Terms of Business

The Terms of Business set out in this document will apply to any services that Treat Digital Limited (“Treat Digital” or “we”) and/or its subcontractors provides to you, the entity who is contracting us to provide such services. Each Schedule, signed by you and Treat Digital identifies the specific services which you have ordered from Treat Digital and additional terms applicable to the ordered services. Each order requesting services shall be treated as an offer by you to buy the services from Treat Digital subject to these Terms of Business and the provisions of the applicable Schedule. No order shall be deemed accepted by Treat Digital until the Schedule is signed by Treat Digital or (if earlier) we commence to provide the Services. Each signed Schedule together with these Terms of Business shall form a new and separate contract between you and Treat Digital for the Services described in that Schedule (the “Contract”). Each of us warrants that it has legal capacity and authority to enter into each Contract. If at any time you have any questions in connection with the Contract or our work, please let us know.

1 The Services we will provide

1.1 Services – We will provide, or procure the provision of, the services described in the Schedule and prepare the Deliverables, if any, (collectively called the “Services”). We will use reasonable skill and care to assist you with your project but you will be responsible for the selection of the Services and the results to be achieved from using the Services.

1.2 Deliverables – We will prepare the Deliverables listed or referred to in the Schedule, if any, and deliver these to you.

1.3 Our staff – We will use our reasonable efforts to ensure that any named individual(s) are available to support our work for you for the period indicated to you. We may at any time replace anyone allocated by us to the Services but we will give you reasonable notice, wherever practical, of the change and will provide you with details of replacement staff.

1.4 Timetable – We will use our reasonable efforts to carry out the Services in accordance with any timetable referred to in the Schedule or otherwise specified by you or us. However, all dates relating to performance of the Services, including dates contained in any timetable or project plan, are estimates only.

1.5 Location – The Services will be performed at our offices unless specified otherwise in the Schedule.

1.6 Changes to Services – Either of us may request changes to the Services or changes to any other aspect of the Contract. Requests for changes must be supported by sufficient detail to enable the other party to assess the impact of the requested change on the cost, timetable and any other relevant aspect of the Contract. Both of us agree to work together to consider and, if appropriate, agree any changes. Until a change is agreed in writing in accordance with Clause 8.5 both of us will continue to act in accordance with the latest agreed version of the Contract.

1.7 Project management – Each of us will name an authorised representative who will be responsible for managing issues relating to the day-to-day performance of the Contract, including meeting at regular intervals to discuss and minute the progress of the Services.

1.8 Acceptance – The Deliverables will be accepted by you when the acceptance criteria described in the Schedule, if any, have been met or when you first make any productive use of the Deliverables, whichever occurs first. Where no criteria are specified the Deliverables will be deemed accepted by you ten days after delivery to you if we do not receive written notice of your objections before the expiry of such period.

2. Intellectual Property Rights

2.1 For the purposes of the Contract “Materials” means marketing material, data, text, audio files, video files, graphics and other materials provided by you under the Contract, but excluding the Treat Digital Materials; “Treat Digital Materials” means all professional advice, creative web applications and other works of authorship and results of the Services that are developed and delivered by us to you pursuant to the Contract. Such Treat Digital Materials shall be provided in a format acceptable to both parties.

2.2 Ownership – The results of the Services shall consist of, and shall operate in conjunction with, multiple elements of intellectual property. The parties’ respective rights to such elements shall be as set forth below. For purposes of the Contract, the term “ownership” shall refer to ownership of all intellectual property rights and other proprietary rights of any kind existing now or in the future including, but not limited to, all patent, copyright, trade secret, database and trademark rights, as applicable, with respect to the subject intellectual property.

 

2.3 Licence to you – Subject to payment of all fees and expenses due to us for the Services and acceptance of the Treat Digital Materials and other Deliverables where applicable we grant you a non-exclusive, non-transferable licence to use the Treat Digital Materials. You may grant a sublicense to a third party that you engage to use the Treat Digital Materials, provided that such third party agrees in writing to be bound by the terms of this licence and the confidentiality restrictions set forth in this Contract. You are prohibited from copying and/or distributing any Treat Digital Materials without our prior written consent. All rights relating to the Treat Digital Materials not expressly granted to you under the licence in this Clause 2.2 are reserved to us.

