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Terms and conditions

Definitions

1.1 In this Agreement:

“Elliff” means Elliff Limited

“Charges” means the charges payable as specified in the Agreement;

“Documentation” means the instructional and/or operational manuals specified in the Agreement;

“Error” means a failure by the Software or the Web Site to perform in accordance with the Specification or Documentation;

“Host” means the Internet Service Provider as detailed in the Specification;

“Information” means information in any form delivered by the Customer to Elliff in accordance with Clause 4.2;

“Intellectual Property Rights” means all rights in inventions, patents, trade marks, service marks, trade names, rights in designs, copyrights, including rights in computer software, rights in know-how, moral rights, rights in confidential information, rights in databases, compilation rights and topography rights and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world whether or not any of these are registered and including application for registration of any such thing;

“Services” means the services listed on the Agreement;

“Software” means the software applications listed in the Specification, including but not limited to related programs, data files, databases, data and other related information stored on computer media or otherwise, together with any subsequent corrections, additions and/or modifications made and supplied by Elliff to the Customer.

“Specification” means the specification drawn up in accordance with the Agreement;

“Support” means the obligations of Elliff as specified in the Agreement;

“Use” means, with respect to the Software and the Web Site, to load, execute, store or copy (for the purposes of loading, execution or storage) the Software and the Web Site for the purpose of making the Web Site accessible via the Internet; and permit visitors to the Web Site to utilise the Web Site;

“Web Site” means the web site described in the Specification.

The Specification

2.1 Elliff shall draw up the Specification for the Software.

2.2 The Customer shall provide such facilities, information and assistance to Elliff for the purpose of drawing up the Specification, as Elliff shall reasonably require.

2.3 Upon completion of the Specification Elliff shall deliver it to the Customer for approval. Within 14 days from and including delivery the Customer shall communicate to Elliff those amendments (if any) that it requires. Where no amendments are communicated within the 14-day period the Customer shall be deemed to have accepted the Specification unamended.

2.4 Where the Customer requires amendments to the Specification and communicates the same to Elliff within the period specified in Clause 2.3, Elliff shall amend the Specification, Elliff shall redeliver the amended Specification to the Customer for approval and the provisions of Clause 2.3 shall apply to that amended Specification.

2.5 If after acceptance of the Specification by the Customer and prior to acceptance of the Service, the Customer shall desire any changes to be made to the Specification, the Customer shall write to Elliff specifying the changes to be made to the Specification and the reason for each change.

2.6 If Elliff agrees to perform the work necessitated by the changes, Elliff shall provide the Customer with an estimate of the extra cost (if any), which will be occasioned by the changes requested and the alterations to the timetable quoted.

2.7 Elliff shall not be obliged to implement any changes requested unless its estimates of cost and delay are accepted by the Customer, in which case the changes requested shall take effect upon its acceptance by Elliff as a variation of this Agreement.

Scope

3.1 In consideration of the payment of the Charges on the dates as specified in the Agreement, Elliff shall:

3.1.1 supply the Services;

3.1.2 grant the licence in Clause 5.3.

The Services

4.1 Elliff agrees to provide the Services in accordance with the Specification.  The Specification shall be drawn up by Elliff in accordance with the procedure specified in Clause 2.

4.2 The Customer must provide to Elliff in timely and suitable manner such information as may be reasonable necessary to enable Elliff to complete Services in accordance with the Specification, provided that the Customer shall not supply any Information which infringes the Intellectual property Right of a third party or is fraudulent, offensive, abusive, defamatory, obscene or menacing or causes annoyance, inconvenience or needless anxiety or constitutes unsolicited advertising or promotional material.

4.3 Where the Services include a Web Site development:

4.3.1 Elliff shall convert the Information into a display-ready format for the Web Site, as is appropriate to the nature of that Information.  If the Information is not in a suitable digital format, as agreed between Elliff and the Customer, an additional charge will be made for its conversion by Elliff.

4.3.2 upon completion of the Software and the Web Site, Elliff shall make the Web Site available for access by the Customer on a test server. The customer shall arrange for the performance of a test on the Software and the Web Site within seven (7) days of notification of the test server address in order to determine whether it conforms to the Specification. Where the Customer communicates no amendments to Elliff within the seven (7) day period the Customer shall be deemed to have Accepted the Software and Web Site. In the event that the tests are not successful, the Customer shall give Elliff written notice of any Errors, and acceptance shall be deemed to have occurred once such Errors have been corrected by Elliff.

4.3.3 upon acceptance of the Software and the Web Site, Elliff will either deliver the software to the Host and if specified in the Agreement, submit the relevant details to Search Engines, provided that Elliff does not guarantee the success of any listing with any such Search Engine or, where Elliff is to provide the hosting (as detailed in Specification), commence the provision of this aspect of the Services.

