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TERMS OF BUSINESS FOR THE DESIGN AND DEVELOPMENT OF SOFTWARE

 

Ethos Information Technology, (‘Ethos I.T.’) is pleased to set out the Terms of Business which will apply to the work we do for you (‘the Customer’). These Terms of Business together with the Booking Form (once signed by both parties) form the contact (‘the Contract’) between us. In the event of any term or condition in these Terms of Business conflicting with a term or condition in the Booking Form then the latter will prevail. Please note that any project proposal sent to the Customer does not form part of the Contract and shall not in any way supersede, alter or vary the Contract between Ethos I.T. and the Customer. If at any time the Customer has any questions in connection with any part of the Contract or Ethos I.T.’s work please let Ethos I.T. know.

Ethos I.T. has agreed to design and write certain software to meet the Customer’s requirements and to provide certain services upon the terms and conditions of these Terms of Business.

1 Definitions

1.1 In these Terms of Business unless the context otherwise requires:

‘Acceptance Date’ means the date that the Customer accepts (or is deemed to accept) the Software in accordance with clause 6 below

‘Acceptance Tests’ ‘First Repeat Acceptance Tests’ And ‘Second Repeat Acceptance Tests’ means the acceptance tests to be implemented by the Customer in accordance with clause 6 below

‘Actual Delivery Date’ means the actual date that the Software and Software Documentation are delivered and installed by Ethos I.T. in accordance with clause 5 below

‘Charges’ mean the Charges to be levied by Ethos I.T. in respect of the Contract Works in accordance with clause 7 below

‘Completion Date’ means the date specified in the Booking Form (as the same may be revised in accordance with these Terms of Business) by which Completion of the Contract Works is to be achieved

‘Completion Of The Contract Works’ means the passing by the Software of the Acceptance Tests the First Repeat Acceptance Tests or the Second Repeat Acceptance Tests (as the case may be)

‘Contract Works’ means the works to be undertaken by Ethos I.T. pursuant to the Contract

‘Customer Requirement’ means the written statement prepared by or on behalf of the Customer and set out in the Booking Form indicating the business or other application(s) to be computerised and the functional and performance criteria that the Software must meet

‘Detailed Specification’ means the written specification of the Software containing, inter alia, the information set out in the Booking Form to be prepared in accordance with clause 3 below and as the same may be altered from time to time pursuant to clause 11.6 below

‘Equipment’ means the computer system(s) that the Customer specifies identified in the Booking Form

‘Phases’ means the numbered stages for the implementation of the Contract Works described in the Timetable

‘Representative’ means either of the representatives to be nominated respectively by Ethos I.T. and the Customer in accordance with clause 8 below

‘Services’ means the provision by Ethos I.T. of services in respect of delivery and installation in accordance with clause 5 below

‘Site’ means the address for the delivery and installation of the Software and Software Documentation specified by the Customer and set out in the Booking Form

‘Software’ means the programs to be designed and written by Ethos I.T. pursuant to the Contract whether a complete piece of Software or code to modify third party program

‘Software Documentation’ means the instruction manuals user guides and other documentation in respect of the Software identified in the Booking Form and as the same may be altered from time to time pursuant to clause 11.6 below

‘Staff’ means the persons identified in the Booking Form including any replacements made by Ethos I.T. pursuant to clause 9 below

‘Timetable’ means the timetable specifying the dates for the completion of each of the Phases of the Contract Works set out in the Booking Form as the same may be altered from time to time pursuant to either clause 3 or 11 below

‘Working Documents’ means any documents, computer files relating the Software including but not limited to source code files which may be used or created during the Contract Works.

2 Ethos I.T.’s undertaking

2.1 In consideration of the payment by the Customer of the Charges to be levied by Ethos I.T. in accordance with clause 7 below and subject to the terms and conditions of the Contract Ethos I.T. hereby undertakes:

2.1.1 to design and write the Software for use with the Equipment;

2.1.2 to design and write the Software Documentation for use in association with the Software (if requested by the Customer);

2.1.3 to provide the Services; and

2.1.4 to use its best endeavours to achieve Completion of the Contract Works by the Completion Date.

3 Preparation and approval of the Detailed Specification

General

3.1 Unless specifically provided for in the Detailed Specification then any aspect of the Software or Software Documentation which is open to interpretation (including but without prejudice to the generality of the foregoing any aspect of the Software that is technical procedural practical mechanical visual aesthetic or design related) will be interpreted by Ethos I.T. as they see fit and the Customer agrees to accept Ethos I.T.’s interpretation. Should the Customer then request any further modification of the Software, Software Documentation or Detailed Specification then they will use the procedure in clause 11.

