1.1 In this document:
The “Company” means Bozboz Limited, incorporated and registered in England and Wales with company number 06546278, whose registered office is at Suite 2, 30b Richmond Place, Brighton, East Sussex, England, BN2 9NA;
“Agreement” means this Agreement and each Statement of Work and Service Level Agreement;
“Charges” means the amounts payable by the Client to the Company under or in relation to this Agreement and each Statement of Work and Service Level Agreement;
“Client Materials” means any materials, documentation, information, drawings, designs, ideas, concepts or instructions, in whatever format or media, and all Intellectual Property Rights therein and associated therewith, in each case whether in existence before during or after the duration of this Agreement;
“Deliverables” means those deliverables listed in the relevant Statement of Work;
“Data Protection Law” means as applicable the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679), (and any UK law which implements or acts as a domestic equivalent of it in whole or in part), and any applicable laws, regulations or secondary legislation relating to privacy or data protection, as amended or updated from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party (except for that party’s own employees), disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Daily Rate” means the Company's daily rate as specified in the relevant Statement of Work;
“Hourly Rate” means the Company's hourly rate as specified in the relevant Statement of Work;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Personal Data” has the meaning given to it in the UK’s Data Protection Act 2018;
“Services” means all services provided by the Company to the Client;
“Software” means all custom source code written by the Company on behalf of the Client;
“Source Code” means Software Applications in human readable form and in such form that it can be compiled or interpreted into equivalent object code together with all technical information and Documentation necessary for the use, reproduction, modification and enhancement of such Software Applications;
“Statement of Work” means the document specifying the work to be undertaken by the Company for the Client including the amount payable for the Services rendered and the period of delivery of those services, which shall be deemed to incorporate the terms of this agreement; and
“Website” means the website or websites specified in the relevant Statement Of Work.
1.2 The Company will carry out work only for Clients who are 18 years of age or above.
1.3 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.4 The clause headings do not affect the interpretation of the Agreement.
1.5 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
1.6 This Agreement and the documents and instruments referred to herein constitute the entire contract between the parties to this Agreement and supersede all other understandings, written or oral, with respect to the subject matter of this Agreement.
2.1 If images, text, animations, layouts or any other content for a Website or relevant web development project is provided by the Client, it is their legal responsibility to ensure that this material does not infringe any copyright. The Company cannot take responsibility for any copyright infringements caused by materials submitted by the Client. The Company reserves the right to refuse any material of a copyrighted nature supplied by the Client as website content unless adequate proof is given of permission to use this material.
2.2 The Client agrees to defend, indemnify, and hold the Company harmless against claims against material added to a Client’s website at any time which infringes or allegedly infringes on the proprietary rights, legal and/or civil rights of any third party.
3.1 Design concepts can include site mockups, graphics and design proposals. The Client agrees that (unless specifically agreed otherwise in writing) only one concept will be provided by the Company. The Client should ensure that they have provided as much information as possible pertaining to brand guidelines, colour schemes, artwork and any other design requirements beforehand.
3.2 A hyperlink to the Company will appear in either small type or by a small graphic in the footer of the Client's website. The Company will ensure this is sympathetic to the overall Website design.
4.1 Certain images provided by the Company may have been purchased under licence from stock image suppliers. These images are generally only licenced for use on a Website. The licence may not permit them to be used in publicity material. The Website owner is legally responsible for ensuring that this does not happen. If the Client wishes to use any such images from the Website for other purposes they are required to contact the Company to clarify whether this is appropriate. The Client agrees to meet all third party costs arising from the purchase of stock photography as well as any administration fees relating to the procurement of images imposed by the Company.
5.1 The Company retains ownership of all Intellectual Property, including Source Code and original images created for the Client, until payment of the final invoice. Company hereby assigns to the Client all right, title and interest in all such Intellectual Property, free of any encumbrances or third party rights, licences or consents with effect immediately thereupon. Until such assignment, the Company hereby licences to the Client the irrevocable exclusive right to use the Services, the Website and all Intellectual Property therein for the duration of this Agreement.
5.2 The Company agrees to adapt, extend and modify the Software post launch as part of a new Statement Of Work, support contract or ad hoc piece of work.
