THIS IS A LEGAL AGREEMENT between you (the “Customer”) and Get Us Online
Limited (company number 06006483, registered office 9 Stratfield Park, Elettra
Avenue, Waterlooville, Hampshire, PO7 7XN) (“Get Us Online Limited”). Please
read this Agreement carefully as the terms and conditions stated in this Agreement
shall at all times govern the provision of services by Get Us Online Limited.
AGREED TERMS
1. INTERPRETATION
1.1. The definitions and rules of interpretation in this clause apply in this
Agreement:
1.2. “Domain Name” means any domain name registered by Get Us Online
Limited for use in connection with the Site. “Effective Date” means the
date of acceptance by Get Us Online Limited of the Customer’s offer in
accordance with Clause 2.2. “Intellectual Property Rights” means all
intellectual property rights wherever in the world arising, whether
registered or unregistered (and including any application), including
copyright, know-how, confidential information, trade secrets, business
names and domain names, trade marks, service marks, trade names,
patents, petty patents, utility models, design rights, database rights and all
rights in the nature of unfair competition rights or rights to sue for passing
off. “Material” means the content provided to Get Us Online Limited by
the Customer from time to time for incorporation in the Site.
1.3. Clause headings do not affect the interpretation of this Agreement.
References to Clauses are references to the clauses of this Agreement.
Words in the singular include the plural and in the plural include the
singular.
1.4. A reference to a particular law is a reference to it as it is in force for the
time being taking account of any amendment, extension, application or re-
enactment and includes any subordinate legislation for the time being in
force made under it.
1.5. Any phrase introduced by the terms including, include, in particular or
any similar expression shall be construed as illustrative and shall not limit
the sense of the words preceding those terms. References to content
include any kind of text, word, information, image, logo or audio or video
material which can be incorporated in a website for access by a visitor to
that website. Writing or written includes email.
2. APPLICATION OF TERMS AND CONDITIONS
2.1. This Agreement and the terms and conditions contained herein shall
prevail over any inconsistent terms or conditions contained, or referred to,
in the Customer’s purchase order, confirmation of order, acceptance of a
quotation or specification, or implied by law, trade custom, practice or
course of dealing.
2.2. The Customer’s purchase order, or the Customer’s acceptance of a
quotation for Services by Get Us Online Limited, constitutes an offer by the
Customer to purchase the Services specified in it on the terms and
conditions stated in this Agreement. No offer placed by the Customer
shall be accepted by Get Us Online Limited other than by a written
acknowledgement issued by Get Us Online Limited or (if earlier) by Get Us
Online Limited stating to provide the Services, when a contract for the
supply and purchase of those Services on the terms and conditions stated
in this Agreement will be established. The Customer’s standard terms and
conditions (if any) attached to, enclosed with or referred to in any purchase
order or other document shall not govern this Agreement.
2.3. Quotations are given to the Customer on the basis that no agreement shall
come into existence except in accordance with Clause 2.2 above. Any
quotation is valid for a period of 20 business days from its date provided
that Get Us Online Limited has not previously withdrawn it.
3. THE SERVICES
3.1. Get Us Online Limited shall:
3.1.1. design, develop and deliver the Customer’s website (the
“Site”) in accordance with the written specification agreed
between Get Us Online Limited and the Customer (the “Site
Specification”);
3.1.2. host and/or arrange the hosting of the Site; and
3.1.3. provide the Customer with limited Internet search engine
optimisation services; on the terms and conditions set out in
this Agreement (the “Services”).
4. CUSTOMER RESPONSIBILITIES
4.1. The Customer acknowledges that Get Us Online Limited´s ability to
provide the Services is dependent upon the full and timely co-operation of
the Customer (which the Customer agrees to provide), as well as the
accuracy and completeness of any information and data the Customer
provides to Get Us Online Limited. The Customer shall provide Get Us
Online Limited with any such information and data (including Material)
within 5 business days of Get Us Online Limited’s request and warrants
that any such information and data (including Material) is accurate,
complete and does not infringe the Intellectual Property Rights of any third
party.
