Development Terms & Conditions
1. Definitions and interpretation1.1 In this Agreement:
“Acceptance Criteria” has the meaning given to it in Clause [5.2];
“Acceptance Period” means the period of 10 Business Days beginning on the date of actual delivery of the Application to the Customer;
“Acceptance Date” means the date that this acceptance is signed
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity or any connected persons of the Customer;
“Agreement” or “Contract” means this agreement (including the Schedule) and any amendments to it made in writing and signed by the parties hereto from time to time;
“Application” means the desktop, mobile, website or web application to be developed by the Developer for the Customer under this Agreement, as defined by its technical specifications attached in Schedule;
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 17:30 London time on a Business Day;
“Charges” means the amounts payable by the Customer to the Developer under or in relation to this Agreement (as set out in the Schedule);
“Confidential Information” means:
(a) any information supplied by the Developer to the Customer (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
(b) the terms (but not the existence) of this Agreement;
“Contract Price” means as per the details in your proposal
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer Works” means the works and materials provided to the Developer by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Application;
“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Application but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents or sub-contractors;
(b) an incompatibility between the Application and any other application, program or software (other than the Customer Works and the Third Party Works);
(c) defects which do not prevent the Customer from using the Application in the agreed manner (minor defect).
“Delivery Date” means as specified in the briefing document and project plan
“Design Elements” means the visual appearance of the Application (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Application) together with all mark-ups and style sheets comprised in or generated by the Application, but excluding:
(a) the Customer Works; and
(b) the Third Party Works;
“Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
“Materials” means information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Schedule” means the schedule attached to this Agreement;
“Services” has the meaning given to it in Clause [3.1];
“Software Elements” means the Application excluding:
(a) the Design Elements;
(b) the Customer Works;
(c) the Materials; and
(d) the Third Party Works.
“Third Party Works” means the works and materials comprised in the Application, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
“Term” means the term of this Agreement;
“Unlawful Content” has the meaning given to it in Clause [7.1];
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date. 1.2 In this Agreement, Ma reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
2. TermThis Agreement will come into force on the Effective Date and will continue in force subject to the provisions of Clause 5.
3. The Services3.1 The Developer will:
(a) design and deliver the Application;
(b) incorporate the Customer Works and Third Party Works into the Application;
(c) install the Application on one single Customer's server defined in Schedule.
3.2 The Developer will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Schedule; however, any delay in the provision of the Services which occurs as a result of the Client’s actions or omissions to act will be the Customer’s responsibility, and in the event of such delay the Delivery Date will be extended accordingly to take into account of such delay. The Developer reserves the right to charge the Customer for any such costs and expenses reasonably incurred as a result of the delay.
3.3 The Developer will use reasonable endeavours to perform the Services in accordance with the Charges set out in the Schedule; however, If the Developer foresees a situation where the Charges are likely to be exceeded, the Developer will inform the Customer within 14 days of any anticipated excess.
3.4 Any delay in the provision of the Services which is due to factors beyond the responsibility of the Developer, including but not limited to access to staff, delivery or proper functioning of hardware or software, will be acknowledged by the Customer, and the Delivery Date will be extended accordingly.
4. Customer obligations4.1 The Customer will provide the Developer with:
(a) such co-operation as is required by the Developer (acting reasonably) to enable the performance by the Developer of its obligations under this Agreement;
(b) Access to the Customers site on the reasonable request of the Developer for the purposes of maintaining and supporting the Application; and
(c) all information and documents required by the Developer (acting reasonably) in connection with the provision of the Services.
4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by the Developer to enable the Developer to fulfil its obligations under this Agreement.
5. Delivery and acceptance5.1 The Developer will use reasonable endeavours to deliver the Application to the Customer for acceptance testing on or before the Delivery Date.
5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:
(a) whether the Application conforms in all material respects with the technical specifications of the Application in the Schedule; and
(b) whether the Application has any Defects;
(the “Acceptance Criteria”).
5.3 If in the Customer's reasonable opinion the Application meets the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period confirming acceptance of the Application.
5.4 If in the Customer's reasonable opinion the Application does not meet the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period setting out in detail the respect(s) in which the Application does not meet the Acceptance Criteria.
5.5 If the Developer (acting reasonably) agrees that the Application does not meet the Acceptance Criteria, the Developer will have a further remedial period (of 10 Business Days) to modify the Application so that it meets the Acceptance Criteria. If the Developer fails to meet the Acceptance Criteria within the remedial period the client will have the right to terminate this Agreement.