4 Writing of the Software and Software Documentation

4.1 Forthwith upon the approval (deemed or express) by the Customer (or Ethos I.T. as is required) of the Detailed Specification pursuant to clause 3 Ethos I.T. shall commence the writing of the Software and the Software Documentation upon the basis of and in compliance with the Detailed Specification.

4.2 Ethos I.T. shall use all reasonable endeavours to complete the said writing by the date set out opposite Phase 3 in the Timetable or as soon thereafter as is possible.

4.3 Depending upon the type of Software Documentation specified, it may not be possible for its delivery to take place at the same time as the associated Software. Technical documentation will require the Software to have been in operation for some time before all aspects to be covered in the documentation can be assessed.

5 Delivery and installation

5.1 Ethos I.T. shall use all reasonable endeavours to deliver the Software and Software Documentation to the Site and install the Software on the Equipment by the date(s) set out opposite Phase 5 in the Timetable or as soon thereafter as is possible.

6 Testing, acceptance and sign-off

6.1 On or before the date(s) set opposite Phase 5 in the Timetable the Customer shall, if requested, submit to Ethos I.T. :

6.1.1 test data suitable to assess whether the Software operates in accordance with the Detailed Specification; and

6.1.2 the results it expects to obtain from the operation of the Software on such test data.

6.2 Ethos I.T. shall by notice upon the Customer within two [2] days (or such time as may be agreed by the parties) of receipt of the test data and results either approve or reject the same. Ethos I.T. shall only be entitled to reject the test data and/or expected results upon the basis that (and by detailing the manner in which) either or both of them require the Software to operate in a manner not provided for by the Detailed Specification. Ethos I.T. shall be deemed to have approved the test data and expected results if it neither approves nor rejects them within the said two [2] days (or such time as may be agreed by the parties).

6.3 The Customer shall forthwith upon receipt of a rejection by Ethos I.T. pursuant to clause 6.2 above make all such alterations to its test data and/or expected results as shall in the circumstances be necessary and shall resubmit the same for approval by Ethos I.T.. The provisions of clause 6.2 above and this clause shall apply mutatis mutandis until such time as Ethos I.T. shall approve (or be deemed to approve) the test data and expected results.

6.4 The Customer shall implement the Acceptance Tests within two [2] days (or such time as may be agreed by the parties) of the approval (deemed or express) by Ethos I.T. of the test data and expected results pursuant to clause 6.2 above. If the Customer shall fail so to do then upon the expiry of such period the Software shall be deemed to have passed the Acceptance Tests.

6.5 The Customer shall give Ethos I.T. not less than two [2] days (or such time as may be agreed by the parties) notice of the date and time at which it will implement the Acceptance Tests at the Site. The Representative of Ethos I.T. and the Staff shall be entitled to attend such tests.

6.6 The Customer shall accept (and in default shall be deemed to accept) the Software upon the date that they pass (or pursuant to clause 6.4 above are deemed to have passed) the Acceptance Tests. The Customer shall then sign-off the Software pursuant to clause 6.10.

6.7 Regardless of whether procured upon a Fixed Price or Man day basis; if the Software fails the Acceptance Tests due to problems inherent to the Software and not any other issue with the Equipment or Acceptance Tests procedure, then Ethos I.T. shall forthwith implement free of charge such alterations or modifications to the Software and the Software Documentation as it shall see fit in the circumstances reasonably judged necessary and in sufficient time to make possible the repetition of the Acceptance Tests by the Customer in the presence of Ethos I.T.’s Representative and Staff within seven [7] days (or such time as may be agreed by the parties) of the date of failure (the ‘First Repeat Acceptance Tests’). Ethos I.T. shall not be entitled to charge the Customer for the cost of attendance (by its Representative and Staff) at the First Repeat Acceptance Tests.

6.8 If the Software fails the First Repeat Acceptance Tests then the Customer may at its discretion:

6.8.1 require Ethos I.T. by written notice to forthwith implement such further alterations or modifications to the Software and Software Documentation free of charge as Ethos I.T. shall reasonably judge necessary to enable the Software to pass repeat Acceptance Tests (the ‘Second Repeat Acceptance Tests’). The Second Repeat Acceptance Tests shall be carried out by the Customer in the presence of Ethos I.T.’s Representative and Staff. Ethos I.T. shall not be entitled to charge the Customer for the cost of attendance (by its Representative and Staff) at the Second Repeat Acceptance Tests. If Ethos I.T. shall not have completed such alterations or modifications to the Software by the seventh day (or such time as may be agreed by the parties) after the First Repeat Acceptance Tests or if the Software shall fail the Second Repeat Acceptance Tests then the Customer shall be entitled to proceed at its discretion: under either 6.8.2 or 6.8.3 below; or

6.8.2 accept the Software subject to such refund of the Charges levied by Ethos I.T. in respect of the Contract Works pursuant to clause 7 below as Ethos I.T. and the Customer shall agree. If the parties fail to agree such refund within two [2] days (or such time as may be agreed by the parties) of failure of the First Repeat Acceptance Tests or Second Repeat Acceptance Tests pursuant to clause 6.8.1 then the Customer at its discretion shall be entitled to proceed under clause 6.8.3 below; or

6.8.3 reject the Software and without prejudice to any other rights or remedies to which the Customer may be entitled to hereunder or at law terminate the Contract.