4.2. Get Us Online Limited reserves the right to delay the commencement of
the provision of Services until all Material requested from the Customer
has been received by Get Us Online Limited. If the Material requested
from the Customer is not received within 10 business days of Get Us
Online Limited’s request, Get Us Online Limited reserves the right to
demand payment in full for the Services.
4.3. The Customer shall provide Get Us Online Limited with access to the
necessary personnel of the Customer, to the Customer’s systems and
software, and to all Site and other relevant statistics, information, data and
documentation reasonably required by Get Us Online Limited for the
performance by Get Us Online Limited of its obligations under this
Agreement.
4.4. The Customer shall be responsible for the accuracy (including grammar
and spelling) and completeness of the Material on the Site in accordance
with Clause 10.
4.5. The Customer shall be responsible for backing up all information and/or
data that is to be transferred as part of the hosting process from the
Customer’s existing service provider to Get Us Online Limited. Get Us
Online Limited shall not be liable for the loss or corruption of any such
information and/or data and Get Us Online Limited shall not provide data
restoration facilities for the Customer.
5. DEVELOPMENT AND ACCEPTANCE OF SITE
5.1. Once Get Us Online Limited has completed the design and development
of the Site in accordance with the Site Specification, Get Us Online Limited
shall notify the Customer that the Site is ready to be tested and the
Customer shall then have a period of 5 business days (the “Acceptance
Period”) in which to complete a user test on the Site to ensure that the
Site complies in all material respects with the Site Specification (the
“Acceptance Test”).
5.2. The Customer is solely responsible for completing the Acceptance Test
and Get Us Online Limited shall not be liable for any losses incurred by the
Customer as a result of the Customer’s failure to complete the Acceptance
Test.
5.3. Subject to Clause 5.4 and Clause 5.5, acceptance of the Site by the
Customer shall occur when the Customer notifies Get Us Online Limited in
writing that the Acceptance Test has been passed.
5.4. If any failure to pass the Acceptance Test results from a defect which is
caused by an act or omission of the Customer, or by one of the
Customer’s sub-contractors or agents for whom Get Us Online Limited has
no responsibility (a “Non-Supplier Defect”), the Site shall be deemed to
have passed the Acceptance Test notwithstanding such Non-Supplier
Defect. Get Us Online Limited may at its sole election provide assistance
to the Customer in order to remedy any Non-Supplier Defect by supplying
additional services or products. The Customer shall pay Get Us Online
Limited in full for all such additional services and products at Get Us
Online Limited's then current fees and prices.
5.5. Acceptance of the Site shall be deemed to have taken place upon the
occurrence of any of the following events:
5.5.1. the Customer uses any part of the Site for any revenue-
earning purposes or to provide any services to third parties
other than for test purposes; or
5.5.2. the Customer fails to complete the Acceptance Test within the
Acceptance Period.
6. CHARGES AND PAYMENT
6.1. In consideration of the Services provided by Get Us Online Limited to the
Customer, the Customer shall pay to Get Us Online Limited the fees and
charges as set out in the Customer’s purchase order form and/or
quotation. All fees and charges are exclusive of VAT which the Customer
shall pay in addition to the fees and charges.
6.2. Get Us Online Limited reserves the right at its sole discretion to:
6.2.1. require a non-refundable deposit (of 50% of the total invoice
value inclusive of VAT) to be paid by the Customer in advance
of Get Us Online Limited starting to provide the Services;
6.2.2. elect to not commence with the provision of the Services and
(if appropriate) to refund the deposit paid by the Customer in
accordance with Clause 6.2.1.