5.3 The Client expressly retains all rights in and to any Client Materials, sounds and design assets contained in the Software.
5.4 Unless with the written permission of the Company, the Client may not commercially copy or reproduce any Software developed by the Company.
5.5 This clause remains in effect unless superseded by a specific Intellectual Property Rights Agreement.
6.1 The Client agrees to make available to the Company as soon as is reasonably possible all materials required to complete projects to the agreed standard and within the set deadline. The Company will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines to the extent that such failure arises directly from a failure of the Client to provide the requested materials.
7.1 For sites and domains hosted by the Company, the Client will have a dedicated and secure hosting infrastructure. This is maintained by a data centre in a secure environment with 24 hour technical support and a 99.95% uptime guarantee provided to the Company.
7.2 The Company reserves the right to refuse to handle in any way material which may be deemed offensive, illegal or in any way controversial, and also to terminate the hosting service should the necessity arise without liability for loss of business.
7.3 The Client may terminate any hosting arrangements with the Company at any time by serving 30 days’ notice in writing to the Company.
7.4 In the event the Client terminates any hosting provision, the Company will provide a full backup of the Client’s site (all files and databases) at no charge. Beyond the provision of a full backup, any additional assistance or support required by the Client will be chargeable at the Company’s standard Hourly Rate, and any such costs will be advised to the Client before being undertaken with the Client’s agreement.
8.1 The Company will endeavour to maintain network stability and satisfactory service levels, however:
(a) The Company may from time to time perform routine maintenance, service and upgrades. The Company will act on such instances at the most convenient times and provide reasonable notice by email;
(b) The Company may experience outages beyond its control caused by any of the following; force majeure (any 'act of god' including those induced by negative human activities), war, invasion, act of hostilities, civil war, rebellion, military power or confiscation, terrorist activities, nationalism, governmental / quasi-governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or failure of utilities (electricity, telephone, etc.), failure of hardware (the Company’s hardware as well as third party), failure of software, failed software or hardware upgrade or any other failure as caused by the Company, its suppliers or any third party;
(c) The Company will provide notification of outages whether planned or unplanned; and
(d) The Client releases the Company from any claim or potential claim with relation to outages and any loss of business / service suffered by the Client or any third party as a result of this clause 8.1.
9.1 All third party costs arising from the registration of a domain name shall be met by the client. The rate for a .co.uk domain registration is £25 ex. VAT. For other domain registration prices please contact Bozboz. Domain names registered on behalf of the client by Bozboz are property of the client, once relevant invoices are paid. In these circumstances, Bozboz acts as administrator on the client's behalf. Domains will be renewed annually, an invoice will be issued one month prior to the domains expiry. If the domain is no longer required we must be made aware of this prior to its expiry date. Bozboz agrees to transfer any domain names to the client immediately upon request at no cost. For full Domain Name Registration Terms and Conditions see the Nominet website here. For any complaints regarding abuse on domains registered by Bozboz on behalf of a client, please email abuse@bozboz.co.uk.
10.1 If the Client wishes to engage in Search Engine Optimisation or Marketing services, this will be detailed in a relevant Statement of Work. In the absence of a relevant Statement Of Work, the Company is not responsible for ongoing promotion or marketing of the Website.
10.2 The Company can provide marketing services including social media promotion, link sourcing, link placement, on-site optimisation, traffic analytics and search engine rank position monitoring.
10.3 If a Statement Of Work is signed by the Company and the Client, this Statement Of Work will specify the exact services to be provided, in exchange for a charge calculated at the specified Daily Rate. The Company’s rates are not dependent on nor linked to site traffic, rankings in search engines or any other performance metrics or data supplied by a third party.
10.4 All information pertinent to a marketing campaign shall be supplied by the Client to the Company, including history of any prior campaigns conducted with other providers.
11.1 Quotes given by the Company to the Client are valid only within a Statement of Work.
11.2 Quotes given within a Statement of Work are for the work specified within it only. Should the Client decide that changes are required after work on a Statement of Work has commenced, these changes must be agreed and quoted separately.
