Conditions Of Supply

Last edited: 14/05/2019

1          Interpretation

1.1   In these conditions:

‘CIMS’ means the Content Information Management System designed, owned and developed by the Supplier

‘CLIENT’ means the person or company for whom the Supplier has agreed to provide the Service in accordance with these Conditions

‘CONTRACT’ means the contract for the provision of the Service subject to these terms and conditions

‘DOCUMENTATION’ includes, in addition to written documentation any plan, graph, drawing or photograph, film, negative, tape or other device embodying visual images and disc, tape, download or file or other device embodying data and coding

‘INPUT MATERIAL’ means any Documentation or other materials, and any data or other information provided by the Client relating to the Service

‘OUTPUT MATERIAL’ means any Documentation or other materials, and any data or other information provided by the Supplier relating to the Service

‘SERVICE’ means the service to be provided by the Supplier for the Client including the licence of CIMS

‘SUPPLIER’ means Uprise Digital Ltd

‘STANDARD CHARGES’ means the charges relating to the Service and a licence fee for CIMS or payable for services requested from the Supplier from time to time at the then current rates

‘INITIAL PERIOD’ means the term of this Contract as set out in the quotation or a minimum of 12 months

1.2      The headings in these Conditions are for convenience only and shall not affect their interpretation.

2     Grant of licence

2.1   In consideration of and subject to the payment to the Supplier by the Client of the Standard Charges the Supplier grants to the Client a non-exclusive and non-transferable licence to use the Service during the Initial Period subject to the terms of this Contract.

3          Supply of the Service

3.1   The Supplier shall provide the Service to the Client subject to these Conditions.  Any changes or additions to the Service or these Conditions must be agreed in writing by the Supplier and the Client.

3.2 We endeavor to respond to contact requests within 48 hours, but no liability is accepted by The Supplier for any loss or injury caused by any late response.  The Supplier hereby excludes itself, its Employees and or Agents from all and any liability from:

3.2.1 Loss or damage caused by any inaccuracy;

3.2.2 Loss or damage caused by omission;

3.2.3 Loss or damage caused by delay or error, whether the result of negligence or other cause in the production of the website;

3.2.4 Loss or damage to clients’ artwork/photos, supplied for the site. Immaterial whether the loss or damage results from negligence or otherwise.

3.2.5 The entire liability of The Supplier to The Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.

3.3   The Client shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage.  The Supplier shall have no liability for any such loss or damage, however caused.  All Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.

3.4   The Service shall be provided in accordance with the Supplier’s current services and Documentation, subject to these Conditions.

3.5   The Supplier may correct any typographical or other errors or omissions in any brochure, promotional information, quotation or Documentation relating to the provision of the Service without any liability to the Client.

3.6    The Supplier may at any time without notifying the Client make any changes to the Service which are necessary to comply with any applicable statutory or other regulatory requirements, or which do not materially affect the nature or quality of the Service.

3.7    The Client shall at its own expense supply the Supplier with all necessary Documentation or other materials, and all necessary data or other information relating to the Service required by the supplier, within sufficient time to enable the Supplier to provide the Service in accordance with the Contract.  The Client shall ensure the accuracy of all Input Material.

4     Continuance of Service

 4.1   The Client must provide a properly maintained compatible computer system and a proper, effective and appropriate connection with the internet in order to use the Service. The Client must pay for all charges and comply with all rules and regulations established by any telecommunications provider in connection with the use of the Service

4.2   The Supplier will use all reasonable endeavours to make the Service available for use by any reasonable date specified or requested by the Client but each such date is to be treated as an estimate only.  Where payment of any part of the Service Fee or any other charge is to be made before provision of the Service the Supplier may withhold provision or set-up until such payments have been received

4.3   The Supplier will use all reasonable endeavours to make the Service available for use 24 hours a day but the Supplier cannot guarantee continuous uninterrupted use nor be responsible for the Client’s own computer system, internet connection or email services

4.4   The Supplier may suspend the Service for operational reasons such as repair, maintenance or improvement of the network by providing at least two (2) days prior notice by email, unless such notice is impracticable in the case of an emergency or a reason beyond the control of the Supplier

4.5   The Client shall not nor permit others to translate or adapt decompile reverse-engineer or disassemble any software forming part of the Service

4.6   With respect to any information, software or Documentation provided by the Supplier the Client shall not use nor permit others to use that information:

4.6.1 for any purpose other than to achieve the interoperability of an independently created program with the Service,

4.6.2 or supply the information to any other person, or

4.6.3 for the development, production or marketing of a computer program substantially similar in its expression to the Service, or for any other copyright infringing act, or

4.6.4 in a manner, which unreasonably prejudices the Supplier’s legitimate interests or conflicts with a normal exploitation of the Service

5     Payment terms

5.1   Subject to any special terms agreed, the Client shall pay the Supplier’s Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client. The Client shall pay VAT and any other taxes, duties or levies in addition at the then prevailing rate.

5.2   The Supplier shall be entitled to vary the Supplier’s Standard Charges from time to time by giving not less than 30 days written notice to the Client.

