Startable Network, a trademark of Pixify Limited, of Cumberland House, 80 Scrubs Lane, White City, London NW10 6RF, a company registered in England & Wales (the “Company”) and You (“Client”, “You”). Part of Digm International & Partners subsidiary group of companies.
Last Updated: 7 November 2019
1. Definitions and interpretation
“Acceptance Period” the period of two (2) weeks granted to the Client for review of the Website, commencing after the date of the Website going live.
“Business Day” means any day, Monday to Friday, excluding national and international holidays, bank holidays in England and Wales, and weekends.
“Confidential Information” means all information passing from one party to the other party relating to the business of the disclosing party, including but not limited to trade secrets, drawings, know-how, techniques, source and object code, business and marketing plans and projections, arrangement and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, design, plans and models but excludes information;
- which is in or becomes part of the public domain other than through breach of this Agreement;
- which the receiving party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing party or its representatives; or
- which the receiving party acquires from a third party entitled to disclose it;
“Client Content” means all materials placed on Company servers;
“Computer Virus” means any programmes or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software;
“Downtime” means any period during which the Website and/or Hosting Server is unavailable due to equipment failure or loss of all internet connectivity to the Servers;
“Effective Date” means the date this Agreement is signed and therefore commences;
“Hosting Services” means those hosting services provided to the Client as described in Schedule 1 of this Agreement;
“Intellectual Property” means all intellectual property rights relating to or owned by either Party to this Agreement anywhere in the world (including present and future intellectual property rights) including without limitation Confidential Information, business names, domain names, copyright, database rights, patents, trade or service marks, designs, software, software programs and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights;
“Materials” means all materials owned by either the Client or the Company and used in the provision of Hosting Services, including software programs and source code;
“Maintenance” means the Services relating to any updates that may become available by the Company during the term of this Agreement.
“Personnel” means any employee, staff, agents or contractors of either Party;
“Product” means the website or Services offered or provided by the Company
“Schedule” means any and all Schedules attached to this Agreement and forming part of it;
“Servers” or “Hosting Servers” means Company’s server computer equipment;
“Services” means the Maintenance and support to be provided pursuant to the terms of this Agreement, repairing Website and/or Hosting Server that does not operate in accordance with its written specifications.
“Subscription Fee” means the monthly fee specified in Schedule 2 to be paid by the Client for the package and Services provided to them by Company;
“Term” means the period between the Effective Date and the end of this Agreement as specified in clause 9 of this Agreement;
“Website” means the Client’s Website or management system or any other system as hosted on Company’s Servers or as designed and developed by the Company;
- 2.1 In this Agreement, unless the context otherwise requires;
- A reference to any document is reference to that document as varied, novated or replaced from time to time;
- The singular includes the plural and vice versa;
- A reference to a gender shall include all other genders;
- A reference to a person or entity shall include a natural person, a partnership, a corporation, trust, association, an unincorporated body, authority or other entity; and
- A reference to a person includes that person’s legal personal representative, successors and permitted assigns;
- 2.2 Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement.
3. Packages and Services
- 3.1 The Company offers two (2) packages within the WaaS category for website development, each varying in redeemable features as set out in Schedule 2.
- 3.2 The Client shall subscribe to a package and the Company shall provide the relevant services as set out in this Agreement.
- 3.3 The Company offers two (2) nonrecurring packages (the ‘One-time fee’) for website development. The Client understands that services such as, but not limited to; Web Hosting, Domain Registration and/or Renewals and Site Modifications, are not inclusive.
- 3.4 The Client hereby agrees to the Project Terms Agreement.
- 4.1. The Company shall design and develop the Website on behalf of the Client in accordance with the Client’s criteria. Subject to the Client’s compliance to the terms of this Agreement, the Company shall endeavour to;
- attain each milestone by the relevant date provided and mutually agreed;
- complete the development of the Website and deliver it to the Client on or before the agreed delivery date (“Target Delivery Date”).
- 4.2. The Target Delivery Date may be changed or delayed from time to time in the event that the Client is unresponsive to the Company’s request for information or general contact. Where this is the case, the Company shall inform the Client in writing of the change.
