These Terms and Conditions (Agreement) are agreed between Spoton.net Limited, registered in England and Wales with Company number 06139437 and with the registered address of 167-169 Union Street, Torquay, Devon, TQ1 4BX (“We”, “Us”, “Our” etc.) and the entity entering into this agreement (“You”, “your” etc.).
The parties have agreed that we shall provide you with website design and development and related services on the terms and conditions set out in this agreement and the details provided via the order and briefing process.
The definitions and rules of interpretation in this clause apply in this agreement.
Acceptance means the acceptance or deemed acceptance of the Site by You pursuant to Clause 5.
Accessibility Requirements means the level A and AA requirements of the Web Content Accessibility Guidelines 2.1
Business Day means a day other than (1) a Saturday or Sunday, (2) public holiday in England when banks in London are not open for business; or (3) any other day between 24th December and 1st January.
Charges means the charges in respect of the Services set out in Clause 8, together with any charges arising.
Confidential Information means 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:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Data Protection Legislation means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to privacy.
Data Subject has the meaning set out in Article 4(1) of the GDPR.
Design Brief means the specification document for the Site.
Effective Date means the date of this agreement.
Heightened Accessibility Requirements means any additional or future accessibility requirements that are not part of the Accessibility Requirements.
Heightened Cybersecurity Requirements means any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to you (but not us) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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.
IMAP Mailbox means an email account accessed through the Internet Message Access Protocol.
Order Specification means the electronic document which details the Service specification, prices, package and associated information to your purchase.
Personal Data has the meaning set out in Article 4(1) of the GDPR.
Server means a computer server.
Services means the design and development services to be provided pursuant to this agreement as set out in the Order Specification and this agreement.
Site means the website to be hosted via us pursuant to this agreement.
Software means the software for the Site, including the it’seeze content management software.
Supplied Content means anything you have supplied to us through the design brief process or otherwise and anything added to the site by you using the it'seeze content management system.
Third Party Suppliers means those third party software products set out in Schedule 1.
UK Data Protection Legislation means any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
1.2 Clause and Schedule headings do not affect the interpretation of this agreement.
1.3 References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 Writing or written includes email.
2.1 We shall design, develop and deliver the Site in accordance with the Design Brief and arrange to host the Site from the Server.
2.2 Once the Site is operable and live we will grant you a licence to use the Site and provide the Subscription Services in accordance with the terms of this agreement.
3.1 You acknowledge that our ability to provide the Services is dependent upon your full and timely co-operation (which you agree to provide), as well as the accuracy and completeness of any information and data you provide to us. Accordingly, you shall provide us with access to, and use of, all information, data and documentation reasonably required by us for the performance by us of our obligations under this agreement.
3.2 You shall be responsible for the accuracy and completeness of the Supplied Content on the Site in accordance with Clause 14.
4.1 We shall produce the Design Brief based on the information that you provide.
5.1 Once we have completed the design and development of the Site in accordance with the Design Brief, we shall allow you access to the Site to request minor amendments be made.
5.2 We may provide you with an estimated timescale for the design of the Site. Such estimates are advisory only and are not guarantees. We will incur no liability for delays in the design of the Site.
5.3 Acceptance of the Site shall occur when you click in the system to set the website live or advise that you require the website to be set live. The Site will then be set live and become available to the public. For the avoidance of doubt, you shall still be charged fees in accordance with the Charges if the site is not set live.
6.1 Any additional Services will be as listed in the Order Specification.
7.1 Products provided by Third Party Suppliers shall be supplied in accordance with the relevant licensor's standard terms. Any one-off licence fee for such Third Party Suppliers products is included in the Order Specification or will be provided to you when it becomes required.
8.1 You shall pay us the Charges in accordance with the fees which are listed on the Order Specification.
8.2 The initial fee (as stated in the Order Specification) is due immediately upon acceptance of this agreement and the monthly payments are due on the dates specified in the Order Specification.
8.3 All Charges are exclusive of VAT.
8.4 At the end of the minimum subscription period the Services will continue to run until you cancel the Service which can be done with one calendar month's notice.
8.5 If you fail to make any payment due to us under this agreement by the due date for payment, then, without limiting our remedies under Clause 16, you shall 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, but at 4% a year for any period when that base rate is below 0%.
8.6 If you fail to make payment for the fees in accordance with the Order Specification we will attempt to take payment at 7 day intervals for one month. If the amount still remains unpaid the Site will be removed from the internet (“Suspension”) but the monthly payment amounts will continue to be incurred until the end of the minimum term and interest in accordance with Clause 8.5 will be applied.
