Terms of Business Key to our meanings


SECTION A – GENERAL TERMS AND CONDITIONS
We always strive to fulfil your needs and meet your goals, however, it is best to have a few simple things written down so that we all know where the goalposts are, who should do what and what happens if anything doesn’t go according to plan. 

Your Responsibilities
As our customer, you have the power and ability to enter into this contract on behalf of your organisation. You agree to provide us with everything we need to complete the project including text, images and other information as and when we need it within a reasonable period, and in the format that we ask for. You agree to review our work, provide feedback and sign-off approval in a timely manner too. 

Our Responsibilities
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavour to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you or any third parties have been late in supplying materials or have not approved or signed off our work on time at any stage. 
In addition, we will provide weekly updates to your designated project manager reviewing activity that has happened in the current week, activity that is about to happen in the following week and any upcoming requirements we will need from you or third parties. We will also maintain the confidentiality of any information that you give us.

Design
We will create designs for the layout, functionality and look-and-feel of your website. This contract includes one main design plus the opportunity for you to make up to two rounds of revisions, without incurring any further cost. Beyond two revisions, additional charges will be incurred at our standard hourly rate.

Change Control
The prices in this document are based on the number of hours that we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, your changes will be reviewed separately for impact on the overall specification, project times and costs. Once approved, the changes are then appended to the original specification and charges for extra time reviewed accordingly at our standard hourly rate. Any additional changes will be carried out as a priority after the original signed specification project has been completed. 

THE LEGAL BIT

1.    Contract Period    

1.1.    This agreement shall commence on the date set out on in this agreement and continue until You have accepted the Website delivered by Us, or until earlier termination as provided for under the terms and conditions of this Agreement.

2.    Fees and Additional Costs   

2.1.    The Fees cover the costs of those activities expressly set out in this agreement and expenses related thereto.    We reserve the right to charge on a time and materials basis for any other work or services requested by you in addition to the work set out in the Services, and in respect of all work carried out by Us prior to termination of this agreement by either You or Us.  

2.2.    You agree that unless otherwise agreed, all invoices become due and payable on 14 days

2.3.    All prices are quoted exclusive of VAT.

2.4.    All Fees are payable in accordance with the payment schedule in this agreement.

2.5.    You specifically agree that any initial payments made by You are non-refundable in event of termination of this Agreement. Except when terminated under clause 11.1.2 in which case the balance of unused funds will be refundable at a rate of £70 per hour plus any out of pocket expenses.

2.6.    In the event that you materially delay delivery to Us of the Materials (as defined in clause 5.1), or sign off, of a particular milestone so that we are prevented from progressing development, We reserve the right to invoice You for the outstanding balance amount of the Fees, which will become due and payable on receipt. For clarity if You have notified us of a breach under the terms on 11.1.2 You may reasonably delay Us until the brach has been remedied.

2.7.    In the event that You request Us to provide extra functionality or amend the look and feel of the Website (“Additional Services”) outside of the agreed Services to be provided by Us, then We reserve the right to charge for such Additional Services at our normal hourly time and materials charges, as detailed in Section C (“The Fees”).

2.8.    We will not commence work on the project, until payment in respect of the initial invoice has been received as cleared funds.

2.9.    We will not release any work to you or set any site live, until all outstanding payments have been paid to us in accordance with the contract.

3.    Further Obligations    

3.1.    The parties shall co-operate in good faith with each other in the provision and acceptance of the Services and shall report to each other any suspected faults in the Services which either party may become aware of as soon as such suspected faults come to such party’s attention. You shall be deemed to have accepted the Website 30 days after delivery of the Website to You or at a point where no further bugs have been identified within period of testing.

3.2.    You shall not use the Services or any domain or user name as to impersonate any other entity or to infringe the rights of any other person, whether statutory or common law, in a trademark or name.

3.3.    We shall use our reasonable endeavours to provide the Services within the timescales which, may be agreed between us.  
3.4.    In the event that You require Us to integrate any third party item or service, then You undertake to ensure that the third party will provide such input and assistance as is necessary to enable us to perform our obligations under this Agreement in a timely manner. You agree that any failure on behalf of the third party to do so will be a Force Majeure Event.