11.3 Unless otherwise agreed any quotations provided will be valid for 30 days from the date of issue.
12.1 A deposit may be required from any new Client before any work is carried out. If the Company undertakes a project which is deemed to be of significant duration then interim payments may be required as detailed on the Statement Of Work. The Company reserves the right not to launch or handover a Website or provide deliverables until full payment has been received.
12.2 The Client will pay the Charges to the Company within 14 days of the invoice date as noted on the invoice, except where specific payment terms are agreed on a Statement Of Work.
12.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.
12.4 If the Client does not pay any amount properly due to the Company under or in connection with the Agreement, the Company may:
(a) charge the Client interest on the overdue amount at the rate of 5% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily from the due date until the date of actual payment and be compounded quarterly); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
(c) The Company reserves the right, in its sole discretion, to deactivate hosting services for Clients with unsettled accounts. When this occurs an additional minimum charge of £50 (exclusive of VAT) will be required to have the Website restored.
12.5 The Company reserves the right to increase its Daily and Hourly Rates annually in line with inflation. This does not affect Charges agreed on a Statement of Work for the duration the Statement of Work is in effect.
13.1 Unless otherwise agreed, payment is only accepted by direct bank transfer (BACS or CHAPS), cheque or bankers draft in UK Pounds Sterling. If a cheque is returned by the bank as unpaid for any reason, the Client will be liable for an additional administration fee of £35 (exclusive of VAT).
14.1 Should the Client wish to cancel at any point during the project they shall remain liable for the work that has taken place and shall be invoiced for all time undertaken to date. There are no exceptions to this.
14.2 In the event of cancellation by the Client, the Company will provide a breakdown of the time spent on the project and the Client will be liable for paying the relevant Charges calculated using the Daily Rate. This clause remains in effect regardless of whether full deliverables have been completed.
15.1 Websites will be handed over as a fully functioning, completed work. Unless a support contract has been arranged on a new Statement Of Work, the Company is not responsible for ongoing support.
15.2 Ongoing support can be provided by the Company on an ad hoc basis upon request for an agreed fee, or via a new Statement Of Work.
15.3 Website projects are offered as a single contract and no guarantee of the availability or compatibility (including rendering compatibility with future browsers or future versions of existing browsers) from the Company is offered unless an ongoing support package has been agreed.
16.1 Problems caused by malicious software, spyware, viruses and website hacking can unfortunately happen. All of the Company’s servers are protected with firewalls, and the Company will endeavour to protect it from this as much as possible during its creation, but after the website is handed over, the Company cannot be held responsible for problems caused by illegal activity or the actions of others.
17.1 The Company provides Services in accordance with the Client's specifications. It is the Client's responsibility to ensure that the Services provided comply with current online trading laws and regulations.
18.1 The Client warrants that it has the legal right to disclose all personal data that it does in fact disclose to the Company under the Agreement, and that the processing of that Personal Data by the Company on the Client’s behalf for the purposes of and in accordance with the terms of the Agreement will not breach any applicable Data Protection Laws..
18.2 Any terms or words defined in Data Protection Law and used in a provision of this clause relating to personal data shall, for the purposes of that provision, have the meaning set out in Data Protection Law. The subject-matter, nature and purpose of processing by the Company are the provision of its Services as set out in the relevant Statement of Work (including but not limited to the collection, hosting and analysis of personal data), the duration of the processing is the duration of the provision of the Services until deleted or returned as instructed by the Client, and the types of personal data to be processed and data subjects are as provided or instructed by the Client in writing from time to time (including but not limited to visitors to and potential customers and users of the Website and their opinions, data provided through the Website, and metadata concerning them and their visit to the Website).
18.3 The Company shall comply with all applicable requirements of Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, the Company’s obligations under Data Protection Law.
