Website Development Terms & Conditions

1. Definitions and interpretation

Definitions

The following definitions apply in this agreement.

“The Agreement” means the signed Proposal.

“Acceptance Criteria” has the meaning given to it in Clause [5.2];

“Acceptance Period” means the period of 10 Business Days beginning on the date of actual delivery of the Application to the Customer;

“Acceptance Date” means the date that this acceptance is signed

“The Advance” means an advance as detailed in the Proposal.

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity or any connected persons of the Customer;

“Agreement” or “Contract” means this agreement (including the Schedule) and any amendments to it made in writing and signed by the parties hereto from time to time;

“Application” means the desktop, mobile, website or web application to be developed by the Developer for the Customer under this Agreement, as defined by its technical specifications attached in Schedule;

“The Brief” means the brief set out in the Proposal or if a separate document referred to in the Proposal.

“Business Day”:  a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business

“Business Requirements Document, Business Scope Document and or a Fuctional Specification Document.”  Means documents created pursuant to the proposal to perform the Brief

“Concept” means the branding, marketing or design concept formulated by Emotio pursuant to the Brief.

“Customer Content” means any text, corporate images, photographs, illustrations or other content supplied by the Client to Emotio.

“The Customer” means the person, firm or corporation referred to in the Proposal.

“Contract” means this Agreement which is formed by Emotio signing the Proposal which the Customer has signed already and any amendments to this Agreement.

“Design Elements” means the visual appearance of the Application (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Application) together with all mark-ups and style sheets comprised in or generated by the Application, but excluding:

(a) the Customer Works; and

(b) the Third Party Works;

“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Application but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors;

(b) an incompatibility between the Application and any other application, program or software (other than the Customer Works and the Third Party Works);

(c) “Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Application but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors;

(b) an incompatibility between the Application and any other application, program or software (other than the Customer Works and the Third Party Works);

(c) defects which do not prevent the Customer from using the Application in the agreed manner (minor defect).

“Delivery Date” means as specified in the briefing document and project plan

“Developer” means Emotio Design Group Limited (registered No. 07110783) whose registered office is at William Old Centre, Ducks Hill Road, Northwood HA6 2NPproblem resolution procedures

“Developer content” means any content originated by Emotio.

“Effective Date”:  the date of this agreement

“The Estimate” means the Proposal provided by Emotio to the Customer.

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Goods” means the various incorporations of the brand, marketing activity or design in the physical/virtual form as set out in the Proposal.

“Materials” means information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables;

“Intellectual Property Rights” means any and all vested contingent and future rights, including any extensions or renewals as far as possible in perpetuity, of copyright, Emotio rights, know-how, patent, registered Emotio’s right, service mark, trademark, moral and any other intellectual property rights of any description whatsoever.

“The Proposal” The document or documents created by Emotio describing its offer to provide services to the customer. The Documents can be a Business Requirements Document, and/ or Business Scope Document and or a Functional Specification Document that is produced from the performance of the Proposal.

“Personal Data” has the meaning given to it in the Data Protection Act 1998;

“Services” has the meaning given to it in Clause 3.1;

“Software Elements” means the Application excluding:

(a) the Design Elements;

(b) the Customer Works;

(c) the Materials; and

(d) the Third Party Works.

“Technology” means the desktop/mobile website or web application used or to be developed by  Emotio for the Customer under this Agreement.

“Third Party Works” means the works and materials comprised in the Application, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);

“Term” means the term of this Agreement;

“Territory” means the world.

“Unlawful Content” has the meaning given to it in Clause [7.1];

“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.

1.2 In this Agreement,  reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of this Agreement.

 

2. Term

This Agreement will come into force on the Effective Date and will continue in force as set out in the proposal subject to these terms and conditions.

 

3. The Services

3.1 The Developer will:

(a) design and deliver the Application;

(b) incorporate the Customer Works and Third Party Works into the Application;

(c)  Emotio’s web systems run on bespoke or open source software on DNA Digital Holdings Limited servers and will be subject to their hosting terms. If the Customer requires these web systems to run on other hosted servers it will be necessary to make arrangements prior to starting the project. Portability of these sites will occur additional costs which will be the responsibility of the Customer and for which Emotio can render an additional invoice for such costs.

(the “Services”).

3.2 The Developer will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Schedule; however, all delivery times are estimates only and  any delay in the provision of the Services which occurs as a result of the Client’s actions or omissions to act will be the Customer’s responsibility, and in the event of such delay the Delivery Date will be extended accordingly to take into account of such delay. The Developer reserves the right to charge the Customer for any such costs and expenses reasonably incurred as a result of the delay.

