Terms & conditions
1. Basis of agreement
- The Statement of Work and these terms and conditions together make one agreement which, subject to clause 1.2, becomes binding when you’ve signed the Statement of Work and returned it to us. The agreement lasts until the date we complete the Services in accordance with the agreement, or until it’s terminated in accordance with its terms.
- We may withdraw the Statement of Work at any time, and if we issue a subsequent Statement of Work then the earlier Statement of Work is automatically withdrawn. The Statement of Work is only valid for 20 Business Days from the date we issue it to you – if you sign and return it to us after it’s been withdrawn or after the 20 Business Day period, then the agreement doesn’t become binding without our express written consent.
- These terms and conditions apply to the exclusion of any other terms you wish to impose or incorporate, or which are otherwise implied by trade, custom, practice, or course of dealing.
- If there’s a conflict between the terms of the Statement of Work and these terms and conditions, then the latter will prevail except where the conflicting terms in the Statement of Work are expressed as being special conditions, in which case such special conditions will prevail.
2. Supply of the services
- We’ll design, develop and provide the Deliverable and supply the Services to you in accordance with the Statement of Work in all material respects.
- We’ll use reasonable endeavours to meet any deadlines specified in the Statement of Work, however please note that given dates are estimates only and time is not of the essence for the performance of the Services. Where estimated delivery dates haven’t been agreed, we’ll aim to deliver the Services outlined in the Statement of Work as soon as reasonably possible.
- We’ll use reasonable care and skill when we supply the Services. We’ll also take reasonable steps to minimise delays or problems, notify you if we’re aware of any significant delays or problems, work to resolve issues (within our business hours) once we’re aware of them, and endeavour to avoid issues reoccurring where possible.
3. What isn’t included in the services
- We’re only responsible for delivering the Services as set out in the Statement of Work. Unless expressly stated otherwise in the Statement of Work, we take no responsibility and are not liable for any of the following:
- Search engine, digital store or other similar rankings
- Number of visitors, users, downloads, or any other utilisation metric of the Deliverable
- Total of money, profit, or savings (whether financial or time-related) generated by or derived from the Deliverable
- Applying for, renewing, or paying fees in relation to domain names
- Obtaining licences for materials included in the Materials
- Setting up or maintaining email accounts or email addresses
- Setting up or maintaining URL forwarding or redirect services
- Setting up or maintaining hyperlinks which you’re able to edit
- Services which you instruct third parties to carry out, or any fees payable to such third parties
- Reviewing or maintaining your customer databases or advising on their compliance with data protection laws or any other applicable laws, rules, or regulations
- Setting up or maintaining social network or social media pages
- Making design alterations to the Deliverable which don’t adhere to the criteria set out in the Statement of Work
- We’re not responsible for ensuring that the Deliverable complies with any laws, regulations, rules, or codes with which you and/or the Deliverable are obliged to comply.
4. Client responsibilities
- Our ability to deliver the Services is dependent on your full and timely cooperation, which you agree to provide, as well as the accuracy and completeness of any specifications, information and data provided by you or a third party agency engaged by you (if any). As such, you warrant and represent that you will:
- Ensure that the Statement of Work is accurate, and that the Services detailed are suitable for and satisfy your needs and expectations
- Provide us with access to, and use of, all information, data and documentation we reasonably require to perform our obligations under this agreement, and ensure that such information is complete and accurate in all material respects
- Obtain and maintain any licences, permissions, consents, or other authorisations necessary or desirable for the Services before the start date for the Services, or promptly following request by us or after the need for such arises (whichever happens first)
- Comply with any additional obligations in the Statement of Work
- Report to us any issues in relation to the Deliverable or the Services – or circumstances that may create issues – as soon as you become aware of them, providing as much detail as possible
- Notify us as soon as possible of any circumstances which could impede or otherwise affect our performance of the Services, providing as much detail as possible
- Provide us with all information and assistance – including Materials – that we ask for to provide the Services, including answering our questions promptly. This should be within 10 business days or more urgently where required
- Ensure that all information and Materials provided to us – whether by you, on your behalf, or otherwise at your direction – is not corrupt or contaminated by viruses, malware, or such other malicious or otherwise material, code, software, file, programme, device, or thing that is potentially harmful to or could negatively impact on, interfere with or otherwise affect the performance or operation of any hardware, software, equipment, network, service or the user experience of such
- Ensure that all information and materials provided to us – whether by you, on your behalf, or otherwise at your direction – is backed up, or copies are held by you or on your behalf
- Cooperate with us and with any competent authorities when we’re performing any right or duty in relation to the agreement
- Not access, store, distribute or transmit any material during your use of the Services (including on any Deliverable) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, racially or ethnically offensive, facilitates or constitutes illegal activity, violates import or export control laws, promotes unlawful violence, or is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or any other illegal activity
- Not cause damage to any of the systems or networks used by us for – or relating to – the Services
- Instruct and manage any third party agency to be engaged by you or on your behalf
- In accordance with clause 14, you are wholly responsible for the accuracy and completeness of the Materials used in the Deliverable
- If any act or omission of yours – or your officers, employees, contractors, subcontractors or agents – or failure by you to perform any relevant obligation (“Your Default“) prevents or restricts us performing our obligations under this agreement then:
- Without limiting or affecting any other right or remedy available to us, Big Bite may suspend the Services until you remedy Your Default. If Your Default prevents or delays our performance of any of our obligations, we may also rely on Your Default to relieve us from the performance of any of our obligations to the extent that this is caused by Your Default.