5.6 The Application will be deemed to have been accepted by the Customer if:
(a) the Customer does not give any notice to the Developer under either Clause [5.3] or Clause [5.4] during the Acceptance Period; or
(b) the Customer publishes the Application or uses the Application for any purpose other than development and/or testing.
6. Third Party WorksAny licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Schedule (unless the parties agree otherwise).
7. Unlawful Content7.1 The Customer will ensure that the Customer Works do not infringe any applicable laws, regulations or third party rights (“Unlawful Content”).
7.2 The Customer will indemnify and will keep indemnified the Developer against all damages, losses and expenses (including legal expenses) arising as a result of any claim that the Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
8. Charges and payment8.1 The Developer will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Schedule, or (if earlier) upon the acceptance of the Application by the Customer.
8.2 The Customer will pay the Charges to the Developer within 14 days of the date of issue of an invoice issued in accordance with Clause [8.1] or as stated on the invoice if earlier.
8.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT
8.4 Charges must be paid by bank transfer, cash or by cheque
8.5 If the Customer does not pay any amount properly due to the Developer under or in connection with this Agreement, the Developer may:
(a) charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
9. Intellectual Property Rights9.1 The Developer retains copyright in the Application, Software Elements, documentation and such like, as well as any other intellectual and/or industrial property rights in the Application, Software Elements, documentation, which the Customer has ordered and which the Developer has developed or prepared pursuant to this Agreement ;
9.2 The Developer shall retain its pre-existing proprietary rights, methods and system methods which could be used in the development of the Application, and ownership of all patents, copyrights, trademarks, trade names, trade secrets, and other proprietary rights relating to or residing in the pre-existing technology together with all updates, modifications and extensions designed or developed throughout the Term. These rights shall remain exclusively with the Developer and no licence is hereby granted to the other party in this respect.
9.3 The Developer may from time to time choose to register its patents, copyright, or trademark interests in its pre-existing technology or to updates, modifications and extensions designed or developed throughout the Term but such acts shall not cause or be construed as causing any part of the pre-existing technology to become part of the public domain.
9.4 Only the Developer excluding the Customer and/or any third party may be entitled to alter, modify, translate, develop, improve and transfer the results of the Application, Software Elements, documentation and such like, in which the Developer retains any and all intellectual and industrial property rights.
9.5 No source code is hereby nor will be disclosed to the Customer and no right to any source code is hereby granted to the Customer.
9.6 Nothing herein shall be construed as granting to either party or implying any rights, by licence, grant or otherwise, under any intellectual and/or industrial property rights of or concerning any of the disclosing party's confidential information.
9.7 The Developer will grant the Customer a non-exclusive, non-transferable worldwide licence to use the Application solely and exclusively for its own needs, to the exclusion of any right to sublicence, market, sell or transfer in any form its licence rights in the Application. This licence will be for the duration of the intellectual property rights applicable in the relevant countries.
10. Warranties10.1 The Customer warrants to the Developer
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) that it holds all licences, intellectual property rights, consents and agreements in respect of the Customer Works.
10.2 The Developer warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) that it will perform its obligations under this Agreement with reasonable care and skill; and
(d) that the Application will continue to operate without any Defects for a period of 1 month from the date of acceptance of the Application (and if the Application does not so operate, the Developer will, for no additional charge, carry out any work necessary in order to ensure that the Application operates without any Defects during this period).
10.3 The Customer acknowledges that the Developer has designed the Application to work with the web browser technology specified in the Schedule, and the Developer does not warrant that the Application will work with any other web browser technology.
10.4 The Customer further acknowledges that the Developer does not purport to provide any legal advice under this Agreement or in relation to the Application and the Developer does not warrant that the Application will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
11. Limited liability11.1 The Developer shall, at its own cost and expense, defend any action brought against the Customer to the extent that it is based on a claim that the Application constitutes an infringement of any third party trade mark or copyright, in the United Kingdom, provided that the Customer:
(a) notifies the Developer within thirty (30) days of any alleged infringement, and
(b) makes no admission without the Developer’ written consent, and
(c) assists the Developer to conduct all negotiations and litigation, if requested by the Developer.
