Byte22 Terms and Conditions
The Customer's attention is particularly drawn to the provisions of clauses 14 and 20.
Definitions. In these Conditions, the following definitions apply:
Application: the application software comprised of Supplier Software developed by Byte22 for the Operating System(s).
Application Delivery Date: the estimated delivery date specified in the Project Plan on which Byte22 will deliver a module of the Application to the Customer.
Acceptance: the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 4.6.
Acceptance Certificate: the certificate to be signed by the Customer under clause 4.8(a)
Acceptance Tests: the tests to be carried out on the Site as set out in clause 4.
Bespoke Software: the software programs developed by Byte22 specifically for the Customer as part of the Application.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 7.
Commencement Date: has the meaning set out in clause 2.2.
Byte22: Henhurst Consulting Limited trading as Byte 22 registered in England and Wales with company number 04564260 and with registered office 6 Lichfield Street, Burton on Trent, Staffordshire DE14 3RD.
Conditions: these terms and conditions as amended from time to time in accordance with clause 25.8.
Byte22 Materials: has the meaning set out in clause 11.1(g).
Completion Date: the estimated date specified in the Proposal by which the Byte22s to provide the Supplier Software Ready for Service.
Contract: the contract between Byte22 and the Customer for the supply of Services for each Project in accordance with these Conditions including these Conditions and the Proposal.
Customer: the person or firm who purchases Services from Byte22.
Deliverables: the deliverables set out in the Proposal produced by Byte22 for the Customer, including but not limited to the Application and the Documents.
Documents: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Byte22.
Escrow: the deposit with, and retention by the Escrow Agent of, the Source Code Materials.
Escrow Agent: The NCC Group.
Escrow Agreement: an escrow agreement in the applicable standard form then in force by the Escrow Agent at the time of the request to provide the Supplier Software in Escrow as required under clause 24.
Final Design Stage: the Services indicated in the Proposal commencing on the Stage Sign-off for Production Design Stage and up to completion of the Services.
Go-Live Date: the estimated date by which Byte22 will complete the design, build and test of the Application or a module of it as specified in the Project Plan.
Hosting Services: the hosting and related services of websites developed by Byte22 or a third party, as shall be further set out in the Proposal, Project Plan and clause 5.
Initial Design Stage: the Services indicated in the Proposal between the commencement of the Services and immediately before the Stage Sign-off for Production Design Stage.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, typography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence: the licence granted under clause 8.
Licensed Software: Supplier Software (except the Open-Source Software and the Third-Party Software).
Licensed Software (Supplier): the Bespoke Software, Supplier Standard Software and the Modified Software (Supplier).
Licensed Users: anyone who is given access to the Application by the Customer.
Modified Software: the standard software programs proprietary to Byte22 and/or third parties listed in the Proposal, modified or to be modified by Byte22 under this agreement.
Modified Software (Supplier): those elements of the Modified Software listed in the Proposal and identified as such.
Modified Software (Third Party): those elements of the Modified Software listed in the Proposal and identified as such.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Application (Current), or with which the Supplier Software is compiled or to which it is linked.
Operating System: the operating system(s) set out in the Proposal.
Order: in the Customer's purchase order form, or the Customer's written acceptance of a quotation by Byte22, or overleaf, as the case may be.
Price: the aggregate price for the Work (excluding, for clarity, any training and any other services) and the Licence, as specified in the Proposal.
Pre-existing Materials: materials which existed before the commencement of the Services, including but not limited to the Intellectual Property Rights held in such materials by third parties.
Production Design Stage: the Services indicated in the Proposal commencing on the Stage Sign-off for Initial Design Stage.
Project: the unique identifier for the Services or Deliverables provided by Byte22 to the Customer and as set out in the Proposal.
Project Manager: shall be such individual as shall be identified in the Proposal.
Project Plan: the timetable for setting up the Site and performing the Services as set out in the Proposal.
Proposal: the description or specification of the Services provided in writing by Byte22 to the Customer, including the Project Plan.
Purpose: the purpose for the Application set out in the Proposal.
Ready for Service: installed, tested and having passed or deemed to have passed the Acceptance Tests under clause 4 as appropriate to Software Development Services.
Services: the services, including the Deliverables, supplied by Byte22 to the Customer as set out in the Proposal which shall include but not be limited to design and consultancy services in respect of website design, Software Development Services and Hosting Services but excluding the Work.
Site: where applicable the website to be designed and developed as part of the Services.
Site Materials: the content provided to Byte22 by the Customer from time to time for incorporation in the Site.
Site Software: the software for the Site commissioned by the Customer as described in the Proposal.