5. Client Acceptance Testing
- 5.1 During the Acceptance Period, the Client shall carry out tests to determine whether the Website meets the Acceptance Criteria;
- 5.2 If the tests referred to in Clause 5.1 indicate that the Website meets the Acceptance Criteria, the Client will send to the Company a written notice of acceptance of the Website, such notice to be issued not more than five (5) Business Days following the end of the Acceptance Period.
- 5.3 In the event that the Client fails to provide notice within the five (5) days following the Acceptance Period, it shall be deemed that the Website meets the Acceptance Criteria and the Company shall not be liable to make any further changes.
- 5.4 If the tests referred to in Clause 5.1 indicate that the Software does not meet the Acceptance Criteria:
- the Client will send to the Company a written notice setting out in detail the respects in which the Website does not meet the Acceptance Criteria, such notice to be issued not more than five (5) Business Days following the end of the Acceptance Period; and
- the Client will within five (5) Business Days following receipt of a written request from the Company, re-perform the tests indicating that the Website does not meet the Acceptance Criteria in the presence of representatives of the Company.
6. Client Obligations
- 6.1 The Client represents and warrants on a continuing basis that it;
- Has the right to enter into this Agreement
- Has the power and authority, corporate and otherwise, to execute and deliver this Agreement and to perform its obligations hereunder, and
- Has by all necessary corporate action, duly and validly authorised the execution and delivery of this Agreement and the performance of its obligations hereunder.
- Remains in frequent contact with the Company whereby at least one form of contact through email or telephone is required within a 14-day period. In the event that the Client does not communicate, or the Company fails to establish communications, within a 14-day period, the Project automatically halts. If the Client fails to communicate within a further 14-days, the Company has the right to Suspend the project and raise a Reactivation Penalty of £200.00 in order to continue the Project.
7. Provision of Hosting Services
- 7.1 Hosting shall be provided by the Company through a third party, namely DreamHost, LLC. (“DreamHost”).
- 7.2 Notwithstanding clause 7.1 above, the Company shall, at its discretion, have the liberty to use any hosting company they deem reasonable and as such, the hosting company may, from time to time, be changed. The Company do not consider any changes in hosting company to affect the Client, however, where changes shall affect the Client, the Company shall inform them of the same, in writing.
- 7.3 Subject to the Clients payment of all applicable fees, The Company shall provide the Hosting Services to the Client under the terms and conditions of this Agreement and as set out in Schedule 1.
- 7.4 No third party access is allowed to the hosting server unless agreed in writing.
- 7.5 The Client may host their own site or use a third party hosting site to host their Website by buying out of this Agreement as detailed under clause 20 below.
- 7.6 In the event of clause 7.3 and where clause 7.4 applies, the Client may use a third party to host their Website, as designed and developed by the Company, however, the Client agrees and understands that the Company accepts no liability for the running of the Website or the accessibility of it, beyond the end of the Acceptance Period.
- 8.1 When subscribing to the monthly package, the Client understands and agrees that the Company shall provide maintenance and that they reserve the right to change or modify the Services at any time, from time to time providing written notice to the Client.
- 8.2 Where a change has been implemented by the Company, which the Client disputes, the Company shall provide the Client with the option to purchase, up front, the entire package in order to terminate this Agreement (“Buy Out”). The Client shall be given a settlement figure as provided in clause 20.2
- 8.3 Provided the Client has paid the applicable fees, whenever the Company makes updates generally available to its users who have purchased Services, the Company shall implement the new release containing the updates. The Client’s use of all such updates is subject to this Agreement.
- 8.4 The Company shall ensure that all Servers provided by the Company for Hosting Services are properly maintained and backed up.
9. Service Level
- 9.1 Where the Client purchases a pay monthly package (and does not invoke clause 20.1). Any changes requested shall be implemented as soon as possible by the Company.
- 9.2 The Client shall be entitled to reasonable changes each month. The number of changes shall not exceed 50% of the monthly package fee. Any costs which exceed this amount, or changes which are not deemed to be reasonable, shall be charged at a rate of £35 per hour, subject to acceptance by the Client. Acceptable changes can be found in Schedule 3 of this Agreement.
- 9.3 All additional costs shall be paid in arrears and added to the invoice of the following month.