3.3 The Developer will use reasonable endeavours to perform the Services in accordance with the Charges set out in the Schedule; however, If the Developer foresees a situation where the Charges are likely to be exceeded, the Developer will inform the Customer within 14 days of any anticipated excess.

3.4 Any delay in the provision of the Services which is due to factors beyond the responsibility of the Developer, including but not limited to access to staff, delivery or proper functioning of hardware or software, will be acknowledged by the Customer, and the Delivery Date will be extended accordingly.

 

4. Customer obligations

4.1 The Customer will provide the Developer with:

(a) such co-operation as is required by the Developer (acting reasonably) to enable the performance by the Developer of its obligations under this Agreement;

(b) Access to the Customers site on the reasonable request of the Developer for the purposes of maintaining and supporting the Application; and

(c) all information and documents required by the Developer (acting reasonably) in connection with the provision of the Services.

4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by the Developer to enable the Developer to fulfil its obligations under this Agreement.

 

5. Delivery and acceptance

5.1 The Developer will use reasonable endeavours to deliver the Application to the Customer for acceptance testing on or before the Delivery Date.

5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine:

(a) whether the Application conforms in all material respects with the technical specifications of the Application in the Schedule; and

(b) whether the Application has any Defects;

(the “Acceptance Criteria”).

5.3 If in the Customer’s reasonable opinion the Application meets the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period confirming acceptance of the Application.

5.4 If in the Customer’s reasonable opinion the Application does not meet the Acceptance Criteria, the Customer will send to the Developer a written notice during the Acceptance Period setting out in detail the respect(s) in which the Application does not meet the Acceptance Criteria.

5.5 If the Developer (acting reasonably) agrees that the Application does not meet the Acceptance Criteria, the Developer will have a further remedial period (of 30 Business Days) to modify the Application so that it meets the Acceptance Criteria. If the Developer fails to meet the Acceptance Criteria within the remedial period the client will have the right to terminate this Agreement.

5.6 The Application will be deemed to have been accepted by the Customer if:

(a) the Customer does not give any notice to the Developer under either Clause 5.3 or Clause 5.4 during the Acceptance Period; or

(b) the Customer publishes the Application or uses the Application for any purpose other than development and/or testing.

 

6. Third Party Works

Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Schedule (unless the parties agree otherwise).

 

7. Unlawful Content

7.1 The Customer will ensure that the Customer Works do not infringe any applicable laws, regulations or third party rights (“Unlawful Content”).

7.2 The Customer will indemnify and will keep indemnified the Developer against all damages, losses and expenses (including legal expenses) arising as a result of any claim that the Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.

 

8. Charges and payment

8.1 The Developer will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Proposal, or (if earlier) upon the acceptance of the Application by the Customer.

8.2 The Customer will pay the Charges to the Developer within 14 days of the date of issue of an invoice issued in accordance with Clause 8.1 or as stated on the invoice if earlier.

8.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT

8.4 Charges must be paid by bank transfer, cash or by cheque

Bacs payments to Lloyds TSB

Account Number: 14137960

Sort Code: 30-13-30

Account Name: Emotio Design Group Limited

8.5 If the Customer does not pay any amount properly due to the Developer under or in connection with this Agreement, the Developer may:

(a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

 

9. Intellectual Property Rights

9.1 The Developer retains copyright in the Application, Software Elements, documentation and such like, as well as any other intellectual and/or industrial property rights in the Application, Software Elements, documentation, which the Customer has ordered and which the Developer has developed or prepared pursuant to this Agreement ;

9.2 The Developer shall retain its pre-existing proprietary rights, methods and system methods which could be used in the development of the Application, and ownership of all patents, copyrights, trademarks, trade names, trade secrets, and other proprietary rights relating to or residing in the pre-existing technology together with all updates, modifications and extensions designed or developed throughout the Term. These rights shall remain exclusively with the Developer and no licence is hereby granted to the other party in this respect.

9.3 The Developer may from time to time choose to register its patents, copyright, or trademark interests in its pre-existing technology or to updates, modifications and extensions designed or developed throughout the Term but such acts shall not cause or be construed as causing any part of the pre-existing technology to become part of the public domain.

9.4 Only the Developer excluding the Customer and/or any third party may be entitled to alter, modify, translate, develop, improve and transfer the results of the Application, Software Elements, documentation and such like, in which the Developer retains any and all intellectual and industrial property rights.

9.5 No source code is hereby nor will be disclosed to the Customer and no right to any source code is hereby granted to the Customer.

