1. INTERPRETATION

1.1 In these Design Conditions the following words shall have the meanings attributed to them below.
Acceptance: as set out in clause 4.

Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.

Charges: the charges in respect of the Services set out in the Quotation, together with any charges arising as a result of changes to the Services specified in the Quotation.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Customer: the client contracting for the Services.

Design(s): the design(s) to be supplied to the Customer by the Supplier as set out in the Quotation.

Effective Date: the date on which the Customer accepts the Quotation.

Fees: the fees for Third Party Products as set out in the Quotation.

Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Materials: the content provided to the Supplier by the Customer from time to time for incorporation in the Design(s) and/or the Site.

Permitted Uses: the use(s) for which the Customer is licensed to use the Design(s) and/or the Site, as set out in the Quotation.

Quotation: the indicative quotation provided by the Supplier and accepted by the Customer, setting out the Services and the Charges.

Services: the design and development services to be provided pursuant to this agreement as set out in the Quotation.

Site: the website to be hosted by the Supplier pursuant to this agreement (if any).

Supplier: Pauley Design Limited, a private limited company which has its registered office at Broughton Manor, Broughton, Milton Keynes, Buckinghamshire MK10 9AA.
Third Party Products: those third party products set out in the Quotation.

Visitor: a visitor to the Site.

1.2 Clause and schedule headings do not affect the interpretation of these Design Terms.

1.3 In the event and to the extent only of any conflict between these Design Terms and the Quotation, the Quotation shall prevail.

1.4 Words in the singular include the plural and in the plural include the singular.

1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 References to including and include(s) mean respectively including without limitation and include(s) without limitation.

1.7 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a Design or in a Site for access by a Visitor to that Site.

1.9 Writing or written includes faxes and email.

2. SUPPLIER RESPONSIBILITIES

The Supplier shall provide the Services with reasonable skill and care and in accordance with the Design Conditions and the Quotation.

3. CUSTOMER RESPONSIBILITIES

3.1 The Customer acknowledges that the Supplier’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any information and data the Customer provides to the Supplier. Accordingly, the Customer shall provide the Supplier with timely access to, and use of, all information, data and documentation reasonably required by the Supplier for the performance by the Supplier of its obligations.

3.2 The Customer shall be responsible for the accuracy and completeness of the Materials in accordance with clause 8.3.

3.3 The Customer shall be responsible for checking that the Design(s) and/or the Site are accurate and complete and compliant with relevant legislation and regulations.

4. ACCEPTANCE

4.1 Acceptance of the Design(s) and/or the Site shall be deemed to have taken place upon the occurrence of any of the following events:

(a) the Customer uses any part of the Design(s) and/or the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

(b) the Customer unreasonably delays the provision of feedback requested in relation to the Design(s) and/or the Site for a period of seven Business Days from the date on which the Supplier requests such feedback.

5. THIRD PARTY PRODUCTS

The Third Party Products (if any) shall be supplied in accordance with the relevant third party’s standard terms. The Fees for such Third Party Products are payable in addition to the Charges.

6. PROJECT MANAGEMENT

6.1 Each party shall appoint a project manager who shall:

(a) provide professional and prompt liaison with the other party; and

(b) have the necessary expertise and authority to commit the relevant party.

7. CHARGES AND PAYMENT

7.1 The Supplier shall issue VAT invoices in respect of the Charges and any Fees in accordance with the Quotation, and the Customer shall pay to the Supplier the Charges and/or Fees set out in such Supplier’s invoice within 30 days of the date of the Supplier’s invoice.

7.2 All Charges and Fees set out in the Quotation are exclusive of VAT which the Customer will pay in addition.

7.3 If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the overdue amount. Such interest shall be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of HSBC. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8. WARRANTIES

8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the agreements constituted by the Quotation and these Design Conditions.