Site Specification: the specification for the Site set out in the Proposal.
Software Development Services: such Services as are required to design and/or develop the Application and as are set out in the Proposal.
Software Module: any one of the individual software programs in the Application.
Stage: the Initial Design Stage, Final Design Stage, or Production Design Stage.
Stage Sign-off: the wording, in the form prescribed in the Schedule to these Conditions, to be provided by the Client’s authorised representative at the completion of each Stage and for progression to the next stage, or production of final design.
Source Code Materials: the source code of the Supplier Software, and all technical information and Documents required to enable the Customer to modify and operate it.
Supplier Software: the Supplier Standard Software, the Third-Party Software, the Modified Software, the Open-Source Software, the Tools and the Bespoke Software.
Supplier Standard Software: the software programs proprietary to the Supplier, listed in the Proposal, which are to be provided to the Customer without modification.
Technical Specification: the specification of the Application contained in the Proposal and agreed between Byte22 and the Customer to meet the requirements of the Customer.
Third-Party Licences: all licences relating to Third Party Software and all licences relating to any Open-Source Software.
Third-Party Software: the software programs proprietary to third parties, listed in the Proposal, which are to be provided to the Customer without modification.
Tools: any tools and know-how developed, and methods invented, by the Supplier in the course of or as a result of carrying out the Work, whether or not developed or invented specifically or used exclusively to carry out the Work.
Trigger Event: an event, the occurrence of which shall entitle the Customer to apply to the Escrow Agent for release of the Source Code Materials from Escrow in accordance with the provisions of the Escrow Agreement.
Virus: any thing or device (including any software, code, file or programme) which may:
- (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
- (b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or
- (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Work: all the works, duties and obligations to be carried out by Byte22 under this agreement.
Construction. In these Conditions, the following rules apply:
- (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- (b) a reference to a party includes its personal representatives, successors or permitted assigns;
- (c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- (d) 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; and
- (e) a reference to writing or written includes e-mails.
BASIS OF CONTRACT
The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when Byte22 issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). The Contract subject to these Conditions, shall continue, unless terminated earlier in accordance with these Conditions;
- (a) until the Services have been completed;
- (b) until the Work has been completed.
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Byte22 which is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued by Byte22, and any descriptions or illustrations contained in Byte22's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by Byte22 shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
SUPPLY OF SERVICES AND STAGE SIGN-OFF
Byte22 shall supply the Services to the Customer in accordance with the Proposal in all material respects.
Except for Hosting Services, performance of the Services shall be split into three Stages for each Project, unless otherwise agreed in writing:
- (a) Initial Design Stage;
- (b) Production Design Stage; and
- (c) Final Design Stage.
Except for Hosting Services, once Byte22 believe they have completed the Services and/or Deliverables required for each Stage they shall present the Services and/or Deliverables to the Customer.
Stage Sign-off shall be completed and returned by the Customer no later than three Business Days from the day Byte22 presented the Services and/or Deliverables to the Customer, unless any adjustments, amendments or other changes are required in accordance with clause 3.5, or there are defects in the Services and/or Deliverables (as set out in clause 3.8(a)). Time shall be of the essence for the purpose of this clause 3.4.
Byte22 shall not accept any responsibility for any delay caused by the Customer’s failure to complete and return a Stage Sign-off.
If the Customer requires any adjustments, amendments or other changes to be made following presentation of the Services and/or Deliverables such changes shall be notified in writing to Byte22. Where the changes are outside the scope of the Services and/or Deliverables (to be determined by Byte22) as detailed in the Proposal and in relation to that Stage, then the adjustments, amendments or other changes will be treated in accordance with clause 6.
Byte22 will be entitled to charge additional fees, such fees to be on a time and materials basis (in accordance with clause 9.5), for any adjustments, amendments or other changes
- (a) required after Acceptance in respect of the Hosting Services;
- (b) required after Stage Sign-off subject always to clause 6, in respect of all other Services.
The Services shall only proceed from one Stage to the next Stage on receipt of a Stage Sign-off in the form provided in the Schedule to these Conditions.
Byte22 shall not accept any responsibility for:
- (a) any default, acts or omissions of Byte22 in the Services and/or Deliverables (including an error in the Application that causes it to fail to operate substantially in accordance with the Documents) (Defects) after Stage Sign-off Byte22, provided such Defects were reasonably capable of detection by the Customer when the Services and/or Deliverables were presented to the Customer in accordance with clause 3.2;
- (b) any default, acts or omissions of the Customer or by one of the Customer’s sub-contractors or agents for whom Byte22 has no responsibility or for those items identified as the responsibility of the Customer in these Byte22Conditions or elsewhere in the Contract (Non-Byte22 Defect); and
- (c) proof reading, grammar, spelling or punctuation checking or correction. For the avoidance of doubt, such activities are the sole responsibility of the Customer.