10. Add-on Services
- 10.1 The Company shall offer the following add-on options to the Client, the costs of which are detailed in Schedule 2 of this Agreement;
- Email: the Company offers the option to manage the Client’s email accounts. This add-on shall be provided by Google, Zoho or unless otherwise decided by the Company.
- Content: the Company shall provide the Client with the option of a content creator that will create the content for the website.
- Logo: the Client can choose to change his/her logo which will be actioned by the in-house graphic designers of the Company.
- 11.1 The Client acknowledges that the Company’s systems, servers and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes.
- 11.2 The Company agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practicable.
12. Maintenance exclusions
- 12.1.Unless otherwise agreed to in writing by the Company, the Maintenance Services and the charges quoted by the Company for such services do not cover or include the following:
- Making specification changes or performing services connected with the relocation of a Website;
- Modification or replacement of a Website, repair of damage, or increase in service time caused by accident, natural or man-made disaster, which shall include but not be limited to fire, water, wind, and lightning, transportation, neglect or misuse;
- Keying, importing, converting or manipulation of data;
- On-site or formal classroom training on the operation and use of the Website or Software;
- Creation of any new non-standard, customer-defined reports.
13. Limitation of Liability
- 13.1 The Company gives no condition, warranty or undertaking and makes no representation to the Client about the suitability of, or fitness of Services for the Client’s purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement
- 13.2 The Client understands and accepts that it holds and maintains ownership of any domains related to the website and that at no time during the term of this Agreement, or otherwise, unless expressly agreed in writing, shall ownership of any domain be transferred to the Company for any reason whatsoever
- 13.3 With the exception of any rights which the Client may have under applicable law, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from these Terms to the fullest extent permitted by law
- 13.4 Nothing in this Agreement excludes or limits the liability of the Company for;
- death or personal injury caused by the Company’s negligence; or
- fraudulent misrepresentation.
- 13.5 Subject to sub-clauses 13.3 and 13.4:
- The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total value of Hosting Services paid to the Company by the Client in terms of this Agreement; and
- The Company shall not be liable to the Client or any third party for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever or howsoever caused which arise out of or in connection with the Agreement, or for loss of profit, loss of business, loss of data, depletion of goodwill or loss occurring in the normal course of business or otherwise.
- Whilst the Company shall endeavour to maintain high levels of security against the potential of hacking or interruption, the Company shall not be liable to the Client or any third party for any direct or indirect loss or damage, costs expenses or any other consequential compensation whatsoever, as a result of hacking or interception by any party, of the Company’s systems, servers or that of the Company’s hosting supplier.
14. Intellectual Property Rights
- 14.1 Any custom programming/source code of programming for source code utilised in or developed for the production of the Website for the Client shall remain the property of the Company until such a time as the Client takes the option to Buy Out of this Agreement as per clauses 8.2 and 20.1.
- 14.2 All logos, art, trademarks, copyrighted designs and phrases, domain names and company names amongst other intellectual property, in which the Client owns rights, shall remain the property of the Client.
- 14.3 The parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property;
- 14.4 Any Intellectual Property owner by either party and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party on a non-exclusive, royalty-free basis for the sole purpose of fulfilling that party’s obligations under this Agreement and for the period during which the use of that Intellectual Property by that party pursuant to this Agreement is required;
- 14.5 Where the Client places or installs their own Material on the Company’s Servers, the Client is responsible for ensuring that they have secured all necessary licences required for the performance by the Company of its obligations under this Agreement and for the period during which the use of those rights by the Company pursuant to this Agreement is required.
- 14.6 Any third party license(s) purchased by The Company in relations to this agreement, shall be purchased on behalf of The Client and as such, The Company shall not have any rights to such licence and The Client shall have full ownership of any such license(s).
15. Client Content
- 15.1 The Company shall not be responsible for the accuracy and functionality of the Client Content. The Client shall indemnify the Company for any claims made against the content of the website;
- 15.2 If the Company reasonably forms the view that the Client Content of any Website may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party’s rights, the Company may remove that Client Content from the Website and shall within twenty four (24) hours thereafter notify the Client of its removal in respect of all losses of whatsoever nature incurred by the Company as a result of the Client Content of the Website being pornographic, defamatory, misleading, deceptive or otherwise in breach of any third party’s rights;
- 15.3 As hosting shall be provided by DreamHost, or any other company which the Company sees fit, the Company shall have no liability for any loss or damage to any data stored on Servers or back-up facilities but shall endeavour to keep all data safely stored where possible to avoid interruptions, loss or damage.