9.6 Nothing herein shall be construed as granting to either party or implying any rights, by licence, grant or otherwise, under any intellectual and/or industrial property rights of or concerning any of the disclosing party’s confidential information.

9.7 The Developer will grant the Customer a non-exclusive, non-transferable worldwide licence to use the Application solely and exclusively for its own needs, to the exclusion of any right to sublicence, market, sell or transfer in any form its licence rights in the Application. This licence will be for the duration of the intellectual property rights applicable in the relevant countries.

 

9. Intellectual Property Rights

9.1    Following the payment in full and on time of the Contract price of the Application, and unless otherwise specified in a Schedule hereto , the Developer hereby assigns to the Customer all its Intellectual Property Rights in the Copyright and Related Rights, Database Rights and Design Elements to the exception of the rights defined in clause 9.2 below.  These rights are assigned for the whole term of such rights together with all reversions, revivals, extensions and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned Intellectual Property Rights.

9.2 The Developer shall retain its pre-existing proprietary rights, methods and system methods which could be used in the development of the Application, and ownership of all patents, copyrights, trademarks, trade names, trade secrets, and other proprietary rights relating to or residing in the pre-existing technology together with all updates, modifications and extensions designed or developed throughout the Term. These rights shall remain exclusively with the Developer and no licence is hereby granted to the other party in this respect.

9.3 The Developer may from time to time choose to register its patents, copyright, or trademark interests in its pre-existing technology or to updates, modifications and extensions designed or developed throughout the Term but such acts shall not cause or be construed as causing any part of the pre-existing technology to become part of the public domain.

9.4 Only the Developer excluding the Customer and/or any third party may be entitled to alter, modify, translate, develop, improve and transfer the results of the Application, Software Elements, documentation and such like, in which the Developer retains any and all intellectual and industrial property rights.

9.5 No source code is hereby nor will be disclosed to the Customer and no right to any source code is hereby granted to the Customer.

9.6    Nothing herein shall be construed as granting to either party or implying any rights, by     licence, grant or otherwise, under any intellectual and/or industrial property rights of or      concerning any of the disclosing party’s confidential information.

9.7 The Developer will grant the Customer a non-exclusive, non-transferable worldwide licence to use the Application solely and exclusively for its own needs, to the exclusion of any right to sublicence, market, sell or transfer in any form its licence rights in the Application. This licence will be for the duration of the intellectual property rights applicable in the relevant countries.

 

9. Intellectual Property Rights

9.1 Following the payment in full and on time of the Contract price of the Application, and unless otherwise specified in a Schedule hereto, all work performed under this Agreement, and all materials, products, deliverables developed or prepared for the Customer by the Developer under this Agreement, are the property of the Customer and all title and interest therein shall vest in the Customer.

9.2 All materials created during the development of the Application hereunder shall belong exclusively to the Customer, with the Customer having the right to obtain and to hold in its own name registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.

9.3 The Developer agrees to give the Customer reasonable assistance, at the Customer’s expense, required to perfect the rights defined in this Clause, including any legal assistance to prosecute any third party infringement of    Developer’s copyright or other intellectual property rights, if any, in the Application. Unless otherwise requested by the Customer, upon the completion of the Services to be performed under this Agreement or upon the earlier termination of this Agreement, the Developer shall immediately turn over to the Customer all the Materials and deliverables developed pursuant to this Agreement

9.4 The Developer shall retain its pre-existing and any updated proprietary rights, methods and system methods which could be used in the development of the Application, and ownership of all patents, copyrights, trademarks, trade names, trade secrets, and other proprietary rights relating to or residing in the pre-existing technology. These rights shall remain exclusively with the Developer and no licence is hereby granted to the other party in this respect.

9.5 The Developer may from time to time choose to register its patents, copyright, or trademark interests in its pre-existing or updated technology but such acts shall not cause or be construed as causing any part of the pre-existing technology to become part of the public domain.

9.6 Nothing herein shall be construed as granting to either party or implying any rights, by     licence, grant or otherwise, under any intellectual and/or industrial property rights of or      concerning any of the disclosing party’s confidential information.

9.7 The  Developer agrees that for a period of 1 years, it will refrain from developing a similar or like application to that of the Application supplied to the Customer for a period of 3 years for any person reasonably deemed to be a competitor of the Customer without the written consent of the Customer, such consent not to be unreasonably withheld.