- We will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from the our failure or delay to perform any of our obligations further to this clause 4.3
- You will reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default
- In the event that Your Default (material or otherwise) subsists for longer than 10 Business Days, at our sole discretion we may elect whether or not to recommence the Services. If we do re-commence the Services, we may charge you additional fees and costs in relation to the time spent recommencing the Services and for any other resultant work that may be required to continue the Services. You acknowledge and accept that any delay in providing the Services may result in issues of compatibility or ongoing viability of the platform or software utilised in relation to the Services, and we will be entitled to charge to you any costs or fees associated in recommencing the Services and any resultant work required to properly perform the Services (in our reasonable opinion), including work required to be able to perform them in an expedient manner and in line with up to date technical requirements or specifications which are necessary or desirable for the performance of the Services or the benefit of the Deliverables as we may reasonably determine in our sole discretion.
- We can interrupt, postpone, delay, limit, or curtail the Services where it is reasonable for us to do so and where any of the following apply:
- We must take action to comply with any applicable law or regulation
- We need to carry out maintenance, inspection, servicing, repair, renewal, or replacement of the services or the systems or networks used to provide the Services
- There is an error in any of the systems, platforms, software or hardware utilised or required in relation to the Deliverable or performance of the Services
- We will not be liable for any loss, damage, cost, or expense that you incur as a result of any interruption, postponement, delay, limit, or curtailment of the Services allowed under this clause 4.5 and the Charges will not be reduced.
- We are not obliged to give you advance warning of interruptions referred to in clause 4.5.
5. Development and acceptance of deliverables
- We’ll develop the Deliverable for use on a range of devices, platforms and operating systems that are set out in the Statement of Work. Where details of devices or operating systems aren’t set out, any web developments – such as the Website – will be developed for and tested for use on the latest versions of Google Chrome, Safari, and Mozilla Firefox browsers on desktop and mobile platforms that we may determine at our sole discretion.
- Once we’ve completed the design and development of the Deliverable in accordance with the appropriate phase of the timetable set out in the Statement of Work, we’ll run the Acceptance Tests. The procedure set out within this clause will be repeated in respect of the phases indicated in the Statement of Work and any further development work that we agree to carry out.
- The Acceptance Tests will test compliance of the Deliverable with the Deliverable Specification. The form and detail of such tests is set out in the Statement of Work or, if no such tests are detailed, will be as otherwise agreed by us with you.
- Acceptance of the Deliverable occurs when the Deliverable has passed the Acceptance Tests. We will notify you when the tests have been passed and provide the results of the Acceptance Tests in writing.
- If any failure to pass the Acceptance Tests results from a defect which is caused by your act or omission, or by one of your subcontractors or agents (“Non-Supplier Defect”), the Deliverable will be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. We’ll endeavour to provide assistance you reasonably request to remedy any Non-Supplier Defect by supplying additional services or products, and you agree to pay us in full for all such additional services and products at our current fees and prices.
- Acceptance of the Deliverable will be deemed to have taken place when any of the following actions or events occur:
- You use any part of the Deliverable for any revenue-earning purposes, to provide any services to third parties, or in any way other than for test purposes
- You unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of five Business Days from the date on which we’re ready to commence running such Acceptance Tests or retests
- Five Business Days expires from the completion of the Acceptance Tests, unless you notify us in writing of any failure of the Deliverable to pass the Acceptance Tests
- You confirm that the Acceptance Tests have been passed
6. Changes to the services
- If you’d like to request changes to the scope of the Services, please note that your request will be processed in accordance with clause 6.