- 16.1 This Agreement shall commence on the Effective Date and shall continue for a mutually agreed period of time (the ‘Initial Period’) unless earlier terminated in accordance with these terms and in particular clauses 8.2 and 20.2;
- 16.2 Following the Initial Period, this Agreement shall automatically continue in force unless terminated in accordance with its terms or by either party on giving the other 30 days’ written notice;
- 16.3 At the end of the Term, charges as set out in Schedule 2 may be subject to change. In the event that no notice is given to end the Term of this Agreement before the automatic renewal, it shall be deemed that the Client agrees to any new and updated charges and a new Schedule shall be sent to the Client.
- 16.4 The Term for payment, in accordance with this Agreement shall commence only once the Website is live, following the Acceptance Period.
17. Charges and Payment
- 17.1 A discretionary initial outlay fee (the ‘Setup Fee’) shall be payable to the Company to commence work on the Website.
- 17.2 If subscribed, the Client shall pay the Company the Subscription Fees specified in Schedule 2 for the Services together;
- 17.3 The Client may also purchase additional services from the Company at the then current rate;
- 17.4 If subscribed, the Client shall pay the Subscription Fees by card, deductible each month in advance, under the terms of this Agreement.
- 17.5 If the Client is in arrears in any payment due to the Company under this Agreement, the Client shall pay in addition to the arrears, interest at the rate of ten percent (10.0%);
- 17.6 Where the Client is in arrears, the Company shall provide a grace period of fourteen (14) days to the Client to rectify the arrears. During this time the Company shall place a hold any interest due, in accordance with clause 17.5 However, should the Client fail to rectify and/or settle the debt within that period, the Company reserves the right to backdate their claim for interest from the date the debt fell due.
- 17.7 Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment;
- 17.8 Without limiting any other right or remedy available to the Company, the Company may on giving fourteen (14) days’ notice, and without having to account for or to repay any money previously paid to it pursuant to the terms of this Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on the Company’s part to be observed or performed in the event the Client:
- fails to pay any sums due to the Company under this Agreement; or
- otherwise defaults in the due observance and performance of this Agreement.
- 17.9 If the Client in arrears 28 days after the due date, the Company reserves the right to suspend the website and the Client will incur a £200.00 Reactivation Penalty. The Company will suspend the website for up to 180 days before terminating this Agreement under clause 20.4 in the event the Client has not settled the invoice.
18. Personnel and Sub-Contractors
- 18.1 The Company may in its absolute discretion sub-contract the performance of its obligations under this Agreement.
- 18.2 The Client warrants that:
- the use by the Company of any works or Materials submitted by the Client to the Company under this Agreement will not infringe the rights of any person or contravene any law;
- at the time of entering into this Agreement it is not relying on any representation made by the Company which has not been set out in this Agreement;
- it will take all reasonable steps to ensure that any software used in connection with the Services and any material or data provided to the Company will be free from any Computer Virus and will not damage or corrupt any other data or system;
- 18.3 The Company shall not be liable for any defects resulting from improper use of Services by the Client or by any third party.
- 19.1 Each party indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the party by any person arising out of as a consequence of an unlawful or negligent act or omission of the other party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the party to comply with the terms of this Agreement or otherwise;
- 19.2 The indemnity extends to and includes all costs, damages and expenses reasonably incurred by the other party in defending any such action, proceeding, claim or demands.
- 20.1 The Client may terminate this agreement at any point by providing thirty (30) days’ written notice to the Company.
- 20.2 Notwithstanding clause 20.1 above, the Client may terminate this Agreement by taking the option to Buy Out their Website from the Company. In order to enforce this termination of this Agreement, the Client should see ‘Schedule 3’ below for their respective Buy Out calculation.
- 20.3 Upon payment of the Buy Out figure to the Company, the Company shall provide the Client with full rights to their Website and shall end all hosting and domain services provided.