9.8 The Third Party Works will be either (at the option of the Developer):

(a) supplied in accordance with the relevant licensor’s standard terms for online use;

(b) supplied on licence terms notified by the Developer to the Customer;

(c) sub-licensed by the Developer to the Customer on terms notified by the Developer to the Customer; and/or

(d) sub-licensed by the Developer to the Customer on the basis of a non-exclusive, worldwide, royalty-free licence to use the Third Party Works in connection with the Website.

9.9 Notwithstanding any other provision of the Agreement, the assignments and licences and rights granted by the Developer under this Agreement are subject to the payment by the Customer of all amounts owing to the Developer in full and on time.  In the event that the Customer owes any amount to the Developer and fails to pay that amount to the Developer within 14 days of receiving a notice:

(a) requiring it to do so; and

(b) specifying that the assignment will revert and the licences and rights will terminate if the amount remains unpaid, then the Developer may immediately revert the assignments and terminate the licences and rights granted by the Developer under this Agreement by giving written notice of reversion and termination to the Customer.

9.10 Subject to Clause [9.5], upon and following the termination of the Agreement, any licence or rights granted by the Developer to the Customer will continue notwithstanding termination, and this Clause [9] will continue to apply.

9.11 The Developer may include the statement “Application designed by Intenix” together with a link to the Developer’s website on the homepage of the Website on a page, in a position and in a form to be agreed by the parties.  The Customer will retain any such credit and link in any adapted version of the Application, and the Customer will (and will only) remove any such credit and link from the Application at the Developer’s written request.

9.12 The Customer grants to the Developer a non-exclusive worldwide licence, under the Intellectual Property Rights in the Application, to use the Application for the purpose of marketing the Developer’s services to third parties.

 

10. Warranties

10.1 The Customer warrants to the Developer

(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;

(b) that it holds all licences, intellectual property rights, consents and agreements in respect of the Customer Works.

10.2 The Developer warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;

(b) that it will perform its obligations under this Agreement with reasonable care and skill; and

(d) that the Application will continue to operate without any Defects for a period of 1 month from the date of acceptance of the Application (and if the Application does not so operate, the Developer will, for no additional charge, carry out any work necessary in order to ensure that the Application operates without any Defects during this period).

10.3 The Customer acknowledges that the Developer has designed the Application to work with the web browser technology  plus or minus one version of Firefox, Chrome and Safari, and the Developer does not warrant that the Application will work with any other web browser technology.

10.4 The Customer further acknowledges that the Developer does not purport to provide any legal advice under this Agreement or in relation to the Application and the Developer does not warrant that the Application will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

 

11. Limited liability

11.1 The Developer shall, at its own cost and expense, defend any action brought against the Customer to the extent that it is based on a claim that the Application constitutes an infringement of any third party trade mark or copyright, in the United Kingdom, provided that the Customer:

(a) notifies the Developer within thirty (30) days of any alleged infringement, and

(b) makes no admission without the Developer’ written consent, and

(c) assists the Developer to conduct all negotiations and litigation, if requested by the Developer.

11.2 Clause 11.1 shall not apply where the infringement arises in relation to the Third Party Works provided to the Developer by the Customer for which the Customer has purported to hold all the required licences, consents, permissions or assigns necessary for the provision of such works.

11.3 Remedies

(a) The Developer is authorised, at its own expense, to defend or, at its option, to settle the claims. In the event that the Application is held by a final court of the United Kingdom’s decision to constitute an actual infringement, the Developer shall at its own costs and sole option, and to the exclusion of any other remedy, either obtain the right for the Customer to continue using the Application, or to replace or modify the Application so that it becomes non-infringing, or to reimburse the Customer of the amount actually paid by the Customer under this Agreement.

(b) The Developer shall have no liability, and the Customer shall fully indemnify the Developer and its assignees against all actions, claims, liabilities, demands, costs, direct charges and expenses resulting from any claim of infringement directly due to:

(i) the use of the Application in a manner or for a purpose not contemplated in this Agreement;

(ii) any modification carried out by or on behalf of the Customer to the Application;

(iii) the use of the Application in combination with a third party product that results in the Infringement of a third party right, such combination with a third party product being not contemplated in the present Contract.

11.4 Limitation of Liability

This Clause 11 sets out the entire financial liability of Emotio (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

 (a) arising under or in connection with this agreement; and

(b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

11.5 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.

11.6 Nothing in this agreement excludes the liability of Emotio:

(a) for death or personal injury caused by Emotio’s negligence; or

(b) for fraud or fraudulent misrepresentation.

Subject to Clause 11:

(a)     Emotio shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and

(b)     Emotio’s total aggregate liability in tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £250,000 or the amount paid under this agreement to Emotio on which the claim arose whichever is the lesser.