8.2 The Supplier warrants that it shall perform the Services with reasonable care and skill.

8.3 The Customer hereby undertakes and warrants to the Supplier that:

8.3.1 the Customer will indemnify the Supplier against all indirect and/or direct costs, claims, damages, losses, expenses and liabilities suffered or incurred by the Supplier as a result of this undertaking and warranty being breached;

8.3.2 the Materials and/or any information supplied by the Customer to the Supplier is accurate, complete and true;

8.3.3 in respect of any information that contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any data by which any living person is or can be identified, the Customer has obtained the express authority of such living person to make use of such name, representation and/or data;

8.3.4 the Materials and/or all information supplied by the Customer is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to the same as may be appropriate;

8.3.5 no Materials to be used in the Design(s) and/or the Site contain any data, image or other material that:

(a) is offensive, obscene or indecent;

(b) is defamatory, threatening, or racially, ethnically, or otherwise objectionable;

(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;

(d) infringes the rights (including but not limited to the intellectual property rights) of another person;

(e) is designed or likely to cause disruption to any computer system or to any network;

(f) is illegal or designed or likely to induce an illegal act.

8.4 This agreement sets out the full extent of the Supplier’s and the Customer’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

9. LIMITATION OF REMEDIES AND LIABILITY

9.1 Nothing in this agreement shall operate to exclude or limit the Supplier’s liability for:

(a) death or personal injury caused by its negligence; or

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(c) fraud; or

(d) any other liability which cannot be excluded or limited under applicable law.

9.2 The Supplier shall not be liable to the Customer for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

9.3 The Supplier shall not be liable in the event of any failure of the Design(s) and/or the Site to perform substantially in accordance with expectations if this is caused by any Materials.

9.4 Subject to clause 9.1, the Supplier’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 50% of the total Charges payable by the Customer to the Supplier under this agreement in that calendar year.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 All Intellectual Property Rights in the Design(s) and/or the Site (including in the content of the Site and the software used in creating the Site but excluding the Materials) arising in connection with this agreement shall be the property of the Supplier. Subject to receipt of the Charges and Fees when due, the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of using the Design(s) and/or operating the Site for the Permitted Uses.

10.2 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.

10.3 For the avoidance of doubt, the Customer is not permitted to alter, amend or imitate the Design(s) and/or the Site except as specifically set out in the Quotation or otherwise agreed in writing by the Supplier.

11. CONTENT

11.1 If specified in the Quotation, the Supplier shall grant the Customer access to the Site in order to update information held on the Site and/or the Supplier shall update the Site with Materials provided from time to time by the Customer in line with the Quotation. The Customer shall ensure that the Materials on the Site comply with the warranty set out at clause 8.3.

11.2 The Customer acknowledges that the Supplier has no control over any content placed on any Site by Visitors and does not purport to monitor the content of any Site. The Supplier reserves the right to remove content from any Site where it reasonably suspects such content is in breach of the warranty set out at clause 8.3.

11.3 The Supplier may include the statement “Designed by Pauley Design”, together with appropriate copyright notices, on the Design(s) and/or the Site.

12. DATA PROTECTION

12.1 For the purposes of this clause, the terms "Personal Data", "Data", "Data Controller", "Data Processor", "Data Subject" and "Processing" shall have the meanings given to them in the Data Protection Act 1998, and the term "Protected Data" shall mean "any Personal Data provided by the Customer and collected, kept, accessed, used or processed by the Supplier in the course of providing the Services.

12.2 If the Supplier is developing a Site for the Customer it will have security measures in place to protect against the loss, misuse, destruction and alteration of data. However, the Customer accepts that whenever data is released online that data can be collected and used by third parties. While the Supplier makes all reasonable commercial efforts to protect data, it cannot guarantee the security of any information online. The Supplier shall not be liable in respect of (and disclaims all liability in relation to) any data submitted to a Site which becomes available to third parties other than as intended.

