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HeadChannel Ltd standard terms and conditions

1. TERMS AND CONDITIONS

1.1 These Terms and Conditions should be attached to an order form (“the Order Form”) which together with these Terms and Conditions will form a binding contract between the client named on the Order Form (“Client”) and HeadChannel Ltd. (“HeadChannel”) which shall:

* constitute the entire agreement between the Client and HeadChannel; * shall not be varied unless specifically agreed in writing and signed by the Client and HeadChannel; * apply to the exclusion of all other terms or conditions of contract which the Client may propose.

1.2 When the client receives form and accepts the services he is offering to buy the specific internet package involving the provision, development, hosting and maintenance of an internet website as described in the Order Form (“the Package“) on and subject to these Terms and Conditions.

1.3 When HeadChannel commences work on the Package for the Client it is accepting the Client’s offer to purchase the Package for the fees stated on the Order Form which excludes VAT “the Fees”), on and subject to these Terms and Conditions.

Please read the following carefully as it will form the basis of a legal contract:

1 DEFINITIONS

1.1 The following terms shall have the following meanings:

“Alpha Version”a non-Beta Version of the Website Developed in accordance with the Specifications;
“Beta Version” a Beta Version incorporating the required changes to the Alpha Version;
“Parties” HeadChannel and the Client together;
“Specifications” the specifications for the Website set out in the Order Form;
“Develop” the design, write, build and programme the multimedia and internet products.
“Maintenance Fees” that part of the Fees attributable to the Maintenance Services as set out in the Order Form;
“Cancellation Fees” the sums payable by the Client in the event that it decides not to proceed with the Package as set out in the Order Form;
“Final Version” the final version of the Website prepared in accordance with the Specifications and ready for installation on the Internet;
“Hosting Services” the services required for the Website to be connected to the Internet and to be provided by HeadChannel or HeadChannel’s nominee;
“Bug” any fault, error or malfunction in software which materially affects the operation of that software;
“Virus” a self replicating computer program which is designed to cause or which is likely to cause damage to the user’s files and/or annoyance to the user;
“Materials” source materials provided by the Client to be incorporated where appropriate in the Website during its development including without limitation those listed in the Order Form;
“Intellectual Property Rights ” Copyright, Design Right, Registered Designs, Trademarks, Patents, and Confidential Information and Ideas and Moral Rights and all other rights whatsoever of a like nature world wide whether those rights are registered or not
“Maintenance Services” the services for the maintenance of the Website as more specifically described in the Order Form;
“Website” the interactive, computer based online information transaction and communication product or service accessible and operated via a telecommunications connection to the internet whose Development shall be in accordance with the Specifications.

2. OPERATIVE PROVISION

In consideration of the payment by the Client to HeadChannel of the Fees HeadChannel agrees to provide the Package in accordance with and subject to these terms and conditions.

3. OBLIGATIONS OF HeadChannel

HeadChannel shall:

3.1 complete the Development of the Website;

3.2 provide the Hosting Services where purchased and specifically mentioned on the order form;

3.3 grant to the Client the non-exclusive right and licence to use the Website Materials for one year;

3.4 provide the Maintenance Services which will include the renewal of the above mentioned licence on an annual basis.

4. DEVELOPMENT

The Development shall be as follows:

4.1 Design Phase

4.1.1 HeadChannel shall; Develop and deliver to the Client the Alpha Version;

4.1.2 Upon delivery of the Alpha Version, the Client shall request in writing any changes required to the Alpha Version after which period HeadChannel shall inform the Client of which amendments it in its reasonable opinion shall consider acceptable, appropriate and technically feasible and HeadChannel shall incorporate such amendments into the Beta Version.

4.2 Final Phase

4.2.1 HeadChannel shall Develop and deliver to the Client the Beta Version;

4.2.2 Upon delivery of the Beta Version, the Client shall within 14 days request in writing any changes required to the Beta Version after which period HeadChannel shall inform the Client of which amendments it in its reasonable opinion shall consider acceptable, appropriate and technically feasible and HeadChannel shall incorporate such amendments into the Final Version

4.3 HeadChannel reserves the right to charge further sums in addition to the Fees for amendments requested by the Client under Clauses 4.1 and 4.2 which go beyond the Specification. Such additional Fees will not be charged without prior written notice.

4.4 HeadChannel shall deliver the Final Version incorporating the agreed amendments to the Client;

4.5 Upon completion and delivery of the Final Version HeadChannel shall provide the Hosting Services where purchased and specified.