6.9 Ethos I.T. (through its Representatives or its Staff) shall provide the Customer with all such assistance and advice as it shall from time to time reasonably require in the process of testing the Software pursuant to this clause 6.

6.10 Forthwith upon the Software passing the Acceptance Test (or if Ethos I.T. does not request the documentation in clause

6.1 then forthwith upon being given the project sign-off document) the Customer shall sign the project sign-off document provided by Ethos I.T.. Until the Customer has signed a project sign-off document and returned the same to Ethos I.T. then:

6.10.1 The copyright and all other intellectual property rights and confidential information in the Detailed Specification the Software and Software Documentation, to the extent that it has not already been assigned to the Customer pursuant to clause 14, shall remain vested in Ethos I.T..

6.10.2 The next Phase (or part of a Phase) shall not commence and the Timetable shall be suspended and altered pro rata as a result of such suspension.

7 Charges

General

7.1 Ethos I.T. shall levy Charges (by the submission of invoices in accordance with clause 7.4 below) in respect of the Contract Works. Such Charges shall be calculated upon a Man day basis or on a Fixed Price basis as specified in the Booking Form. Charges will be levied at the rates in respect of the Staff materials and equipment set out in the Booking Form or as agreed between the parties from time to time.

7.2 Ethos I.T. will levy a 25%commencement fee as specified in the Booking Form – unless otherwise stated in the Booking Form this will be 25% of the Fixed Price or 25% of the estimated Charges due on a Man day basis. Upon payment of the commencement fee the Contract Works will begin.

7.3 Ethos I.T. shall during the currency of the Contract (and for a period of 6 months after the termination of the Contract) maintain accurate and up-to-date records of the time spent by the Staff upon the Contract Works and of all materials and equipment used in connection therewith (the ‘Records’). The Representative of the Customer shall upon request be entitled (at such times as shall be agreed with the Representative of Ethos I.T.) to inspect and obtain copies of the Records.

7.4 Each invoice shall be sent to the Customer at the Site (or other place as may be agreed). The Customer shall pay Charges levied within thirty [30] days of receipt of an invoice therefor. The invoice will specify Charges in Pounds Sterling and invoices will be paid in that currency.

7.5 Ethos I.T. shall be entitled upon not less than thirty [30] days notice to the Customer and, without prejudice to Clause 7.5 below, not more than once in every twelve [12] months during the currency of the Contract to increase the rates specified in the Booking Form. Variations may include increases arising as a result of the promotion of the Staff assigned to work for the Customer. Any increases will be no greater than that levied on other customers of Ethos I.T. obtaining a comparable type of service at the time of the increase.

7.6 Charges quoted in the Booking Form relate to the provision of Services at the Site stated in the Booking Form and any change in Site may result in a change in the applicable fee rates. For the avoidance of doubt any variation of the Charges pursuant to this clause 7.5 will not affect Ethos I.T.’s rights under Clause 7.4.

7.7 The Charges shall be exclusive of the travel accommodation and subsistence expenses incurred by Ethos I.T.’s Representative and Staff in attending at the Site for the performance of the Contract Works which expenses shall be invoiced separately by Ethos I.T. and which shall be paid by the Customer within thirty [30] days of receipt of an invoice therefor. Ethos I.T. agrees that the payment of such expenses is subject to the limits and other conditions set out in the Booking Form or as may be agreed between the parties from time to time.

7.8 In accordance with The Late Payment of Commercial Debts Act 1998 Ethos I.T. reserves the right to charge the Customer interest in respect of the late payment of any sums due under the Contract (as well after as before judgment) at the rate of 2 per cent [2%] above the base rate pa (proportionately) strictly 30 days from the invoice date.

Ethos I.T. reserves the right to suspend or terminate the client’s services where payment is not made within 30 days of payment becoming due.

The Client shall bear the legal costs incurred by Ethos I.T. if an invoice is not paid after 30 days.

7.9 In the event of late payment we reserve the right to suspend the provision of Services and the Contract Works.

7.10 Any estimate of Charges given by Ethos I.T. whether given for planning or any other purpose, including any figures given in any project proposal, are only an estimate and are not in any way contractually binding.

Man day basis

7.11 Should the Booking Form provide for the Charges to be levied on a Man day basis as opposed to a Fixed Price basis then the following provisions will apply:-

7.11.1 Charges will be calculated on the basis of 7.50 hour day worked on weekdays excluding public holidays. If Staff are required to work away from home for extended period, Ethos I.T. will have flexibility in they divide their time between the Site sites and the homes of the Staff. Travel time, other than time spent travelling from a local residence to the normal place of work, will be chargeable as part of the above working hours. Hours worked in excess of 7.50 hours a day or outside weekdays may be charged on a pro rata basis.

7.11.2 Ethos I.T. shall levy Charges (by the submission of invoices in accordance with clause 7.4 above) in respect of the Contract Works as per the schedule in the Booking Form.

7.11.3 The invoice shall contain a breakdown in respect of the time spent by the Staff and the materials and

equipment used and the amounts attributable thereto

Fixed Price Basis

7.12 Should the Booking Form provide for the Charges to be levied on a Fixed Price basis then the following provisions will apply:-

7.12.1 Ethos I.T. shall levy Charges (by the submission of invoices in accordance with clause 7.4 above) in respect of the Contract Works as per the schedule in the Booking Form.

7.12.2 Ethos I.T. reserves the right to review the Charges on each anniversary of the date of the Booking Form in accordance with the Fixed Price review procedure outlined in 7.12.4.

7.12.3 Any change in the Site, change in the Detailed Specification or change in the Timetable will entitle Ethos I.T. to review the Charges in accordance with the Fixed Price review procedure outlined in 7.11.4.

7.12.4 Any review of the Charge under a Fixed Price basis will be conducted under the following procedure:

7.12.4.1 Following an event specified in clauses 7.12.2 or 7.12.3 Ethos I.T. shall notify the Customer of the revised Fixed Price Charge and a revised schedule for payment. Such notice shall also explain how the revised Fixed Price Charge and timetable were calculated.

7.12.4.2 Within three [3] working days (or such time as may be agreed by the parties) of receipt of the notice the Customer will notify Ethos I.T. as to whether it accepts or rejects the revised Fixed Price Charge and revised schedule for payment.

7.12.4.3 If the Customer does not notify Ethos I.T. in accordance with clause 7.10.4.2 it will be deemed to accept the revised Fixed Price Charge and revised schedule for payment.

7.12.4.4 Forthwith upon a rejection under clause 7.11.4.2 Ethos I.T. will either submit a further revised Fixed Price Charge and a revised schedule for payment (whereupon the provisions of clause 7.11.4 above shall apply mutatis mutandis) or notify the Customer that they nominate to use the dispute procedure in Clause 30.

7.12.4.5 Notices in this clause will be served in accordance with Clause 23.

7.12.5 The Customer’s attention is drawn to clause 3.4 that stipulates that under a Fixed Price the Customer is responsible for ensuring a Detailed Specification exists in order for, amongst other things, Ethos I.T. to determine a Fixed Price. The Detailed Specification can be produced by Ethos I.T. upon commission by the Customer, or produced by the Customer or another 3 rd party and subsequently approved by Ethos I.T..

8 Supervision of the Contract Works

8.1 With effect from the date of the Contract Ethos I.T. and the Customer shall each nominate a Representative who shall be authorised to make decisions relating to the Contract Works who shall be responsible for:

8.1.1 organising meetings at which they shall review the progress of the Contract Works; and

8.1.2 providing (subject to the provisions in respect of confidentiality set out in clause 17 below) all information and documentation reasonably required by Ethos I.T. or the Customer (as the case may be) for the performance of its duties hereunder.

8.2 Each party shall inform the other of any change in the identity of its Representative during the course of the Contract.

8.3 If requested by the Customer, Ethos I.T.’s Representative shall prepare a progress report on a regular basis (as may be agreed by the parties) of the Contract Works and shall deliver a copy to the Customer’s Representative.

9 Staff

9.1 The Contract Works shall be performed by the Staff and overseen by the Project Leader who shall be identified in the Booking Form. Staff will be chosen and deployed depending on the requirements of the Contract Works.

9.2 Ethos I.T. undertakes to use all reasonable endeavours to avoid replacing all or any of the Staff during the currency of the Contract. Any replacement Staff shall be subject to the prior approval of the Customer (such approval not to be unreasonably withheld or delayed) unless such change is necessary for reasons beyond Ethos I.T.’s control.

10 Customer’s Responsibilities

10.1 The Customer shall make available to Ethos I.T.’s Staff free of charge such use of the Equipment at the Site as shall be specified in the Booking Form. The Customer shall in addition make available to Ethos I.T.’s Staff free of charge use of such other computing and office facilities at the Site as Ethos I.T. shall reasonably require to perform the Contract Works including access to telephone and fax communications and secretarial support.

10.2 The Customer shall notify Ethos I.T. of all security and other office procedures implemented at the Site and Ethos I.T. shall ensure that the Staff comply with all such security and office procedures at all times during the Contract Works.

