16.11 no partnership or agency between the parties; [¨]
[¨]
16.12 restriction on assignment; [¨]
16.13 exclusion of third party right to enforce agreement [¨]
16.14 other than as specified;
16.15 agreement setting out entire agreement between [¨]
16.16 parties;
non-exclusion of liability for fraud or fraudulent [¨]
misrepresentations; [¨]
service of notices and procedures;
[¨]
16.17 signature of agreement in two or more counterparts and [¨]
16.18 use of fax copies; [¨]
governing law and jurisdiction;
[¨]
16.19 severance of illegal or unenforceable provisions;
[¨]
16.20 irrevocable and unconditional waiver of right to rescind
16.21 agreement for misrepresentation or claim damages; [¨]
16.22 right of data subject to enforce the agreement directly [¨]
16.23 against the data processor;
non-solicitation of employees for specified period [¨]
without consent; [¨]
if applicable, force majeure provisions; [¨]
16.24 liability for costs of preparation and negotiation of [¨]
agreement. [¨]
[¨]
17 In relation to termination of the agreement, consider termination:
17.1 with or without cause;
17.2 upon service of written notice upon occurrence of
certain events including insolvency or related events;
17.3 for non-performance;
17.4 for material breach (not remedied);
17.5 for material breach not capable of remedy;
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17.6 upon cessation of business by a party; [¨]
[¨]
17.7 following repeated breaches of duties or obligations by
either or one party; [¨]
[¨]
17.8 upon expiry of period.
[¨]
18 Specify the consequences of termination together with [¨]
applicable post-termination obligations. Consider: [¨]
18.1 return or destruction of personal data;
[¨]
18.2 return or destruction of confidential information; [¨]
[¨]
18.3 destruction or deletion of material or information as [¨]
requested; [¨]
[¨]
18.4 certification of compliance; [¨]
¨
18.5 cessation of processing of personal data.. [¨]
[¨]
19 Consider and specify as appropriate in the schedule details of:
[¨]
19.1 personal data to be processed;
[¨]
19.2 applicable service levels; [¨]
[¨]
19.3 other services to be provided;
[¨]
19.4 personnel to be used;
19.5 timetable for service provision;
19.6 any language requirements;
19.7 organisational and technical measures of, or to be
adopted by, the data processor;
19.8 information or documents to be provided by the data
controller;
19.9 periodic reporting obligations;
19.10 audit procedures;
19.11 required format or media for provision of data after
19.12 processing;
data protection notice;
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19.13 applicable procedures; [¨]
19.14 charges, fees, payment arrangements; [¨]
19.15 approved expenses, dates and other relevant terms. [¨]
20 Ascertain and specify dispute resolution mechanism or [¨]
procedures if appropriate:
20.1 initial discussions and attempted resolution; [¨]
20.2 dispute resolution body referral; [¨]
20.3 appointment of independent expert; [¨]
20.4 costs of expert and liability for payment; [¨]
20.5 final and binding notice; [¨]
20.6 right of appeal. [¨]
3.24.5 WEB DEVELOPMENT/HOSTING AGREEMENT
Overview
Description of Agreement/Document
The agreement for the provision of website development and hosting services relates to the
development and design of the website for a client together with its hosting (storage of a
website and its content on a service provider’s server). The agreement may document both
services or detail the services in separate contracts.
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In whatever form, the agreement details the parties’ requirements, respective obligations and
sets out the position with regard to ownership of intellectual property rights in connection
with the design, development or other services. It is most likely that companies or entities
seeking web hosting services will be presented with a standard web hosting contract
favourable to the hosting company. A client can negotiate relevant provisions of such a
hosting agreement and individual clients may be protected from any unfair terms by relevant
regulations. Hosting services are typically provided by an Internet Services Provider (ISP) as
part of a wide range of internet related services, but in some cases service providers offer
stand-alone hosting services.
Practical Guidance/Issues List
Depending on the size of the project, the services may extend to overall management of the
client website and include ongoing maintenance and general support. It is important from the
client’s perspective that there are adequate warranties and relevant indemnities in relation to
the services being provided by the designer and further that there is the opportunity to
conduct acceptance testing. This ensures that the finished product accords with the client’s
specified standards and requirements.
Care should be taken in agreeing the scope of the services. The client should ensure that there
is provision for a detailed specification. This is important from the client’s perspective as it
allows the client to specify with sufficient detail its particular requirements for the website
and measure these against the performance of the actual services provided by the designer.
A specific time frame should be put in place requiring the designer to meet specific timelines
and, in relation to the services and performance, on target and within budget.
The designer should request a relevant provision for the acknowledgement of the designer’s
contribution. The parties should agree the precise nature and level of recognition to be given
including relevant wording or required prominence.
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The client should ensure that the payment obligations will be tied to specific milestones. This
allows the client to withhold payment in the event that milestones are not completed in
accordance with the acceptance testing and delivery obligations of the agreement.
The ownership of intellectual property in the website is often subject to extensive negotiation
between the parties. The parties may wish to agree a distinction between pre-existing
intellectual property and intellectual property created in the course of the services. The client
should ensure it is not restricted by the designer in making use of the material produced for
the website.
Depending on the circumstances of the project the client may require that specific personnel
work on the project. It may be in the designer’s interest to impose non-poaching or non-
solicitation obligations on the client in respect of its staff engaged in the project.
The delivery, testing and acceptance provisions are very important from the client’s
perspective. It is important that there be certain minimum levels imposed on the designer
with respect to the provision of the services. Importantly there should be an obligation on the
designer to warrant that it does not infringe the intellectual property rights of a third party
during the course of providing the services. In addition, the client should ensure that the
agreement makes provision that the services are to be performed using all diligence and skill
and in accordance with the agreement and specification.
The client may wish to resist any mutual indemnity provision in the agreement where broadly
drafted. In addition, the client should make certain that the termination provisions contain the
usual provisions. Such provisions should give the client the right to terminate in the event of
breach, insolvency or in the event that the designer fails to meet timelines as set out in the
plan.
Availability of the website is crucial in relation to any online business. Availability is
generally on a 24 hours a day, seven days a week, 365 days a year basis (or 24/7/365) or a
target percentage of say 99 per cent.
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Standard limitation of liability clauses which seek to reduce the liability of the hosting service
provider in respect of the services should be provided. It will be enforceable subject to
applicable legal restrictions.
Should it be necessary for the hosting provider to utilise any third party software in providing
hosting services, the client should ensure that the responsibility to obtain the necessary
permissions is set out in the agreement.
Whilst the hosting provider is to provide the servers, data room and other equipment
necessary for the provision of hosting services, it is the client’s responsibility to ensure that
the client provides and has access to the basic equipment allowing access to these hosting
services.
It is not unusual for an online conduct policy or acceptable use policy to be in use and
incorporated into the agreement.
The extent of any warranties given by the parties will depend on the significance and value of
the agreement and the parties’ respective bargaining positions. Generally, the hosting
provider will seek to minimise the extent of any warranties given. The client should seek to
resist this position and insist on reasonable warranties.
The service provider should provide for matters beyond its control. Such a clause should
specifically include power shortage and access to the internet as force majeure events.
Some Key Definitions
‘Additional Services’ means any other services other than the Services agreed to be provided
by the Service Provider to the Client on agreed terms and set out as such in the Services
Sheet.
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‘Charges’ means the Service Provider’s charges [as set out on the Charges Sheet or the
Conditions and] from time to time for the provision of the Services unless otherwise
expressly agreed with the Client and specified in the Contract.
‘Web Space’ means the agreed amount of space including an allocation of storage space on a
web server together with applicable bandwidth allocation.
‘Documents’ includes, in addition to a document in writing, any map, plan, graph, drawing or
photograph, any film, negative, tape or other device embodying visual images, and any disc,
tape or other device (electronic or otherwise) embodying any other data.
‘Client Material’ means any Documents or other materials, and any data or other information,
provided by the Client relating to the Services;
‘Services’ means the [web design/development] [Hosting] [and maintenance] services to be
provided by [the Service Provider] for the Client and set out in the Services Sheet (and the
‘Services’ shall include the Additional Services where the context admits).
‘Term’ means the period from the start date to the end date (being and including the
minimum or initial period) for the provision of the Services as set out in the Contract and
continuing thereafter in full force and effect unless terminated in accordance with the
provisions of these Conditions.
‘Plan’ means the plan set out in Annex [ ] specifying the function and timetable for the
delivery of the Services and includes any updates on a regular basis by mutual agreement
between the parties.