4.    Credit and Publicity         
4.1.    You will have prior approval (not to be unreasonably withheld or delayed) of all publicity material produced by Us, which uses any of Your trademarks or logos and, subject to such approval, consent to such use.  We will have prior approval of all publicity material produced by You relating to the Service, which such publicity material uses any of Our marks or logos, and, subject to such approval, consent to such use.  Approval will be deemed to have been given by the relevant party if a request is supplied with a copy of the relevant material and the approving party does not object within 7 days.

5.    Warranties    
5.1.    You warrant and undertake that any items made available to Us for the purposes of performing this agreement (the “Materials”) shall not infringe the intellectual or like proprietary rights (together "IPRs") of any third party. To the extent that the storage, reproduction, broadcast or transmission of the Material or any messages or other communications to/from the website shall entitle third parties (including without limitation collecting societies such as Performing Right Society and the Mechanical Copyright Protection Society, and their equivalents in any part of the world) to any payments in relation to such storage, reproduction or transmission, such payments shall, as between You and Us, be borne by You.

5.2.    We also warrant that the Work will be provided with all due reasonable care and skill and in a professional and timely manner.  Notwithstanding this, You acknowledge and agree that it is technically impossible to provide the Services free of faults and that We do not undertake to do so, save that the Website shall materially function in accordance with the functional specification.

5.3.    Except as set out expressly in this agreement, We make no representations, terms, conditions or warranties either express or implied, by statute or otherwise, in relation to the Works or the provision of the Services (or any other service provided under this agreement), including but not limited to implied warranties, conditions or other terms of completeness, accuracy, satisfactory quality and fitness for a particular purpose and that all such representations, terms, conditions and warranties are expressly excluded.

5.4.   We will repair any defects in the website identified within a thirty-day warranty period from the date you have approved the deployment of the site to the production servers (“approved to go live”). A defect is defined as the website behaving in a way that is contrary to the specification in one or more of the browsers listed in the section “Web Browser Compatibility”.   Note the same warranty will be offered to future scoped work and 2J Design will reserve the right to assign a resource to resolve defects within your warranty period.  2J Commerce would reserve the right to allocate resource outside of standard working hours for critical site failures at no additional cost where the issues fall within the warranty period and are related to the work specified as being in scope. 

6.    Exclusion and Limitations         
6.1.    You agree that We (save as provided by clause 9.1), shall not be liable in contract, tort, negligence, statutory duty or otherwise for either (i) any indirect, consequential or special loss or damage, or any loss of profit, business or goodwill, whatever arising from or in connection with this agreement, or (ii) direct loss or damage over the value of this agreement.

6.2.    Nothing in the agreement shall exclude:

6.2.1.    either party’s liability for death or personal injury arising from that party’s negligence or that its servants, agents or employees acting in the course of their duties; or
6.2.2.    any other liability which it is prohibited by law.

7.    Data Protection

7.1.    You hereby warrant and undertake that, as regards any Personal Data as defined in the Data Protection Act 1998 ("the Act") which is or is to be stored or processed or dealt with in any way hereunder, You are and will continue to be the data controller (as defined in the Act) in respect of such Personal Data. And You shall maintain notification in respect of the same under the Act and will at all times comply with the provisions of the Act insofar as they concern such data and the proper performance by Us of our obligations thereunder or of any additional services which We may provide at Your request shall not result in any offence being committed or liability arising to Us under the Act.  

8.    Intellectual Property Rights

8.1.    You shall grant Us for the term of this agreement a royalty free licence to use, copy, modify, publish and otherwise deal with the Materials in the manner contemplated by this agreement.

8.2.    We acknowledge that all IPRs in the Materials will remain Your property. Save to the extent of Our Assets or the subject matter of third party licences, all IPRs in the Works shall vest in You upon Our receipt of all payments due, payable under this agreement, final acceptance of the website by You.

8.3.    Any IPR from the third party scripts or artwork used by Us in the production of the website will be detailed at the end of the project under schedule D. 
8.4.    Any 2J Design modules used in the construction of your website remain our property but we irrevocably assign the ongoing royalty free licence to you or any future owner as long as the site is in use. However, if the site is no longer managed by Us support for these modules will chargeable at our standard hourly rate.  

8.5.    If any third party software is used in the provision of the Services, then each party will be responsible for ensuring that they have a licence to use such third party software as envisaged by this agreement.

8.6.    Save as provided above the IPRs in the Materials will remain Your property.

9.    Indemnity

9.1.    We shall indemnify and keep You fully and effectively indemnified from and against all liabilities, costs and expenses (including reasonable legal costs and expenses) which is awarded against You by a Court of competent jurisdiction resulting from any claims or allegations brought by a third party that Our provision of the Services and the Works under this agreement infringes the IPRs of such third party: provided always that; (i) You give Us prompt notice of any such claim or allegation; and (ii) You make no admissions or statements in relation to any such claim or allegation and (iii) You grant Us control of the negotiations and/or settlement of any such claim or allegation and provide us with all reasonable assistance we may request of You in relation to such negotiation or settlement. 
9.2.    You shall indemnify and keep Us fully and effectively indemnified from and against all liabilities, costs and expenses (including reasonable legal costs and expenses) which is awarded against Us by a Court of competent jurisdiction resulting from any claims or allegations brought by a third party that  Our use of the Materials under this agreement infringes the IPRs of such third party: provided always that; (i) You give Us prompt notice of any such claim or allegation; and (ii) You make no admissions or statements in relation to any such claim or allegation and (iii) You grant Us control of the negotiations and/or settlement of any such claim or allegation and provide us with all reasonable assistance we may request of You in relation to such negotiation or settlement. 

10.    Suspension and Termination by Us

10.1.    Without prejudice to any of Our other rights, We shall have the right to immediately terminate this agreement and/or suspend or restrict the Services if:

10.1.1.    You are suspected in Our reasonable opinion, of involvement with fraud or attempted fraud or any other criminal offence in connection with the use of the Services; or

10.1.2.    You commit any breach of this agreement which would be notified by US and, if it is capable of being remedied, fail to remedy such breach within 30 days from the date of the first written notice specifying the nature of the breach; or

10.1.3.    You become insolvent, cease to trade (or in a reasonable opinion of Us are likely to cease to trade) or have a liquidator, receiver, administrator or administrative receiver appointed or enter into any arrangement with You creditors or are wound up otherwise that for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of Your obligations, or are unable to pay Your debts as they fall due within the meaning of section 123 of the Insolvency Act 1986, or are made bankrupt, or undergo a similar or analogues event in any jurisdiction; and We shall not be liable for any losses incurred by You as a result of such suspension, termination or restriction.

11.    Termination by You

11.1.    Without prejudice to any of Your other rights, You shall have the right to immediately terminate this agreement if:

11.1.1.    We are involved with fraud or attempted fraud or any other criminal offence; or

11.1.2.    We commit any breach of this agreement which would be notified by You and, if it is capable of being remedied, fail to remedy such breach within 30 days from the date of the first written notice specifying the nature of the breach;

11.1.3.    We become insolvent, cease to trade (or in the reasonable opinion of You are likely to cease to trade) or have a liquidator, receiver, administrator or administrative receiver appointed or enter into any arrangement with Our creditors or are wound up otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of Our obligations, or are unable to pay Our debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or are made bankrupt or undergo a similar analogous event in any jurisdiction; and You shall not be liable for any losses incurred by Us as a result of such termination.

12.    Post Termination

12.1.    After expiry or termination of this agreement for any reason:

12.1.1.    Each party will on request by the other return or supply to the other all documents, disks and other material in its possession containing any confidential information of or copyright material of the other.  We will (at Your option) either destroy or return the Materials;

12.1.2.    Should You require post termination the works carried out under this agreement be transferred for your full control we will allow a budget of 5 days at £560 per day to carry this out. Should additional time be required this will be charged at our rate card rate, which is published 1st April each year. For clarity post-termination works are optional.

13.    Force Majeure
Neither party shall be liable for any breach of its obligations hereunder (other than the obligations to or pay money) and no right of termination shall arise where the breach results from causes beyond its control and the party concerned has acted and continues to act reasonably and prudently to prevent and to minimise the effect of such causes (a “Force Majeure Event”).