10.3 The Customer shall provide all information and materials reasonably required to enable us to provide the Services and perform the Contract Works. The Customer warrants that all information disclosed or to be disclosed to Ethos I.T. is true, accurate and not misleading in any material respect.

10.4 The Customer shall ensure that its staff are available to provide such assistance as Ethos I.T. reasonably require and that Ethos I.T. are given reasonable access to senior management, as well as the Customer Representative and any other staff from the Customer that may be required to enable Ethos I.T. to provide the Services and perform the Contract Works. The Customer will be responsible for ensuring that their staff have the appropriate skills and experience and if any staff fail to perform as required, the Customer will make suitable additional or alternative staff available.

10.5 Where the Customer uses third parties to provide information or support to the Customer Requirement, Detailed Specification, Services or the Contract Works including but not limited to where the Customer employs other suppliers whose work may affect Ethos I.T.’s ability to provide the Services or perform the Contract Works the Customer will ensure that it has appropriate agreements in place with those third parties to enable Ethos I.T. to perform the Contract. Unless specifically agreed otherwise in writing the Customer will be responsible for the management of the third parties and the quality of their input and work.

10.6 The Customer agrees to pay the Charges as set out in clause 7 above.

10.7 The Customer agrees to attend meetings and reply to all general communications including but not limited to items specified on the timetable. The Customer acknowledges responsibility for the same that may be required from any 3 rd parties their authority.

10.8 The Customer accepts responsibility for ensuring any text or image (either electronic or printed) provided to Ethos I.T., does not infringe copyright or any other laws.

10.9 The Customer accepts that if the use of any text or images provided by the Customer results in Ethos I.T. infringing copyright or any other laws, the Customer will be legally liable to pay any fees, fines or other costs associated with their use and publication.

11 Variations

11.1 The Customer shall be entitled at any time up to four [4] weeks (or such time as may be agreed by the parties) prior to the Actual Delivery Date to request in writing Ethos I.T. to modify the design of the Software.

11.2 The Customer shall provide Ethos I.T. with full particulars of any requested modifications and such further information as Ethos I.T. shall reasonably require.

11.3 Within seven [7] days (or such time as may be agreed by the parties) of receipt of a request pursuant to clause 11.1 above Ethos I.T. shall inform the Customer whether such modifications is technically feasible and shall inform the Customer of the alterations to the Timetable and the Completion Date that it shall reasonably judge necessary to make as a result of such request.

11.4 If the Customer elects to proceed with the modifications within two [2] days (or such time as may be agreed by the parties) of receipt of the proposed alterations to the Timetable and Completion Date then the Timetable and Completion Date shall be amended in the manner indicated by Ethos I.T. pursuant to clause 11.3 above.

11.5 Irrespective of whether Ethos I.T. is commissioned on a Fixed Price and whether the Customer elects to proceed with the modifications or not Ethos I.T. shall be entitled to levy Charges in respect of the request as if the same formed part of the Contract Works and where consideration of the request has caused a delay in the implementation of the Contract Works Ethos I.T. shall be entitled to make such extension to the Timetable and Completion Date as it shall reasonably judge necessary.

11.6 If Ethos I.T. modifies the whole or any part of the Software in accordance with this clause it shall make all appropriate related modifications to respectively the Detailed Specification and the Software Documentation.

12 Late completion

12.1 For the avoidance of doubt time shall not be of the essence and Ethos I.T. shall incur no liability to the Customer in respect of any failure to complete any of the Phases of the Contract Works by the date specified therefor in the Timetable.

12.2 If Ethos I.T. shall fail to achieve Completion of the Contract Works by the 21 st day after the Completion Date then the Customer (save where such failure results from the default by the Customer of its obligations under the Contract or an Event of Force Majeur) shall be entitled without prejudice to any other rights or remedies it may have hereunder or at law to terminate forthwith the Contract by written notice upon Ethos I.T..

12.3 For the avoidance of doubt termination of the Contract under this clause 12 will still mean that any outstanding Charges shall remain due and payable in accordance with clause 7.

13 Technical support

13.1 Ethos I.T. will provide technical support free of charge when a breech in warranty occurs as stated below in clause 15.

13.2 In no way unless expressly stated in the Booking Form shall the contract formed for the development and delivery of the Software include technical support beyond the period of warranty. Ethos I.T. will negotiate a separate contract under which technical support will be provided.

13.3 When technical support is provided and results in finding fault with the Equipment or something else other than the Software, Ethos I.T. reserves the right the charge for the time spent providing the technical support.

14 Intellectual property rights

14.1 The copyright and all other intellectual property rights and confidential information in the Detailed Specification the Software and Software Documentation shall vest in Ethos I.T. until clause 14.2 becomes active.

14.2 Forthwith upon the receipt of the Customer’s signed project sign-off document by Ethos I.T. for a Phase (or part of a Phase) of the Contract Works Ethos I.T. in consideration of the payment by the Customer of the Charges hereby assigns to the Customer the copyright and all other intellectual property rights and confidential information in the Detailed Specification, Software and Software Documentation relating to that Phase (or part of a Phase) excluding the Working Documents which includes the source code.

14.3 Upon the assignment provided in clause 14.2 Ethos I.T. shall within a reasonable time deliver to the Customer the Software together with all relevant supporting documentation.

15 Warranty

15.1 Subject to the limitations upon its liability set out in clause 16 below Ethos I.T. warrants that:

15.1.1 it will carry out the Contract Works and perform the Services with reasonable care and skill;

15.1.2 its title to and property in the Software and Software Documentation is free and unencumbered and that it has the right power and authority to assign them;

15.1.3 the media upon which the Software and Software Documentation are stored will for a period of ninety [90] days from the Acceptance Date be free from defects in materials design and workmanship;

15.1.4 the Software and Software Documentation will for a period of sixty [60] days from the Acceptance Date be capable of performing its intended business purpose as stated in the Detailed Specification.

15.2 The Customer shall give notice to Ethos I.T. as soon as it is reasonably able upon becoming aware of a breach of warranty.

15.3 Ethos I.T. shall forthwith upon receipt of a notice in respect of a breach of either of the warranties set out at clauses

15.1.3 and 15.1.4 above remedy the same by the provision of technical support free of charge.

15.4 Without prejudice to the foregoing Ethos I.T. does not warrant that the operation of the Software will be uninterrupted or error free.

15.5 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the implementation of the Contract Works or the performance of the Services the Software or the Software Documentation are hereby excluded.

16 Limitation of liability

AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS

CLAUSE 16

16.1INDEMNIFICATION - The customer agrees that they shall defend, indemnify, save and hold Ethos I.T. harmless from any and all demands, liabilities, losses, costs and claims, including reasonable solicitor's fees asserted against Ethos I.T., its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. The customer agrees to defend, indemnify and hold harmless Ethos I.T. against liabilities arising out of;

(a) any injury to person or property caused by any products sold or otherwise distributed;
(b) any material supplied by a customer infringing or allegedly infringing on the proprietary rights of a third party;
(c) copyright infringement and
(d) any defective products sold to a customer from Ethos I.T..

16.2 DISCLAIMER - Ethos I.T. will not be responsible for any damages your business may suffer. Ethos I.T. makes no warranties of any kind, expressed or implied for services we provide, or the services of our third part hosts (Fasthosts). Ethos I.T. disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Ethos I.T. and its employees. In any event Ethos I.T. shall not be liable to the Customer in connection with the performance by it of the Services in contract, tort, negligence or otherwise for any consequential or indirect loss, including but not limited to loss of business, goodwill, contracts, profits, anticipated savings or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Ethos I.T. had been advised of the possibility of the Customer incurring the same.

17 Confidentiality and non-competition

17.1 Each of Ethos I.T. and the Customer hereby undertakes to the other to:

17.1.1 keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of the Contract (the ‘Information’);

17.1.2 not without the other’s written consent to disclose the Information in whole or in part to any other person save those of its employees and the Staff involved in the implementation of the Contract Works and who have a need to know the same; and

17.1.3 to use the Information solely in connection with the implementation of the Contract Works and not for its own or the benefit of any third party.

17.2 The provisions of clause 17.1 shall not apply to the whole or any part of the Information to the extent that it is:

17.2.1 trivial or obvious;

17.2.2 already in the other’s possession other than as a result of a breach of this clause; or

17.2.3 in the public domain.

17.3 For the purposes of the Customer’s undertaking under clause 17.1 above the Information shall be deemed to include all information (written or oral) concerning the Detailed Specification.

17.4 Each of Ethos I.T. and the Customer hereby undertakes to the other to make all relevant employees agents and subcontractors aware of the confidentiality of the Information and the provisions of this clause 16 and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause 17 including the Staff.

17.5 Subject to clause 17.6 below each of Ethos I.T. and the Customer hereby undertakes to the other that during the currency of the Contract and for the period of twelve [12] months following upon its termination or expiry it will not directly or by its agent or otherwise and whether for itself or for the benefit of any other person induce or endeavour to induce any officer or employee or of the other to leave his employment including any sub-contractors or the Staff.

17.6 The provisions of clause 17.5 above shall not apply to the Customer if the Contract is terminated by the Customer pursuant to any one of the events of insolvency set out in clause 20.1.3 below.

17.7 For the avoidance of doubt nothing in this clause 17 shall affect the Intellectual Property rights of either Ethos I.T. or the Customer.