‘Intellectual Property’ means all intellectual property rights anywhere in the world (including
present and future intellectual property rights) relating to any Confidential Information,
business names and logos, copyright, database rights, patents, trade or service marks, designs,
software, computer data, generic rights, software programs and source code and all
variations, modifications or enhancements to each of them together with any application or
right to apply for registration or protection of those rights.
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‘Internet’ means the global computer network comprising of interconnected networks using a
standard set of rules that regulate the manner of transmission of data.
Specific Provisions
Pre-existing Rights
Any pre-existing or other Intellectual Property rights owned by either party and required for
the performance by the other party of its obligations under this Agreement or the use of the
Website by the Client shall be licensed to that other party on a non-exclusive, irrevocable,
royalty-free basis for the period during which the use of those rights by that party pursuant to
this Agreement is required.
Services
The Client pursuant to the Contract engages the Service Provider to provide the Services to
the Client and the Service Provider agrees to provide the Services for the Term upon the
terms and subject to the conditions of the Contract.
Provision of Materials
Unless otherwise agreed by the parties in writing, the Client shall at its own expense supply
the Service Provider with all necessary Documents or other materials, and all necessary data
or other information relating to the Services, within sufficient time to enable the Service
Provider to provide the Services in accordance with the Contract. The Client shall ensure the
accuracy of all Client Material and clarity of any instructions.
Third Party Suppliers
The Service Provider does not warrant, guarantee or undertake on behalf of any third party
supplier or service provider that access to any facilities or any products or services will be
uninterrupted or of any particular level of availability or quality.
Charges
The Service Provider Charges are due and payable in advance on the [first business working
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day of each month]. The web pages are deemed to be delivered once the templates are
completed and activated upon the Service Provider server for population with data, copy and
imagery. Advertising the pages to web search engines and updating occur only after the site
has been populated and the first payment is made.
Independent Contractor
The Client is engaging the Service Provider as an independent contractor for the specific
project of developing and/or improving a world wide website to be installed on the Client’s
web space on a Service Provider’s hosting computer. The Client hereby authorises the
Service Provider to access the Client’s current web hosting account and authorises the web
hosting service to provide the Service Provider with access and ‘write permission’ for the
Client’s web page directory and any other directories or programs which need to be accessed
for this project.
Timing
In the absence of a timetable agreed by both the Service Provider and the Client and attached
to the Contract, if the Client does not supply the Service Provider with complete text and
graphic content for all web pages contracted for within the specified time and in any event no
later than [six] weeks after the date the Contract was signed, the monthly lease amounts set
out in the Contract remain due and payable. If the Client has not submitted or entered
complete text and graphic content within [ ] months of the signing of this Contract, the
term of this Contract will be extended by one month for each and every subsequent month
that passes.]
Liability
The Service Provider shall have no liability to the Client for any loss, damage, costs,
expenses or other claims for compensation arising from any Client Material or instructions
supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence
or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the
Client.
Indemnity
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Each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party,
its officers, employees and agents (‘the second party’) against any loss, damage, liability,
costs or expenses (including the cost of any settlement) arising out of any claim, action,
proceeding or demand that may be brought, made or prosecuted against the second party by
any person or arising out of or as a consequence of an unlawful or negligent act or omission
of the first party, its officers, employees or agents in any way connected with this Agreement
whether arising from any failure by the first party to comply with the terms of this
Agreement, infringement of any Intellectual Property rights or otherwise.
Data Protection
The Service Provider agrees and warrants to the Client that it will at all times comply with
the provisions and obligations imposed by the Data Protection Act 1998 including the storing
and processing of personal data and all personal data acquired by it. The Designer agrees to
indemnify the Client in respect of any loss, damage, liability, costs or expenses incurred by
the Client by reason of the unauthorised disclosure of personal data or any breach of the Data
Protection Act 1998.
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CHECKLIST - WEB DEVELOPMENT/HOSTING AGREEMENT CHECKLIST
In preparing a web development/hosting agreement, individuals or businesses should
consider the following non-exhaustive matters.
Actions/Issues: Comm ?
ents: [¨]
1 Ascertain and review the nature and proposed arrangements for
the website development and hosting between the parties to the [¨]
agreement.
[¨]
2 Recite background, parties’ service requirements, existing
agreements and relevant proposed arrangements in the [¨]
introductory paragraphs. [¨]
[¨]
3 Consider in general the proposed parties’ details, setting out the [¨]
names and addresses of all parties including registration details [¨]
if corporate or incorporated party. [¨]
[¨]
4 Set out and define relevant terms. Consider: [¨]
4.1 confidential information;
4.2 consultant, designer; [¨]
4.3 design services, hosting services, services; [¨]
4.4 intellectual property, materials; [¨]
4.5 server, client content, excusable downtime;
4.6 web page, website, web space.
5 Ascertain, consider and indicate arrangements in respect of the
services to be provided. Detail:
5.1 nature of services to be provided;
5.2 whether design only or design and hosting;
5.3 whether changes to the services can be made
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unilaterally or agreed in writing by the designer or [¨]
service provider;
5.4 whether time will be of the essence in the performance [¨]
of the service provider’s obligations; [¨]
5.5 relevant duration of the services; [¨]
5.6 applicable service specification;
5.7 relevant equipment or server specification or [¨]
requirements; [¨]
5.8 agreed timetable; [¨]
5.9 responsibility for providing specification.
6 The applicable charges and fees should be considered and [¨]
specified including: [¨]
6.1 required deposit payment; [¨]
6.2 initial pre-payment fees; [¨]
6.3 invoicing arrangements and frequency; [¨]
6.4 fees as exclusive of VAT;
6.5 right to default interest rate at specified rate for late [¨]
payments;
6.6 any sum to be reserved pending release after warranty [¨]
or retention period; [¨]
6.7 any rights of set off, deduction or withholding; [¨]
6.8 changes in fees; [¨]
6.9 instalmental or milestone payments; [¨]
6.10 payment currency
6.11 right to exercise lien over client’s materials, data and [¨]
documents for non-payment; [¨]
6.12 liability for additional sums;
6.13 liability and reimbursement of expenses or service
related disbursements;
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6.14 terms of payment. [¨]
7 Detail the client’s obligations under the agreement: [¨]
[¨]
7.1 provide written specification; [¨]
7.2 indemnify the consultant/service provider against
[¨]
liability as a result of the client’s breach; [¨]
7.3 include specified acknowledgement on website;
7.4 grant of licence to publicly display site for specified [¨]
[¨]
period; [¨]
7.5 to obtain and maintain appropriate insurance;
7.6 supply required materials and data; [¨]
7.7 ensure accuracy of all programs or information [¨]
[¨]
supplied;
7.8 retain duplicate copies of materials; [¨]
7.9 insure against loss or damage;
7.10 afford the service provider access to its information [¨]
records; [¨]
7.11 responsibility for its web content and compliance with [¨]
[¨]
law;
7.12 obtaining and maintaining all permissions and consents [¨]
[¨]
for its works; [¨]
7.13 responsible for backing up its own files
7.14 provide up to date address, contact and service details; [¨]
7.15 acknowledge no warranty of response rate or download
time;
7.16 acknowledge the nature and risks of the internet
7.17 display of warnings to inappropriate material;
7.18 provide requested information and respond to
communications promptly;
7.19 provide clear instructions to the service provider in
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relation to its requirements from time to time; [¨]
7.20 co-operate and liaise with service provider and its
[¨]
representatives; [¨]
7.21 pay fees and/or any default interest promptly. [¨]
8 As to the service provider’s rights and obligations, consider: [¨]
8.1 right to make changes to the design or other service; [¨]
8.2 compliance with legislation; [¨]
8.3 right to make amendments or prepare derivative works;
8.4 right to decide number or which employees provide the [¨]
[¨]
services;
8.5 ownership of copyright to assembled work; [¨]
8.6 ability to alter services for safety, security or legal [¨]
[¨]
compliance;
8.7 acknowledgement of independent contractor status; [¨]
8.8 quality of deliverable;
8.9 right to remove client’s website from server in relation [¨]
to complaints or allegations of offending material; [¨]
8.10 use reasonable endeavours to perform the development,
[¨]
design or hosting services;
8.11 no warranty that access to server or website will be [¨]
[¨]
uninterrupted or error free; [¨]
8.12 provide client with password and identification without
liability;
8.13 right to suspend access or move site in certain
circumstances;
8.14 ability to vary or increase charges for specified reasons;
8.15 right to amend standard service provision terms.
