Terms and Conditions

• A “Proposal” is any offer to provide a service or product made by The Completely Digital Design Company Limited (referred to as CDD), its servants employees or agents (“CDD”) to a potential Customer.
• The “Agreement” is any contract entered by CDD for the provision of Services to a Customer.
• The “Customer” is the party (or parties) buying Services.
• “Services” means any services, products or advice (including Web Hosting Services) to be provided by CDD as described in a Proposal. If a Scope of Work is subsequently agreed between the parties, then Services shall be as defined in the Scope of Work and the description of Services in the proposal document shall be superseded. “Products” include, but are not limited to, brochures, catalogues, leaflets, flyers, booklets, stationery, greetings cards, posters, newsletters, photography, Point of Sale and other Free Standing Display Units, and incorporates Sites and Web Hosting Services as defined in this document.
• “Web Hosting Services” means any world wide web site hosting provided by CDD to a Customer. Web site hosting is the provision of memory space on a web server connected to the world wide web for a Customer’s Sites. It also includes the provision of services additional to web hosting (if any) such as provision of usage statistics, secure sockets layer, password protections, technical support and site back-ups.
• “Charges” means the payments to be made by the Customer to CDD in consideration of the Services, as set out in the Agreement.
• “Intellectual Property Rights” means copyright and all other legal and beneficial intellectual and industrial property rights (including, without limitation, patent, database and trade secret rights) throughout the world no matter what such rights may be known as in any particular country in the world and all know-how.
• “Sites” means the Customer’s web and/or intranet sites upgraded in accordance with the Scope of Work.
• “Customer Materials” means the text, images and graphics or any other material or information to be supplied by the Customer necessary to enable CDD to provide the Services.
• Except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any gender include all genders, and words denoting persons include firms and corporations and vice versa.
• Unless otherwise stated, a reference to a Clause or Schedule is a reference to a clause of, or a schedule to, the Agreement.
• Clause headings are for ease of reference only and do not affect the construction of the Agreement.

Commencement and Duration

• The Agreement shall commence on the date it is entered and shall continue in force, subject to these terms and conditions, unless terminated by either party pursuant to clause 7.

CDD Obligations

• CDD will provide the Services and shall use all reasonable endeavours to do so within the agreed timescales. 
• CDD agrees to correct free of charge any error or omission in the Services as soon as practicable provided that the details thereof are communicated by the Customer not later than 28 days after delivery of the Services.
• Any changes to the agreed Services will require a review of agreed timescales and may incur extra costs.        

Charges

• The Customer shall pay the Charges to CDD.
• The Customer shall pay all sums shown on invoices within 30 days of receipt of the invoice.
• If the Customer requests CDD to provide any services additional to the agreed Services, then the Customer and CDD shall negotiate in good faith to agree an appropriate description of the services to be provided (the "New Services") and to agree the charges for such services (the "New Charges").
• All products produced remain the property of CDD until paid for in full by the client.
• All invoices are regarded as approved unless CDD are notified, in writing, within 14 days from the date of invoice.
• Timescales are agreed at the beginning of the project. Should the project overrun its timescale, CDD reserves the right to invoice the client for all work completed to date. In such an event, CDD also reserves the right to suspend work on the project until payment is received or a satisfactory agreement as to dates of payment is reached.

Customer’s Obligations

• The Customer shall provide CDD with all necessary cooperation, information, equipment, data, support and Customer Material that may reasonably be required by CDD to provide the Services at such times as CDD requests.
• The Customer agrees to accept delivery of any Products or Sites when it is or should reasonably be satisfied that the Services have been materially completed and that the Products or Sites contain no errors, defects, bugs or viruses that materially affect their functionality.

Intellectual Property Rights

• Nothing in the Agreement shall affect CDD ownership of any intellectual property rights in items existing prior to the Agreement (including without limitation, any software or know-how of CDD).
• The Customer hereby grants to CDD a non-exclusive, royalty free license to use the Customer Materials and any copyright in the Customer Materials for the purpose only of providing the Services in accordance with the Agreement.
• CDD agrees not to use any Customer Materials supplied by the Customer for any purposes other than the development of the Products or Sites in accordance with the Agreement.
• The Customer hereby warrants that CDD use of the Customer Materials will not infringe any third party rights and shall indemnify CDD from all losses, costs, claims and expenses arising from or incurred by reason of claim, demand or action against CDD, arising from or incurred by reason of any infringement or alleged infringement of any intellectual property rights by the provision or use of the Customer Materials.
• All legal and beneficial interest in the Intellectual Property Rights developed by CDD in connection with the provision of the Services shall be, and shall remain, the property of CDD.

Termination

• Either party may (without prejudice to its other rights) terminate the Agreement by notice in writing to the other if:
  1. a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the other's assets or an undertaking or a resolution or petition to wind up the other is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order;  or
  2. the other defaults in due performance or observance of any material obligation hereunder and (in the case of a remediable breach) fails to remedy the breach within thirty days of receipt of notice so to do and such termination shall take effect either forthwith upon expiry of, or at a date specified in, such notice, whichever shall be the later; or
  3. by one month’s written notice to the other party to this agreement.

Consequences of Termination

• The termination of the Agreement for whatever cause shall not affect any provision of the Agreement which is expressed to survive or operate in the event of the termination of the Agreement and shall not prejudice or affect the rights of any party against the other in respect of any breach of the Agreement or in respect of any monies payable by any one party to another in respect of any period prior to termination.