17.8 Without prejudice to the balance of clause 17 above, Ethos I.T. may cite the performance of the Services to our clients and prospective clients as an indication of our experience, unless specifically agreed otherwise in writing between Ethos I.T. and the Customer and notwithstanding the above Ethos I.T. may disclose any information referred to in this Clause 14 to any other Ethos Information Technology entity or use it for internal quality reviews.

18 Intellectual property rights indemnity

18.1 Ethos I.T. shall indemnify and hold harmless the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Software and/or Software Documentation by the Customer during the currency of the Contract and prior to the assignment pursuant to clause 14 above infringes the patent copyright registered design or trade mark rights of said third party (an ‘Intellectual Property Infringement’) provided that the Customer:

18.1.1 gives notice to Ethos I.T. of any Intellectual Property Infringement forthwith upon becoming aware of the same;

18.1.2 gives Ethos I.T. the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Ethos I.T.; and

18.1.3 acts in accordance with the reasonable instructions of Ethos I.T. and gives to Ethos I.T. such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all statements of case and other court process and the provision of all relevant documents.

18.2 Ethos I.T. shall reimburse the Customer its reasonable costs incurred in complying with the provisions of clause 18.1 above.

18.3 Ethos I.T. shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any unauthorised alteration modification or adjustment to the Software or Software Documentation without the prior written consent of Ethos I.T..

18.4 In the event of an Intellectual Property Infringement Ethos I.T. shall forthwith make without charge to the Customer such alterations modifications or adjustments to the Software and Software Documentation as shall be necessary to make them non-infringing.

18.5 The provisions of clause 16 above shall not apply to any liability of Ethos I.T. arising under or in connection with this clause 18.

19 Terms of Business and the Booking Form

19.1 In the event of any term or condition in these Terms of Business conflicting with a term or condition in the Booking Form then the latter will prevail.

20 Termination and Suspension

20.1 The Contract may be terminated:

20.1.1 forthwith by Ethos I.T. if the Customer fails to pay any sum due hereunder within thirty [30] days of the due date therefor;

20.1.2 forthwith by either party if the other commits any material breach of any term of this Terms of Business (other than one falling within 20.1.1 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty [30] days of a written request to remedy the same;

20.1.3 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).

20.2 If Ethos I.T. terminates the Contract under clauses 20.1.1, 20.1.2 or 20.1.3 the Customer will be liable to Ethos I.T. for the reasonable costs incurred by Ethos I.T. as a result of the termination including but not limited to costs relating to subcontractors or relocation.

20.3 Any termination of the Contract pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

20.4 Upon termination of the Contract any outstanding Charges shall remain due and payable in accordance with clause 7.

20.5 Upon termination of the Contract each party will return to the other any property including the records and Working Documents of the other that it then has in its possession or control.

20.6 If the Booking Form provides that the Charges are to be levied on a Fixed Price basis then in the Contract being terminated pursuant to this Clause 20 or Clause 12 the Customer agrees to pay Ethos I.T. all sums due at the date of termination in accordance with the Booking Form together with fees on a Man day basis for services provided after the date of the last applicable payment under the Booking Form.

20.7 Ethos I.T. may suspend the Contract while circumstances exist which, in Ethos I.T. reasonable opinion, materially adversely affect the basis on which the Contract was entered into or Ethos I.T.’s performance of it. The following procedure will be used:-

20.7.1 Ethos I.T. shall notify the Customer in writing that it considers that circumstances exist which merit the suspension of the Contract. The notice shall be served in accordance with clause 23 and the date of deemed service shall be referred to as ‘the Date of Suspension’.

20.7.2 The Customer shall notify Ethos I.T. in writing whether or not it considers the suspension reasonable stating reasons and steps it is putting in place to alter the circumstances as appropriate.

20.7.3 If the Customer has stated that it considers the suspension to be unreasonable both parties agree to follow the dispute procedure as provided in clause 30.

20.7.4 At the conclusion of the dispute procedure if the suspension is found to be reasonable then time runs from the Date of Suspension. If such a period of suspension exceeds 30 days, the Contract may be terminated by Ethos I.T. with immediate effect by written notice to the Customer.

20.7.5 Any period of suspension shall last as long as the circumstances giving rise to it last plus such further period as may reasonably be required by Ethos I.T. to prepare to resume the Contract Works or until termination of the agreement.

20.7.6 If both parties agree to resume performance of the Contract after the Date of Suspension the parties will first agree any changes to the Contract which may be necessary as a result of its suspension, including amendment to Charges, costs and the Timetable.

21 Force majeure

21.1 Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires terrorist activity strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’).

21.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

21.3 If a default due to an Event of Force Majeure shall continue for more than [26] weeks then the party not in default shall be entitled to terminate the Contract. Neither party shall have any liability to the other in respect of the termination of the Contract as a result of an Event of Force Majeure.