In the event that the Customer fails to provide Stage Sign Off in accordance with Clause 3.4, the Customer or Byte22 may terminate the Contract immediately on notice and clause 22 shall apply. Byte22 shall refund any advance payment made in accordance with clause 14 on a pro rata basis.
For the avoidance of doubt, Stage Sign Off confirms that the Customer is completely satisfied with the Services up to the Stage at which Stage Sign Off is provided.
Byte22 shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
Byte22 shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Byte22 shall notify the Customer in any such event.
The following clauses 4.2 to 4.5 shall apply where the Services include website design and development.
Byte22 shall run the Acceptance Tests for the Site at the Production Design Stage and prior to the Final Design Stage. The procedure set out in this clause 4 shall apply to any further development works agreed by the parties as part of the Production Design Stage.
The Acceptance Tests shall test compliance of the Site with the Proposal for the Site. The form and detail of such tests is set out in the Proposal.
Acceptance of the Site shall occur when the Site has passed the Acceptance Tests at the Production Design Stage and prior to Final Design Stage. Byte22 shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing.
If any failure to pass the Acceptance Tests results from a Non-Byte22 Defect, the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Byte22 Defect. Byte22 shall provide assistance reasonably requested by the Customer in remedying any Non-Byte22 Defect by supplying additional services. The Customer shall pay Byte22 in full for all such additional services at Byte22's then current fees and prices.
As regards the Software Development Services:
- (a) the Acceptance Test criteria and data shall be such as are reasonably required to show that the Application complies with the Technical Specification. If necessary, Byte22 and the Customer shall meet to decide the Acceptance Test criteria, and by no later than 30 days from the Commencement Date. Byte22 shall provide the Customer with reasonable assistance to prepare such user acceptance criteria and test data at the Customer's request and at Byte22's standard rates then in force. Unless otherwise stated in the Proposal, the parties shall use best endeavours to agree the Acceptance Tests for the Application within ten days from the date of delivery to Byte22 of the proposed criteria and data.
- (b) Byte22 shall carry out the agreed Acceptance Tests for each module of the Application ten days before the Go-Live Date. Byte22 shall give the Customer at least 24 hours' notice of the start of the Acceptance Tests, and permit the Customer to observe all or any part of the testing.
- (c) if any module of the Application fails to pass the Acceptance Tests, the Customer shall, within 14 days from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). Byte22 shall remedy the Defects and deficiencies, and the relevant test(s) shall be repeated within a reasonable time.
Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
- (a) 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
- (b) the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Byte22 is ready to commence running such Acceptance Tests or retests; or
- (c) the Customer provides the Stage Sign-off for the Production Design Stage.
Acceptance of the Supplier Software shall be deemed to have occurred on whichever is the earlier of:
- (a) the signing by the Customer of an Acceptance Certificate for the final module of the Application to pass the Acceptance Tests;
- (b) the expiry of five days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under clause 4.6(b);
- (c) the expiry of ten days after the Go-Live Date of the final module of the Application if the Acceptance Tests for that module have not started, or have not been pursued with due diligence; or
- (d) the use of the Application by the Customer in the normal course of the business of the Customer or the placing of the Application in a store for sale, or otherwise for access by users.
Byte22 shall update the Site with Materials provided from time to time by the Customer, but no more than once in any month during the term of this Contract in respect of Hosting Services. The Customer shall ensure that the Site Materials do not infringe any applicable laws, regulations or third party rights (such as material 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).
Byte22 shall include only the Site Materials on the Site. The Customer acknowledges that Byte22 has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site, unless otherwise agreed by Byte22 (in which case Byte22 shall perform such Services in accordance with the Warranty set out in clause 12.2.
Byte22 reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Byte22 shall notify the Customer if it becomes aware of any allegation that content on the Site may be Inappropriate Content.
The Customer shall indemnify Byte22 against all damages, losses and expenses arising as a result of any action or claim that the Site Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.
Byte22 may include a statement identifying each page of the Site as created by Byte 22.
WEBSITE HOSTING SERVICES
Clause 6.2 shall apply where the Services include Hosting Services
In respect of Hosting Services, Byte22 shall perform its obligations in accordance with the Project Plan. In particular:
- (a) provided Byte22 receives a copy of the Site Software and Site Materials on or before such date set out in the Proposal/Project Plan, Byte22 shall set up the Site for Acceptance Testing on such date set out in the Proposal/Project Plan; and
- (b) Byte22 shall, as soon as reasonably practicable after Acceptance of the Site, provide the Hosting Services in accordance with the Contract.