8.7 Following Suspension, you agree to pay an administrative charge of £50 plus VAT (or 70 euros at trade prices) in order to rescind the Suspension and restore the Site provided that no more than 6 calendar months have passed and you have not instructed us to delete the Site Data. If more than 6 months have passed or you have instructed us to delete the Site then the Suspension cannot be rescinded.
8.8 If we have provided you with an IMAP mailbox, then following Suspension or Cancellation you agree to pay £25 plus VAT (or 35 euros at trade prices) to restore the contents of each IMAP mailbox we have provided to you, provided no more than 14 days have passed. If more than 14 days have passed then the contents of the mailboxes cannot be restored.
9.1 This clause applies to consumers only.
9.2 If you are a consumer you have the right to cancel within a period of 14 days from placing the order. However, once we have completed the services you cannot change your mind, even if the period is still running. If you cancel after we have started the services, you must pay us for the services provided up until the time you tell us that you have changed your mind.
10.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
10.2 We shall perform the Services with reasonable care and skill.
10.3 We warrant that the Services or the Site will comply with the Accessibility Requirements. Notwithstanding any other term in this agreement, your remedy for a breach of the warranty in this clause 10.3 shall be limited to us fixing the fault or issue to ensure compliance with the Accessibility Requirements. For the avoidance of doubt, you are responsible for ensuring Supplied Content (which includes content you added to the Site using the the it'seeze content management system) meets the Accessibility Requirements and does not cause the Site to be non-compliant with the Accessibility Requirements.
10.4 This agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Services. 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 hereby expressly excluded.
10.5 We do not warrant that:
(i) Your use of the Services or the Site will be uninterrupted or error-free; or
(ii) the Services or the Site will be free from Vulnerabilities; or
(iii) the Services or the Site will comply with any Heightened Accessibility Requirements or Heightened Cybersecurity Requirements.
11.1 Nothing in this agreement shall operate to exclude or limit our liability for:
(a) death or personal injury caused by its negligence; or
(b) 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; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
11.2 We shall 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.
11.3 Subject to Clause 11.1, 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, shall in no circumstances exceed 100% of the total Charges payable by you to us under this agreement in that calendar year.
12.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Software), but excluding the Supplied Content, arising in connection with this agreement shall be our property, and we hereby grant you a non-exclusive licence of such Intellectual Property Rights for the purpose of operating, marketing and promoting the Site.
12.2 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Supplied Content infringes the Intellectual Property Rights of a third party.
12.3 We shall indemnify you against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in Clause 12.2 and any content supplied by visitors to the Site.
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
12.5 The indemnities in Clause 12.2, Clause 12.3 and Clause 14.4 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
12.6 We may licence content (“Stock Content”) from third parties (“Stock Suppliers”) for use on the Site. You understand that such licences prohibit the use of Stock Content outside of your Site, such as in marketing or promotional materials that you produce. You agree to comply with these restrictions.
12.7 You agree that for all of the Supplied Content you provide to us whether via the Design Brief, Software, communications or otherwise you are granting us a perpetual, non-exclusive, worldwide, royalty free licence to reproduce, modify, adapt, publish and distribute such Content.
12.8 In the event of Termination, we shall provide you with an electronic copy of the Site in accordance with Clause 16.5.
13.1 Once the Site is live and subject to Clause 13.2, during the term of this licence, we grant you an exclusive licence to use the it’seeze content management software operating on our Servers for the purpose of operating the Site in return for the payment by you of the Fees as set out in Clause 8.
13.2 The licence granted under Clause 13.1 permits you to:
(a) modify, distribute, and publicly perform and display the Supplied Content on the Site; and
(b) make derivative works, reproduce, publicly perform and display and distribute such derivative works in conjunction with the Supplied Content through the Site, including in any media now known or hereafter developed.
14.1 You may update the Site with Supplied Content provided from time to time by you using the it’seeze content management system software. You shall ensure that the Supplied Content does not infringe any applicable laws, regulations or third party rights (including Supplied Content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
14.2 You shall ensure that the Site at no point breaches our Acceptable Use Policy which can be found at https://itseeze.com/acceptable-use-policy/.
14.3 We shall include only Supplied Content on the Site. You acknowledge that we have no control over any content placed on the Site by visitors to the Site and do not purport to monitor the content of the Site. We reserve the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content or is in breach of our Acceptable Use Policy. We shall notify you promptly if we become aware of any allegation that any content on the Site may be Inappropriate Content.
14.4 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Supplied Content constitutes Inappropriate Content or in breach of our Acceptable Use Policy.