9 Ascertain and set out the duration of the contract. Consider and
indicate:
114
9.1 any minimum periods of the contract; [¨]
9.2 whether terminable by notice. [¨]
10 Will any warranties be given? Consider and set out warranties as [¨]
applicable:
10.1 right to enter into agreement; [¨]
10.2 that all consents and authorisations have been obtained; [¨]
10.3 that services will be provided with reasonable skill and [¨]
care; [¨]
10.4 ownership of domain names; [¨]
10.5 ownership of materials and data supplied [¨]
10.6 compliance with specification; [¨]
10.7 availability of the service provider’s equipment and
[¨]
server; [¨]
10.8 that the website is virus free; [¨]
10.9 no third party rights infringement; [¨]
10.10 fitness for purpose; [¨]
10.11 level of security; [¨]
10.12 functionality of equipment. [¨]
11 Review and provide for: [¨]
11.1 authorisation to use materials or data provided; [¨]
11.2 indemnity for non-compliance with obligations;
11.3 maintenance requirements or obligations and applicable [¨]
[¨]
hourly rate; [¨]
11.4 additional charges; [¨]
11.5 completion date and acceptance of final product; [¨]
11.6 applicable timetable;
11.7 technical updates and repairs;
11.8 risk commencement period;
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11.9 intellectual property rights provisions as to ownership [¨]
of website (together with any copyrights or trade
marks)or necessary licences; [¨]
[¨]
11.10 indemnity for loss suffered and resulting from [¨]
instructions or any third party claims. [¨]
[¨]
12 Consider liability exclusion and limitation clauses including [¨]
provisions relating to: [¨]
12.1 total or partial exclusion of liability; [¨]
[¨]
12.2 exclusion of consequential or other economic loss; [¨]
[¨]
12.3 maximum liability cap; [¨]
12.4 exclusion of liability for liability resulting from client’s [¨]
instructions or actions; [¨]
[¨]
12.5 non-exclusion of liability for personal injury or death [¨]
caused by negligence;
12.6 indemnity for loss resulting from breach generally or
with regard to certain obligations;
12.7 non-reliance on any representation not expressly set out
in the contract;
12.8 exclusion of liability for misrepresentation other than
fraudulent misrepresentation;
12.9 acceptance and acknowledgement of fairness of
allocation of risk.
13 Set out force majeure provisions excluding liability for matters
beyond reasonable control. Will any termination rights arise
from the delay? Define what amounts to force majeure in
relation to the services to be provided.
14 How can the contract be terminated? Termination:
14.1 immediately for unremedied material breach;
14.2 for failure to make payment
14.3 by expiry of minimum or fixed period;
116
14.4 upon service of required notice; [¨]
[¨]
14.5 in the event of a conflict of interest; [¨]
[¨]
14.6 in the event of occurrence of insolvency related matters; [¨]
[¨]
14.7 upon occurrence of material adverse event; [¨]
[¨]
14.8 in the event of prejudicial conduct. [¨]
[¨]
15 Set out provisions: [¨]
[¨]
15.1 relating to liability and payment of liquidated damages; [¨]
[¨]
15.2 specified percentages of uptime for hosting services; [¨]
[¨]
15.3 back ups and security; [¨]
[¨]
15.4 for non-disclosure of confidential information; [¨]
[¨]
15.5 transfer of website to a new, different or updated server; [¨]
[¨]
15.6 service of notices under the agreement; [¨]
[¨]
15.7 arrangements for consultancy or additional services;
[¨]
15.8 maintenance and support of the website or server
15.9 monitoring or recordings for training or quality control;
15.10 severance of unenforceable provisions;
15.11 provisions relating to any additional services;
15.12 data protection notification and compliance;
15.13 use of sub-contractors;
15.14 project management obligations or arrangements;
15.15 identification or use of key personnel;
15.16 reporting and record keeping requirements;
15.17 contract being the entire agreement between the parties;
15.18 interpretation position in the event of conflict or
15.19 ambiguity between provisions;
non-waiver of rights by delay;
117
15.20 exclusion of partnership or agency relationship between [¨]
15.21 the parties;
non-assignment of rights under contract; [¨]
[¨]
15.22 requirement for consent prior to undertaking certain
15.23 matters; [¨]
testing and acceptance; [¨]
[¨]
15.24 change control procedures; [¨]
15.25 exclusion of third party rights to enforce agreement;
15.26 applicable jurisdiction and governing law.
3.24.6 WEBSITE MATERIALS
Overview
Description of Agreement/Document
The agreements and documents forming the website materials will differ depending on the
nature of the website. However, apart form a specifically tailored set of user terms, most
websites should contain basic website materials for the protection of the website operator.
The website terms set out the ownership rights of the website operator, grants a limited
licence to users, sets out applicable restrictions and disclaims liability for certain content.
The basic website materials include copyright notice, contents disclaimer, privacy policy,
data protection and security policies. In addition, where applicable a site should set out its
policy on linking (as the law is unclear on the subject), a forums user participation and a
conduct policy.
Practical Guidance/Issues List
118
The website operator should seek advice in respect of compliance with relevant legislation.
In addition, it may be that there are registrable trade marks which can be registered by the
operator.
Apart from the registration of the relevant domain name, other intellectual property
protection should be investigated.
The website materials need to be properly incorporated into any contract between the website
operator and the site user. In effect, the site user should have the relevant materials brought to
their attention prior to use. A prominent link on the home page may assist in bringing the
material to the user’s attention. Relevant incorporation is easier to achieve where there is a
registration element to the site.
The operator’s provision of a data protection or security policy is a legal requirement in
relation to compliance with the Data Protection Act 1998. Such practice goes towards
compliance with the legislation and requires the operator to take relevant action including
maintenance of registration and data protection security measures.
Law/Compliance Requirement
E-commerce and the internet are heavily regulated. Operators need to comply with several
statutes and regulations. In addition, there are various laws that impact upon the relevant
activities. An operator may need to comply with the Data Protection Act 1998, various EU
and National E-Commerce Regulations, advertising legislation and codes, the Consumer
Protection (Distance Selling) Regulations 2000 and applicable European directives.
Specific Provisions
Copyright Notice
119
Unless otherwise expressly stated, copyright, database right or similar rights in all material
presented on this Site (including graphical images, text, video clips, reprographics, sounds,
demos, patches and other files) is owned, controlled or licensed by the Operator or its
affiliates and is protected or covered by copyright, trade mark, intellectual property law and
other proprietary rights.
You have limited permission to display, print or download extracts from these pages for your
personal non-commercial and non-profit use only and you shall not be entitled to
commercialise any such material in any way.
Disclaimer
We will not be liable for any damages (including, without limitation, damages for any
consequential loss or loss of business opportunities or projects, or loss of profits) howsoever
arising and whether in contract, tort or otherwise from the use of or inability to use the Site,
or any of its contents and materials, or from any action or omission taken as a result of using
the Site or any such contents. In any event our liability for all damages and losses (including
negligence) shall not in any circumstances exceed the amount paid by you, if any, for
accessing this Site.
We make no warranty that the contents of the Site are free from infection by viruses or
anything else which has contaminating or destructive properties and shall have no liability in
respect thereof. You should note that certain links on the Site lead to resources located on
servers maintained by third parties over whom we have no control and accordingly we accept
no responsibility or liability for any of the material contained on those servers.
Forum User Rules
You are fully and solely responsible for your postings, messages, comments or discussions
and accept liability for any resulting actions. The comments, postings and messages are
opinions of the respective contributors or authors and do not necessarily reflect our opinions.
We accept no responsibility for and make no representations relating to any messages,
postings, comments and discussions. We do not confirm or represent the legitimacy,
accuracy, reliability, correctness or currency of any data or postings entered by a user.
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Data Security Policy
We control physical security in relation to the information and personal data that is contained
at our facilities and restrict access to the site, buildings, computer rooms, office desk,
technology areas, equipment and other facilities where unauthorised access by people could
compromise our security.
Privacy Policy and Data Protection Statement
We may provide the data collected from you to members of our group companies [or other
third party including our agents and contractors in connection with the service]. We will
inform you prior to disclosing your information to any third party. If you can be identified
from the information that is disclosed, then we will not disclose such information without
prior notification to you and having obtained your permission to do so. You may inform us at
any time not to pass on or share your personal information with any third parties.
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Checklist - Website Materials Checklist
In preparing website materials, individuals or businesses should consider the following non-
exhaustive matters.
Actions/Issues: Comments: ?