SOFTWARE APPLICATION DEVELOPMENT
Byte22 grants the Licence and shall supply the Application, the Documents, the Work and the Services to the Customer in accordance with the Contracts.
The supply under clause 7.1 and Price are subject to the terms and conditions set out in the Contract.
- (a) to carry out, in conjunction with the Customer, the Acceptance Tests; and
- (b) to provide the Application Ready for Service by the Completion Date,
- (c) on the terms and conditions set out in the Contract.
Byte22 shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, to provide the Application in accordance with the Technical Specification by the Completion Date.
Byte22 shall provide the Third-Party Software and any Modified Software (Third Party) to the Customer under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Customer, and the Customer agrees to be bound by such licence terms.
Byte22 shall provide Supplier Standard Software, the Bespoke Software and any Modified Software (Supplier) under the terms of these Conditions.
If agreed in writing between the parties, or otherwise set out in the Proposal, Byte22 shall provide to the Customer, from time to time, copies of the Documents containing sufficient up-to-date information for the proper use of the Application (Current). These Documents may be supplied in electronic form.
The Customer may make such further copies of the Documents as are reasonably necessary for the use of the Application (Current). The Customer shall ensure that all of Byte22's proprietary notices are reproduced in any such copy.
The Customer may provide copies of the Documents to any third party who needs to know the information contained in it, provided that such third party first enters into confidentiality obligations to the same extent as set out in these Conditions.
Byte22 shall deliver each module of the Application to the Customer by the applicable Application Delivery Date.
Byte22 shall supply to the Customer, within a reasonable time before any Application Delivery Date, such information and assistance as the Customer may reasonably request.
If any delivery is delayed at the request of the Customer, or because of his acts or omissions, the Proposal shall be amended to take account of such delay in accordance with clause 11.5. If Byte22 can demonstrate that the delay has resulted in an increase in cost to Byte22 of carrying out its obligations under this agreement, Byte22 may, at its sole discretion, notify the Customer that it wishes to increase the Price by an amount not exceeding any such demonstrable cost. Byte22 may invoice the Customer for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs.
SOFTWARE LICENCE AND DOCUMENTS
Byte22 grants, subject to the terms of the Contract, the Customer the non-exclusive, non-transferable right:
- (a) to use the Licensed Software and the Documents for the Purpose; and
- (b) to sub-license the Licensed Software to any end user in accordance with clause 17.14(c).
8.2.The Customer shall comply with the Third-Party Licences and shall indemnify and hold Byte22 harmless against any loss of damage that it may suffer or incur as a result of the Customer's breach of such terms.
Byte22 may treat the Customer's breach of any Third-Party Licence as a breach of the Contract.
TRANSFER OR REPRODUCTION OF LICENSED SOFTWARE
The Customer may make such copies of the Licensed Software as are reasonably necessary for use in accordance with this agreement and for the purposes of backup and security but such copies shall not exceed a total of one electronic and one hard copy. The Customer has no right to make, or authorise the making of, any other copies of the Licensed Software.
Byte22 shall at all times own all copies of all or any part of the Licensed Software. For copies recorded on a tangible medium, the Customer shall place on each copy of all or any part of the Licensed Software a clearly visible label indicating that the copy is the property of Byte22, and reproducing Byte22's proprietary rights notice. For electronic copies, the Customer shall ensure that all proprietary notices contained in the Licensed Software shall be maintained in such copies and shall display, when the software is run, in the same way as in the case of the Licensed Software as supplied by Byte22. The Customer shall keep all copies of the Licensed Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or control.
Except as permitted under clause 8.1(b), the Customer shall not:
- (a) sub-license, rent, lend, assign or transfer in any other way this agreement or the Licensed Software to any person without the prior written consent of Byte22; and
- (b) give access to the Licensed Software through any network of computers to users who are not employees or agents of the Customer.
USE AND ADAPTATION OF LICENSED SOFTWARE
The Customer may use the Licensed Software with other software.
The Customer may not make adaptations or variations of the Licensed Software without the prior consent of Byte22.
The Customer may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.