Confidentiality

• Neither party shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other which is disclosed or otherwise comes into its possession directly or indirectly as a result of the Agreement and which is of a confidential nature ("Information") except as strictly necessary to perform its obligations or exercise its rights hereunder, provided that the obligation shall not apply to Information which:
  1. the receiving party can prove was already in its possession at the date it was received or obtained; or
  2. the receiving party obtains from some other person with good legal title thereto; or
  3. comes into the public domain otherwise than through the default or negligence of the receiving party; or
  4. is independently developed by or for the receiving party.
  5. The obligation of confidentiality in this Clause 9 shall continue in force notwithstanding termination of the Agreement for any reason whatsoever.

Limitation of Liability

• Nothing in the Agreement shall exclude or restrict either party's liability to the other for death or personal injury resulting from its negligence or that of its employees while acting in the course of their employment.
• Subject to Clause 10.1, CDD liability in contract, tort or otherwise (including negligence) howsoever arising out of or in connection with the Agreement shall in respect of any one or more incidents not exceed the total Charges received by CDD.
• Subject to the express terms of the Agreement neither CDD nor the Customer shall be liable to the other in connection with the exercise of its rights or the performance of its obligations hereunder for any indirect or consequential loss whether arising from negligence, breach of contract or otherwise.
• The provisions of the Clause 10 shall continue to apply notwithstanding the termination or expiry of the Agreement.

Force Majeure

• CDD is not liable for delays in performance of the Services caused by circumstances beyond its reasonable control. Examples include strikes, supplier/production problems and natural disasters.

Assignment

• The Customer shall not be permitted to assign its rights hereunder whether in whole or in part without the prior written consent of CDD.

Notices

• Any notice, invoice or other document which may be given by either party under the Agreement shall be deemed to have been duly given if left at or sent by post to the other party's registered office or business address. Any such communication shall be deemed to have been made to the other party 3 days from the date of posting if by letter.

No Waiver

• No relaxation, forbearance or indulgence by either party in enforcing any of the terms or conditions of the Agreement against the other or the granting of time by either party to the other shall be deemed to be a waiver or shall prejudice, affect or restrict the rights and powers of such party hereunder against the other, nor shall any waiver by either party of any breach hereof by the other operate as a waiver of or in relation to any subsequent or continuing breach hereof.

Severability

• If any part, term or provision of the Agreement not being of a fundamental nature be held illegal or unenforceable, the validity or enforceability of the remainder of the Agreement shall not be affected.  Should the foregoing apply, the parties shall use all reasonable endeavours to agree upon any lawful and reasonable changes to the Agreement which may be necessary in order to effect, as close as possible, the commercial intent of the Agreement.

Web Hosting Services

• CDD may provide Web Hosting Services to its Customers. Where Web Hosting Services are provided, this clause 16 shall apply.
• CDD reserves the right to suspend or cancel a Customer's access to any Web Hosting Services provided by CDD when CDD decides that the Web Hosting Services have  been inappropriately used or otherwise.
• Web hosting Services are to be used by the Customer only. Customers are not permitted to resell, store or give away these services to other parties.
• When a Site is found to be monopolising the hosting resources available, CDD reserves the right to suspend that Site immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our hosting services.
• Either party may cancel an agreement for CDD to supply a Customer with Web Hosting Services at any time by giving 30 days’ written notice to the other party. Charges are to be payable to the end of this notice period.
• Customer agrees that it shall defend, indemnify, save and hold CDD harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against CDD, its agents, its customers, officers and employees, that may arise or result from any Web Hosting Services provided or performed or agreed to be performed or any product sold by Customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless CDD against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with that Customer’s Site; (2) any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold from Customer’s Sites.
• CDD will not be responsible for any loss or damages that a Customer may suffer. This includes losses resulting from loss of business, loss of data, delays, non-deliveries, wrong delivery, and any and all service interruptions caused by CDD. CDD makes no warranties of any kind, expressed or implied for the Web Hosting Services that it provides. CDD disclaims any warranty or merchantability or fitness for a particular purpose.
• Upon completion of websites or online CRM projects, CDD's liability for technical support will be limited to resolving errors, defects, bugs or viruses that materially affect the functionality of the Site(s), limited to the project scope of the original approved quote and subsequently agreed amendments. If ongoing technical support that is beyond the original project scope is required, CDD's liability will be defined by a Service Level Agreement (SLA), approved in advance by both parties, a copy of which will be made available to the Customer upon commencement of such Services.

Modifications and Approvals

• The Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each party. 
• Any and all agreements, approvals and consents to be given by either party hereto shall be given in writing and prior to the exercise or implementation thereof.

Entire Agreement

• The Agreement represents the entire understanding between the parties in relation to the subject matter hereof and supersedes any other agreements between the parties relating to the Services, whether oral or written. The parties agree that, save as expressly set out herein, neither party will have any liability for any untrue statement or representation made by it (whether innocently or negligently) upon which the other party relied in entering into the Agreement, unless such untrue statement or representation was made fraudulently. Unless expressly agreed in writing these terms and conditions shall prevail over any other terms and conditions referred to in correspondence or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished.

Governing Law and Jurisdiction

• The Agreement shall be governed by and construed and interpreted in accordance with the law of England and Wales, and the parties hereby submit to the jurisdiction of the courts of England and Wales.

THE COMPLETELY DIGITAL DESIGN COMPANY LIMITED (CDD). 22 August 2011.

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