- We’ll charge extra for any work we do which isn’t part of the Services or as otherwise set out in the Statement of Work (“Additional Work“).
- If you’d like us to carry out any Additional Work, as a first step we’ll discuss any changes to this agreement that may be required, including changes to delivery timescale, resultant additional charges, and additional conditions that may apply to our performance of the Additional Work. After this discussion, you’ll provide us with a written request for the proposed Additional Work proposed – without this, the Additional Work will not proceed.
- Following your request, we may confirm to you in writing the effect and implications of the Additional Work, including the price for the Additional Work and additional resultant charges, the details of the Additional Work (including any specifications and user facilities), the timetable for implementation together with proposals for acceptance of the Additional Work, the impact of the Additional Work on other aspects of the agreement (including Charges, contractual documentation, and staff resources), details of the Additional Work (including any specifications and user facilities) together with any additional conditions that may apply to our performance of the Additional Work (“Additional Work Scope“).
- We’re not obligated to provide you with an Additional Work Scope or carry out any Additional Work where an Additional Work Scope has not been agreed between us. In particular, we may choose not to provide you with an Additional Work Scope where we believe that the work you request will cause compatibility issues, has no commercial merit, and/or will not be possible or it will not be viable to support longer term.
- The Additional Work Scope will be valid for a period of 20 Business Days unless expressly stated otherwise.
- If you accept the Additional Work Scope, we’ll carry out the Additional Work on the terms of the agreement as amended by the Additional Work Scope. If you don’t approve the Additional Work Scope within the period set out at clause 6.6, we will not be obliged to carry out the Additional Work. We also don’t have to carry out any Additional Work if you’re in breach or default of any of your obligations under this agreement or any other agreement with us, and our performance of the Additional Work may be conditional on your rectification of such breaches or defaults, including settlement of any amounts due and outstanding to us.
- If you accept the Additional Work Scope, you should sign and return it to us. You will be considered to have accepted the Additional Work Scope following return of the signed Additional Work Scope or if you’ve confirmed your acceptance to us in writing. Once the Additional Work Scope has been accepted and agreed by both parties, we’ll perform the Additional Work on the terms agreed.
- We may change the Services and the agreement to reflect changes in relevant laws and regulatory requirements and change the Services to implement minor technical adjustments and improvements (which will not affect your use of the Deliverable). Where this is required, we’ll notify you and explain the effects of these changes before the changes take effect.
- In addition, we may make more significant changes to these terms or the Services, but if we do so we’ll notify you and you may then contact us to terminate the agreement before the changes take effect.
- The Acceptance Tests in relation to the Additional Work will, as far as reasonably possible, reflect those set out in the Statement of Work or Additional Work Scope so that they test compliance of Additional Work with the specification agreed. If the Acceptance Tests set out in the Statement of Work or the Additional Work Scope are inappropriate to test the Additional Work (as determined by us, acting reasonably) then they will instead be as otherwise agreed by us with you. In the event of contradiction between the Acceptance Tests detailed in the Statement of Work and the Additional Work Scope, those detailed in the Additional Work Scope will prevail.
7. Project management
- Communication is key, so all parties involved in this agreement must appoint a project manager who’ll be responsible for providing professional and prompt liaison with the other party, and have the necessary expertise and authority to commit the relevant party.
- Your project manager must be available to discuss matters in relation to the Services when reasonably requested – for example, on a weekly or other regular basis.
- You confirm that we’re entitled to rely and act on any information and instructions given to us or our representatives by any persons acting on your behalf.
- We’ll ensure that software programs of third parties proprietary to the Deliverable are made available to you under the standard licence terms provided by all relevant third parties, and you agree to be bound to the relevant third parties by such licence terms. Applicable licence fees or other arrangements/charges will either be set out in the Statement of Work, or included in the Charges payable under clause 10.1.
- You must not make adaptations or variations of the Deliverable without our consent, and agree not to disassemble, decompile, reverse translate, or in any other manner decode the software in the Deliverable except as permitted by law.
9. Support services
- Unless stated otherwise within the Statement of Work, we’ll provide any Support Services from the day after Acceptance, however, we’re not obligated to do this until you’ve paid all outstanding charges in relation to the work delivered.