The Customer shall:
- (a) ensure that the terms of the Order and any information it provides for use in the Proposal by Byte22 are complete and accurate;
- (b) co-operate with Byte22 in all matters relating to the Services;
- (c) provide Byte22, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Byte22;
- (d) provide Byte22 with the Site Materials, information and materials as Byte22 may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects. Such information or materials will be provided at the specific date and time indicated in the Proposal or by Byte22 in notice in writing to the Customer and shall include but not be limited to images (in such quality as shall be acceptable to the Customer) and text;
- (e) prepare the Customer's premises, IT systems, software applications or hardware for the supply of the Services and/or Deliverables;
- (f) unless otherwise agreed in writing between the parties, obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start, including but not limited to any third party Intellectual Property Rights for use by Byte22 in the provision of the Services or Deliverables ;
- (g) keep and maintain all materials, equipment, documents and other property of Byte22 (Byte22 Materials) at the Customer's premises in safe custody at its own risk, maintain Byte22 Materials in good condition until returned to Byte22, and not dispose of or use Byte22 Materials other than in accordance with Byte22's written instructions or authorisation; and
- (h) proof read, perform punctuation, grammar and spelling checks on all text, documents or other input material (whether sample, draft or final) provided:
- (i) by the Customer to Byte22; or
- (ii) by Byte22 to the Customer.
- (i) to provide reasonable notice if you are unable to keep any appointments made, or provide any material or information requested or required by Byte22 at the times indicated in the Proposal or as otherwise advised in writing by Byte22.
If Byte22's performance of any of its obligations under the Contract is prevented or delayed by any Non-Byte22 Defect:
- (a) Byte22 shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Non-Byte22 Defect, and to rely on the Non-Byte22 Defect to relieve it from the performance of any of its obligations to the extent the Non-Byte22 Defect prevents or delays Byte22's performance of any of its obligations;
- (b) Byte22 shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Byte22's failure or delay to perform any of its obligations as set out in this clause 11.2; and
- (c) the Customer shall reimburse Byte22 on written demand for any costs or losses sustained or incurred by Byte22 arising directly or indirectly from the Non-Byte22 Defect.
Byte22 shall be given an extension of the timetable of any one or more of the stages in the Project Plan if one of more of the following events occurs:
- (a) a variation to the Application is made at the Customer's request under the change control procedures set out in clause 13;
- (b) a Force Majeure Event occurs as described in clause 25;
- (c) a delay is caused in whole or in part by a Non-Bytee22 Defect or any action or omission of the Customer or its employees, agents or third-party contractors.
If Byte22 is entitled to an extension of time under clause 11.3, it shall give written notice to the Customer not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a Force Majeure Event under clause 25, shall estimate the probable extent of the delay.
The Project Managers shall use all reasonable commercial endeavours to agree in writing, what extension of time is reasonable in the circumstances. The Project Plan and the Proposal shall be deemed amended accordingly.
Each party shall appoint a Project Manager who shall:
- (a) provide professional and prompt liaison with the other party; and
- (b) have the necessary expertise and authority to commit the relevant party.
The Project Managers shall meet at such appropriate time agreed in writing until the passing of the Acceptance Test, and then at least once every month.
If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
If either party requests a change to the scope or execution of the Services, Byte22 shall, within a reasonable time, provide a written estimate to the Customer of:
- (a) the likely time required to implement the change;
- (b) any variations to Byte22’s charges arising from the change;
- (c) the likely effect of the change on the Proposal; and
- (d) any other impact of the change on the terms of the Contract.
If Byte22 requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
If the Customer wishes Byte22 to proceed with the change, Byte22 has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Proposal and any other relevant terms of the Contract to take account of the change.
Byte22 undertakes to offer to the Customer, and the Customer may at any time before the relevant Application Delivery Date and at its sole discretion choose to obtain from Byte22, any item of software in substitution for any corresponding item of Licensed Software where the substitute item contains new technology or has better performance characteristics than such Licensed Software. As part of the offer, Byte22 shall notify the Customer of any change in the Price which would result from such substitution. If the Customer chooses to obtain any such substitute item, the parties shall use best endeavours to agree a change to the Proposal and Services in accordance with this clause 13.
CHARGES AND PAYMENT
The Charges for the Services shall be set out in the Proposal, except for Hosting Services, and shall relate to each Stage of the Services.
Where indicated in the Proposal, the Customer shall make an advance payment for Services. Such advance payment shall be payable immediately on receipt of the Proposal and the Services shall not commence until the advance payment has been received in full and in cleared funds to a bank account nominated in writing by Byte22.
Unless otherwise agreed in writing, the Hosting Services shall be on a fixed fee basis and Byte22 shall issue a VAT invoice annually in advance in respect of the Charges for Hosting Services.
Where Charges are on a fixed fee basis, the fixed fee shall be set out in the Proposal.
The Price shall be payable in such amounts, in such frequency and by such methods as shall be set out in the Proposal.