6.3. In relation to the charges payable by the Customer for the design and
development of the Site and the first Annual Hosting Fee (together the
“Start-Up Fees”), full payment (less any deposit paid by the Customer in
accordance with Clause 6.2.1) shall be made within 5 business days of the
acceptance or deemed acceptance of the Site by the Customer pursuant
to Clause 5. The Customer’s Site will not be made live until full payment
of the Start-Up Fees has been made by the Customer in accordance with
this Clause 6.
6.4. In relation to the ongoing annual fees payable by the Customer for the
hosting of the Site (“Annual Hosting Fee”), Get Us Online Limited shall
issue an annual invoice in advance, in respect of such Annual Hosting Fee
(save for the first Annual Hosting Fee which shall be invoiced as part of
the Start-Up Fees as set out in Clause 6.3 above).
6.5. The Customer shall pay each Annual Hosting Fee invoice submitted to it
by Get Us Online Limited, in full and in cleared funds, within 10 business
days of the date of Get Us Online Limited´s invoice. An alternative monthly
payment option may also be available.
6.6. If the Customer fails to pay any amount payable by it under this
Agreement, Get Us Online Limited shall be entitled, but not obliged, to:
6.6.1. charge the Customer interest on the overdue amount. Such
interest shall be payable by the Customer forthwith on
demand, from the due date up to the date of actual payment,
after as well as before judgment, at the rate of 8% per annum
above the base rate for the time being of Lloyds TSB Bank.
Such interest shall accrue on a daily basis and be
compounded quarterly. Get Us Online Limited reserves the
right to claim interest under the Late Payment of Commercial
Debts (Interest) Act 1998;
6.6.2. suspend all Services (including for the avoidance of doubt the
suspension of the Site) without liability to the Customer until
payment has been made in full. If the Customer’s Site is
suspended in accordance with this sub-Clause and the
Customer requests that the Site be reactivated, Get Us Online
Limited may charge the Customer a reactivation fee of £100
plus VAT.
6.7. Time for payment shall be of the essence of the Agreement.
7. WARRANTIES
7.1. Each of the parties warrants to the other that it has full power and authority
to enter into and perform this Agreement.
7.2. Get Us Online Limited shall perform the Services with reasonable care and
skill.
7.3. Get Us Online Limited warrants that the Site will perform substantially in
accordance with the Site Specification for a period of 3 months from the
acceptance or deemed acceptance of the Site by the Customer pursuant
to Clause 5. If the Site does not so perform, Get Us Online Limited may its
sole election, for no additional charge, carry out any work necessary in
order to ensure that the Site substantially complies with the Site
Specification.
7.4. The warranty set out in Clause 7.3 above shall not apply to the extent that
any failure of the Site to perform substantially in accordance with the Site
Specification is caused by any Material or Non-Supplier Defect.
7.5. This Agreement sets out the full extent of Get Us Online Limited´s
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. In
particular and without prejudice to that generality, Get Us Online Limited
shall not be liable to the Customer as a result of any viruses introduced or
passed on to the Customer.
8. LIMITATION OF REMEDIES AND LIABILITY
8.1. Nothing in this Agreement shall operate to exclude or limit Get Us Online
Limited´s liability for death or personal injury caused by its negligence, or
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 fraud,
or any other liability which cannot be excluded or limited under applicable
law.
8.2. Get Us Online Limited shall not be liable to the Customer for any damage
to software, damage to or loss of data, loss of profit, anticipated profits,
revenues, anticipated savings, goodwill or business opportunity howsoever
arising (including but not limited to loss arising directly or indirectly from a
breach of this Agreement).
8.3. Get Us Online Limited shall not be liable to the Customer for any or for any
indirect, special or consequential loss or damage howsoever arising.
8.4. The Customer agrees that Get Us Online Limited shall not be liable for:
8.4.1. any drop in position on Internet search engines resulting from
non-implementation of any of Get Us Online Limited’s
recommendations, from any increase in competition, from
changes implemented by the search engines or any other
external influences on the position of the Customer on the
Internet search engines;
8.4.2. the loss or corruption of any information and/or data during the
transfer of the hosting and/or domain name from the
Customer’s existing service provider to Get Us Online Limited;
8.4.3. any loss of money paid to the Customer by end users via the
Site as a result of problems with the payment processors
(including Paypal) and/or the Customer’s and/or end-users
bank.