4.3.4 where Elliff is not providing hosting services Elliff shall, at the Customer’s expense, co-operate with the Host in the installation of the Web Site and ensure that the Software and the Web Site comply with the Host’s reasonable technical and functional requirements for hosting the Web Site.

4.3.5 Elliff reserves the right to refer to its work under this Agreement in Elliff’s sales literature, press releases, web site or other sales materials.

4.4 Where hosting services are provided as part of the Services the provision of these Services shall commence either upon acceptance of Software and Web Site pursuant to clause 4.3.2 or upon receipt of the Web Site from the Customer.

Intellectual Property Rights and Licence

5.1 Subject to the provisions of Clauses 5.2 and 5.3, all right, title and interest in and to the Intellectual Property Rights in the Software and the Web Site shall vest exclusively in Elliff.

5.2 All right, title and interest in and to the Intellectual Property rights in the Information and any domain name registrations associated with the Web Site, shall vest exclusively in the Customer.

5.3 Elliff hereby grants to the Customer a non-exclusive, non-transferable, world-wide license in perpetuity to Use the Web Site and the Software, provided that the Software is only Used for the purpose of operating the Web Site and that the Customer has paid in full all Elliff Charges

5.4 The Customer shall not use, copy, sub-licence, assign, modify, merge, distribute, transfer, decompile or reverse engineer the Software or the Documentation or any copy except as expressly permitted by the provisions of this Agreement, or to the extent that this restriction is not permitted under applicable law.

5.5 The Customer may copy the Software for the purposes of back-up provided that no more than three (3) copies of the Software will be held by the Customer at any time without the prior written consent of Elliff, or as otherwise permitted by law.

Charges and Terms of Payment

6.1 As consideration for the performance of Elliff’s obligations under this Agreement and the Licence, the Customer shall pay to Elliff the Charges as specified in the Agreement, on the dates specified, subject to the issue by Elliff of a valid invoice for each such amount.

6.2 The Charges shall be exclusive of Value Added Tax, and the Customer shall be liable for Value Added Tax on the Charges at the rate and in the manner prescribed by law.

6.3 Time for payment is of the essence of this Agreement. Any failure or delay in paying any sum due to Elliff shall entitle Elliff to terminate this Agreement forthwith by written notice to the Customer.

Warranties

7.1 Elliff warrants that:

7.1.1 during the period commencing on the date of acceptance of the Software in accordance with Clause 4.4 and expiring 28 days thereafter ("the Warranty Period"), Elliff will correct any Error in the Software and the Web Site at its own expense and within a reasonable time after receiving notice of such Error from the Customer;

7.1.2 the Software when delivered is free of any computer virus known to Elliff;

7.1.3 if specified in the Specification, the Web Site and the Software will be designed to accommodate foreign currencies.

7.2 The Customer warrants that it has the right to include, and permit Elliff to include, the Information on the Web Site, or has obtained the rights from third parties to do so.

Commencement and Termination

8.1 The agreement to provide the Services shall commence upon the date hereof and shall terminate upon the completion of the Services or, in respect of hosting Services, shall continue for an initial period of 12 months, with either party being able to serve not less than 3 months notice to terminate the hosting Services at the end of the initial period or any time thereafter.  Either party may terminate this Agreement, in whole or in part, by written notice if the other is in breach of any of its material obligations under this Agreement and fails to remedy such breach (if capable of remedy) within 10 days of a written notice to do so.

8.2 Either party may terminate this Agreement immediately and without notice if:

8.2.1 the other enters into a composition with its creditors;

8.2.2 an order is made for the winding up of the other;

8.2.3 an effective resolution is passed for the winding up of the other (other than for the purposes of amalgamation or reconstruction on terms approved by the first party (such approval not to be unreasonably withheld); or

8.2.4 the other has a receiver, manager, administrative receiver or administrator appointed in respect of it.

8.3 Upon termination of the agreement, subject as otherwise provided in these terms and to any rights or obligations, which have accrued prior to termination, neither party shall have any further obligation to the other.

Indemnity

9.1 The Customer shall indemnify Elliff against any loss, damage, cost or expense (including reasonable solicitors’ fees and expenses) Elliff may suffer or incur as a result of any claim by any third party that any of the Customer’s domain names, any changes to the Specification, Software or the Web Site requested by the Customer, or any of the Information infringes the Intellectual Property Right of a third party or is fraudulent, offensive, abusive, defamatory, obscene or menacing or causes annoyance, inconvenience or needless anxiety or constitutes unsolicited advertising or promotional material.