Where Charges are on a time and materials basis:
- (a) the Charges shall be calculated in accordance with Byte22's standard daily fee rates, as set out in the Proposal;
- (b) Byte22's standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
- (c) Byte22 shall be entitled to charge an overtime rate at a percentage (as set out in the Proposal) of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 14.6(b); and
- (d) Byte22 shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Byte22 engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Byte22 for the performance of the Services, and for the cost of any materials.
Byte22 reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any six month period. Byte22 reserves the right to increase the fixed fee for the Services and/or Deliverables in the event that the costs payable by Byte22 in relation to the Services and/or Deliverables are increased.
Byte22 will give the Customer written notice of any such increase one month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Byte22 in writing within two weeks of the date of Byte22's notice and Byte22 shall have the right without limiting its other rights or remedies to terminate the Contract by giving one weeks' written notice to the Customer.
Unless otherwise agreed in the Proposal, or in writing by Byte22, Byte22 shall invoice the Customer on completion of the services associated with each Stage of the Services.
Unless otherwise set out in the Proposal or otherwise agreed in writing, the Customer shall pay each invoice submitted by Byte22:
- (a) within 30 days of the date of the invoice; and
- (b) in full and in cleared funds to a bank account nominated in writing by Byte22, and
- time for payment shall be of the essence of the Contract.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Byte22 to the Customer, the Customer shall, on receipt of a valid VAT invoice from Byte22, pay to Byte22 such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
Without limiting any other right or remedy of Byte22, if the Customer fails to make any payment due to Byte22 under the Contract by the due date for payment (Due Date):
- (a) Byte22 shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current HSBC Bank Plc's base rate accruing on a daily basis from the Due Date until the date payment of the overdue amount is actually made, whether before or after any judgment in court, and compounding quarterly.
- (b) Byte22 shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer andByte22 if the Customer becomes subject to any of the events listed in clause 21.2(b) to clause 21.2(l), or Byte22 reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment. For the avoidance of doubt, Byte22 shall be entitled to suspend performance of the Services for non-payment of any outstanding amounts due at any Stage of the Services and this clause 14.13(b) may result in the Hosting Services being suspended. This would mean that the Customer’s website may not be available to your customers and your email may cease to function; and
- (c) Byte22 shall seek to recover any outstanding amount by instructing third parties and Byte22 shall be entitled to recover all such reasonable costs in the recovery of such amounts.
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Byte22 in order to justify withholding payment of any such amount in whole or in part. Byte22 may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Byte22 to the Customer.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
Subject to clauses 8 and 16, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by Byte22. In consideration for payment of the Charges in full and cleared funds, Byte22 hereby licenses all such rights to the Customer on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Contract is terminated in accordance with clause 20.2, this licence will automatically terminate.
The Customer acknowledges that Byte22's use of rights in Pre-existing Materials is conditional on the Customer obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Byte22 to license such rights to the Customer.
The Customer agrees to indemnify Byte22 and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by Byte22, or for which Byte22 may become liable, with respect to any intellectual property infringement claim or other claim relating to the Services or Deliverables supplied by Byte22 to the Customer arising out of the Customers failure to act in accordance with clause 8.2.
Byte22 reserves the right to use any Deliverables provided by Byte22 to the Customer for promotional purposes, in accordance with any reasonable instructions of the Customer.
All Byte22 Materials are the exclusive property of Byte22.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE
The following clauses are subject to the licence provisions in clause 8.
The Intellectual Property Rights in the Application (Current) are, and shall remain, the property of Byte22 (or the appropriate third-party rights-owner(s), if any).
The Customer acquires no rights in or to the Licensed Software or the Documents other than those expressly granted by this Contract.
The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that Byte22 may consider necessary or desirable to perfect the right, title and interest of Byte22 in and to the Intellectual Property Rights in the Licensed Software and the Documents.
The Customer shall use reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the Licensed Software and shall promptly report to Byte22 any such infringement that comes to its attention. In particular, the Customer shall:
- (a) ensure that each Licensed User, before starting to use the Application (Current), is made aware that the Licensed Software is proprietary to Byte22 (or the appropriate third parties) and that it may only be used and copied in accordance with the Contract; and
- (b) ensure that the terms and conditions of use of any store or site for the distribution or sale of the Application or mobile device do not conflict with any of the terms of ownership detailed in this clause 15.
Nothing in this agreement shall prevent either party from using any Tools, knowledge of which is contained in the unaided memory of such party's personnel developed or disclosed under the Contract, provided that in doing so such party does not breach its obligations of confidentiality under this clause 15 or breach any Intellectual Property Rights of the other party. An individual's memory is only "unaided" with respect to any information if the individual has not retained a copy of the information and has not intentionally memorised that information other than is required to perform the Services.
Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
Byte22 shall perform the Services with reasonable care and skill.
Byte22 warrants that the Site will perform substantially in accordance with the Site Specification for period of 90 days from Acceptance. If the Site does not so perform, Byte22 shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
The warranty set out in clause 17.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by the Site Software or any Site Materials.
The Contract sets out the full extent of Byte22’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 the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
Byte22 warrants and represents that:
- (a)the Licensed Software (Supplier) and Documents are proprietary to Byte22 and that it has the right to license all UK Intellectual Property Rights in and to the Licensed Software and Documents to the Customer;
- (b) use of the Licensed Software (Supplier) does not infringe the UK Intellectual Property Rights of any third party;
- (c) the Licensed Software at the Acceptance Date, and for six months after that date, will perform in accordance with the Technical Specification relating to the Operating System;
The sole remedies for breach of the warranties in clause 17.6(a) and 17.6(b) are set out below.
If use of the Application (Current) or where in the opinion of qualified legal counsel is likely to become, the subject of any such claim, Byte22 may:
- (a) Replace all or part of the Application (Current) with functionally equivalent software or documents without any charge to the Customer;
- (b) Modify the Application (Current) as necessary to avoid such claim, provided that the Application (Current) (as modified) functions in substantially the say way as the Application (Current) before modification; and
- (d) Procure for the Customer a licence from the relevant claimant to continue using the Application (Current).
The sole remedy for breach of the warranty under clause 17.6(c) shall be correction of Defects by Byte22 within a reasonable time from notification by the Customer of the Defect that constitutes such breach.
The warranties set out in clause 17.6 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Without limitation, Byte22 specifically denies any implied or express representation that Supplier Software will be fit:
- (a)to operate in conjunction with any hardware items or software products other than with those that are identified in the Documents as being compatible with Supplier Software; or
- (b) to operate uninterrupted or error-free.
Byte22 does not warrant or guarantee that it will be able to rectify all Defects.
Any unauthorised modifications, use or improper installation of the Application (Current) by, or on behalf of, the Customer shall render all Byte22's warranties and obligations under the Contract null and void.
Byte22 shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than by normal recovery or diagnostic procedures have been made by the Customer's personnel or third parties without the permission of Byte22.
Any Open-Source Software provided by Byte22 may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 17.8.
- (a) warrants to Byte22 that it will at all times comply with all applicable laws and regulations with respect to its activities under the Contract and any part of the Supplier Software;
- (b) shall not access, store, distribute or transmit or cause, suffer or allow to be accessed, stored, distributed or transmitted any Virus;
- (c) where it licenses any part of Supplier Software to any end-user, shall ensure that its end-user licence agreement terms include and are not inconsistent with the minimum terms and conditions set out in Schedule 2 to this Contract; and
- (d) shall indemnify Byte22 against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Byte22 arising out of any non-compliance by the Customer with clause 17.14(a), clause 17.14(b) and clause 17.14(c).
Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain (Confidential Information). The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 17 shall survive termination of the Contract.
In this clause 19, Personal Data, data controller, data processor and data subject bear the same meanings given them in the Data Protection Act 1998.
Byte22 warrants that, to the extent it processes any Personal Data on behalf of the Customer:
- (a) it shall act only on instructions from the Customer; and
- (b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
The Customer acknowledges that Byte22 will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which Byte22 carries out under this agreement.
Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise) in, any Intellectual Property Rights in any data.
LIMITATION OF LIABILITY: THE CUSTOMERS'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude Byte22's liability for:
- (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- (b) fraud or fraudulent misrepresentation; or
- (c) 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 (title and quiet possession).
Subject to clause 20.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
- (a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
- (b) any loss or corruption (whether direct or indirect) of data or information;
- (c) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
- (d) any loss or liability (whether direct or indirect) under or in relation to any other contract.
Clause 20.2 shall not prevent claims that fall within the scope of clause 20.4 for:
- (a) direct financial loss that are not excluded under any of the categories set out in clause 20.2(a) to clause 20.2(d); or
- (b)tangible property or physical damage.
Subject to clause 20.1, Byte22’s total aggregate liability to the Customer in respect of all claims based on events in any calendar year arising out of or in connection with the Contract or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise,
- (a) in respect of the Supplier Software, shall in no circumstance exceed the Price; and
- (b) in respect of all other cause of actions related to this agreement, shall in no circumstances exceed 100% of the total Charges (excluding the Price) payable by the Customer to Byte22 under the Contract in that calendar year.
Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
Any dates quoted for delivery of the Work or the Services are approximate only, and the time of delivery is not of the essence. Byte22 shall not be liable for any delay in delivery of the Work or the Services that is caused by an event, circumstance or cause within the scope of clause 25.1 or the Customer's failure to provide Byte22 with adequate delivery instructions.