2.4 Licence to us – You hereby grant us and our subcontractors a non-exclusive licence (i) to use, copy, and modify the Materials in connection with our performance of the Services, (ii) to use, copy, modify, distribute and display webite usage data and statistics generated by the Treat Digital Software.

2.5 Freedom to use ideasTreat Digital will not be prevented or restricted by the Contract from using for any purpose it considers appropriate any ideas, concepts or know-how, including development techniques and skills, gained or arising from the provision of the Services.

2.6 Staff – Except as otherwise agreed from time to time, neither of us will, during the period of the Contract or within 6 months of its termination or expiry, solicit directly or indirectly any employees of the other who within 6 months of such action have been involved in providing or receiving the Services or otherwise connected with the Contract. This will not restrict either of us from employing staff who apply unsolicited in response to a general advertising or other general recruitment campaign.

3 Your Responsibilities

3.1 In general – Our performance of the Services is dependent on you carrying out in a timely manner your responsibilities as set out in these Terms of Business and in the Schedule.

3.2 Support facilities – You agree to provide us and our staff promptly and without charge with all office and other accommodation and facilities that we may reasonably require to perform the Services whilst working on premises other than our own premises, in particular secretarial support, access to telephone, fax and modem communications and computer facilities.

You will be responsible for ensuring that you have appropriate back-up, security and virus-checking procedures in place for any computer facilities you provide. We agree to comply with your reasonable security procedures whilst working on your premises which you notify to us in writing.

3.3 Information and materials – You will ensure that each order placed for the Services and any applicable specification is complete and accurate. You shall provide promptly all information and materials reasonably required to enable us to provide the Services and comply with all reasonable instructions of Treat Digital and its sub contractors. We will not be liable for any loss, damage or expense arising from your failure or delay in supplying or our reliance on any information or materials supplied by you or for any inaccuracy, incompleteness or other deficiency in any information or materials supplied by you.

3.4 Your staff – You will ensure that your staff are available to promptly provide assistance, decisions and approvals as reasonably required to enable us to provide the Services. Where specific members of your staff are required this will be agreed between us. You will be responsible for ensuring that your staff have the appropriate skills and experience. In the event that any of your staff fail to perform as required we may request that additional or alternative staff are made available.

3.5 Suppliers and other third parties – Where you are using third parties to provide information or support to the project, including where you are employing other suppliers whose work may affect our ability to provide the Services, you will be responsible for the management of those third parties and the quality of their input and work, unless specifically agreed otherwise in writing by us.

3.6 Payment for services – You agree to pay for the Services as set out in the Schedule and in Clause 4 below.

3.7 Compliance with laws – You hereby undertake to

(a) not use or permit others to use the Services for any improper, immoral, fraudulent or unlawful purposes or process or permit others to process material which is offensive, obscene, pornographic, defamatory, menacing or which may (in our judgement) cause annoyance or anxiety to any person or bring Treat Digital, its sub contractors, suppliers or the Services into disrepute, or process or permit others to process any message or virus which causes or is likely to cause harm to Treat Digital, its sub contractors, suppliers and other client, or any third parties’ systems, or to transmit any unsolicited advertising material;

(b) comply with all applicable legal and regulatory requirements and any applicable licences relating to the use of the Services and Deliverables;

(c) not use the Services in a way which could cause it to be interrupted, damaged or otherwise impaired or which violates Treat Digital and/or its suppliers rights (including intellectual property rights) or those of any third party (including but not limited to copyright, trade marks, confidence, privacy or other rights); and

(d) be responsible for any content or material processed using the Services.

4 Fees and payment

4.1 How fees will be calculated – Services may be provided on a “Fixed Fee/Price” or a “Time and Materials” fee basis. Each Schedule will state the applicable Fixed Fee/ Price or the applicable fee rates for Time and Materials charging. Where a Schedule does not expressly state which charging basis applies Time and Materials charging will apply.

