Terms and Conditions Of Business

  1. DEFINITIONS AND INTERPRETATION
    1. In these terms and conditions, unless the context otherwise requires, the following expressions shall have the following meanings:
      Administration Services
      means any works carried out to a solution which doesn't effect the solutions functionality, eg content changes. which is supplied at half contract rate
      Acceptance Tests Specification
      means a document detailing the Acceptance Tests
      Acceptance Tests
      means those tests which are contemplated by the Acceptance Tests Specification
      Acceptance
      means acceptance by the Client of the Solution
      Availability
      means the amount of time in any calendar month that the Solution is available for normal operation
      Availability Target
      means Availability of 99.5%
      Bug
      means a material defect with the functionality of the solution
      Business Day
      means Monday to Friday, bank holidays and weekends excluded
      Browser Manufacturers
      refers to Internet Explorer, Firefox, Chrome and Safari (OSX Windows) web browsers
      Charges
      means the charges detailed in the Estimate
      Client
      means the party detailed in the Estimate
      Contract Hourly Rate
      means £65 per hour, which from time to time, function28 shall reserve the right to increase on thirty (30) days notice
      Contract
      means a contract entered into pursuant to these terms and conditions, as evidenced by: (i) the existence of a signed Estimate (ii) a purchase order or sales order which may or may not reference the Estimate, signed or unsigned; (iii) the parties general course of dealing (iiii) the parties written consent in email or by fax
      Creative Services
      means the creative services detailed in the Estimate
      Current Browsers
      means the latest release of browser as laid out in Browser Manufacturers
       
      Design Brief
      means the documents detailing the design requirements for the Digital Artwork
      Development Services
      means the software or website development services detailed in the Estimate
      Digital Artwork
      means the digital artwork created by function28 pursuant to the Creative Services
      Equipment
      means the equipment detailed in the Estimate
      Estimate
      means the document evidencing the Contract, in particular, details of what is being supplied, the Charges and Payment Terms
      Expenses
      means all travel, accommodation and sustenance expenses incurred in the performance of the Contract
      Functionality
      means the elements which make up the solution
      Final Proof
      means the final proof of the Digital Artwork or Hardcopy Artwork
      Force Majeure Event
      means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of electronic systems, damage to or failure of any third party's computer equipment, software, connectivity, network or telecommunications systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations
      Function28
      means Function28 Limited (Company Registration: 7819199) Unit 1a duflord Business Park, Broad Road, Dulford, EX15 2DY
      Hosting Services
      means the hosting services detailed in the Estimate
      Intellectual Property Rights
      means copyright, database right, patents, registered and unregistered design rights, registered and unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same
      Normal Working Hours
      means 9:00am till 5:30pm on any Business Day
      Other Service
      means the consultancy services detailed in the Estimate
      Payment Terms
      means the terms for payment of the Charges under the Contract, as detailed in the Estimate
      Solution Description
      means the documents detailing the Solution, which may comprise a "Functional Specification" and/or "Information Architecture" document
      Solution
      means the solution detailed in the Estimate or Solution Description
      Support Request
      means the act of registering with function28 a bug with the functionality of the solution
      Support Services
      means the term of 1 year from solution acceptance
      Support
      means bug fix
      Term
      means the period of time detailed in the Estimate
      Third Party Material
      means all materials belonging to parties other than function28 or the Client
      Us
      means Function28
      We
      means Function28
    2. In these terms and conditions
      1. any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time
      2. references to any gender includes any other gender and the singular includes the plural and vice versa
      3. the headings are for ease of reference only and shall not affect the construction or interpretation
  2. SCOPE
    1. The parties shall from time to time enter into Contracts each of which shall constitute separate contractual agreements
    2. Each Contract shall be governed by the terms and conditions set out in the Contract
    3. The terms and conditions set out in section 2-24 shall apply to every Contract
    4. If the Contract encompasses the supply of :-
      1. Development Services, the additional terms and conditions set out in the Development Services schedule of these terms and conditions shall also apply.
      2. Hosting Services, the additional terms and conditions set out in the Hosting Services schedule of these terms and conditions shall also apply
      3. Support Services, the additional terms and conditions set out in the Support Services schedule of these terms and conditions shall also apply
      4. Equipment, the additional terms and conditions set out in the Equipment schedule of these terms and conditions shall also apply
      5. Creative Services, the additional terms and conditions set out in the Creative Services schedule of these terms and conditions shall also apply
      6. Administration Services, the additional terms and conditions set out in the Administration Services schedule of these terms and conditions shall also apply.