12.3 Subject to clause 12.2, the Supplier warrants that, to the extent it processes any Personal Data on behalf of the Customer:

(a) it will process the Protected Data on behalf of the Customer only in compliance with the Customer’s instructions; and

(b) it will process the Protected Data in accordance with the laws of United Kingdom including, but not limited to, the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Regulation of Investigatory Powers Act 2000, and any other applicable data protection, privacy or similar laws, including all laws of Member States of the European Union implementing Directive 95/46/EC, that apply in relation to the Protected Data;

(c) it will ensure that the Protected Data is easily identifiable from any other data;

(d) it will not disclose the Protected Data to a third party unless otherwise agreed with the Customer in advance or it is obliged to do so under any statutory requirement;

(e) it will not transfer the Protected Data to any country outside the European Economic Area, without the prior written consent of the Customer;

(f) it will abide by the guidance of the Information Commissioner or any other appropriate regulatory authority with regard to the processing of the Protected Data;

(g) it will, if requested by the Customer, promptly return or destroy the Protected Data (including all copies of it) as soon as practicable;

(h) it will, on request by the Customer, promptly provide to the Customer all information which the Customer requires in order for the Customer to comply with requests from Data Subjects in relation to the processing of their Personal Data and requests from the Information Commissioner or any other appropriate regulatory authority including but any regulatory authority with powers under the Regulation of Investigatory Powers Act 2000;

(i) it has and shall maintain for as long as it continues to process any Protected Data, appropriate technical and organisational measures, processes and procedures in place to safeguard against any unauthorised or unlawful access, loss, destruction, corruption, theft, use, processing or disclosure of the Protected Data.

13. TERM AND TERMINATION

13.1 The agreement constituted by these Design Conditions and the Quotation shall commence on the Effective Date and shall continue for a minimum term of 12 months (“Minimum Term”) subject to earlier termination pursuant to clause 13.2 or 13.3. The agreement shall continue thereafter unless and until either party terminates this agreement by giving one month’s notice in writing, such notice to be effective at any time after the end of the Minimum Term.

13.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:

(a) that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or

(b) that other party:

(i) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or

(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or

(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or

(iv) the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

13.3 The Supplier may terminate the agreement at any time in the event that the Customer fails to accept the Design(s) and/or the Site presented by the Supplier after three or more iterations. Upon termination under this clause 13.3 the Customer shall, at the request of the Supplier, arrange for the return of all drafts, final artwork and other materials provided by the Supplier, and all copies thereof.

13.4 On termination of the agreement all licences granted by the Supplier under the agreement shall terminate immediately.

13.5 On expiry or termination of the agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

14. FORCE MAJEURE

A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

15. CONFIDENTIALITY

15.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

15.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

15.3 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate:

(a) is or has become publicly known other than through breach of this clause 15; or

(b) was in possession of the receiving party prior to disclosure by the other party; or

(c) was received by the receiving party from an independent third party who has full right of disclosure; or

(d) was independently developed by the receiving party; or

(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

15.4 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this agreement.

16. NOTICES

16.1 A notice given under this agreement:

(a) shall be in writing in the English language (or be accompanied by a properly prepared translation into English);

(b) shall be sent for the attention of the person, and to the address, fax number or e-mail address given in the Quotation (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and

(c) shall be:

(i) delivered personally; or

(ii) sent by fax or e-mail; or

(iii) sent by pre-paid first-class post, recorded delivery or registered post; or

(iv) (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

16.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery; or

(b) in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or

(c) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(d) in the case of registered airmail, five days from the date of posting; or

(e) if deemed receipt under the previous paragraphs of this clause 16.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

16.3 To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

17. PUBLICITY

All media releases, public announcements and public disclosures by either party relating to the agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.

18. ASSIGNMENT

The Supplier may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the Customer. The Customer may assign or transfer any of its rights or obligations under the agreement with he consent of the Supplier, such consent not to be unreasonably withheld or delayed.

19. ENTIRE AGREEMENT

Except as provided in this clause 19, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into this agreement (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of this agreement. Nothing in this agreement shall exclude or limit either party's liability for any Misrepresentation made knowing that it was untrue. Each party's liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party's ability to perform its obligations under this agreement, shall be subject to the limit set out in clause 9.4.

20. THIRD PARTY RIGHTS

This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

21. VARIATION AND WAIVER

21.1 A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.

21.2 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

21.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

22. SEVERANCE

22.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

23. GOVERNING LAW AND JURISDICTION

23.1 This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.

23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement.