1.1 The definitions and rules of interpretation in this clause apply in these Terms.
Acceptance: the acceptance or deemed acceptance of the Product by the Customer pursuant to clause 4.
Charges: the charges in respect of the Services set out in the Contract Documents, together with any additional charges arising from any changes to the Services, or additional works carried out.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Contract Documents: any specification accepted estimate of costs, service level agreement or correspondence between Mobas and the Customer setting out the terms of the engagement and the scope of the services to be provided.
Force Majeure Event: 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).
Intellectual Property Rights: 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, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Materials: the content provided to Mobas by the Customer from time to time.
Product: the product produced or developed as a result of the Services, which may (for example) include a website, banner or advert
Project: the provision by Mobas of the Services as set out in the Agreement.
Services: the services to be provided by Mobas pursuant to the Agreement as set out in the Contract Documents.
Site: any website developed, maintained, or hosted by Mobas pursuant to the Agreement.
Third Party Products: any third party software products specified in the Contract Documents.
Visitor: a visitor to a Site.
1.2 In the event and to the extent only of any conflict between these Terms and the Documents, the provisions of the Contract Documents shall prevail.
1.3 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.4 Writing or written includes faxes and email.
Mobas shall use reasonable endeavours to:
(a) provide the Services in accordance with the Contract Documents;
(b) (where Mobas has agreed to provide web hosting services) provide the hosting services in accordance with the Agreement.
3.1 The Customer acknowledges that Mobas’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 design specifications, information and data provided by the Customer. Accordingly, the Customer shall provide Mobas with access to, and use of, all information, data and documentation reasonably required by Mobas for the performance by Mobas of its obligations under this agreement.
3.2 Unless otherwise agreed in writing with Mobas, the Customer shall be responsible for provision of all Materials. Such Materials shall be provided to Mobas in the format reasonably specified by Mobas. The Customer shall be responsible for the accuracy and completeness of the Materials on the Site in accordance with clause 10.
3.3 If Mobas are required to source images, design logo’s, icons or other Materials, or are required to reformat, adjust or optimise Materials provided by the Customer, unless such additional work is specified in the Contract Documents, Mobas shall be entitled to make additional Charges for such work, which charges shall be calculated by reference to Mobas’s then current hourly rates.
4.1 Following completion by Mobas of the design and development element of the Services, Mobas shall carry out appropriate testing of the technical functionality of the Product.
4.2 Mobas shall notify the Customer when such tests have been passed. For avoidance of doubt, the Customer shall be responsible for ensuring the accuracy and acceptability of any Materials and content.
4.3 Notwithstanding clause 4.2, the Product shall be deemed to have passed any acceptance tests and shall be accepted by the Customer where either:
(a) any failure to pass the acceptance tests 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 Mobas has no responsibility; and/or,
(b) the Customer goes live with the Product or uses the Product other than for test purposes.
5.1 Any Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party shall be payable in addition to the Charges unless otherwise specified in the Contract Documents.
5.2 Where in carrying out the Services, time is expended by Mobas due to errors or incompatibility issues arising from Third Party Products, Mobas shall be entitled to make additional charges for such time expended at its then current hourly rates.
5.3 Whilst every measure will be made to ensure compatibility of the Site with a wide range of web browsing software Mobas can offer no guarantees of correct function with all browser software and cannot accept responsibility losses the Customer may suffer due to a third party’s inability to access the Site due to browser incompatibility. Mobas do not support Internet Explorer 6 and if the Customer expressly requires compatibility with Internet Explorer 6 it must be stipulated before acceptance of any quote and any extra cost incurred in supporting this browser must be agreed before commencement of the Project. Mobas will test for and guarantee compatibility of the Site with the most recent version (at date of appointment for the project) of Internet Explorer, Mozilla Firefox, Safari, Chrome and Opera. Compatibility with mobile devices is not guaranteed. If it is required it must be stipulated before acceptance of any quote and any extra cost incurred in supporting specified mobile devices must be agreed before commencement of the Project.
6.1 Mobas shall issue a VAT invoices in respect of the Charges in accordance with the agreed payment schedule set out in the Contract Documents (or in the absence of such schedule monthly invoices), and the Customer shall pay to Mobas the Charges set out in such invoice within 30 days of the date of the invoice.
6.2 All Charges are exclusive of VAT.
6.3 In the event that a Customer requires the ownership of their domain name to be changed, this will generally require a fee to cover administration and the Customer shall pay this before the transfer is initiated
6.4 If the Customer fails to pay any amount payable by it under this agreement, Mobas shall be entitled, but not obliged:
(a) to 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 the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. Mobas reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
(b) to suspend provision of the Services until all sums are paid up to date.
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 Mobas shall perform the Services with reasonable care and skill.
7.3 Mobas shall use reasonable endeavours to carry out the Services in accordance with any timescales agreed between Mobas and the Customer, but unless agreed otherwise by Mobas, such timescales are estimates only and time shall not be of the essence.
7.4 Mobas warrants that the Product will perform substantially in accordance with the Contract Documents [and in accordance with generally accepted practice] for a period of 8 weeks from Acceptance. If the Product does not so perform, Mobas shall, for no additional charge, carry out any work necessary in order to ensure such compliance.
7.5 The warranty set out in clause 7.4 shall not apply to the extent that any failure of the Product to perform substantially in accordance with the Contract Documents, and generally accepted practice is caused by:
(a) any Materials;
(b) Any failings of a third party host or other contractor;
(c) The actions of the Customer;
(d) Third Party Products.
7.6 These Terms sets out the full extent of Mobas’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.
7.7 Where it has been agreed that Mobas will provide the error resolution services, over and above the warranty set out in clause 7.4, the scope and service levels applicable to such error resolution services shall be as set out in the Contract Documents. Mobas does not guarantee that the Product will be error free but in the event of an error, Mobas shall use reasonable endeavours to rectify any such errors, using reasonable skill and care.
7.8 Where Mobas has agreed to provide web hosting services, such services shall be provided using reasonable skill and care and in accordance with any relevant Contract Documents. The Customer understands and agrees that:
(a) Mobas shall be entitled to subcontract its hosting obligations to a third party hosting provider from time to time; and
(b) Mobas does not warrant that any Site hosted will be functional or accessible 100% of the time and Mobas shall not be liable for temporary interruption in access or functionality, provided that where there is such temporary interruption the Supplier shall use all reasonable endeavours to rectify.
8.1 Nothing in the Agreement shall operate to exclude or limit Mobas’s liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
8.2 Mobas 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, or for any indirect or consequential loss or damage.
8.3 Subject to clause 8.1, Mobas’s aggregate liability in respect of claims based on events arising out of or in connection with the Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 50% of the total Charges payable by the Customer to Mobas under the Agreement.
8.4 Mobas shall not be liable for:
(a) any losses arising from issues relating to email, including lost emails. The Customer shall be responsible to create local copies of emails that they consider to be commercially important or sensitive. If the Customer exceeds any agreed or set quotas and lose data, it is the Customer’s responsibility; and
(b) loss of email data or Product functionality during transfer of domain name (however long it takes) and as such cannot accept liability for any economic losses (including revenues and profits), loss of goodwill, reputation or any other consequential or indirect losses the Customer may suffer due to the loss of Product functionality, loss of email data or their inability to access email data.
9.1 All Intellectual Property Rights in the Product (including in the content of the Product (other than the Materials) arising in connection with the Agreement shall be the property of Mobas, and Mobas hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of using or operating the Product.
9.2 The Customer shall indemnify Mobas against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
9.3 The indemnities in clause 9.2, clause 10.3 and clause 10.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
10.1 The Customer shall ensure that the Materials do 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 or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
10.2 The Customer acknowledges that Mobas has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Mobas reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content.
10.3 The Customer shall indemnify Mobas against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
10.4 Mobas may include the statement “Designed by Mobas ” on the home page of the Site, and shall be entitled to include a link or links on the Site to the Mobas website. Such statement and link shall only be removed with the written consent of Mobas.
10.5 Mobas reserves the right to include details of work carried out by Mobas for the Customer on Mobas’s website, including screen shots and a link to the Site.
11.1 Either party may terminate the Agreement immediately at any time by written notice to the other party if:
(a) 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
(b) that other party:
(i) ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) 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
(iv) 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
(v) 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).
11.2 On termination of the Agreement by Mobas pursuant to clause 11.1, all licences granted by Mobas under this agreement shall terminate immediately.
11.3 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.
Where the Customer wishes to make any changes to the scope of the Services to be provided after the date of the Agreement, the Customer shall specify in writing the requested changes and Mobas shall use reasonable endeavours to incorporate such changes. The cost of such changes shall be paid by the Customer in accordance with Mobas’s current rates from time to time in force.
13.1 Force Majeure: 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.
13.2 Confidential Information
(a) Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
(b) Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
(c) The obligations set out in this clause 13.2 shall not apply to Confidential Information which the receiving party can demonstrate:
(i) is or has become publicly known other than through breach of this clause 13.2; or
(ii) was in possession of the receiving party prior to disclosure by the other party; or
(iii) was received by the receiving party from an independent third party who has full right of disclosure; or
(iv) was independently developed by the receiving party; or
(v) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
(d) The obligations of confidentiality in this clause 13.2 shall not be affected by the expiry or termination of this agreement.
(a) A notice given under this agreement shall be sent for the attention of the person, and to such address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
(b) shall be either delivered personally, sent by fax or e-mail, sent by pre-paid first-class post, recorded delivery or registered post, or (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.
(c) A notice is deemed to have been received:
(i) if delivered personally, at the time of delivery; or
(ii) in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or
(iii) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
(iv) in the case of registered airmail, five days from the date of posting; or
(v) if deemed receipt under the previous paragraphs of this clause 13.3(c) is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.
(d) To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
13.4 Assignment: Mobas may assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other party. The Customer shall not without the prior written consent of Mobas, be entitled to assign or transfer any of its rights obligations or obligations under the Agreement.
13.5 Entire agreement: Except as provided in this clause 13.5, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into the Agreement (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of the Agreement. Nothing in the Agreement shall exclude or limit either party’s liability for any Misrepresentation made fraudulently. Each party’s liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party’s ability to perform its obligations under this agreement, shall be subject to the limit set out in clause 8.3.
13.6 Third party rights: The Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
13.7 Variation and waiver:
(a) A variation of the Agreement shall be in writing and signed by or on behalf of both parties to the Agreement.
(b) A waiver of any right under the 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.
(c) Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
(a) If any provision (or part of a provision) of the 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.
(b) 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.
13.9 Governing law and jurisdiction: The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).
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