- In some instances, we may subcontract the provision of support and maintenance services to another party. Big Bite will not be liable for any failure to provide or for any defective or delayed provision of the Support Services by any subcontractor.
- Big Bite will not be liable for any error or problem with the Deliverable that arises out of the operation, hosting, maintenance, or support of the Deliverable by any person other than us or our subcontractors. In the event that we investigate an error or problem and discover that it occurred as a result of the actions of anyone other than Big Bite employees or our subcontractors, we may charge you an additional, reasonable sum for the investigation. This charge will be based on our standard time costs and on any costs, time, administration or other expenses incurred by us.
- Support Services operate during our Core Hours, which are 9am – 5pm GMT, Monday to Friday, excluding public and bank holidays, however we reserve the right to change our Core Hours with five working days’ notice. We’ll endeavour to ensure that support – which includes advice in relation to the Deliverable and general customer services – is available either via telephone or email during these times.
- During the agreed Support Service term, you will not allow anyone outside of Big Bite or its subcontractors to modify, repair or maintain any part of the Deliverable without our written approval.
- You will cooperate with us in any manner we reasonably require to carry out the Support Services. This may include – but is not limited to – providing information and data, ensuring that your suitably qualified employees and contractors are available if required, and providing us with access to your systems (subject to Big Bite complying with your normal security requirements).
- You will comply, as soon as reasonably practicable, with our reasonable requests for information or assistance.
- We may suspend the Support Services without notice – if giving notice is not reasonably practicable – where any of the following apply:
- The Support Services or the Deliverable are being used in breach of this agreement
- You don’t cooperate with us or our subcontractor when investigating an issue, problem, or your breach of this agreement
- Either Big Bite or our subcontractor reasonably believes that the suspension of the Support Services is necessary to protect the systems or networks used by you, Big Bite, our subcontractor or our clients
- Suspension is required by applicable law or is compelled by a competent authority
10. Charges and payment
- We’ll issue a monthly VAT invoice in respect of the Charges, and you’ll pay the Charges set out in each invoice within 14 days of its issue date.
- All Charges are exclusive of VAT – you’ll pay to us additional amounts in respect of VAT at the same time as payment is due for the supply of Services.
- If you fail to make any payment under this agreement by the due date for payment, without limiting our remedies under clause 16, you’ll pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, and at 4% a year for any period when that base rate is below 0%.
- In addition to the Charges, we may charge you for any costs, damages, liabilities, or losses (including any administrative, time costs, legal costs or disbursements) that we incur as a result of any act or omission by you or your officers, employees, agents, contractors or subcontractors, or that have resulted from you providing us with incomplete, inaccurate, or misleading instructions, information or materials.
- You will pay all amounts due under the agreement in full without any set-off, counterclaim, deduction or withholding (other than as may be required by law).
- In relation to Support Services and other ongoing services, we reserve the right to increase our Charges on an annual basis with effect from each anniversary of the date of the agreement in line with the percentage increase in the Retail Prices Index in the preceding 12 month period, with such an increase taking effect on the first anniversary of the date of the agreement.
- You remain to be liable to pay the Charges in the event that any estimated deadline or timescale is not met.
- If you fail to pay us when you should, whether under this agreement or any other agreement with us, we may do one or both of the following:
- Stop providing the Services – and any other services we are providing to or for you, whether under this agreement or otherwise – until you pay any amounts which are overdue and until you pay any interest on such overdue amounts
- Stop you from being able to access any interface, system, platform or similar that enables access, use, and management of your Deliverable or associated services until you pay any amounts which are overdue and until you pay any interest on such overdue amounts
- You and Big Bite warrant to one another that each party has full power and authority to enter into and perform this agreement.
- We’ll endeavour to perform the Services with reasonable care and skill, and in a reliable and professional manner by personnel with appropriate skills, qualifications, and experience. We also warrant that the Deliverable will perform substantially in accordance with the Deliverable Specification for a period of three months from Acceptance, and where this isn’t the case, we’ll carry out any work required to ensure that it does comply with the Deliverable Specification at no extra cost to you.
- The warranty set out in clause 11.2 doesn’t apply if the failure of the Deliverable to perform substantially in accordance with the Deliverable Specification is caused by any Materials you’ve provided. It also doesn’t apply if the failure is due to any act or omission of yours or your officers, employees, contractors, subcontractors or agents, or the act or omission of any third party.