      7. Other Services, the additional terms and conditions set out in the Other Services schedule of these terms and conditions shall also apply
    5. If there is any conflict between the provisions of section 2 through 24 and those of section 8 through 20, the provisions of sections 2 through 24 shall prevail
  3. PERFORMANCE
    1. Unless otherwise specified in these terms and conditions
      1. time for performance of the Contract shall not be of the essence, which shall not be made so by the service of any notice
      2. the Contract shall be performed during Normal Working Hours
  4. CLIENT CO-OPERATION
    1. Function28 and the Client shall each appoint a project manager who is conversant with all aspects of the Contract and reasonably able to deal with all matters of a technical nature, arranging and conducting progress meetings
    2. The Client shall co-operate with Function28 in
      1. it's performance of the Contract; and
      2. the provision of all information and documentation including any materials belonging to the Client, reasonably requested by Function28 to enable Function28 to perform the Contract
  5. INTELLECTUAL PROPERTY RIGHTS
    1. Unless otherwise provided for in Sections 2 through 24 of the Contract, all Intellectual Property Rights created or arising under the Contract shall vest absolutely in Function28
  6. CHARGES
    1. Unless the Charges are specified in the Estimate as being fixed, they shall be treated as an estimate only. The actual Charges shall be calculated on a time and materials basis with reference to the Contract Hourly Rate and any other hourly or daily rates which are referenced in the Estimate
    2. The Charges shall be no less than the Charges which are specified in the Estimate. Invoices shall be raised and Charges paid in accordance with the Payment Terms
    3. In the absence of any Payment Terms, Function28 shall issue invoices for payment of the Charges with 50% due on commencement of the project, a further 25% at an agreed stage equal to 75% of the project being complete and the remainder upon the agreed completion date of the Contract. Such invoices shall be payable by the Client within thirty (30) days of the date of invoice.
    4. If any payments remain unpaid after such time as agreed pursuamt to item 3 above for a period of 14 days, Function28 will instruct Debt Collection agencies to persue the payment, the client will be liable for all costs associates with such collection matters.
    5. Time for payment of the Charges shall be of the essence
    6. No payment shall be deemed to have been received until Function28 has received cleared funds
    7. All payments payable to Function28 under the Contract shall become due immediately on its termination despite any other provision
    8. The Client shall make all payments due under the Contract, in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Function28 to the Client
    9. If the Client fails to pay Function28 any sum due pursuant to this condition 6, the Client shall be liable to pay interest to Function28 on such sum from the due date for payment at the annual rate of 4% above the Bank of England base rate from time to time of the , accruing on a daily basis until payment is made, whether before or after any judgment
    10. The Charges are exclusive of any Expenses, value added tax, import or export duties, which the Client shall pay in addition to the Charges
    11. Function28 reservse's the right to charge a fixed fee of £25 for each written or verbal notice for payment which the Client has failed to pay based on the contact terms
  7. GENERAL WARRANTIES & LIMITATIONS
    1. Each party warrants to the other that in relation to the Contract
      1. each has unrestricted rights to or under, all Intellectual Property Rights in any materials or components utilised or acted appropetly under licence
      2. each is entitled to use all know-how and confidential information necessary to enable it to fully and effectively perform any obligations
      3. where appropriate, each has complied with and shall continue to comply with all of its obligations (including but not limited to the payment of royalties) to any proprietors of third party Intellectual Property Rights
    2. Each party shall indemnify the other for any losses incurred as a result of any judgement brought against the other by reason of any breach of condition 7.1 above
    3. All warranties provided under the Contract by Function28, whether by statute, common law or otherwise, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care, shall not apply
      1. in respect of any defect arising from the Client's wilful damage, negligence, usage in abnormal working conditions, failure to follow Function28's instructions (whether oral or in writing), misuse of, alteration or repair without Functions28's prior written approval
      2. if any of the Charges are outstanding
  8. LIABILITY
    1. The following provisions set out the entire financial liability of function28 (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
      1. any breach of these terms and conditions
      2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
    2. Nothing in these terms and conditions excludes or limits the liability of function28
      1. for death or personal injury caused by function28's negligence
      2. for any matter which it would be illegal for function28 to exclude or attempt to exclude its liability
      3. for fraud or fraudulent misrepresentation
    3. Subject to condition 8.1 and condition 8.2, in respect of each Contract
      1. function28's total liability for any claim in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract ("Claim") shall be limited to the Charges paid to function28 in the twelve (12) months preceding the date of the Claim.
      2. function28 shall not be liable to the Client for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
  9. EARLY TERMINATION
    1. Notwithstanding anything else contained herein, the Contract may be terminated by function28 with immediate effect if the Client:-
      1. is in material breach of the Contract and the breach is not capable of remedy; or
      2. is in material breach of the Contract and the breach is capable of remedy and that other party shall have failed to remedy that breach within thirty (30) days of notice, specifying the breach and requiring its remedy; or
      3. shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
  10. CONSEQUENCES OF TERMINATION
    1. Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
    2. Condition 10.1 above, and any condition which is stipulated to do so, shall survive termination of the Contract
  11. DISPUTE RESOLUTION
    1. In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non payment of the Charges, for whatever reason), the parties shall attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
    2. each party will be expected to make resonable effort in arranging an approprate stage for the discussion in 11.1 in regards to:-
      1. discussion locations
      2. discussion style; in person or conference call
      3. discussion times
    3. If the parties are unable to resolve such dispute or difference within fifteen (14) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (28) days of the written request to do so.