4.2 Time and materials hours – Where Time and Materials charging applies, charges will be calculated on the basis of the time spent by our staff in connection with performing the Services at their respective rates. We may vary any Time and Materials fee rates by giving you not less than 30 days written notice of the variation. Travel time, other than time spent travelling from a local residence to the normal place of work, will be chargeable as part of the above working hours.

4.3 Fixed fee/price – If we incur extra costs or the scope of the Services is increased by any delay, variation, interruption or suspension of work arising from your default or instructions, we may increase the Fixed Fee/ Price to reflect such extra costs or increased scope and you will pay the increased Fixed Fee/ Price in accordance with the payment plan.

4.4 Fee estimates/quotations – Any estimate given by us of any charge, whether for planning or any other purpose, will be given in good faith but will not be binding or constitute a fixed estimate. Unless specified otherwise in the Schedule, all quotations given by us are valid for a period of 30 days from the date of the quotation, after which the quotation will automatically expire.

4.5 Expenses – All charges are exclusive of expenses unless the Schedule states otherwise. You agree to pay reasonable travel, subsistence and other expenses incurred by or on our behalf in connection with the Services.

4.6 Taxes – Charges, including expenses, and any other amounts due to us under the Contract do not include Value Added Tax or its equivalent and any other tax or duty which, if applicable, will be paid additionally by you. Value Added Tax will be charged at the rate prevailing at the tax point (being the date of the invoice).

4.7 Payment of invoices – For Fixed Fee/ Price charges, invoices will be issued for payment in accordance with the payment plan set out in the Schedule. For Time and Materials charges and expenses, invoices will be issued on a monthly in arrears basis. Unless agreed otherwise all invoices will be paid in Pounds Sterling. All invoices are payable without deduction, offset or withholding, within 14 days of receipt by you. In the event of late payment we reserve the right, without prejudice to any other right or remedy, to suspend the provision of the Services and/or to charge interest on a day to day basis on amounts overdue for a period in excess of 30 days at a rate of 3% above the annual base rate of the National Westminster Bank plc from time to time.

5 Term and Termination

5.1 Duration of contract – The Contract will apply from the Commencement Date stated in the Schedule or where no Commencement Date is specified from the date on which you have authorised us to commence work in respect of the Services. The Contract will continue until all the Services, including any Deliverables, described in the Schedule have been provided unless it is terminated earlier in accordance with the terms set out below.

5.2 Cancellation – Unless stated otherwise in the Schedule the Contract may be terminated by you or us at any time by giving not less than 60 days written notice. Where the Contract is terminated in this way you will pay us for all Services provided up to the termination and for all additional costs reasonably incurred by us and our sub contractors as a result of the early termination of the Services, for example costs relating to sub-contracts. Where the Services have been provided on a Fixed Price basis, if we are unable to agree the fees payable in the event of termination pursuant to this Clause, you will pay us all sums due at the date of termination in accordance with the payment plan set out in the Schedule together with fees on a Time and Materials basis for Services provided during the termination notice period up to the date of termination.

5.3 Termination for breach of contract – The Contract may be terminated by either of us in the event of a material breach by the other of the Contract by serving notice requiring the breach to be remedied within 30 days. If the breach is not remedied within this time the party serving notice will be entitled to serve a further notice terminating the Contract with immediate effect.

5.4 Termination for insolvency – The Contract may be terminated by either of us immediately by written notice in the event that the other party is unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator appointed or calls a meeting of its creditors or ceases for any other reason to carry on business or in the reasonable opinion of the other party any of these events appears likely.

5.5 Consequences of termination – On the termination of the Contract for any reason a) each of us will return to the other any property of the other that it then has in its possession or control; b) all fees and expenses due for the Services properly provided up to date of termination will be due and payable immediately; and c) there will be no refund of any charges or fees. If the Contract is terminated by us under Clauses 5.3 or 5.4 all licences granted to you will automatically terminate on the effective date of termination and you will return or destroy the Treat Digital Materials and all copies.