Support Services

10.1 Elliff shall designate one member of its technical staff (together with an alternative if that person is not available) as the contact for the Customer in relation to Support.  Elliff shall provide telephone support to the Customer between 9.00 am - 5.30 pm Monday to Friday (UK time).

10.2 Elliff undertakes to respond, to Software Problem reported in writing, within two working days of receipt.  This response will acknowledge receipt and state the action being taken and provide a named contact.

10.3 Elliff will use every reasonable effort to resolve the Software Problem reported:

10.3.1 if the bug or error is critical (i.e. the Software cannot be used for trading purposes by the relevant customer), within two working days of receipt of the Software Problem report;

10.3.2 if the bug or error is serious (some facilities in the Software are unusable), within 5 working days of receipt of the Software Problem report; and

10.3.3 if there are minor bugs or errors (which render some facilities in the Software difficult to use), within 28 working days.

10.4 Cosmetic or matters of presentational style which do not seriously affect the usability of any of the features of the Software may be corrected at the convenience of Elliff.

10.5 Where Elliff believes that the Software is not at fault it will so notify the Customer and the Customer may request Elliff to continue with the associated investigation subject to remunerating Elliff on a time and materials basis if the Software is not found to be at fault.

10.6 Elliff reserves the right at it’s discretion from time to time to vary, add to or withdraw the Service.

Limitation of Liability

11.1 Except as otherwise expressly stated in this Agreement, the liability of each party under this Agreement shall be limited to loss or damage arising directly out of:

11.1.1 any breach of that party’s obligations under this Agreement; or

11.1.2 that party’s own negligence or wilful misconduct.

11.2 Elliff’s liability under Clause 11.1 shall be limited to the greater of the value of the contract or £10,000.

11.3 Nothing in this Clause 11 shall be construed to exclude the liability of either party for death or personal injury caused by its negligence.

11.4 The provisions of Clause 11.1 shall not apply to the liability of any party arising under Clause 10.

11.5 Neither party shall be liable to the other or to any third party for any indirect, special or consequential loss or damage arising out of or in connection with this Agreement.

Confidentiality

12.1 Subject to Clause 4.3.5, no public announcement, press release, communication or circular concerning this Agreement will be made or sent by either party without the other’s prior written consent, which shall not be unreasonably withheld.

12.2 Each party agrees and undertakes that it will hold in complete confidence any Confidential Information disclosed to it, and will not disclose it in whole or in part at any time to any third party, nor use Confidential Information for any purpose other than the performance of its obligations under this Agreement.  This provision shall survive the termination of this Agreement for any reason for a period of 2 years commencing immediately on the date of such termination.

12.3 For the purposes of this Agreement, "Confidential Information" means all business, financial and operational information relating to the Specification, Software or the Web Site or the dealings of either party, which is marked or otherwise indicated as being confidential, except information which:

12.3.1 at or prior to the time of disclosure was know to the receiving party as evidenced in writing, except to the extent that such information was unlawfully appropriated;

12.3.2 at or after the time of disclosure becomes generally available to the public other that through any act or omission on the part of the receiving party;

12.3.3 is received from a third party free to make such disclosure without breaching any legal obligation;

12.3.4 is independently developed by the receiving party; or

12.3.5 is required to be disclosed by law, court order or request by any government or regulatory authority.

General

13.1 This Agreement, constitutes the entire agreement of the parties in relation to its subject matter and supersedes and cancels any previous understandings, commitments, arrangements or representations whatsoever whether oral or written, express or implied in relation to the subject matter of this Agreement.  This Agreement shall not be varied unless in writing signed by a duly authorised representative of each party.

13.2 If any part of this Agreement that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of this Agreement.

13.3 Nothing in this Agreement shall be construed as creating a partnership, joint venue or agency relationship between the parties.

13.4 Neither party will be held liable for any loss or failure to perform its obligations under this Agreement due to circumstances beyond its reasonable control.

13.5 Any waiver by either party of a breach of any provision of this Agreement shall not be considered to be a waiver of any subsequent breach of the same, or any other, provision.

13.6 Any notices given by either party hereunder shall be given in writing by the recipient at its address set out above (or such address as such party may notify the other for the purposes of this Agreement).  Any such notice shall be deemed to be delivered, if sent by first class post, forty eight hours after posting; and, if sent by facsimile, at the time of transmission, confirmed by a transmission report from the sender’s facsimile machine.

13.7 This Agreement shall be governed by, and construed in accordance with the laws of England and both parties submit to the non-exclusive jurisdiction of the English Courts.

13.8 This Agreement may not be assigned or otherwise transferred in whole or part by either party without the prior written consent of the other.

Published: 1st October 2011