    4. If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 11.3 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the Centre for Dispute Resolution ("CEDR") in writing to appoint an independent expert.
    5. If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:
      1. acts as an expert and not an arbitrator;
      2. affords the parties the opportunity within reasonable time limits to make representations to the CEDR;
      3. informs each party of the representations of the other;
      4. affords each party the opportunity within reasonable time limits to make submissions to CEDR on the representations of the other; and
      5. notifies the parties of the CEDR decision, with reasons as quickly as practicable.
    6. The fees and expenses of the expert including the cost of the nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.
    7. The expert determination is to be conclusive and binding on the parties except where there is fraud or a manifest error or on a matter of law.
  12. FORCE MAJEURE
    1. If a party (the "Affected Party") is prevented, hindered or delayed from or in performing any of its obligations under the Contract by a Force Majeure Event:
      1. the Affected Party's obligations under the Contract are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed;
      2. as soon as reasonably possible after the start of the Force Majeure Event, the Affected Party shall notify the other party (the "Non-Affected Party") in writing of the Force Majeure Event, the date on which the Force Majeure Event started and the effects of the Force Majeure Event on its ability to perform its obligations under the Contract.
    2. If the Affected Party does not comply with condition 12.1.2 it forfeits its rights under condition 12.1.1.
    3. The Affected Party shall:
      1. make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under the Contract; and
      2. as soon as reasonably possible after the Force Majeure Event, the Affected Party shall notify the other party in writing that the Force Majeure Event has ended and resume performance of its obligations under the Contract.
    4. If the Force Majeure Event continues for more than three (3) months starting on the day the Force Majeure Event starts, function28 may terminate the Contract by giving not less than thirty (30) days' notice in writing to the Client.
  13. CONFIDENTIALITY AND SECURITY
    1. Each party shall treat as confidential all information obtained from the other pursuant to the Contract and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Contract, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this condition 13) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this condition 13.
    2. If function28 shall appoint any sub-contractor then function28 may disclose confidential information to such sub-contractor subject to such sub-contractor giving the Client an undertaking in similar terms to the provisions of this condition 13. The foregoing obligations as to confidentiality shall survive any termination of the Contract.
  14. ASSIGNMENT AND SUB-CONTRACTING
    1. The Client shall not assign or deal in any way with all or any part of the benefit of, or its rights or benefits under the Contract without the prior written consent of function28.
    2. function28 shall have the right to sub-contract the performance of the Contract to any third party.
  15. RECRUITMENT OF PERSONNEL
    1. The Client shall not during the continuance of the Contract and for a period of eighteen (18) months thereafter, solicit or procure the services of any employee of function28. Without prior written permission from function28
  16. NOTICES
    1. Any notice given by one party to the other under the Contract must be in writing and may be delivered personally or by pre-paid first class post and in the case of post will be deemed to have been given two (2) days after the date of posting. Notices shall be delivered or sent to the registered office addresses of function28 or the Client or to any other address notified in writing by one party to the other for the purpose of receiving notices after the date of the Contract. Each party may specify by notice to the other a particular individual or office holder to whom any notices served on it are to be addressed, in which case a notice shall not be validly given unless so addressed.
  17. FURTHER ASSURANCE
    1. Either party shall at the request and cost of the other do or procure the doing of all such further acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary to give full effect to the Contract.
  18. SEVERANCE
    1. If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract which shall remain in full force and effect.
    2. If any provision of the Contract is so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
  19. THIRD PARTIES
    1. A person who is not party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
  20. COSTS
    1. Each party shall bear its own costs and expenses incurred in relation to the negotiation, preparation, execution and implementation of the Contract and all other documents to be completed in accordance with its provisions.
  21. NO PARTNERSHIP OR AGENCY
    1. Nothing in the Contract is intended to create a partnership or joint venture or legal relationship of any kind that would impose liability upon one party for the act or failure to act of the other party between the parties, or to authorise either party to act as agent for the other. Save where expressly stated in the Contract, neither party shall have authority to make representations, act in the name or on behalf of or otherwise to bind the other.
  22. WAIVER AND CUMULATIVE REMEDIES
    1. The rights and remedies provided by the Contract may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by either party shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of the Contract or of a default under the Contract shall not constitute a waiver of any other breach or default and shall not affect the other terms of the Contract.
    2. The rights and remedies provided by the Contract are cumulative and (unless otherwise provided in the Contract) are not exclusive of any rights or remedies provided at law or in equity.
  23. ENTIRE AGREEMENT
    1. The Contract, together with the documents referred to in it, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it and supersedes any previous agreement between the parties relating to such matters.
    2. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in the Contract. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of the Contract.
    3. Nothing in this condition 22 shall operate to exclude any liability for fraud.
  24. GOVERNING LAW AND JURISDICTION
    1. The Contract and any matter arising from or in connection with it shall be governed by and construed in accordance with English law.
    2. Each party irrevocably agrees to submit to the non-exclusive jurisdiction of the English courts over any claim or matter arising from or in connection with the Contract.