8.5. Get Us Online Limited shall use its reasonable endeavours to make the
Site available to the Customer 100% of the time but because the Services
are provided by means of computer and telecommunications systems, Get
Us Online Limited makes no warranties or representations that the Site will
be uninterrupted or error-free and Get Us Online Limited shall not, in any
event, be liable for interruptions of Service or downtime of the Site.
8.6. Subject to Clause 8.1, Get Us Online Limited´s 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 the total fees and charges payable by the Customer
to Get Us Online Limited under this Agreement in that calendar year.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. All Intellectual Property Rights in the Site (including in the content of the
Site and the software for the Site) and the Domain Name or arising in
connection with the performance of the Services by Get Us Online
Limited(including any report, documentation or information), but excluding
the Material, shall be the property of Get Us Online Limited, and Get Us
Online Limited hereby grants the Customer a non-exclusive, revocable
licence of such Intellectual Property Rights during the term of this
Agreement for the sole purpose of operating the Site. For the purposes of
clarity ownership of all domain names registered by Get Us Online Limited,
remains the sole possession of Get Us Online Limited. Transfer and/or
release of domain ownership is at the sole discretion of Get Us Online
Limited, and may be subject to the payment of a transfer and/or early
redemption fee.
9.2. In relation to Get Us Online Limited's obligations under this Agreement in
connection with the provision of the Services, the Customer hereby grants
Get Us Online Limited a royalty-free, world-wide, non-exclusive licence to
use the Material.
9.3. The Customer shall indemnify Get Us Online Limited against all damages,
losses and expenses arising as a result of any allegation, action or claim
that the Material or the Customer’s chosen Domain Name or business
name infringe the Intellectual Property Rights of any third party.
10. SITE CONTENT
10.1. All Material to be included in the Site shall be incorporated by Get Us
Online Limited in one implementation during the design and development
of the Site.
10.2. If the Customer requires Get Us Online Limited to include additional
Material, it shall notify Get Us Online Limited of its requirements during the
Acceptance Period. Any changes to the Material (which for the avoidance
of doubt does not include any colour scheme or template changes) made
during the Acceptance Period shall be made by Get Us Online Limited
without charge to Customer. All other changes shall be charged to the
Customer on a time and materials basis at Get Us Online Limited’s hourly
rates from time to time.
10.3. Once the Acceptance Period has expired and/or the Site has been
accepted by the Customer pursuant to Clause 5, any changes to the Site
including changes to the Material shall be charged to the Customer on a
time and materials basis at Get Us Online Limited’s hourly rates from time
to time.
10.4. In relation to bespoke websites, all design features (including colour
scheme, images and structure) shall be agreed in writing between Get Us
Online Limited’s allocated graphic designer and the Customer prior to
commencement of the Site build. Once the Site build has commenced,
any changes to such design features shall be charged to the Customer on
a time and materials basis at Get Us Online Limited’s hourly rates from
time to time.
10.5. The Customer shall ensure that the Material does not infringe any
applicable laws, regulations or third party rights (including material which is
obscene, indecent, pornographic, seditious, offensive, defamatory,
threatening, liable to incite racial hatred, menacing, blasphemous or in
breach of any third party Intellectual Property Rights) (“Inappropriate
Content”).
10.6. The Customer has full responsibility for the content of the Site and
acknowledges that Get Us Online Limited has no control over any content
placed on the Site by visitors and that Get Us Online Limited does not
purport to monitor the content of the Site. Get Us Online Limited reserves
the right to remove content from the Site where it reasonably suspects
such content is Inappropriate Content.