 

12. Duration and Termination

12.1 This agreement shall commence on the Effective Date and shall continue for the period set out in the proposal, unless otherwise terminated as provided in this Clause 12. If the agreement is for a fixed period then it will automatically renew for monthly periods upon expiry of the fixed period, unless either party notifies the other, in writing, at least 30 days before the end of the then current term.

12.2  If both parties agree in writing to the other this Agreement may be terminated on the expiry of one month’s notice served in accordance with these terms. If the Customer serves notice to terminate an agreement which is for a fixed period and that notice expires before the end of the fixed period then Emotio will invoice the customer and the customer will be liable for all sums due to Emotio under the agreement from the end of the notice to the expiry of the fixed term.

12.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

(a the other party commits a material breach of any term of this agreement which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(c) 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];

(d) 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);

(e) 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);

(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

(h) 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 the other party’s assets and such attachment or process is not discharged within [14] days;

(i) 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 any of its creditors [other than (being 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];

(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

(k) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or

(l) 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 11.3(b) to Clause 11.3(k) (inclusive).

(n) Save in respect of an event of force majeure, if  the Customer or Emotio is in material breach of any of the provisions of this Agreement and has failed to remedy such breach within 21 days of notice in writing to them from the other of such breach.

12.4 Upon termination of this Agreement under Clause 12.1, 12.2 or 12.3 hereof, all rights of the Customer in the Customer Content shall revert to the Customer but any licence granted by Emotio in the Work shall, if any sums remain outstanding, revert to Emotio without prejudice to any claim which Emotio may have for monies due and/or damages and/or otherwise.

12.5 Nothing herein before contained shall prejudice any claim or demand which any party hereto may have against the other under the provisions hereof or in respect of any antecedent breach of such provision or by reason of the determination of this agreement.

12.6 If the Customer for any reason terminates this Agreement under 12.1-12.3 then Emotio reserves the right to charge for work completed as of the date of such termination, including pro-rated fees and expenses for items partially complete at time of termination, such invoices to be paid within 7 days of the date of the invoice. If the Customer fails to make payment on or before the due date, then without prejudice to any other right or remedy available to Emotio,  Emotio shall be entitled to the benefit of Clause 8.9.3 of this Agreement. Upon receipt of all sums due to Emotio,  Emotio will deliver to the Customer copies of the work on any specific matter completed to that date. Intellectual Property Rights in this uncompleted work will be dealt with, on full payment of sums owing, as per Clause 4 of this Agreement.

 

13. Consequences of termination

13.1 On termination of this agreement for any reason:

(a) all licences and benefits granted under this agreement shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and

(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

13.2  the Developer may freely assign its rights and obligations under this Agreement without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.

13.3 The Developer may subcontract any of its obligations under this Agreement to any third party without the Customer’s consent.

13.4 The Customer will not, without the Developer’s prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ deal with or otherwise solicit for employment any employee or contractor of the Developer who has been involved in the performance of this Agreement.

13.6 If this Agreement is terminated under Clause 12.1], or 12.2 (but not in any other case):

(a) the Developer will, on request, promptly provide to the Customer an electronic copy of the Application.

 

14.  Data Protection

14.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.

14.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Emotio is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). In a Schedule to the Proposal there is set out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.

14.3 Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.

14.4 Without prejudice to the generality of clause 13.1, Emotio shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:

(a) process that Personal Data only on the written instructions of the Customer unless Emotio is required by the laws of any member of the European Union or by the laws of the European Union applicable to Emotio to process Personal Data (Applicable Laws). Where Emotio is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Emotio shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i) the Customer or Emotio has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) Emotio complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) Emotio complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;

(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 14.

14.5 The Customer does not consent Emotio appointing any third party processor of Personal Data under this agreement.

 

15. Force Majeure

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.

 

16. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

17. Severance

17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

17.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.3 The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

18. Entire Agreement

18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

18.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.

18.4 Nothing in this clause shall limit or exclude any liability for fraud.

 

19. Assignment and other dealings

19.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of Emotio.

19.2 Emotio may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

 

20. No Partnership or Agency

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

 

21. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

22. Third party rights

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

 

23. Notices

23.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the address  contracts@emotio.co.uk for notices served on Emotio and the email address provided by the customer on the signing of the proposal.

Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second  Business Day after posting or at the time recorded by the delivery service; or

(c) if sent by email, at 9.00 am  on the next Business Day after transmission.

(d) A notice given under this agreement is not valid if sent by email.

 

24. Governing Law

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.

 

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

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