- Without limitation, there is no implied or express representation that the Deliverable will operate in conjunction with any hardware or software items other than those set out in the Statement of Work or these terms, or that the Deliverable will operate uninterrupted or error free.
- This agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Services. This means that 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 expressly excluded.
12. Limitation of remedies and liability
- Nothing in this agreement will operate to exclude or limit our liability for any of the following:
- Death or personal injury caused by our negligence
- 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
- Any other liability which cannot be excluded or limited under applicable law
- We will not be liable to you 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.
- Subject to clause 12.1, our 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, will in no circumstances exceed the total Charges payable by you under this agreement in that calendar year.
- You will indemnify us from and against all losses, damages, costs, expenses (including professional advisors’ costs and disbursements, legal costs, and disbursements (including for the avoidance of doubt any court or similar fees) incurred in connection with or arising out of any of the following:
- Any action or claim:
- That the Materials or content placed on the Deliverable by any person other than us constitutes Inappropriate Content
- Made against us by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of your (or your employees’, agents’, contractors’ or subcontractors’) breach, negligent performance or failure or delay in performance of the agreement
- Any action or claim:
- Your breach of any warranty
- Your breach of the terms of any licence of third party software or other third party intellectual property rights utilised in relation to the Deliverable
- Your breach or negligent performance or non-performance of the agreement
- The enforcement of the agreement (including but not exclusive to the collection of any amount payable to us that is due and outstanding)
13. Intellectual property rights
- With the exception of the Materials, all Intellectual Property Rights in the Deliverable (including in the content of the Deliverable and the software for the Deliverable, other than any third party software) arising in connection with this agreement is and will remain our property. Subject to completion of the Services and settlement of all Charges due to us (other than any fees in relation to the Support Services or onward development following completion of the Deliverable), we grant you a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Deliverable in relation to your business.
- Your acquire no right in or to the Intellectual Property Rights, any software of or proprietary to us or any operating manuals, user instruction manuals, technical literature, and all other related materials (digital or otherwise), other than on the terms of this agreement and we will at all times own all copies of all or any part of the Deliverables.
- You will use reasonable endeavours to prevent any infringement of our Intellectual Property Rights in the Deliverable (including ensuring that the terms of any digital store or device do not conflict with any of the terms of ownership detailed in this agreement) and will promptly report to us any such infringement that comes to your attention.
- You will not do any of the following:
- Sub-licence, assign, or otherwise transfer the rights granted in clause 13.1
- Give access to the software in the Deliverable licensed to you under the terms of this agreement through any network of computers to users who are not your employees or agents
- Disassemble, decompile, reverse translate, or in any other manner decode the software in the Deliverable, except as permitted by law
- You will indemnify Big Bite 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.
- Big Bite will indemnify you against all damages, losses and expenses arising as a result of any action or claim that the Deliverable infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 13.5.
- The indemnities in clause 12.4.1, clause 13.5 and clause 13.6 are subject to all of the following conditions:
- The indemnified party promptly notifies the indemnifier in writing of the claim
- The indemnified party makes no admissions or settlements without the indemnifier’s prior written consent
- The indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require
- The indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim
- The indemnities in clause 13.5 and clause 13.6 may not be invoked if the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party, or if an action or claim arises out of any act or omission of the indemnified party or their officers, employees, agents, contractors, or subcontractors or any breach by the indemnified party of the terms of this agreement.
- At any time, we may include any of the work done for you – including any Deliverables and their contents and Materials – in a portfolio or such other advertising, marketing and brand materials that we consider appropriate – and you grant us an irrevocable, unlimited, royalty-free licence of the Deliverables solely for this purpose.
14. Deliverable content
- Big Bite will not be liable to you for any loss or damage to information, data or materials that are either within your control or otherwise, maintained on systems or platforms outside of our control, or on systems where you haven’t provided us with full and accurate specifications. We will also not be liable for any loss or damage caused by any issues – including compatibility issues – on those systems or platforms.
- You must ensure that the Materials you provide don’t infringe any applicable laws, regulations or third party rights, and that it isn’t Inappropriate Content.
- You acknowledge that Big Bite has no control over any content placed on the Deliverable by visitors or users of the Deliverable, or other third parties not acting at our express request, and that Big Bite is not responsible for monitoring content created or modified by such parties. We may remove content from the Deliverable where we reasonably deem it to be Inappropriate Content, and we’ll promptly notify you if we become aware of an allegation that any content on the Deliverable may be Inappropriate Content.