10.7. The Customer shall indemnify Get Us Online Limited against all damages,
losses and expenses arising as a result of any action or claim that the
Material or the content of the Site constitute Inappropriate Content.
10.8. Get Us Online Limited may include the statement "Designed by Get Us
Online Limited" on the home page of the Site.
11. TERM AND TERMINATION
11.1. This Agreement shall commence on the Effective Date and shall (subject
to earlier termination pursuant to this Clause 11) terminate automatically
on the fifth anniversary of the Effective Date (the “Term”), unless the
parties agree in writing to extend the term of this Agreement by a further
term.
11.2. Either party may terminate this Agreement immediately at any time by
written notice to the other party if:
11.2.1. that other party commits any material breach of its obligations
under this Agreement which (if remediable) is not remedied
within 30 days after the service of written notice specifying the
breach and requiring it to be remedied; or
11.2.2. that other party:
11.2.2.1. ceases to trade (either in whole, or as to any
part or division involved in the performance of
this Agreement); or
11.2.2.2. becomes insolvent or unable to pay its debts
within the meaning of the insolvency legislation
applicable to that party; or
11.2.2.3. a person (including the holder of a charge or
other security interest) is appointed to manage
or take control of the whole or part of the
business or assets of that party, or notice of an
intention to appoint such a person is given or
documents relating to such an appointment are
filed with any court; or
11.2.2.4. the ability of that party’s creditors to take any
action to enforce their debts is suspended,
restricted or prevented or some or all of that
party’s creditors accept, by agreement or
pursuant to a court order, an amount of less
than the sums owing to them in satisfaction of
those sums; or
11.2.2.5. any process is instituted which could lead to
that party being dissolved and its assets being
distributed to its creditors, shareholders or other
contributors (other than for the purposes of
solvent amalgamation or reconstruction).
11.3. On expiry or termination of this Agreement (including for the avoidance of
doubt termination by either party pursuant to Clause 11.2):
11.3.1. all licences granted by Get Us Online Limited under this
Agreement shall terminate immediately;
11.3.2. Get Us Online Limited shall return all Material to the Customer;
and
11.3.3. at the Customer’s written request Get Us Online Limited shall,
subject to the payment of Get Us Online Limited’s then current
transfer fees (a transfer quote is available on request):
11.3.3.1. provide the Customer with an electronic copy of
the Site (including all content on the Site);
11.3.3.2. transfer the Intellectual Property Rights in the
Site and/or the Domain Name to the Customer;
and
11.3.3.3. transfer the hosting of the Site to the Customer
or another service provider subject to the
payment of Get Us Online Limited’s expenses
reasonably incurred.
11.4. If this Agreement is terminated by the Customer (including for the
avoidance of doubt termination by the Customer pursuant to Clause 11.2)
prior to the expiry of the five year Term, the Customer shall pay to Get Us
Online Limited an early redemption fee which shall be equal to the sum
outstanding under the five year hosting package. An early redemption
quote is available on request.
11.5. 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.
12. FORCE MAJEURE
12.1. In this Clause 12, “Force Majeure Event” means any event arising which
is beyond the reasonable control of the affected party (including any
industrial dispute affecting any third party, governmental regulations, fire,
flood, disaster, civil riot or war).
12.2. A party who becomes aware of a Force Majeure Event which gives rise to,
or which is likely to give rise to, any failure or delay in performing its
obligations under this Agreement shall forthwith notify the other and shall
inform the other of the period for which it is estimated that such failure or
delay will continue. The affected party shall take reasonable steps to
mitigate the effect of the Force Majeure Event.
13. CONFIDENTIALITY
13.1. Each party undertakes that it shall not disclose to any person any
confidential information concerning the business, affairs, customers,
clients or suppliers of the other party except as permitted by Clause 13.2.
13.2. Each party may disclose the other party's confidential information: (a) to its
employees, officers, representatives or advisers who need to know such
information for the purposes of carrying out the party's obligations under
this Agreement provided that each party shall ensure that its employees,
officers, representatives or advisers to whom it discloses the other party's
confidential information comply with this Clause 13 and (b) as may be
required by law, court order or any governmental or regulatory authority.