[¨]
1 Ascertain and review nature and proposed arrangements for
the website. [¨]
[¨]
2 What is the proposed web business or practice?
[¨]
3 Are there any special compliance or regulatory issues that
must be dealt with? [¨]
4 Consider and upload the basic website materials having [¨]
regard to whether standard information or transactional [¨]
website. [¨]
[¨]
5 In relation to general or standard website materials, [¨]
consider the following: [¨]
5.1 copyright notice; [¨]
[¨]
5.2 contents disclaimer [¨]
[¨]
5.3 user terms; [¨]
5.4 linking terms and conditions;
5.5 privacy and data protection policy;
5.6 security policy;
5.7 forums policy.
6 In relation to the copyright notice, detail:
6.1 ownership of all copyright in all material on site;
6.2 limited permission for users to download pages;
6.3 any restrictions on use;
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6.4 termination of permission; [¨]
6.5 that no other rights are granted. [¨]
7 In relation to the contents disclaimer, provide that: [¨]
7.1 site contents are for general information; [¨]
7.2 no performance warranties given; [¨]
7.3 no responsibility for inaccuracy of materials; [¨]
7.4 no guarantee of freedom from viruses; [¨]
7.5 third party materials liability is excluded; [¨]
7.6 site terms may be updated or changed; [¨]
7.7 site is provided ‘as is’; [¨]
7.8 English law and jurisdiction apply. [¨]
8 With regard to the user terms, specify as appropriate: [¨]
8.1 the use of the site; [¨]
8.2 access to parts of site; [¨]
8.3 compliance with policies; [¨]
8.4 exclusion and limitation of liability; [¨]
8.5 ownership of site contents and intellectual property [¨]
rights; [¨]
8.6 right to terminate access to and use of site; [¨]
8.7 reference and link to all applicable policies; [¨]
8.8 contractual incorporation; [¨]
8.9 additional relevant provisions if e-commerce
[¨]
transactional site; [¨]
8.10 governing law and jurisdiction. [¨]
9 As to the linking terms and conditions, consider and set out: [¨]
9.1 grant of right to link to site;
9.2 right to change linking terms;
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9.3 acceptance of terms by linking; [¨]
[¨]
9.4 ownership of all rights and restrictions on use; [¨]
[¨]
9.5 right to terminate licence to link; [¨]
9.6 undertakings and obligations; [¨]
[¨]
9.7 acknowledgement that no proprietary right is [¨]
granted; [¨]
9.8 consent required for deep linking or framing; [¨]
[¨]
9.9 no liability for site owner; [¨]
[¨]
9.10 governing law and submission to jurisdiction. [¨]
[¨]
10 Privacy and data protection policy should include [¨]
provisions regarding:
10.1 consent to collect information; [¨]
[¨]
10.2 what the information collected is used for; [¨]
10.3 the information collected; [¨]
[¨]
10.4 whether the information is shared; [¨]
[¨]
10.5 details of entity with whom information is shared; [¨]
10.6 right to opt out;
10.7 right to request access to information or subject
access;
10.8 measures taken to protect information;
10.9 whether the policy creates contractual rights;
10.10 use of cookies, information and explanation of
10.11 meaning and workings of cookies;
right to require correction of incorrect data;
10.12 exclusion of liability;
10.13 right to change and amend policy.
11 The security policy can detail:
11.1 corporate commitment to data protection;
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11.2 compliance with legislation; [¨]
[¨]
11.3 appointment of compliance officer; [¨]
11.4 employee briefing on data protection importance [¨]
and staff training; [¨]
[¨]
11.5 physical security measures; [¨]
[¨]
11.6 electronic protection methods;
[¨]
11.7 control of access to personal data;
[¨]
11.8 maintenance of continuity plans; [¨]
[¨]
11.9 monitoring, detection and investigation of [¨]
breaches; [¨]
11.10 no guarantee of security notwithstanding technical [¨]
and organisational protective measures. [¨]
[¨]
12 A web forums policy applicable to the site should contain:
[¨]
12.1 facility for discussion and email exchange; [¨]
[¨]
12.2 indication that it forms part of the terms of site use; [¨]
12.3 restriction on objectionable materials; [¨]
12.4 provision that user is solely responsible for
postings and any legal liability;
12.5 availability of identification and email addresses;
12.6 exclusion of commercial use;
12.7 acknowledgement of inability to monitor all
messages;
12.8 site owner’s exclusion of liability;
12.9 owner’s right to remove materials from site;
12.10 grant of licence to owner to use materials;
12.11 restrictions on spamming, impersonation and
12.12 inaccuracy of postings;
indemnity in favour of site owner against loss or
claim arising out of forum participation.
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13 Ascertain and note: [¨]
13.1 ownership of domain name; [¨]
13.2 authorship or developer of website; [¨]
13.3 copyright content; [¨]
13.4 third party content, rights, trade marks or links; [¨]
13.5 trade mark registration; [¨]
13.6 use of meta-tags (key words embedded in a [¨]
website’s software);
13.7 database rights; [¨]
13.8 web design and development; [¨]
13.9 ownership of software; [¨]
13.10 access to the internet; [¨]
13.11 liability issues. [¨]
3.24.7 Information Technology Procurement and Turnkey Contract
THIS AGREEMENT is made the [ ]day of[ ]200[ ]
BETWEEN:
(1) [CUSTOMER] whose principal place of business is at [address] (“the Customer”);
and
(2) [CONTRACTOR] (a partnership firm as from time to time constituted) whose
principal place of business is at [address] (“the Contractor”).
INTRODUCTION:
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The Contractor is engaged in [developing, selling, supplying, installing, testing, maintaining
and supporting computer systems] and the Customer wishes to rely [wholly and exclusively]
on the Contractor for all its information technology requirements set out in this Agreement
upon the terms and subject to the conditions of this Agreement.
OPERATIVE PROVISIONS:
1 Definitions
1.1 In this Agreement unless inconsistent with the context or otherwise specified the
following definitions have the following meanings:
“Acceptance Date” means the date on which the System is accepted or deemed to be
accepted by the Customer pursuant to this Agreement;
“Acceptance Test(s)” means the test by [the Contractor] which is suitable to
demonstrate that the System complies with and performs in accordance with the
Orders;
“Acknowledgement” means the Contractor’s acceptance and acknowledgement of the
Orders containing the payment schedule, timetable and detailing the implementation
and each phase of the relevant Services;
“Agreement” means these terms and the Schedules to them;
“Bespoke Software” means those computer programs (if any) to be developed by the
Contractor specifically for the Customer under this Agreement;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means the commercial, financial, technical and business
information of each party howsoever disclosed whether designated as confidential or
clearly confidential including as set out in Schedule [...];
“Contract Price” means the price payable for each of the Services (as the case may be)
excluding taxes, specified in the [Contractor’s payment schedule or price list contained
in the Acknowledgement Order];
“Customer Equipment” means the equipment, communications links, computer
programs, apparatus, materials and or other items (other than the System) to be
provided (including the installation of them) by the Customer at the Location for use in
association with the System;
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“Delivery” means when the delivery of an item of the Hardware, Software or
Documentation to the Location has been made and, as regards Hardware and Software,
installed;
“Documentation” means those operating manuals and other technical specifications and
documents to be supplied by the Contractor from time to time;
“Expiry Date” means [ ] [or the date on which this Agreement is
terminated];
“Force Majeure Event” means any event (other than the payment obligations) beyond
the reasonable control of a party;
“Hardware” means those computer units, peripherals and other equipment to be
supplied by the Contractor as part of the System from time to time during the Term of
this Agreement;
“Location” means the Customer’s offices or such other location(s) set out in the
Customer’s Requirements where the System or parts of it will be installed;
“Operating Software” means the computer programs and associated documentation (if
any) supplied by a manufacturer in connection with the operation of a Hardware item;
“Orders” means the instructions and orders of the Customer in respect of its
information technology requirements contained in an agreed form (including the
specification of the System describing the intended functions and facilities for the
System and the Customer’s particular requirements on each occasion in respect of the
Services, maintenance and other matters) from time to time and expressly accepted by
the Contractor;
“Other Software” means the computer programs (if any) referred to in clause [ ] and
supplied pursuant to the Services under this Agreement;
“Services” means the System to be supplied and all services and other items to be
provided from time to time during the Term by the Contractor to the Customer under
this Agreement and in accordance with the relevant Orders;
“Software” means the Bespoke Software, the Operating Software and the Other
Software to be supplied by the Contractor for use on the Hardware in accordance with
the Orders;
“Sub-Contractor” means any person, firm or company (other than the Contractor) to
whom is sub-contracted any part of the Services;
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“System” means any Hardware and Software firmware (if any) to be fully specified by
the Customer in the Orders from time to time;
“Term” means the period from the Commencement Date to the Expiry Date;
“Timetable” means as regards any of the Contractor’s obligations to deliver any of the
Hardware, Software or Documentation or to perform any of the Services, the relevant
date or time agreed or set out in the Orders (if any).