6 Confidentiality/Data Protection

6.1 Neither of us will disclose to any third party without the prior written consent of the other party any confidential information which is received from the other party for the purposes of providing or receiving the Services which is marked “confidential” or is by its nature clearly confidential. Both of us agree that any confidential information received from the other party shall only be used for the purposes of providing or receiving Services under the Contract or any other related contract between us.

6.2 The restrictions in Clause 6.1 will not apply to any information which:

(i) is or becomes generally available to the public other than as a result of a breach by the recipient of an obligation under this Clause 6; or

(ii) is acquired by the recipient from a third party who owes no obligation of confidence in respect of the information; or

(iii) is or has been independently developed by the recipient.

6.3 Notwithstanding Clause 6.1, each of us will be entitled to disclose confidential information of the other to a third party to the extent that this is required by law, by any court of competent jurisdiction, or by a governmental or regulatory authority. Each of us may also disclose the other’s confidential information to our professional advisers and we may disclose your confidential information to our sub contractors and suppliers.

6.4 Without prejudice to Clauses 6.1, we may mention your name and cite the performance of the Services to our clients and prospective clients in publicity and promotional material, unless you have expressly requested in writing no publicity. We will also have the right to display our name and logo, as well as a link to our web site, on the Client Web Site(s) and to receive credit as the developer of the Client Web Site(s) (collectively called “the Credit”). The Credit shall appear on the home page of the Client Web Site(s) in a position that provides reasonable and appropriate visibility to Treat Digital.

6.5 Each party warrants that they will comply with their obligations under the Data Protection Act 1998 and any other laws and regulations relating to the use, storage or transmission of personal data to the extent they apply to the provision of the Services and the use of the results of the Services.

7 Warranty/Limitation of Liability

7.1 We warrant that a) we will use reasonable skill and care in the provision of the Services, including the preparation of any Deliverables and b) the Treat Digital Software when properly used and maintained will substantially conform to the relevant functional specification referred to in the Schedule. Our sole obligation and your exclusive remedy for any non-conformance with these warranties will be for us to be given the opportunity to re-perform the deficient Service or correct the defective Treat Digital Software at our expense as soon as reasonably practicable or at our election refunding that part of the Fee paid by you for the deficient Service or defective Treat Digital Software if we are of the opinion that such remedial action is not practical or economic, subject to your notifying us of the non-conformance in writing within 60 days of performance of the applicable Services or delivery of the Treat Digital Software as applicable.

7.2 We accept liability to the extent it results from the negligence of us and our employees in the course of their employment for (i) death or personal injury without limit, and (ii) physical damage to or loss of your tangible property up to the amount of £150,000 per claim in respect of each incident or series of connected incidents.

7.3 In all other cases (excluding cases where liability may not by law be excluded or limited) not falling within Clause 7.2 our total liability (whether in contract, negligence or otherwise) under or in connection with the Contract and the provision of the Services under that Contract will not exceed in aggregate at any time in any calendar year 125% of the fees (excluding taxes and expenses) paid by you to us under that Contract in the applicable calendar year.

7.4 All other liability is expressly excluded. We will not be liable, whether in contract, negligence or otherwise, for any indirect, special or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused arising out of performance, non performance or delayed performance of any of our obligations under or in connection with the Contract including without limitation loss of production, loss of profits or of contracts, failure to realise anticipated savings or benefits, loss of goodwill, loss of operation time, loss of or corruption to data and wasted management or staff time, even if we have been advised of their possibility.

7.5 You agree that the express obligations and warranties made by us in the Contract are in lieu of and to the exclusion (to the fullest extent permitted by law) of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to any thing supplied or services provided under or in connection with the Contract including (without limitation) as to the condition, quality, or fitness for purpose of the Services and Deliverables.

7.6 Whilst we shall use reasonable skill and care in the delivery of the Services you acknowledge that:

(a) the delivery of the Services is subject to the inherent technical and operational limitations of the Internet, including, but not limited to, the lack of security and unreliability of its communications, the evolving nature of its organisational, legal and regulatory framework, and the potential inaccuracy and variable standards of its relevant data repositories, such as national domain name registries, and is therefore made without guarantee as to accuracy or completeness for which Treat Digital shall have no liability to you or any third party; and

(b) we shall not be liable for Service interruptions or down time of any computer server equipment operated by us and our sub contractors in connection with the provision of the Services, except to the extent set out in any service level agreement applicable to the Services you have ordered.

7.7 The Services are provided for your exclusive use. We do not accept any liability or obligation towards any third party and except as expressly provided in the Contract a person who is not a party to the Contract shall not have a right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

7.8 You agree to indemnify and keep indemnified and hold Treat Digital, its sub contractors and suppliers, their directors, officers, employees and agents on demand harmless from and against any claim brought against any of them by a third party resulting from the provision of Services to you and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by Treat Digital or them in consequence of your breach or non-observance of the Contract.

8 General

8.1 Assignment/sub-contracting – Your rights and obligations under the Contract are personal to you and you undertake that you shall not nor purport to: assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part. We reserve the right to employ agents and sub-contractors to assist us to provide any part of the Services and to assign the Contract upon notice to you. Any reference to our staff in the Contract includes agents and sub-contractor staff. We will remain responsible to you in respect of any Services provided by our agents or sub-contractor staff.

8.2 Force Majeure – Neither of us will be liable to the other for any failure to perform or delay in performing obligations (other than a payment obligation) caused by circumstances outside its reasonable control. If any such event continues for a period of or exceeding 30 consecutive days, the non-affected party shall have the right to terminate the Contract immediately on written notice to the affected party.

8.3 Waiver – No delay or failure by either one of us to exercise any power, right or remedy under this Contract will operate as a waiver of them nor will any single or partial exercise of any such power, right or remedy preclude any other or further exercise of them. No waiver will be effective unless made in writing.

8.4 Notices – Notices must be sent personally, by prepaid first class post or faxed to the address of the other party given in this Contract or to any other address as the parties may have notified during the period of the Contract. Any notice will be deemed to have been delivered at the time of delivery if sent personally, 48 hours after sending if sent by post and on the first working day following its dispatch if sent by fax.

8.5 Amendment – Unless otherwise permitted by these Terms of Business, any amendment of this Contract will not be effective unless agreed in writing and signed by the authorised representatives of both parties.

8.6 Survival – The provisions of this Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind both of us.

8.7 Working for other clients – We will not be prevented or restricted from providing any services (whether or not the same or similar to the Services) for other clients.

8.8 Validity of contract provisions – If a court or other competent body decides that any part of this Contract is invalid, unlawful or unenforceable then that part will be severed from the remainder of the Contract, which will continue to be valid and enforceable to the fullest extent permitted by law.

8.9 Entire agreement – This Contract, including the Schedule, form the entire agreement between us relating to the Services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications, whether written or oral. You acknowledge that no reliance is placed on any representation made by or on our behalf but not expressly included in the Contract, but we do not exclude liability for any fraudulent pre-contractual misrepresentations made by us on which you can be shown to have relied. The headings in this Contract are included to make it easier to read but do not form part of the Contract.

8.10 In the event and only to the extent of any conflict between these Terms of Business and the Schedule these Terms will take precedence unless the Schedule expressly varies these Terms of Business. In the event and only to the extent of any conflict between the Schedule and any referenced or attached document, the Schedule will take precedence.

8.11 Relationship – The relationship of the parties is that of independent contractors dealing at arm’s length. Nothing in the Contract shall constitute the parties as partners, joint ventures or co-owners, or constitute either party as the agent, employee or representative of the other.

9 Governing Law

9.1 Applicable Law – This Contract will be governed by and interpreted in accordance with English Law.

9.2 Resolving disputes – Should any dispute arise between us we will attempt to resolve the dispute in good faith by senior-level negotiations. Where both of us agree that it may be beneficial we will seek to resolve the dispute through mediation using the services of the Centre for Dispute Resolution to facilitate the mediation process. If the dispute is not resolved through negotiation or mediation both of us agree that the English Courts will have exclusive jurisdiction in connection with the resolution of the dispute.

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