14.    Confidentiality

14.1.    Each party will at all times keep confidential and will not disclose without prior written consent of the other any business, systems or other confidential information of the other party or use any such information other than for the purposes contemplated by this agreement (except that each party may disclose such information to those of its employees, agents and sub-contractors who need to know the same for such purpose and under conditions of confidentiality non-disclosure and non-use equivalent to those imposed on the parties by this clause).  

14.2.    These obligations of confidentiality non-disclosure and non-use do not apply to any information which is publicly available through no fault of the party disclosing or using information, or which was known to that party before receipt from the other party, or received from other source without obligation as to confidentiality, or which is required to be disclosed by law or regulating authority.

15.    Entire Agreement

15.1.    Neither of us has entered into this agreement on the basis of, or has relied on, any statement or representation (whether negligent or innocent) except those expressly contained in this agreement.  This paragraph shall not apply to any statement or representation made fraudulently.

15.2.    This agreement constitutes the entire understanding between the parties concerning the supply and use of the Services, and replaces, supersedes, and cancels all previous arrangements, understanding, representations or agreements relating thereto.  These terms shall apply and prevail over any terms and conditions (whether conflicting or not) contained or referred to in any documentation submitted or provided by You or Us.

16.    No Partnership
Nothing in this agreement shall create a partnership or joint venture between the parties and except as expressly provided in this agreement, no party shall enter into or have authority to enter into any engagement or to make any representation or warranty on behalf of or to pledge the credit of or otherwise to bind or oblige the other party.

17.    Third Party Rights  
A person who is not a party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person, which exists or is available otherwise than pursuant to that Act.

18.    Notices
Any notices required to be given, under this agreement shall be in writing and shall be sent by first class registered post, recorded airmail, email, fax or by hand, at the address specified in this agreement.

19.    Applicable Law
The construction, validity and performance of this agreement shall be governed by the laws of England and Wales and this agreement shall be subjected to the exclusive jurisdiction of the English courts.

20.    Guarantees
We can't guarantee that the functions contained in any web page templates or in a completed website will always be error-free especially when there will be a number of third party extensions on the website and so we can't be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this web site and any other web pages, even if you have advised us of the possibilities of such damages.

21.    PCI Compliance
Magento includes the secure payment bridge, which a PA-DSS certified application. The payment bridge acts as a separate module accepts tokenized credit card data from the Magento checkout process and speaks directly with the payment processor. Once the payment has been verified, the tokenized data is passed back to Magento to finalize the transaction. Through use of the payment bridge, along with a secure hosting environment and internal processes, a merchant can achieve full PCI compliance.

22.    Changes to this agreement
Any changes to this agreement shall be made in writing executed by the parties’ duly authorised representatives.

23.    Acceptance testing

23.1.    Immediately after the delivery of the Deliverables for User Acceptance Testing (“UAT”), You shall carry out such UAT as necessary to establish that the Deliverables are satisfactory in all respects.  
23.2.    As part of the UAT You shall be entitled to process on the Website such data which in the reasonable opinion of You is suitable to test whether the Deliverables meet the Specifications, to include functionality, ease of uses and users tests. If required by You, We shall provide all assistance reasonably requested by the Client to carry out such UAT at our standard hourly rate.
 
23.3.    If, when the UAT is carried out You are not satisfied that the Specification have been fulfilled, We shall promptly take all such action as is reasonably necessary to ensure that the Specification is fulfilled as soon as reasonably possible.  We shall advise You when such action has been completed and the parties shall ensure that the relevant tests are then repeated.
23.4.    If, when any test are repeated, You are still not satisfied that the Specification has been fulfilled, You may (without prejudice to Your other rights and remedies) at Your option fix a new date for carrying out further UATon the same terms and conditions as set out in this clause 23 (in which case the provisions of this clause shall apply mutatis mutandis).

24.    If such a retest demonstrates that the functionality for the Site is still not in accordance with the Specification, You may, by written notice to Us, elect at your sole option:
 
24.1.    to fix (without prejudice to its other rights and remedies) a new date for carrying out further tests on the Site on the same terms and conditions as the re-test (except that all reasonable costs which You may incur as a result of carrying out such tests shall be credited by Us). If the Site fails such further tests, the Client shall be entitled to proceed under clause 24.2;

or

24.2.    to accept the Site subject to an abatement of the charges set out in Section C “The Fees” such abatement to be an amount that is reasonable, taking into account the circumstances