14.5 We may include a statement on the website which informs the end user that we have designed the Site.
15.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this Clause 15, Applicable Laws means (for so long as and to the extent that they apply to us) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
15.2 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
15.3 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 to us for the duration and purposes of this agreement.
15.4 Without prejudice to the generality of Clause 15.1, then we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this agreement:
(a) process that Personal Data only on your written instructions unless you are required by Applicable Laws to otherwise process that Personal Data. Where we rely on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
(b) ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) not transfer any Personal Data outside the European Economic Area unless the following conditions are fulfilled:
(i) You or we have provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Personal Data;
(d) assist you at your cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify you without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of you, delete or return Personal Data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this Clause 15.
15.5 You consent to us appointing third parties as listed in Schedule 1 as third-party processors of Personal Data under this agreement. We confirm that for each third party processor we have or will enter will enter into a written agreement substantially on that third party's standard terms of business or incorporating terms which are substantially similar to those set out in this Clause 15. As between both parties we shall remain fully liable for all acts or omissions of any third-party processors appointed by it pursuant to this Clause 15.
15.6 Either party may, at any time on not less than 30 days’ notice, revise this Clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
16.1 This agreement shall commence on the Effective Date for the minimum term as is provided for in the Order Specification. Upon the expiry of the minimum term you may terminate this agreement with one months’ notice. Failure to terminate this agreement will allow it to run on a monthly rolling basis.
16.2 Without affecting any other right or remedy available to it, the parties may terminate this agreement with immediate effect by giving written notice to the other party if either party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
16.3 If you fail to pay the Charges due under this agreement then we will contact you to request you pay the arrears. You will receive three weekly warnings. If you still fail to make payment the Site will be suspended and the amount due for the whole of the minimum term will fall due along with any interest accrued in accordance with Clause 8.5.
16.4 On termination of this agreement all licences granted by us under this agreement shall terminate immediately.
16.5 On expiry or termination of this agreement otherwise than on termination by us under Clause 16.2 we shall, if requested provide to you with a static copy of the Site (“Site Rip”) if requested by you before the termination date. The Site Rip shall copy the Site’s data at that time of the request so shall not include previously deleted content or data. If you request a Site Rip on or after the Termination Date you will incur an administration fee of £50 plus VAT (GBP) / €70 (Euros). You accept that any dynamic functionality will not be present in the Site Rip, including but not limited to form, editing and e-commerce functionality.
16.6 On termination of this agreement any amounts due to third party suppliers for their services as will be listed in the Order Specification or that have been expressed to you throughout the course of the agreement will fall due directly from you.
16.7 Upon payment of an administration fee of £20 plus VAT (GBP) / €30 (Euros), we agree to transfer control of your domain names to a registrar nominated by you. We will not renew any registration of any domain name after cancellation, and you note that failure to nominate a registrar will lead to the expiry of the domain names concerned. Domain names are registered for a minimum of 12 months from the date of registration. Should you request that we cancel a domain name or transfer control of a domain to another registrar before the end of the minimum term, your remaining payments for the domain name will become due immediately.
16.9 Site data will be held for a period of 6 calendar months following termination unless you instruct us to delete the Site data. The Site data shall be a copy the Site’s data at that time the contract was terminated so shall not include previously deleted content or data.
16.10 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
17.1 Any request to change the scope of the Services will need to be agreed. Any work required to change the scope will need to be reviewed and any additional costs will be agreed separately on a case by case basis.
18.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(e) collapse of buildings, fire, explosion or accident;
(f) interruption or failure of utility service.
18.2 Provided it has complied with Clause 18.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
18.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 2 months the party not affected by the Force Majeure Event may terminate this agreement by giving 1 written notice to the Affected Party.
19.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
19.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
19.3 The obligations set out in this Clause 19 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this Clause 19; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
19.4 The obligations of confidentiality in this Clause 19 shall not be affected by the expiry or termination of this agreement.
20.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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); or
(b) sent by email to the address specified in the Order Specification.
20.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 20.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
20.3 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.
21.1 You give us the authority to use your live Site within our portfolio for the purpose of marketing.
21.2 You authorise us to use the Site at our own discretion including in all media releases, public announcements and public disclosures relating to this agreement or its subject matter, including promotional or marketing material.
22.1 This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
23.1 This agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
23.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
24.1 We reserve the right to vary this agreement by providing you with one month’s notice of the amendments.
25.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
25.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
26.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
27.1 If any provision or part-provision of this 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.
27.2 If any provision or part-provision of this agreement is deemed deleted under Clause 27.1, 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.
28.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
29.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.