15. Data protection
- You warrant that you’ll comply with all applicable requirements of all applicable data protection legislation and regulations. This clause is in addition to, and does not relieve, remove or replace, obligations under the Data Protection Legislation.
- The parties acknowledge that for the purposes of applicable data protection legislation and regulations, if we process any personal data on your behalf then you’re the data controller and we’re the data processor (where data controller and data processor have the meanings as defined in applicable data protection legislation and regulations), and that the personal data may be transferred or stored outside the EEA or the country where you’re located to carry out our obligations under this agreement.
- Without prejudice to the generality of clause 15.1, you will:
- Ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data (as defined in applicable data protection legislation and regulations) to us for the duration and purposes of the agreement
- Provide all assistance and cooperation as we may reasonably require, and do all such acts, matters and things as we may reasonably request in relation to our duties and obligations under all applicable data protection legislation and regulations
- You consent to us appointing a third party processor of personal data under the agreement as we reasonably consider appropriate. Big Bite will remain fully liable for all acts or omissions of any third party processor we appoint, pursuant to this clause 15.4.
- Unless expressly stated otherwise within the Statement of Work, this agreement doesn’t transfer ownership of, or create any licences (implied or otherwise) in any Intellectual Property Rights in any data.
We’ve built our reputation on consistently providing a high quality service to all of our clients, however if there are times where we don’t get it quite right, we encourage our clients to let us know so we can learn, improve, and move forward.
To facilitate this, we have an established complaints procedure that you can use to let us know about any issues, enabling us to take the necessary actions to address the situation as quickly as possible. If for any reason you’re unhappy with our service, in the first instance please speak to a relevant member of staff or a manager at Big Bite, or if you’d rather let us know in writing, you can email us at email@example.com.
We’ll aim to respond to any reported issues immediately, however please note that if an initial investigation is required, this may take up to five working days.
- Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if any of the following events occur:
- The other party fails to pay any amount due under this agreement on the due date for payment and remains in default for more than seven days after being notified in writing to make such payment
- The other party commits a material breach of any term of this agreement which is irremediable or – if the breach is remediable – fails to remedy that breach within a period of 14 days after being notified in writing to do so
- The other party suspends – or threatens to suspend – payment of its debts, or is unable to pay its debts as they fall due, or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986
- The other party commences negotiations with all or any class of any of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors
- A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party
- An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company)
- The holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver
- A person becomes entitled to appoint a receiver over all or any of the assets of the other party, or a receiver is appointed over all or any of the assets of the other party
- A creditor or encumbrancer of the other party attaches or takes possession of – or a distress, execution, sequestration or other such process is levied or enforced on or sued against – the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days
- Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1(c) through to 17.1(h) (inclusive)
- The other party suspends or ceases, or threatens to suspend or cease, continuing all or a substantial part of its business
- Any warranty given by the other party in clause 11 of this agreement is found to be untrue or misleading
- On termination of this agreement by us under clause 17.1, all licences granted by us under this agreement will terminate immediately.
- On expiry or termination of this agreement otherwise than on termination by us under clause 17.1, we’ll promptly return all Materials to you, and will provide you with an electronic copy of the Deliverable which includes all content.
- On expiry or termination of this agreement, all provisions of this agreement will cease to have effect – this excludes any provision which can reasonably be inferred as continuing or is expressly stated to continue, including the licence granted to you under clause 13.1, which will continue in full force and effect.
18. Force majeure
Neither party will be in breach of this agreement or liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. This includes, without limitation, acts of God, natural disaster, power outages or electrical disruption, or non-performance by suppliers or subcontractors or act, omission, failure or error of any third party or its equipment (including software and technology).
In such circumstances, the affected party will be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.
- Each party must protect the Confidential Information of the other party against any unauthorised disclosure, and will use the same degree of care it takes to safeguard its own confidential information.
- Confidential Information may be disclosed by each party to its employees, affiliates and professional advisers where this is necessary to deliver the Services, however each recipient must be bound in writing to maintain the confidentiality of the given information.
