out the entire financial liability of MPL (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by the Client of the Services, the Artefacts or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes the liability of MPL:
(a) for death or personal injury caused by MPL’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to condition 10.2 and condition 10.3:
(a) MPL shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
- loss of profits; or
- loss of business; or
- depletion of goodwill or similar losses; or
- loss of anticipated savings; or
- loss of goods; or
- loss of contract; or
- loss of use; or
- loss or corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) MPL’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
12.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
- 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 10 Business Days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- 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;
- the other party commences negotiations with all or any class 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- 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;
- 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;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- 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 5 Business Days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.1(d) to condition 11.1(j) (inclusive);
- there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
- 12.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12.3 If any of the events set out in clause 12.1 above occurs in relation to the Client then:
- MPL may cease performance of any services and cease any work in progress;
- MPL may cancel, terminate and/or suspend without liability to the Client, any other contract with the Client; and/or,
- all licences granted by MPL under this Contract shall terminate immediately;
- all and any monies owed by the Client to MPL the Agency shall become due and payable immediately.
12.4 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
13. Force majeure
MPL shall not in any circumstances have any liability to the Client under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of MPL 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 MPLs or sub-contractors.
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.
15. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1 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.
16.2 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.
17. Entire agreement
17.1 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.
17.2 Each party acknowledges that in entering into this agreement 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 this agreement.
17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18.1 The Client shall not, without the prior written consent of MPL, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2 MPL 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 the Contract.
19. No partnership or agency
Nothing in the Contract 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 without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third party rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
21.1 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; or
(b) sent by fax to its main fax number.
21.2 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, at 9.00 am on the next Business Day after transmission.
21.3 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. For the purposes of this clause, “writing” shall not include email.
22. Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are 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 arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).