This clause 20 shall survive termination of the Contract.
Byte22 may terminate the Contract immediately on written notice in accordance with clause 3.10 of these Conditions.
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- (a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
- (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- (e) the other party (being an individual) is the subject of a bankruptcy petition or order;
- (f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- (g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
- (h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- (j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 21.2(b) to clause 21.2(i) (inclusive);
- (k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- (j)the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
Without limiting its other rights or remedies, Byte22 may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party one months' written notice.
Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect including:
- (a) Clause 1
- (b) Clause 15;
- (c) Clause 16;
- (d) Clause 18;
- (e) Clause 20;
- (f) this Clause 21;
- (g) Clause 23;
- (h) Clause 25;
- (i) Clause 27;
CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason and as soon as reasonably practicable:
- (a) the Customer shall immediately pay to Byte22 all of Byte22's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Byte22 shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- (b) the Customer shall return all of Byte22 Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Byte22 may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
- (c) the Customer shall return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party. If required by the other party, it shall provide written evidence no later than 14 days after termination of this agreement that these have been destroyed and that it has not retained any copies of them (except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in clause 18), provided that the Customer may retain copies of any Confidential Information of Byte22 incorporated into the Licensed Software or to the extent necessary to allow it to make full use of the Services and any Licensed Software;
- (d) the Customer shall permanently delete any proprietary software belonging to the other party and not the subject of a current licence granted by the other party from its IT network and hard disks or other storage means associated with any computer equipment owned or controlled by the other party. Each party shall provide written confirmation no later than 14 days after termination of this agreement that this software has been deleted; and
- (e) subject to clause 22.4(b), return all of the other party's equipment and materials, failing which, the other party may enter the relevant premises and take possession of them, provided, regarding the Customer's rights under this clause 22(e), that the Customer has (if appropriate) paid Byte22 in full for such equipment and materials. Until these are returned or repossessed, the party in possession shall be solely responsible for their safe-keeping.
- (f) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- (g) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
On termination of the Licence, the Customer shall either return to Byte22 or, at Byte22's option, destroy all material copies of the Licensed Software and Documents, and shall ensure that any copies of the Licensed Software on hard discs or other storage means associated with any computer equipment owned or controlled by the Customer are permanently deleted.
The Contract shall automatically terminate, in whole or in part, on termination or expiry of the Licence, but expiry or any termination of the Contract (however caused) shall have no effect on the Licence.
On termination of this agreement for any reason, Byte22 shall:
- (a) promptly refund such portion of the Price as relates to the period after expiry or termination on a pro rata basis; and
- (b) as soon as reasonably practicable, vacate the Customer's premises leaving them clean and tidy and removing any goods, materials or equipment belonging to it. Any goods, materials or equipment that have not been removed after 21 days after termination of this agreement may be disposed of by the Customer as it thinks fit.
During the term of the Contract and for a period of six months after its termination the Customer shall, without the prior written consent of the other, directly or indirectly solicit, or permit any others on their behalf to solicit, the employment of any person who is employed or engaged by Byte22 in the course of developing, supplying, maintaining or supporting Supplier Software or any part of it.
If required by the Customer and at the sole cost of the Customer, Byte22 and the Customer shall sign an Escrow Agreement. The Customer undertakes to procure that the Escrow Agent signs the Escrow Agreement.
Byte22 and the Customer mutually undertake to abide by the terms of the Escrow Agreement and acknowledge that for the purposes of the Escrow Agreement:
- (a) the Source Code Materials shall constitute the Material;
- (b) the licence provisions of clause 8 shall constitute the Licence Agreement; and
- (c) the Supplier Software shall constitute the Package.
The Trigger Events are:
- (a) termination by the Escrow Agent of the Escrow Agreement, if such termination is occasioned by any breach or default by Byte22 of its obligations under the Escrow Agreement howsoever arising; or
- (b) the insolvency of Byte22.
- (a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Byte22 including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Byte22 or any other party), failure of a utility service or transport network (including failure of public or private telecommunications network), act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- (b) Byte22 shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- (c) If the Force Majeure Event prevents Byte22 from providing any of the Services for more than three months, Byte22 shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
Assignment and subcontracting:
- (a) Byte22 may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- (b) The Customer shall not, without the prior written consent of Byte22, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- (a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
- (b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by e-mail, on the next Business Day after transmission.
- (c) This clause 25.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall include e-mails and for the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.
- (a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by Byte22 in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- (b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- (a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- (b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Byte22.
Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.