- The obligations set out in this clause don’t apply to Confidential Information where the receiving party can demonstrate one or more of the following applies to the information:
- It is or has become publicly known other than through breach of this clause
- It was in possession of the receiving party prior to disclosure by the other party
- It was provided to the receiving party from an independent third party who has full right of disclosure
- It was independently developed by the receiving party
- It was required to be disclosed by a governmental authority, stock exchange or regulatory body, and the party obligated to disclose the information gave the other party prompt written notice of the requirement
- The obligations of confidentiality in this clause are not affected by the expiry or termination of this agreement.
- Big Bite reserves the right to produce and distribute promotional or marketing material – which includes media releases, public announcements, portfolios and other such advertising, marketing and brand materials – that references or features the client name, Deliverable, or elements of the Deliverable, however such material will not disclose any confidential information about any of the involved parties.
- Any notice given to a party under or in connection with this agreement must be in writing and either:
- Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case)
- Sent by email to the address specified in the Statement of Work (if any).
- Any notice or communication will be deemed to have been received at one of the following times depending on how it was sent:
- At the time when it’s been hand delivered and signed for at correct address
- At 9am on the second Business Day after posting by pre-paid first-class post or other next working day delivery service, or at the time recorded by the delivery service
- At 9am on the next Business Day if sent by email
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, and where required, such consent must not be unreasonably withheld or delayed.
- This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty – whether made innocently or negligently – that isn’t set out in this agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
22. Variation, waiver, and rights
- Unless it expressly states otherwise, this agreement doesn’t give rise to rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of this agreement, and the rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
- Any variation of this agreement will only be effective if it’s in writing and has been signed off by all parties or their authorised representatives.
- Any failure or delay by a party to exercise any right or remedy provided under this agreement (or by law) will not constitute a waiver of that or any other right or remedy, or prevent or restrict the further exercise of that or any other right or remedy. In addition, a single or partial exercise of such a right or remedy will not prevent or restrict the further exercise of that or any other right or remedy.
- The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law unless expressly stated otherwise within this agreement.
If any provision or part-provision of the agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this agreement is deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Governing law and jurisdiction
- This agreement is governed by, and construed in accordance with, the law of England and Wales. This also also applies to any contractual or non-contractual dispute or claim arising out of the agreement, or in relation to the agreement or its subject matter or formation.
- Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim – including non-contractual disputes or claims – arising in relation to this agreement or its subject matter or formation.
- The following definitions and rules of interpretation apply in this agreement:
|“Acceptance“||The acceptance or deemed acceptance of the Deliverable by you, pursuant to clause 5|
|“Acceptance Tests“||The tests to be carried out on the Deliverable pursuant to clause 5 and (if applicable) clause 6.11|
|“Additional Work“||Has the meaning given to it in clause 6.1|
|“Additional Work Scope“||Has the meaning given to it in clause 6.4|
|“Business Day“||A day other than a Saturday or Sunday or public holiday in England when banks in London are open for business|
|“Charges“||The charges in respect of the Services set out in the Statement of Work, together with any charges arising from any changes or any matters in addition|
|“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 during discussions between the parties), where the information is identified as confidential at the time of disclosure, or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure|
|“Deliverable“||The deliverables set out in the Statement of Work to be produced by us for you|
|“Deliverable Software“||The software for the Deliverable commissioned by you, as may be specified in the Statement of Work|
|“Deliverable Specification“||The specification for the Deliverable set out in the Statement of Work, or otherwise agreed in writing by us with you|
|“Inappropriate Content”||Material that infringes any applicable laws, regulations or third party rights, including material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite hatred (racial or otherwise) or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights|
|“Intellectual Property Rights“||Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world|
|“Materials“||Any content provided to Big Bite by or on behalf of you, at any time, for incorporation in the Deliverable or in relation to the performance of the Services|
|“Non-Supplier Defects“||The defects as described in clause 5.5|
|“Services“||The services to be provided pursuant to this agreement as set out in the Statement of Work, such as design and development services or the Support Services|
|“Support Services“||The support and maintenance services set out in the Statement of Work|
|“Statement of Work“||The statement of work detailing the Services to be provided, including (if applicable) the Deliverable Specification|
|“Website“||The website in relation to which the Services are to be provided pursuant to the Statement of Work|
- Unless the context otherwise requires, words in the singular will include the plural and in the plural include the singular.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted, and includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
- References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor or user.
- References to ‘writing’ or ‘written’ includes email.
- “Big Bite”, “we”, “us”, and “our” means Big Bite Creative Limited (company number 07642287) and references to “you” or “your” means the party identified in the Statement of Work as our client.