11.2 Clause 11.1 shall not apply where the infringement arises in relation to the Third Party Works provided to the Developer by the Customer for which the Customer has purported to hold all the required licences, consents, permissions or assigns necessary for the provision of such works. 11.3 Remedies
(a) The Developer is authorised, at its own expense, to defend or, at its option, to settle the claims. In the event that the Application is held by a final court of the United Kingdom's decision to constitute an actual infringement, the Developer shall at its own costs and sole option, and to the exclusion of any other remedy, either obtain the right for the Customer to continue using the Application, or to replace or modify the Application so that it becomes non-infringing, or to reimburse the Customer of the amount actually paid by the Customer under this Agreement.
(b) The Developer shall have no liability, and the Customer shall fully indemnify the Developer and its assignees against all actions, claims, liabilities, demands, costs, direct charges and expenses resulting from any claim of infringement directly due to:
(i) the use of the Application in a manner or for a purpose not contemplated in this Agreement;
(ii) any modification carried out by or on behalf of the Customer to the Application;
(iii) the use of the Application in combination with a third party product that results in the Infringement of a third party right, such combination with a third party product being not contemplated in the present Contract.
11.4 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
12. Limitations and exclusions of liability12.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
12.2 The limitations and exclusions of liability set out in this Clause  and elsewhere in the Agreement:
(a) are subject to Clause [12.1];
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit and/or exclude the liability of the parties under the express indemnities set out in the Agreement.
12.3 The Developer will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
12.4 The Developer will not be liable for any loss of business, contracts or commercial opportunities.
12.5 The Developer will not be liable for any loss of or damage to goodwill or reputation.
12.6 The Developer will not be liable in respect of any loss or corruption of any data, database or software.
12.7 The Developer will not be liable in respect of any special, indirect or consequential loss or damage.
12.8 The Developer will not be liable for any losses arising out of a Force Majeure Event.
12.9 The Developer's liability hereunder for any claims made by the Customer whether in relation to any event or series of related events will not exceed in aggregate the greater of:
(a) £250,000; or
(b) the total amount paid or (if greater) payable by the Customer to the Developer under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim.
13. Data protection13.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Developer under this Agreement.
13.2 The Developer warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Developer on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Developer on behalf of the Customer.
14. Confidentiality and publicity14.1 The Customer will keep confidential the Confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause .
14.2 The Customer will protect the confidentiality of the Confidential Information using at least reasonable security measures.
14.3 The Confidential Information may be disclosed by the Customer to its employees and professional advisers on a need to know basis, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
14.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the Customer, and can be shown by the Customer to have been known to it, before disclosure by the Developer; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.
14.5 Either party will not make any public disclosure relating to the subject matter of this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party save as set out above regarding the inclusion of the Intenix name within the website or as required by law or any other regulatory body.
15. Termination15.1 Either party may terminate this Agreement at any time by giving at least 30 days' written notice to the other party.
15.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) fails to pay any amount due under this Agreement in full and on time.
15.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation or amalgamation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
16. Effects of termination16.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7, 8.5, 9, 10, 11, 14, 16, and 17.3 to 17.13].
16.2 Termination of this Agreement will not affect either party’s accrued rights (including the Developer's accrued rights to invoice for and to be paid the Charges) as at the date of termination.
16.3 If this Agreement is terminated under Clause [15.1], or by the Customer under Clause [15.2] or [15.3] (but not in any other case):
(a) the Developer will, on request, promptly provide to the Customer an electronic copy of the Application; and
(b) the Customer will be entitled to a refund of any Charges paid by the Customer to the Developer in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Developer (such amount to be calculated by the Developer using any reasonable methodology).
16.4 Save as provided in Clause [16.3(b)], the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Developer. The Developer may also reserve the right to demand payment for services rendered up until the point of termination.
17. General17.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by first class post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address given below (or as notified by one party to the other in accordance with this Clause).
DNA Digital Holdings Limited, William Old Centre, Ducks Hill Road, Northwood HA6 2NP
As per the proposal
Email: As per the proposal
17.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by first class post, 48 hours after posting; and
(c) where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
17.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
17.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.5 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
17.6 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.7 The Developer may freely assign its rights and obligations under this Agreement without the Customer's consent. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.
17.8 The Developer may subcontract any of its obligations under this Agreement to any third party without the Customer's consent.
17.9 The Customer will not, without the Developer's prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee or contractor of the Developer who has been involved in the performance of this Agreement.
17.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
17.11 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.12 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this Agreement. Subject to Clause [11.1], each party acknowledges that no representations or promises not expressly contained in this Agreement have been made by or on behalf of the other party.
17.13 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.