13.3. No party shall use any other party's confidential information for any
purpose other than to perform its obligations under this Agreement.
13.4. The obligations of confidentiality in this Clause 13 shall not be affected by
the expiry or termination of this Agreement.
14. NOTICES
14.1. Any communications between the parties about this Agreement shall be in
writing in the English language and shall be delivered by hand or sent by
pre-paid first class post or sent by fax or email to:
14.1.1. (in case of communications to Get Us Online Limited) to Get
Us Online Limited, 1 Hawthorn Drive, Sway, Lymington,
Hampshire, SO41 6DX or such changed address as shall be
notified to the Customer by Get Us Online Limited and marked
for the attention of Richard Lock or Anita Gresham-Hale; or
14.1.2. (in the case of the communications to the Customer) to the
registered office of the Customer (if it is a company) or (in any
other case) to any address of the Customer set out in any
document which forms part of the Agreement or such other
address as shall be notified to Get Us Online Limited by the
Customer.
14.2. Communications shall be deemed to have been received:
14.2.1. if sent by pre-paid first class post, two days (excluding
Saturdays, Sundays and bank and public holidays) after
posting (exclusive of the day of posting); or
14.2.2. if delivered by hand, on the day of delivery; or
14.2.3. if sent by fax or email on a working day prior to 4.00 pm, at the
time of transmission and otherwise on the next working day.
14.3. The provisions of this Clause 14 shall not apply to the services of any
proceedings or other documents in any legal action.
15. ASSIGNMENT
The Customer may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of Get Us Online
Limited, such consent not to be unreasonably withheld or delayed.
16. ENTIRE AGREEMENT
16.1. It is acknowledged and agreed that this Agreement (including the
documents and instruments referred to herein (the “Documents”) shall
supersede all prior representations arrangements, understandings and
agreements between the parties relating to the subject matter hereof and
shall constitute the entire complete and exclusive agreement and
understanding between the parties hereto
16.2. The parties irrevocably and unconditionally waive any right they may have
to claim damages for any misrepresentation, arrangement, understanding
or agreement not contained in the Documents or for any breach of any
representation not contained in the Documents (unless such
misrepresentation or representation was made fraudulently).
16.3. It is further acknowledged and agreed that no representations,
arrangements, understandings or agreements (whether written or oral)
made by or on behalf of any of the other parties have been relied upon
other than those expressly set out or referred to in the Documents.
17. THIRD PARTY RIGHTS
This Agreement is made for the benefit of the parties to it and is not
intended to benefit, or be enforceable by, any other person.
18. VARIATION AND WAIVER
18.1. A variation of this Agreement shall be in writing and signed by or on behalf
of both parties to this Agreement.
18.2. A waiver of any right under this Agreement is only effective if it is in writing,
and it applies only to the party to whom the waiver is addressed and the
circumstances for which it is given. No waiver shall be implied by taking or
failing to take any other action.
18.3. Unless specifically provided otherwise, rights arising under this Agreement
are cumulative and do not exclude rights provided by law.
19. SEVERANCE
19.1. If any provision (or part of a provision) of this Agreement is found by any
court or administrative body of competent jurisdiction to be invalid,
unenforceable or illegal, the other provisions shall remain in force.
19.2. If any invalid, unenforceable or illegal provision would be valid,
enforceable or legal if some part of it were deleted, the provision shall
apply with whatever modification is necessary to give effect to the
commercial intention of the parties.
20. GOVERNING LAW AND JURISDICTION
20.1. This Agreement and any disputes or claims arising out of or in connection
with its subject matter are governed by and construed in accordance with
the law of England.
20.2. The parties irrevocably agree that the courts of England have exclusive
jurisdiction to settle any dispute or claim that arises out of or in connection
with this Agreement.
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