5. MAINTENANCE

5.1 Upon delivery of the Final Version and for a period of 12 months thereafter, HeadChannel shall provide the Maintenance Services and the Client shall pay the Fees. Inclusive Updates / adjustments are classifiable as work taking no longer than 45 minutes and are only offered if specified in the quantity on the order form. Extra time for work may be charged for at £50 an hour. Maintenance includes an annual licence as described in these terms for one year.

5.2 Thereafter the Client shall be entitled to request that HeadChannel continue to provide the Maintenance Services at the then prevailing rates and for such period as the Parties shall agree.

5.3 The Maintenance Services shall not include providing a server or server connection. HeadChannel registration includes a cross link scheme executed at HeadChannel’s discretion. The final version will include a discreet ‘designed by HeadChannel’ link.

6. CLIENT OBLIGATIONS, The Client will co-operate with and act in good faith towards HeadChannel and provide on request the Materials in the format that HeadChannel requests, including all those necessary to maintain the Website and enable HeadChannel to carry out its obligations hereunder.

7. PAYMENT AND CANCELLATION

7.1 The Client shall pay HeadChannel 50% of the agreed development fee upon acceptance of the quotation unless otherwise agreed. Upon completion and delivery of the Final Version HeadChannel shall issue an invoice for the balance. The Client shall pay HeadChannel the balance of the Fees including the Maintenance Fees within 14 days of receipt of a valid invoice in consideration of the supply to it of the Package, the Maintenance Services and the full right to resell the products provided that the Fees are paid to HeadChannel.

7.2 HeadChannel shall be entitled to charge interest on any overdue payment at the ra te of 10% over National Westminster Bank’s base rate prevailing at the time.

7.3 HeadChannel shall be entitled to immediately restrict, suspend or terminate without notice, the Client’s access to and use of the Website upon breach of any part this agreement whatsoever including without limitation the non-payment of any sums as and when they fall due until payment is made in full.

7.4 If the Client cancels an order at any time prior to final delivery HeadChannel shall be entitled to its reasonable losses and expenses incurred to the date of cancellation.

8 INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIAL INFORMATION

8.1 All Intellectual Property Rights of whatever nature in material devised by HeadChannel including all software code written by HeadChannel and its employees will vest in and belong to HeadChannel free of any interest of the Client or any third parties. The Client will do such acts as HeadChannel may reasonably require in order effectively to vest such rights in HeadChannel or to evidence the same;

8.2 HeadChannel hereby grants a nonexclusive royalty free annually renewable licence to the Client to use the Intellectual Property Rights for the purposes of this agreement throughout the world which licence shall take effect on receipt by HeadChannel of all Fees due under this Agreement save for the Maintenance Fees;

8.3 The Client hereby grants to HeadChannel a nonexclusive royalty free licence to use the Materials for the purposes of this Agreement;

8.4 The Client hereby warrants that it has or has obtained all necessary rights, permissions and licences for the use of the Materials supplied to HeadChannel and that it is fully entitled to grant to HeadChannel the rights in clause 8.3 above;

8.5 The Client undertakes to HeadChannel to indemnify and hold harmless HeadChannel in full and defend at its own expense HeadChannel against all costs and losses whatsoever and howsoever incurred by HeadChannel its servants or nominees arising out of any claim made against it or any of them in any jurisdiction in the world for infringement of any Intellectual Property Rights in the Materials;

8.6 The Client further warrants that all material that it supplies to HeadChannel is free of defamatory and other legally restricted material and it warrants that it shall fully indemnify and defend at its own expense HeadChannel against all costs and losses whatsoever incurred by HeadChannel its servants or nominees as a result of any claim made against it or any of them in any jurisdiction in the world as a direct or indirect result of the breach of this Clause;

8.7 Each party undertakes with the other that it will keep secret and confidential the terms of this Agreement and any information supplied by either party in connection with this Agreement or in connection with the business of the other party and in connection with the Website (“the Information”) and shall only disclose the Information or any part thereof (except to its own employees and then only on a need to know basis) with the other party’s prior written consent PROVIDED THAT this Clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this Clause);

8.8 Not withstanding the provisions of this clause 8, HeadChannel shall be afforded full and reasonable credit on the Website as the Developer and designer of the Website;

8.9 Not withstanding the provisions of this clause 8, HeadChannel shall be entitled to refer, in the course of promoting or demonstrating HeadChannel, to the Website and HeadChannel’s involvement in the design, Development and as the provider of the package.

9. BUGS AND VIRUSES

9.1 All software created by HeadChannel is checked for Viruses using AVG Antivirus and HeadChannel accepts no responsibility for and bears no liability for any viruses discovered subsequent to HeadChannel’s delivery of the Final Version to the Client.