5.3   The Supplier shall be entitled to invoice the Client before, on or after provision of the Service, or at intervals agreed with the Client.

5.4   All sums, due under this Contract will be paid by the Client within 30 days of the date of the invoice.

5.5   If any such sum is in arrears for more than 30 days after the due date the Supplier reserves the right, without prejudice to any other right or remedy, to charge interest on such overdue sum on a day to day basis from the original due date until paid in full at a rate of 4% above HSBC Bank Plc base lending rate in force from time to time

5.6   If no payment is received within 30 days after the due date the Supplier reserves the right without prejudice to any other right or remedy to terminate this Contract, withdraw provision of the Service and terminate the CIMS licence or disable its functioning with immediate effect

6     Use of Service

6.1   The Client acknowledges that the Service is provided subject to the condition that there will be no abuse or fraudulent use of it and the Client undertakes that it shall at all times ensure that:

6.1.1 none of the Client’s content or material in the Client’s files, e-mails and postings is defamatory, illegal, obscene, infringes any third party’s intellectual property rights or otherwise would bring the Supplier’s name into disrepute

6.1.2 the Client will display and make accessible on the Client’s website the Supplier’s current privacy policy at the point of collecting personal data

6.1.3 at all times use of the Service is in accordance with all applicable laws, data protection, licences, international conventions, codes or regulations applicable to the Internet

6.1.4 it does not create or introduce intentionally or knowingly into the Service a virus, worm, trojan or other destructive or contaminating program or advise any other party how to do so

6.1.5  it uses an up to date virus-scanning program on all material downloaded from the Service or uploaded to it

6.1.6  it does not interfere with or breach the privacy of other users of the Service, including sending unsolicited e-mails (“spamming”) nor collect or transfer personal data on individuals without their consent

6.1.7  it maintains confidentiality of its login names, passwords and other confidential information relating to the Client’s access to the Service

6.1.8 it does not carry out or engage in activities on its website which may cause defamation, involve theft, fraud, drug-trafficking, money-laundering and/or terrorism; may incite violence, sadism, cruelty or racial hatred; may facilitate prostitution or paedophilia; and be pornographic, obscene, indecent, abusive, offensive or menacing

7     Supplier to retain IP ownership

7.1 The title copyright and all of the proprietary rights whatever in connection with the Service and Documentation including any correction, addition, amendment, enhancement, update or other change shall remain vested as the absolute property of the Supplier except as set in 7.4.

7.2 The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice on or in the Service or which are visible during its operation or which is on any Documentation

7.3 The Client shall notify the Supplier immediately if the Client becomes aware of any unauthorised access to use or copying of any part of the Service by any person

7.4   The legal ownership property and any copyright or other intellectual property rights in:

7.4.1 any Input Material shall belong to the Client

7.4.2  any Output Material shall, unless otherwise agreed in writing between the Client and the Supplier, belong to the Supplier, subject only to the right of the Client to use the Output Material for the purposes of utilising the Service.

7.4.3 the Client shall only be entitled to use the Output Material for the purposes of utilising the Service once payment has been made for the Service.

7.5   Any Input Material or other information provided by the Client which is so designated by the Client and any Output Material shall be kept confidential by the Supplier, and all Output Material or other information provided by the Supplier shall be kept confidential by the Client; but the foregoing shall not apply to any Documents which are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.

7.6   The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Service will not infringe the copyright or any other rights of any third party nor be in breach of undertakings, injunctions or any other similar matter nor will its supply be illegal and the Client shall fully indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.

7.7   It is the Clients responsibility to retain records of copyright release or licence purchases for input material used by the Supplier even in the event that the materials are sourced by the Supplier on the Clients behalf.

7.8    At all times the Supplier shall retain ownership of CIMS and all source code

8     Warranties and Liability

8.1   The Supplier warrants to the Client that the Service will be provided using reasonable care and skill, and as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the supplied specification or quotation.

8.2   The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

8.3   Except as expressly provided in these Conditions or excluded by statute the, Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims which arise out of or in connection with the provision of the Service or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Service, except as expressly provided in these Conditions.

8.4   The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.

9     Termination

9.1   The Client shall be entitled to terminate the Contract at any time after the Initial Period by giving not less than three months’ written notice to the Supplier.

9.2   Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.

9.3   The Supplier shall be entitled to terminate the Contract in accordance with clause 5.6 if the Client fails to pay an invoice.

10    General

10.1  These Conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties.  All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

10.2  Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

10.3  The Client must notify the Supplier of any changes to its registered office or principal place of business or such other address as may have been given for the Supply of the Service.

10.4  The Client must notify the Supplier of the name of the employee they wish the Supplier to deal with in connection with the Supply of the Service.

10.5  No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

10.6  If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

10.7  Any dispute arising under or in connection with these Conditions or the provision of the Service shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Institute of Arbitrators.

10.8  English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courtsThese Terms constitute the entire agreement between the parties and supersedes all previous representations, promises, assurances, warranties, understandings and agreements between them, whether written or oral, relating to their subject matter.

11    Severability

11.1    In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the original provision