- 20.4 The Company may terminate this Agreement in writing to the Client in the event that;
- the Client fails to pay any amount to the Company due under this Agreement and does not make that payment within 180 days after receiving notice requiring the Client to do so;
- the Client fails to perform any of the obligations on its part or to be observed or performed pursuant to this Agreement; or
- any of the warranties or representations made by the Client contained in this Agreement are false or inaccurate in any material way.
- 20.5 The Client shall be entitled to terminate this Agreement by notice in writing to the Company of their intention to Buy Out the Website, by providing 30 days’ notice in writing.
- 20.6 The Company may terminate this Agreement by providing the Client with 30 days; notice and the option to Buy Out the Website. In the event where the Client fails to notify the Company within 30 days, they will incur a early settlement charge of £100.00.
- 20.7 Either party shall be entitled to terminate this Agreement immediately in the event that;
- the other party makes a voluntary arrangement with its creditors or becomes subject to an administration order;
- has a receiver or administrator appointed;
- ceases or threatens to cease to carry on business
21. Confidential Information
- 21.1. Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information;
- 21.2. Either party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party;
- 21.3. All documents and other materials containing Confidential Information of either party will be returned to that party immediately upon completion of the Services;
- 21.4. The party’s obligations to keep information confidential will survive the termination of this Agreement;
- 21.5. The obligations of confidentiality under this Agreement do not extend to information that:
- was rightfully in the possession of the receiving party before any negations leading to this Agreement;
- is, or after the date of this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
- is required by law to be disclosed.
22. Force Majeure
- 22.1. “Force Majeure” means anything outside of the reasonable control or a party, including but not limited to; acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitation where the Company ceases to be entitled to access the internet or ceases to have access to the internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government agency;
- 22.2. If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure;
- 22.3. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
- 23.1 Any notices given by the Company to the Client may be given by electronic mail (e-mail) facsimile (fax) or letter;
- 23.2 The Client shall be responsible for ensuring that the Company has been provided with their up to date contact information.
- 24.1 No course of dealing, course of performance, or failure of either party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of any term, right, or condition. No waiver of breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision.
- 25.1. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Company, employee or agent, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, the Client agrees that the Company shall be entitled to an agency commission to be the greater of, either (a) twenty-five per cent (25%) of said person’s starting salary with the Client, or (b) twenty-five per cent (25%) of fees paid to said person if engaged by the Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for the Client. In the event of non-payment and in connection with this section, the Company shall be entitled to seek all remedies under law and equity.
- 26.1. The parties agree that this Agreement shall be subject to the law of England and Wales and to the exclusive jurisdiction of the courts of England.
27. Entire Agreement
- 27.1. The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties, shall constitute the entire Agreement between the parties with respect to the subject matter of this Agreement and shall not be contradicted, explained, or supplemented by any course of dealing between the Company or any of its affiliates and the Client or any of the Client’s affiliates. Company employees’ statements and Company advertisements or descriptions other than its published specifications do not constitute warranties or other contractual obligations, and shall not be relied upon by the Client as such. This Agreement shall not be modified or amended except by a writing signed by an authorised representative of both parties.
- 28.1. This Agreement may not be assigned by the Client without the prior written consent of the Company. The Company may assign this Agreement to any affiliate, subsidiary or successor to all or substantially all of its business relating to the Materials.
- 29.1 If any provision of this Agreement shall be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning of such paragraph or clause shall be construed so as to render it enforceable, to the extent feasible; and if no feasible interpretation would save such paragraph or clause, it shall be severed from this Agreement and the remainder shall remain in full force and effect. However, in the event such paragraph or clause is considered an essential element of this Agreement, the parties shall promptly negotiate a replacement thereof. If the parties are unable to agree upon a replacement term within 30 days of the final ruling, either party may terminate this Agreement upon 10 days’ prior written notice.
30. Independent Contractor
- 30.1. All work performed under the Agreement by a party shall be performed as an independent contractor and not as an agent of the other. No persons furnished by either party shall be considered the other party’s employees or agents, and each party shall be responsible for its own and its employees’ compliance with all laws, rules, and regulations involving employment of labour, working conditions, payment of wages, and payment of taxes, such as unemployment, social security, and other payroll taxes, including applicable contributions from such persons when required by law.