2 Scope of Services
2.1 The Contractor agrees as [sole and exclusive] contractor to supply to the Customer the
Services during the Term which is in accordance with the Orders and subject to the
terms of this Agreement.
2.2 The Customer [has specified/will from time to time specify] its requirements in respect
of the Services to the Contractor in the Orders. No Order submitted by the Customer
shall be deemed to be accepted by the Contractor unless and until confirmed in writing
by the Contractor’s authorised representative.
2.3 In particular, but without limiting the generality of clauses [2.1 and 2.2], the Contractor
will upon receipt of and acceptance of any of the Orders from time to time (as the case
may be):
2.3.1 deliver and install the Hardware and Software at the Location;
2.3.2 carry out installation tests on the System;
2.3.3 sell and/or supply the Hardware and/or Software to the Customer as specified
by the Customer in the Orders on the Contractor’s usual terms;
2.3.4 grant to the Customer, and in the case of any third party software procure the
grant to the Customer of non-exclusive licences on the terms specified
hereunder to use the Software and Documentation as part of the System;
2.3.5 supply the Documentation upon request and in accordance with the Orders;
2.3.6 assist the Customer during the period of the Acceptance Tests;
2.3.7 provide training in accordance with any training plan required by the
Customer and set out in the Orders;
2.3.8 provide support and maintenance as and when reasonably required or
requested in accordance with clause [ ];
2.3.9 provide any consumable supplies as may be required from time to time by the
Customer; and
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2.3.10 provide or arrange for the provision of all information technology support
required from time to time by the Customer together with consultancy services
in respect of the System and for other computer services related requirements
of the Customer.
2.4 The Contractor will endeavour to bring to the attention of the Customer’s Services
representative any matter which is not adequately specified or defined in the Orders and
any other relevant specification or document.
2.5 The Contractor may employ Sub-Contractors for carrying out any part of the Services
provided that the Contractor will not be relieved of any of its obligations under this
Agreement by entering into any sub-contract for the performance of any part of the
Services, and will at all times remain primarily responsible and liable to the Customer
for the conduct of the Sub-Contractors.
2.6 The Contractor shall use its reasonable endeavours to provide and carry out the
Services with reasonable care and skill using appropriately qualified and experienced
persons.
2.7 If required by the Customer the Contractor will enter into a separate contract during the
Term relating to assisting the Customer in respect of any matter for which this
Agreement makes no provision.
3 Change(s)
Except as herein provided:
3.1 No changes to this Agreement or any Orders shall be binding unless agreed in writing
between the authorised representatives of the Contractor and Customer provided always
that any changes to this Agreement shall be authorised by a partner of the Contractor.
3.2 Until any change is formally agreed between the Contractor and the Customer the
Contractor will continue to perform and be paid for the Services as if the change had
not been proposed.
3.3 The Contractor may make a reasonable charge for investigating a proposed change and
preparing an impact assessment or a quotation or estimate for that change (whether or
not subsequently implemented) subject to agreeing the basis of charging for doing so
with the Customer in writing before proceeding with the investigatory work.
4 Customer’s Responsibilities
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4.1 The Customer will provide the Contractor with such information as it may reasonably
need concerning the Customer’s operations and answers to queries, decisions and
approvals which may be reasonably necessary for the Contractor and its Sub-
Contractors to undertake the Services. The Customer is responsible for ensuring that
such information and answers are accurate and complete.
4.2 The Contractor will, to the extent reasonably practicable, give the Customer reasonable
prior notice of any information or answers it requires in accordance with this
Agreement and will notify the Customer if it considers the Customer to have failed to
provide information or answers in accordance with this Agreement or if it has reason to
suspect that any such information is inaccurate or incomplete.
4.3 The Customer will at agreed times and upon request during the Term provide, free of
charge, the following facilities in connection with the Services to authorised personnel
of the Contractor and its Sub-Contractors throughout the Customer’s normal business
hours and at such other times as the Customer authorises after reasonable prior notice
from the Contractor (such authorisation not to be unreasonably withheld or delayed):
4.3.1 access to and use of the Customer Equipment;
4.3.2 access to the Customer’s employees, the Hardware and the Location;
4.3.3 requested suitable office space and facilities (such facilities may be used only
for the purposes of the Services;
4.3.4 competent operators for any Hardware and the Customer Equipment.
4.4 The Customer will provide at its own expense the following:
4.4.1 proper and suitable environmental conditions for the System or any part of the
System as specified in any instructions whether from the Contractor or
manufacturers;
4.4.2 adequate lifting or off-loading facilities and labour required for positioning of
any Hardware; and
4.4.3 suitable protection of each part of the System from the time of Delivery.
4.5 The Customer is responsible for ensuring that the Customer Equipment is properly
installed and is sufficient and suitable for its purpose and that any adjustments which
may be required are carried out expeditiously.
4.6 The Contractor will be responsible for connecting any Hardware to the Customer
Equipment with the co-operation of the Customer and/or performance of the Services.
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4.7 [The Customer [has provided/shall provide and supply] to the Contractor [from time to
time] the Orders indicating the specific instructions, orders or requirements of the
Customer each time together with sufficient information and specification in the Orders
to enable the Contractor to comply with the Orders and undertake the Services in
accordance with this Agreement.]
5 Services Representative
5.1 Each party will appoint a senior member of its staff (“the Services Representative”) to
act as the principal point of contact for the purposes of the Services.
5.2 The Contractor will prepare written reports in respect of the instructions and orders
received from the Customer pursuant to this Agreement at such frequencies as may be
agreed from time to time.
5.3 Progress meetings to discuss Orders and progress and other relevant issues will be held
[quarterly/monthly/weekly] or at such other frequencies as agreed by the parties.
6 Payment Provisions
6.1 The amounts, method and timing of payment of the Contract Price will be in
accordance with the payment schedule set out in [the Acknowledgement
Order/Schedule [ ];]
6.2 The Customer shall not be entitled to any right of set off or deduction. Payment will not
be withheld because of minor defects or omissions in the System or Services which do
not materially affect its use or performance of the Services.
6.3 The Contract Price for each of the Services pursuant to the Orders and the
Acknowledgement Order will be firm and fixed and will not be subject to any increase
[except those increases beyond the control of the Contractor].
6.4 Where the Customer requests and the Contractor agrees to perform additional services
relating to the other information technology requirements of the Customer which are
not part of the Contract Price set out in the relevant Acknowledgement then those
services will be chargeable on [a time and materials basis at the Contractor’s then
current standard fee rates unless otherwise agreed]. The Contractor agrees that any
standard fee rates agreed at the date of this Agreement in writing will apply without
increase for [twelve] ([12])] months beginning on the date of this Agreement.
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6.5 Unless otherwise agreed in writing by the Contractor, all sums due under this
Agreement will be paid by the Customer within [thirty] ([30]) days of the date of
receipt of a correct invoice or by the due date, whichever is the later or as may be
specified in the relevant Acknowledgement Order.
6.6 The Contract Price does not include VAT or any similar sales tax, import or custom
duties and like imposts and surcharges which will be paid additionally by the Customer
at the then prevailing rate.
6.7 The Contractor will on request promptly supply the Customer with all information
needed to check the calculation of prices and will in particular indicate all unit prices
requested by the Customer.
6.8 Where the Orders or Acknowledgement Order provides for stage payments of the
Contract Price on the occurrence of specific events or dates payment will fall due on the
scheduled dates.
6.9 In the event that the cost to the Contractor of the performance of any of the Services is
increased by reason of the making after the date of this Agreement of any law or of any
order, regulation or byelaw having the force of law that is applicable to any of the
Services or any part of them, the Contract Price will be adjusted accordingly.
7 Hardware
7.1 The Customer will from time to time (upon request) ensure that the Location conforms
with the environment conditions specified in any instructions related to the Hardware
by the applicable date specified in the Timetable.
7.2 When the Customer notifies the Contractor that the Location is ready for installation,
the Contractor will as soon as reasonably practicable inspect the Location and certify
whether or not the Location provides a suitable environment for the System.
7.3 Title to each item of the Hardware will (except for leased Hardware) pass to the
Customer on payment in full of that part of the Contract Price attributable to that item
(if ascertainable) or the Contract Price.
7.4 The Contractor will be responsible at its own cost unless otherwise expressly agreed for
the Delivery and off-loading of the Hardware at the Customer’s premises where the
Location is located and its transfer to and installation at the Location.
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7.5 The parties acknowledge that risk in the Hardware will pass to the Customer at the time
of Delivery to the Customer’s premises where the Location and the Customer will be
responsible for insuring and taking care of the Hardware from that time.
8 Software
8.1 [Unless otherwise agreed between the parties in writing, the Contractor will be
responsible for providing and installing the Software on the Hardware at the Location.]
8.2 The Software supplied and installed under this Agreement will consist of [one] copy of
each item of Software in machine-readable object code form only on the storage media
specified except that any Bespoke Software required will be delivered in both object
and source code form].
8.3 The copyright and all other intellectual property or proprietary rights whatever in all
computer programs, documentation and other material developed by the Contractor
pursuant to Orders under this Agreement specifically for the Customer (including the
Bespoke Software, if any) will remain vested in and the absolute property of the
Contractor.
8.4 Following acceptance or deemed acceptance of the System under this Agreement the
parties will enter into an agreement to grant the Customer a non-exclusive, non-
transferable licence for a period from the Acceptance Date to use the Bespoke Software
as specified in such agreement.
8.5 As regards any Software other than the Bespoke Software supplied under this
Agreement over which the Contractor or any third party holds title or other rights, the
Contractor will endeavour to obtain for the Customer the non-exclusive right to use that
Software in the operation of the System on the terms of software licence agreements to
be agreed.
8.6 The risk in the media on which the Software is recorded will pass to the Customer on
Delivery at the Location.
8.7 With respect to the Software specified in connection with any leased Hardware the
Contractor will upon request enter, or in the case of third party software upon request
procure that the proprietor of such software enters, into a source code deposit
agreement on terms with effect from the Acceptance Date and the parties will procure
that an acceptable escrow deposit holder enters into an agreement on such terms.
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9 Timetable
9.1 The parties will use their [best/reasonable] endeavours to comply with the Timetable.
9.2 The Contractor will endeavour to achieve completion of each phase of the Services by
the relevant date or time pursuant to the Timetable [but all times, periods or dates will
be treated as target dates only and time will not be of the essence].
9.3 All times, periods or dates shall be extended by a reasonable period if any delay or
stoppage is caused by any act or omission of the Customer, its employees, agents or
sub-contractors or by any matter beyond the Contractor’s control.
9.4 All additional costs and expenses reasonably incurred by the Contractor by reason of
any delay, variation, interruption or suspension of work arising from any act or
omission of the Customer, its employees, agents or sub-contractors (other than the
Contractor and its Sub-Contractors) will be reimbursed to the Contractor by the
Customer. [Such additional costs and expenses will be due and payable when they have
been calculated by the Contractor and invoiced to the Customer.]
10 Installation Tests
10.1 Following any installation of the Hardware at the Location the Contractor will submit
the Hardware and the Operating Software to the standard installation tests (if any) of
the applicable manufacturers or suppliers concerned to ensure that the Hardware and
Operating Software are in working order and ready for the Acceptance Tests (if any).
10.2 The Contractor will supply the Customer with copies of any available test specification
and results of the installation tests if so requested before the Acceptance Tests begin.
10.3 In the absence of tests set out in clause [10.1] above, the installation tests and
procedures set out in Schedule [ ] shall apply.
11 Acceptance Tests
11.1 The Contractor and the Customer will prepare and carry out the Acceptance Tests in
accordance with the [Contractor’s normal practice or on such terms as the parties may
agree from time to time].
11.2 [The Acceptance Test provisions and procedures are set out in Schedule [ ].]
12 Support and Maintenance
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12.1 The Customer will enter into a maintenance agreement in agreed form (“Maintenance
and Support Agreement”) attached to this Agreement as Schedule [ ] in respect of the
Hardware and Operating Software and network support services from the date of this
Agreement.
12.2 The Contractor will itself provide or secure the provision of software maintenance
services in respect of the Software (other than Operating Software) with effect from the
date of this Agreement or under separate contracts with the Customer on the terms of
the Maintenance and Support Agreement.
13 Warranties
13.1 The Contractor warrants and undertakes:
13.1.1 that it is not aware as at the date of this Agreement of anything within its
reasonable control which might or will adversely affect its ability to perform
its obligations under this Agreement;
13.1.2 that it shall carry out any installation of the System required of it as soon as is
reasonably practicable and such installation will be free from defects in
workmanship; and
13.1.3 that the Documentation, Services and ancillary services to be provided (if any)
under any provision of this Agreement will enable suitably qualified personnel
of the Customer to make proper use of the System.
13.2 The Customer warrants that it has not relied on any representations made by or on
behalf of the Contractor and its Sub-Contractors or upon any descriptions, illustrations
or specifications contained in any catalogues and publicity material produced by or on
behalf of the Contractor and its Sub-Contractors, all of which are only intended to
convey a general idea of the products and services mentioned in them.
14 Defects Warranty
14.1 Subject as provided below the Contractor will be responsible (without charge to the
Customer) for rectifying within a reasonable period of time by repair, or at the
Contractor’s option by supply of a replacement, any Defect (as defined below) which
under proper use, care and maintenance appears in the System (“the Defects
Warranty”). For the purposes of this clause [14] a “Defect” means any non-
conformance with the warranties specified in clause [ ].
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14.2 In no circumstances shall the Contractor have any liability in respect of any Defect
unless the Defect is promptly reported to the Contractor by the Customer in writing
within [thirty] ([30]) days] of the Acceptance Date.
14.3 The Contractor’s obligations under the Defects Warranty are contingent upon the
Contractor and its Sub-Contractors being given, without delay and free of charge, full
details of the Defect and adequate time and access to the System during the
Contractor’s normal working hours to rectify such Defect. If the Contractor rectifies the
Defect within a reasonable period of time (in any event within [ ] days) then the
Contractor will have no other liability of any kind in respect of or arising from such
Defect.
14.4 The Contractor reserves the right to charge for costs and expenses incurred including
travelling time and incidental expenses incurred in respect of attendance at the Location
in connection with any Defect or any reported problem.
14.5 [If a problem is found upon investigation not to be the Contractor’s responsibility under
the Defects Warranty, the Contractor may charge the Customer immediately for all
reasonable costs and expenses incurred by the Contractor and/or its Sub-Contractors in
the course of or in consequence of such investigation.]
14.6 The Contractor will not be responsible for any problem arising from or caused by any
modification (whether by alteration, deletion, addition or otherwise) made to the
System or the Customer Equipment or any part of it by persons other than the
Contractor without its express prior written consent.
14.7 The Customer will not permit any modification to be made to the System or to the
Customer Equipment or any part of it during the period of the Defects Warranty by
persons other than the Contractor and its authorised representatives without the
Contractor’s prior written consent. If any unauthorised modification is made then,
without prejudice to the Contractor’s other rights and remedies, the Defects Warranty
will be null and void.
15 Limitation of Liability
15.1 The Customer agrees that the express obligations and warranties made by the
Contractor in this Agreement are in lieu of and to the exclusion of any other warranty,
condition, term, undertaking or representation of any kind, express or implied, statutory
or otherwise relating to anything supplied or services provided under or in connection
137
with this Agreement including (without limitation) as to the condition, quality
performance, satisfactory quality or fitness for purpose of the Services, the System or
any part of them.
15.2 The Customer acknowledges that the Contractor’s obligations and liabilities in respect
of the System and the Services are exhaustively defined in this Agreement.
15.3 The Customer is responsible for the consequences of any use of the System and
acknowledges that the Contractor will not be liable for any indirect or consequential
loss, damage, cost or expense of any kind whatever and however caused, whether
arising under contract, tort (including negligence) or otherwise, including (without
limitation) loss of production, loss of or corruption to data, loss of profits or of
contracts, loss of operation time and loss of goodwill or anticipated savings, even if the
Contractor has been advised of their possibility.
15.4 Notwithstanding any provision of this Agreement, the Contractor’s total liability
(whether in contract, tort, including negligence, or otherwise) under or in connection
with this Agreement and any other agreement with the Customer relating to the System
or the Services or based on any claim for indemnity or contribution shall not exceed a
sum equivalent to the relevant specific Contract Price or part of the Contract Price as
the case may be.
15.5 The Customer agrees that except as expressly provided in clauses [ ] and [ ] and this
clause [15] the Contractor will not be under any liability of any kind whatever and
however caused arising directly or indirectly in connection with this Agreement.
15.6 The Customer agrees to indemnify and keep indemnified the Contractor in respect of
any third party claim for any injury, loss, damage or expense occasioned by or arising
directly or indirectly from the Customer’s possession, operation, use, modification or
supply to a third party of the System or the Services and any part of it or them or other
items and services provided under or in connection with this Agreement except and
insofar as the Contractor is liable as expressly provided in this Agreement.
15.7 [The Customer acknowledges and agrees that the allocation of risk contained in this
clause [15] is reasonable in all the circumstances and is reflected in the Contract Price
together with being a recognition of the fact that, inter alia, the System cannot be tested
in every possible combination and therefore the Contractor does not warrant that the
operation of the System or the Services will be uninterrupted or error free and it is not
138
within the Contractor’s control how and for what purpose the System or the Services is
used by the Customer.]
16 Indemnity
16.1 [Subject to clause 15 above, the Contractor will indemnify the Customer against all
claims, demands and liabilities incurred by the Customer to the extent the System as
used [in accordance with the Contractor’s instructions] infringes the copyright, trade
secrets, United Kingdom registered trade marks and other intellectual property rights of
any third party, provided that:
16.1.1 the Contractor is promptly notified in writing of the details of the claim;
16.1.2 such infringement is not caused by or contributed to by acts of the Customer
other than the use of the System in accordance with the Orders and the
Contractor is allowed to conduct and/or settle all litigation and negotiations
resulting from such claim;
16.1.3 the Customer makes no statement prejudicial to the Contractor;
16.1.4 the Customer gives the Contractor all reasonable requested assistance at the
Contractor’s expense in connection with such claim.
16.2 In the event that a third party allegation of infringement of any third party rights is
made, the Contractor may at its own expense or option:
16.2.1 obtain for the Customer the right to continue using such part; or
16.2.2 replace or alter such part (subject to maintaining the required functionality) so
as to avoid infringement;
and the Customer will provide the Contractor with all reasonable assistance required to
exercise such options.
16.3 The Contractor will have no liability for any claim of infringement based on:
16.3.1 use or combination of the System or Services with other equipment, programs
or data not supplied by the Contractor; or
16.3.2 the Customer’s refusal to use a modified or replacement part supplied or
offered to be supplied pursuant to clause [16.2].
16.4 This clause [16] states the entire liability of the Contractor with respect to infringement
or alleged infringement of any third party rights of any kind by the System or Services
of any part.
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16.5 The Customer warrants that any specification, design or instruction given by it in the
Orders to the Contractor will not infringe any intellectual property or other rights of any
third party and the Customer will indemnify and keep the Contractor fully and
effectually indemnified in respect of any claim relating to such infringement.]
17 Confidentiality
17.1 Each party undertakes in respect of Confidential Information for which it is the
recipient:
17.1.1 to treat such information as confidential;
17.1.2 not without the disclosing party’s prior written consent to communicate or
disclose any part of such Confidential Information to any person except:
only to those employees, agents, sub-contractors and other suppliers on a
need to know basis who are directly involved in the Services;
the recipient’s auditors, professional advisers and any other persons or
bodies having a legal right or duty to have access to or knowledge of the
Confidential Information in connection with the business of the
recipient;
17.1.3 to ensure that all persons and bodies mentioned in clause [17.1.2] are made
aware, prior to disclosure, of the confidential nature of the Confidential
Information and that they owe a duty of confidence to the disclosing party and
to use all reasonable endeavours to ensure that such persons and bodies
comply with the provisions of this clause [17];
17.1.4 not to use or circulate such Confidential Information within its own
organisation except to the extent necessary for the purposes of the Services.
17.2 The obligations in this clause [17] will not apply to any Confidential Information:
17.2.1 in the recipient’s possession (with full right to disclose) before receiving it; or
17.2.2 which is or becomes public knowledge other than by breach of this clause; or
17.2.3 which is independently developed by the recipient without access to or use of
the Confidential Information; or
17.2.4 which is lawfully received from a third party (with full right to disclose).
17.3 This clause [17] will continue in force notwithstanding the termination of this
Agreement for any reason.
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18 Personnel and Non-Solicitation
18.1 The Contractor will use all reasonable endeavours to maintain continuity in respect of
the key personnel used in performance of the Services but shall be free to determine the
number of and which personnel shall be involved in the performance of its obligations
under this Agreement.
18.2 The Customer may with good reason require the Contractor to replace any person
assigned by the Contractor to the performance of the Services if the Customer
reasonably considers the performance of that person is unacceptable or his attitude is
incompatible with the success of the Services or good personnel relations within the
Customer’s organisation.
18.3 The Contractor will endeavour to ensure that all personnel of itself and its Sub-
Contractors comply with all relevant safety, security and on site regulations specified in
advance in writing from time to time by the Customer for personnel working on the
Customer’s premises.
18.4 Each party undertakes that throughout the Term of the Agreement and for [twelve (12)]
months afterwards it will not directly or indirectly solicit or offer employment or
engagement to any of the other party’s employees who at the time of such action or
during a period of [twelve (12)] months immediately preceding such action were
directly involved with the Services without the other party’s prior written Agreement.
19 Termination
19.1 The Customer may cancel without cause a particular Order at any time on [two] ([2])]
days’ prior written notice prior to receipt of the Acknowledgement subject to payment:
19.1.1 of a cancellation charge as agreed by the Contractor; and
19.1.2 for materials and goods ordered for the Services for which the Contractor has
paid or is legally bound to pay; and
19.1.3 of the total value of the relevant Services completed up to the date of
termination.
19.2 Either party may terminate this Agreement with immediate effect by written notice if
the other commits a material breach of this Agreement (and in the case of a breach
capable of remedy) fails to remedy it within [thirty (30)] days of receipt of a written
notice from the party not in default specifying the breach and containing a warning of
an intention to terminate if the breach is not remedied.
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19.3 Either party may terminate this Agreement with immediate effect on written notice:
19.3.1 if the other ceases or threatens to cease to carry on its business;
19.3.2 if a receiver, administrator or similar officer is appointed over all or any part
of the assets or undertaking of the other party;
19.3.3 if the other party makes any arrangement for the benefit of its creditors; or
19.3.4 if the other party goes into liquidation save for the purposes of a genuine
amalgamation or reconstruction or becomes bankrupt.
19.4 Upon termination of this Agreement for whatever cause the Contractor will be paid all
money due to the Contractor after taking into account amounts previously paid together
with:
19.4.1 the total value of the Services completed up to the date of termination;
19.4.2 any cancellation charges payable to the Contractor’s Sub-Contractors;
19.4.3 the cost of materials and goods ordered for the Services for which the
Contractor has paid or is legally bound to pay;
19.4.4 the cost of removal from the Location of any property of the Contractor.
19.5 Termination of this Agreement will not affect any rights of the parties accrued to them
up to the date of termination.
20 Force Majeure
20.1 Neither party will be liable for any delay in performing or failure to perform any of its
obligations under this Agreement caused by the occurrence of a Force Majeure by
Events. Any delay or failure by a Sub-Contractor or supplier of the Contractor will not
relieve the Contractor from liability for delay or failures except where that delay or
failure is also beyond the reasonable control of the Sub-Contractor or supplier
concerned.
20.2 The party claiming the Force Majeure Event will promptly notify the other in writing of
the reasons for the delay or stoppage (and the likely duration) and will take all
reasonable steps to overcome the delay or stoppage.
20.3 If the party claiming the Force Majeure Event has complied with clause [ ] its
performance under this Agreement will be suspended for the period that the Force
Majeure Event continues and the party will have an extension of time for performance
which is reasonable and in any event equal to the period of delay or stoppage.
20.4 As regards such delay or stoppage resulting from the event:
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20.4.1 any costs arising from the delay or stoppage will be borne by the party
incurring those costs;
20.4.2 either party may, if the delay or stoppage continues for more than [sixty]
([60])] continuous days, terminate this Agreement with immediate effect on
giving written notice to the other and neither party will be liable to the other
for such termination;
20.4.3 the party claiming the Force Majeure Event will take all necessary steps to
bring that event to a close or to find a solution by which this Agreement may
be performed despite the Force Majeure Event.
20.5 So long as the Force Majeure Event continues the Customer may request that the
Contractor contract with others for the supply of any items and/or services which the
Contractor would fail to supply in accordance with the terms of this Agreement.
21 Notices
21.1 All notices to be given under this Agreement will be in writing and will be sent to the
address of the recipient shown on the front page of this Agreement or any other address
the recipient may designate by notice given in accordance with this clause.
21.2 Notices may be delivered [personally by first class prepaid letter or by facsimile
transmission].
21.3 Notices will be deemed to have been received:
21.3.1 by hand delivery – at the time of delivery;
21.3.2 by first class post – [48] hours after the date of mailing;
21.3.3 by facsimile transmission – immediately on transmission provided a
confirmatory copy is sent by first class prepaid post or by hand by the end of
the next business day.