18.4 Without prejudice to the generality of clause 18.3, the Company shall, where it processes personal data as a data processor on behalf of the Client (or another controller who appoints the Client as a processor) (and shall not engage a sub-processor without the specific prior written authorisation of the Client and in any event shall ensure such sub-processors are subject to the same obligations as set out in this clause):
(a) assist and fully cooperate with the Client, in responding to any request from a data subject and in ensuring compliance with the Client’s obligations under Data Protection Law, including with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(b) not transfer or disclose any personal data outside of the European Union and the UK without the prior written consent of the Client (which shall be conditional on the transfer or disclosure being carried out in compliance with Data Protection Law and evidence of such compliance being supplied by the Company on the Client’s request);
(c) at the written direction of the Client, delete or return personal data and copies thereof to the Client after the end of the provision of services relating to processing;
(d) ensure that it has in place appropriate security measures as required by Data Protection Law from time to time;
(e) strictly limit access to that personal data to those personnel who require it for the purposes of this Agreement, and ensure that all personnel who have access to and/or process personal data are subject to appropriate written confidentiality commitments;
(f) maintain and make available to the Client (on request in such format as the Client reasonable require s) complete and accurate records and information to demonstrate its compliance with this clause and allow for and contribute all access and assistance required for audits (including but not limited to inspection) by the Client or the Client's designated auditor;
(g) immediately inform the Client if any instruction of the Client or its representatives in relation to the personal data infringes Data Protection Law; and
(h) without undue delay (and in any event within 72 hours) notify the Client if the Company becomes aware of any complaint made to, or finding or investigation by a regulator in relation to the processing of personal data by the Client or the Company, or receives any request by or on behalf of a data subject to exercise rights under Data Protection Law which relates to the personal data; or becomes aware of a personal data breach or circumstances in which it appears likely a personal data breach has occurred (and shall treat the existence and circumstances of such breach, request, complaint, finding or investigation as confidential information).
18.5 In relation to any confidential information concerning the business, affairs, customers, clients or suppliers of the Client or its group companies (and the confidentiality of such information for the purposes of this clause shall be as reasonably determined by the Client), the Company shall not use such confidential information except as strictly necessary to perform the Services, and shall not at any time disclose to any person such confidential information except to its employees, officers, representatives or advisers who need to know such information for the purposes of providing the Services (and the Company shall ensure that such parties comply with this clause) or as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.1 The Client warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.
19.2 The Company warrants to the Client:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;
(b) that it will perform its obligations under the Agreement in accordance with good industry practice;
(c) that it will meet the material requirements of the Statement Of Work;
(d) that it will provide Services that are fit for purpose;
(e) that Services delivered will not cause interference to the Client’s equipment, systems or software; and
(f) that it will maintain appropriate insurance coverage.
19.3 The Client acknowledges that:
(a) the Company will not be responsible for any alterations to the Website made by the Client or any third party that reverse or effect changes made to the Website by the Company as part of the Services.
19.4 All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
20.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
20.2 The limitations and exclusions of liability set out in this clause and elsewhere in the Agreement:
(a) are subject to clause 8.1; and
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
20.3 Neither party will be liable:
(a) in respect of any loss of profits, income, revenue, use, production or anticipated savings;
(b) for any loss of business, contracts or commercial opportunities;
(c) in respect of any special, indirect or consequential loss or damage;
(d) for any losses arising out of a Force Majeure Event; and
(e) for any losses incurred by the use of any Software created for the Client. Where applications or Websites are developed on servers not recommended by the Company, the Client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed on servers not recommended by the Company, it is the Client's responsibility to provide a suitable testing environment which is identical to the final production environment. The Client is expected to test fully any application or programming relating to a website developed by the Company before it is made generally available for use. Where "bugs", errors or other issues are found after the Website is live, the Company will endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in the Statement Of Work.
21.1 This Agreement remains in full force until terminated in writing by either party in accordance with this clause.
21.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement.
21.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
22.1 Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
22.2 The Client will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Company.
23.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
23.2 If a clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
23.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
23.4 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
23.5 Either party may freely assign their rights and obligations under the Agreement without the other party's consent to any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this clause or elsewhere in the Agreement.
23.6 This Agreement shall be governed by English Law and that the English courts would have exclusive jurisdiction to hear any disputes arising under the Agreement.
23.7 By agreeing to these terms and conditions the Client’s statutory rights are not affected.
23.8 Should the Company waive any of these terms on an individual basis, this shall not affect the validity of remaining clauses or commit the Company to waive the same clause on any other occasion.
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