9.2 HeadChannel recommends that all software created by HeadChannel is checked for Bugs and will use its reasonable endeavours to check for Bugs provided only that this is provided for in the Budget but accepts no responsibility for and bears no liability for any Bugs discovered subsequent to HeadChannel’s delivery of the Final Version to the Client.

10. MATERIALS

On receipt of the Final Version the Client agrees to arrange for the collection of all Materials incorporated in the Final Version and other materials provided by the Client. If these are not collected within 2 months of delivery of the Final Version HeadChannel reserves the right to disposes of them on giving to the Client not less than fourteen days notice.

11. DATA PROTECTION ACT

The Client undertakes that it will not collect data from or via the Website without obtaining the appropriate registration and otherwise complying with its obligations under the Data Protection Act or equivalent legislation and that it will not collect any data from the Website without giving sufficient prior written notice to HeadChannel to apply for like registration.

12. BETTING GAMING AND LOTTERIES ACT

The Client undertakes that it will not use the Website for competitions within the meaning of the Betting Gaming and Lotteries Act 1963 or the Lotteries and Amusements Act 1976 and the Betting and Gaming Duties Act 1981 without full prior consultation with HeadChannel and first obtaining licenses under those Acts or any amending legislation.

13. FINANCIAL SERVICES ACT

The Client undertakes that it will not carry on or purport to carry on investment business through the Internet or advertise such services unless authorised to do so under the Financial Services Act 1986 and the Client further undertakes to comply with the provisions of the Financial Services Act 1986 or any other legislation regarding financial services in force at the time of this Agreement or subsequently in all other respects.

14. OBSCENE AND DEFAMATORY MATERIAL

HeadChannel gives no warranty or guarantee and explicitly and unequivocally excludes all responsibility and liability for all and any information and material contained on or within the Website or on the Internet as a result of HeadChannel providing the Package and services, whether such information or material is included by the Client personally, by any third party or by HeadChannel on the instructions of the Client. HeadChannel shall have no liability to any person and the Client shall indemnify and hold harmless HeadChannel in respect of all such information and material including without limitation any material that is offensive, obscene, defamatory or inflammatory.

15. TELECOMMUNICATIONS AND BROADCASTING

The Client undertakes that it will obtain all necessary licences under UK Telecommunications and Broadcasting Legislation and that it will comply in every respect with such legislation.

16. COMPETITION

The Client agrees and accepts that it may be subject to European and UK law on anti-competitive practices including without limitation abuse of a dominant position and concerted practices. The Client undertakes to HeadChannel that it will not, in respect of the Package or the Website, enter into any agreement that has as its object or effect the restriction of competition within the UK or Europe nor will it at any time seek to abuse a dominant position within its relevant market, unless such activity is specifically permitted by law.

17. INDEMNITY

Without prejudice to Clauses 11, 12, 13, 14, 15 and 16 above the Client undertakes that it will obtain all necessary licenses and permissions required throughout the world for any and all activities that it conducts through the Internet and that it will indemnify HeadChannel against all actions, claims, costs (including legal costs and expenses properly incurred), damages, demands or liabilities brought against or suffered by HeadChannel as a result of any breach by the Client of its obligations under this Agreement.

18. TERMINATION

18.1 If the Client decides not to proceed further with the Package at any time it shall pay to HeadChannel the Cancellation Fees of 70% of the total of the complete package ordered.

18.2. HeadChannel shall be entitled to immediately restrict, suspend or terminate without notice the Client’s access to and use of the Website and or terminate this agreement upon the Client’s breach of any part this agreement whatsoever including without limitation the non-payment of any sums as and when they fall due.

18.3 HeadChannel will not be liable in any amount for failure to perform any obligation under this agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war or act of God.

19. GENERAL

19.1 These terms constitute the whole and only agreement between the Parties and shall apply to the exclusion of all other terms or conditions of contract.

19.2 Nothing in these terms shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.

19.3 If at any time any part of these terms and conditions is or becomes unenforceable, such part will at HeadChannel’s option be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.

19.4 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.

19.5 Neither Party shall assign the benefit or burden of this Agreement without the prior written consent of the other Party.

19.6 The UK shall be considered the place of first publication of any material on the internet or Website.

19.7 These Terms and Conditions are made and shall be construed in accordance with the laws of England and you the Parties submit to the -exclusive jurisdiction of the English courts.

20. LIABILITY

20.1 HeadChannel shall not be liable for loss of turnover, sale, revenue, profits or indirect, consequential or special loss.