22 Waiver

21.1 The waiver by either party of a breach or default of any of the provisions of the Contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

22.2 No waiver of any term or condition of the Contract will be effective unless made in writing.

23 Notices

23.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by e-mail or facsimile transmission (such e-mail or facsimile transmission notice to be confirmed by letter posted within 24 hours) to the addresses or to the facsimile number of the other party set out in the Contract (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 72 hours after posting and (if sent by e-mail or facsimile transmission) upon the expiration of 24 hours after dispatch.

Notices to Ethos I.T.:

Postal Address 43 Gorsehill Road, Poole, Dorset, BH15 3QH

E-Mail Address contact@ethosit.co.uk

Telephone Number +44 (0)1202 252401

24 Invalidity and severability

24.1 If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

25 Entire Contract

25.1 Ethos I.T. shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of the Contract.

26 Successors

26.1 This Terms of Business shall be binding upon and endure for the benefit of the successors in title of the parties hereto.

27 Assignment

27.1 Neither party shall be entitled to assign the Contract nor all or any of their rights and obligations hereunder without the prior written consent of the other.

28 Headings

28.1 Headings to clauses in these Terms of Business are for the purpose of information and identification only and shall not be construed as forming part of the Contract.

29 Sub-contracting

29.1 Ethos I.T. shall not be entitled to sub-contract the whole of its obligations hereunder without the prior written consent of the Customer.

29.2 Ethos I.T. reserve the right to employ agents and sub-contractors when providing any part of the Services or the Contract Works. Any reference to the Staff in the Contract includes agents and sub-contractor staff.

29.3 Where the Customer requests Ethos I.T. to contract the services of a sub-contractor specified by the Customer, the Customer accepts responsibility for the work to be performed by such sub-contractor. Ethos I.T.’s agreement to programme and integrate the work to be performed by such sub-contractor for the purposes of the Contract is on the basis that Ethos I.T. will not be responsible or liable to the Customer or to any other person for the work performed by, and all acts, omissions, defaults and neglects of such sub-contractor. In the above circumstances the Customer will be responsible and liable for, and will indemnify Ethos I.T. against and from, any liability which Ethos I.T. may incur to any person and against all claims, demands, proceedings, damages, losses, costs and expenses made against, suffered or incurred by Ethos I.T., directly or indirectly as a result of or in connection with the work performed by any such subcontractor.

30 Disputes

30.1 All disputes or differences which shall at any time hereafter arise between Ethos I.T. and the Customer in respect of the construction or effect of the Contract or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of the Contract (a ‘Relevant Event’) shall be dealt with under the following procedure:-

30.1.1 As soon as a Relevant Event occurs or becomes apparent Ethos I.T.’s Representative and the Customer’s Representative shall arrange a meeting to take place within 5 working days (‘the Meeting’) in an attempt to resolve the dispute or difference. Ethos I.T.’s Representative, the Customer’s Representative and any other senior representative of the Customer or Ethos I.T. as deemed appropriate will attend the meeting.

30.1.2 If after the Meeting the dispute or difference is not resolved, or before by agreement in writing by the parties, the dispute shall be referred to mediation using the services of the Centre for Dispute Resolution to facilitate the mediation process.

30.1.3 If the dispute is not resolved through the Meeting or mediation the parties agree that the English Courts will have exclusive jurisdiction in connection with the resolution of the dispute.

31 Freedom to use ideas

32.1 Ethos I.T. and any other entity (whether or not incorporated) which carries on business under a name which includes all or part of the Ethos Information Technology name or is otherwise within (or associated or connected with an entity within) will not be prevented or restricted by this Contract from developing and using any techniques, ideas, concepts, information or know-how relating to methods or processes of general application including those in the field of information technology and business processes.

33 Amendment

33.1 Any amendment to the Contract (excluding variations provided for in the Contract) will not be effective unless agreed in writing and signed by both parties.

34 Inspection of the Working Documents

34.1 The Customer may, at Ethos I.T.’s sole discretion, be permitted to inspect the Working Documents.

34.2 Such inspection shall be at a location specified by Ethos I.T. in their sole discretion.

34.3 The Customer shall notify Ethos I.T. of their request to inspect the Working Documents in accordance with clause 23 and such notice shall specify the reason for the proposed inspection.

34.4 The Customer undertakes and warrants to :

34.4.1 keep confidential all information (written or oral) concerning the business and affairs of Ethos I.T. that it shall have obtained or received as a result of the inspection of the Working Documents;

34.4.1 not without Ethos I.T.’s written consent to copy, replicate, duplicate, reproduce or record any of the Working Documents

35 Law

35.1 The Contract shall be governed by and construed in accordance with English law.

Ethos I.T. reserves the right to revise its policies at any time without notice.

   
 
 
 
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