22 Dispute Resolution
22.1 [The parties will use their best efforts to negotiate in good faith and settle any major or
material dispute that may arise out of or relate to this Agreement or any breach of it. If
any such dispute cannot be settled amicably through ordinary negotiations by the
Services Representatives, the dispute shall be referred to the senior representatives
nominated by the managing director of the Client and Managing Partner of the
Contractor who will meet in good faith in order to try and resolve the dispute. If the
143
dispute or difference is not resolved as a result of such meeting either party may (at
such meeting or within [14] days of its conclusion) propose to the other in writing that
structured negotiations be entered into with the assistance of a neutral adviser or
mediator (“the Adviser”) before resorting to litigation.
22.2 If the parties are unable to agree on an Adviser or if the Adviser agreed upon is unable
or unwilling to act, any party may, within [14] days from the date of the proposal to
appoint an Adviser or within [14] days of notice to any party that he is unable or
unwilling to act, apply to the Centre for Dispute Resolution (“the Centre”) in London to
appoint an Adviser.
22.3 The parties will within 14 days of the appointment of the Adviser meet with him in
order to agree the exchange of any relevant information and the structure and
mechanics for the negotiation to be held in London. If considered appropriate the
parties may at any stage seek assistance from the Centre in respect of a suitable
procedure.
22.4 All negotiations connected with the dispute will be conducted in complete confidence
and the parties undertake not to divulge details of such negotiations except to their
professional advisers who will also be subject to such confidentiality and such
negotiations will be without prejudice to the rights of the parties in any future
proceedings.
22.5 If the parties accept the Adviser’s recommendations or otherwise reach Agreement on
the resolution of the dispute, such Agreement shall be reduced to writing and once it is
signed by their duly authorised representatives, shall be final and binding on the parties.
22.6 Failing agreement, any of the parties may invite the Adviser to provide a non-binding
opinion in writing as to the merits of the dispute and the rights and obligations of the
parties. Such opinion will be provided on a without prejudice basis and will be private
and confidential to the parties and may not be used in evidence in any proceedings
commenced pursuant to the terms of this Agreement without the prior written consent
of all the parties.
22.7 If the parties fail to reach agreement in the structured negotiations within [30] days of
the Adviser being appointed, such a failure shall be without prejudice to the right of any
party subsequently to refer to any dispute or difference to litigation but the parties agree
that before resorting to litigation structured negotiations in accordance with this clause
[22] shall have taken place.
144
22.8 Nothing contained in this clause [22] shall restrict either party’s freedom to commence
legal proceedings to preserve any legal right or remedy or protect any proprietary or
trade secret right.
23 Miscellaneous
23.1 Waiver: No delay or failure by either party to exercise any of its powers, rights or
remedies under this Agreement will operate as a waiver of them nor will any single or
partial exercise of any such powers, rights or remedies preclude any other or further
exercise of them. Any waiver, to be effective, must be in writing. The remedies
provided in this Agreement are cumulative and not exclusive of any remedies provided
by law.
23.2 Severability: If any part of this Agreement is found by a court of competent
jurisdiction or other competent authority to be invalid, unlawful or unenforceable then
such part will be severed from the remainder of this Agreement which will continue to
be valid and enforceable to the fullest extent permitted by law.
23.3 Entire Agreement: This Agreement is the complete and exclusive statement of the
Agreement between the parties relating to the subject matter of this Agreement and
supersedes all previous communications, representations and other arrangements,
written or oral. The Customer acknowledges that no reliance is placed on any
representation made but not embodied in this Agreement. The printed terms of any
purchase order or other correspondence and documents of the Customer issued in
connection with this Agreement will not apply unless expressly accepted in writing by
the Contractor.
23.4 Variation: Except as otherwise permitted by this Agreement no change to its terms will
be effective unless it is in writing and signed by persons authorised on behalf of both
parties.
23.5 Headings: Headings have been included for convenience only and shall not be used in
construing any provision in this Agreement.
23.6 Third Parties: No person who is not a party to this Agreement has any right to enforce
its terms and shall have no right under the Contracts (Rights of Third Parties) Act 1999.
23.7 Entire Agreement: This Agreement contains the entire agreement between the parties
and supersedes all prior agreements or arrangements.
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24 Governing Law
This Agreement will be construed in accordance with and governed by the law of
England and Wales and each party agrees to submit to the non-exclusive jurisdiction of
the courts of England and Wales.
AS WITNESS the hands of the duly authorised representatives of the parties the day and
year first before written.
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SCHEDULE 1
SERVICES
In accordance with clause 2.
SCHEDULE 2
CONTRACTOR MAINTENANCE AND SUPPORT AGREEMENT
Orders
Note:
Specification
Timetable
Contract Price
Product/Services
Draft Acknowledgement Order
Specification/Product/Services
Timetable and Contract Price
SIGNED by ……………………………..….
[a duly authorised officer for and on
behalf of [ ]]
147
[in the presence of:]
SIGNED by ……………………………..….
[a duly authorised officer for and on
behalf of [ ]]
[in the presence of:]
3.24.8 DATA PROCESSOR AGREEMENT
DATED [ ]200[ ]
BETWEEN:
(1) [Data Controller] a company incorporated in England, company registration number [
] whose registered office is at [address] (“the Data Controller”); and
(2) [Data Processor] a company incorporated in England, company registration number [
] whose registered office is at [address] (“the Data Processor”).
INTRODUCTION:
148
(A) The Data Controller is the data controller of all the Personal Data and has power to
direct the passing of data to the Data Processor.
(B) The Data Processor is experienced in data processing and database services.
(C) The Data Controller wishes to appoint the Data Processor to provide [the Data
Processing Services] as described in this Agreement on the terms and conditions set out
below.
(D) In order to perform such services on the Data Controller’s behalf, the Data Processor
will require certain Personal Data (as defined below) to be made available to it by the
Data Controller, which the Data Processor agrees to process only in accordance with
the terms of this Agreement.
OPERATIVE PROVISIONS:
1. Definitions and Interpretation
1.1 The following words and phrases used in this Agreement shall have the following
meanings except where the context otherwise requires:
“Agreement”: this data processor agreement together with its Schedules and all other
documents attached to or referred to as forming part of this agreement.
“Charges”: the amounts due and payable by the Data Controller to the Data Processor
for the provision of the Services as calculated in accordance with Schedule [2].
“Confidential Information”: any information relating to the Data Controller’s
customers and prospective customers, current or projected financial or trading
situations, business plans, business strategies, developments and all other information
relating to the Data Controller’s business affairs including any trade secrets, know-how
and any information of a confidential nature imparted by the Data Controller to the
Data Processor during the term of this Agreement or coming into existence as a result
of the Data Processor’s obligations, whether existing in hard copy form, in electronic
form or otherwise, and whether disclosed orally or in writing. This definition shall
include all Personal Data.
“Data Subject”: an individual who is the subject of Personal Data.
149
“Personal Data”: the meaning set out in the Data Protection Act 1998 and relates only
to personal data of the Data Controller’s customer, and prospective customers together
with all other personal data from time to time for which the Data Controller is the Data
Controller (as such term is defined in the Data Protection Act 1998) and in relation to
which the Data Processor is providing Services.
“Processing” and “Process”: the meaning set out in the Data Protection Act 1998.
“Services”: the services to be provided by the Data Processor during the term of this
Agreement, as described in Schedule 1.
“Term”: the term of this Agreement commencing on the date of this Agreement and
continuing in full force and effect until terminated in accordance with the provisions of
this Agreement.
2. Term
2.1 This Agreement shall commence on [date].
2.2 This Agreement following commencement shall continue in full force and effect for a
period of [insert period] or until the Services have been completed unless or until
terminated by the Data Controller in accordance with clause [11].
3. Requirements and Services
3.1 The Data Processor undertakes to provide the Services required under this Agreement
and in particular to process all Personal Data in accordance with the Requirements
using all reasonable skill and care and fully trained personnel.
3.2 The Data Processor shall provide the Services to the standards specified in Schedule [1]
using all reasonable skill and care, and in a good and workmanlike manner in
accordance with best industry standards.
3.3 The service levels specified in Schedule [1] shall apply to the Services and the Data
Processor shall during the Term comply with the service levels and provide the
Services in accordance with any timetable specified in Schedule [1]. Where a timetable
is not specified, the Data Processor shall provide the Services within a reasonable time.
4 Obligations of the Data Processor
4.1 The Data Processor undertakes that it has full legal authority to enter into this
Agreement.
150
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