Terms and Conditions
Standard Terms and Conditions
1.1. In this Agreement the following words and expressions shall have the meaning set out below and other capitalised words shall have the meaning set out in the Cover Page or any Schedule:
1.1.1. “Acceptance” means the passing of the acceptance tests pursuant to clause 6.3, and “Accepted” shall be construed accordingly;
1.1.2. “Client Material” the information, data and software provided to Bread Digital by the Client for incorporation into the Project;
1.1.3. “Error” any material failure of the Project or part to comply with the Specification;
1.1.4. “Intellectual Property Rights” means any and all registered and unregistered copyright patents, design rights, database and compilation rights, Marks (and related goodwill), trade secrets and other intellectual property rights, howsoever arising and in whatever media, and any applications for their protection or registration and all renewals and extensions anywhere in the world;
1.1.5. “Marks” means any and all names, brands, logos, trademarks, service marks, trade names and domain names;
1.1.6. “Password” means the code/s which facilitate access to the Project and its configuration;
1.1.7. “Project” means the internet related project to be designed, implemented and tested by Bread Digital, and further described by the Specification; and
1.1.8. “Specification” the Functional Specification and the Design Storyboard. 1.2. Except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any gender include any other genders, and words denoting persons include firms and corporations and vice versa. 1.3. Unless otherwise stated, a reference to: (a) a clause or a Schedule is a reference to a clause of or schedule to this Agreement. Clause headings are for ease of reference only and do not affect the construction of this Agreement; (b) “include” and “including” shall be construed without limitation; and (c) any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof then in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents, licences, conditions or permissions made thereunder.
2.1. These terms and conditions together with any Quotation Schedule and Site Specification given to the Client form the contract between “Bread Digital” and the Client. These terms supersede any prior verbal agreement. Any deviation from these terms must be agreed in writing on the order form and/or schedule. 2.2. “Bread Digital” is not responsible for the performance of third party services that are introduced to the Client.
2.3. The Client agrees that Bread Digital can use the Client’s company name in its own Client list. If the Client does not wish to appear on the Bread Digital Client list, Bread Digital will remove them at the Client’s request.
2.4. The Client agrees to credit Bread Digital on their site by displaying a text hyperlink back to the Bread Digital website.
2.5. Bread Digital reserves the right to withdraw services at any time without prior notice. Bread Digital also reserves the right to feature Client websites in future promotions without seeking prior consent.
2.6. Relationship Nothing in this Agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties nor shall it be deemed to grant any authority not expressly set out in the Agreement or create any agency between the parties.
2.7. Entire agreement Each party confirms that this Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them relating to the subject matter of the Agreement. Each party confirms that it has not relied upon any statement, representation or understanding that is not an express term of this Agreement and shall not have any remedy in respect of any statement, representation or understanding which is not an express term unless made fraudulently.
2.8. Waiver No failure or delay by any party in exercising any right, power or remedy under this Agreement will operate as a waiver of that or any other right, power or remedy, nor will any single or partial exercise by either party of any right, power or remedy preclude any further exercise of any other right, power or remedy.
2.9. Severance To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, then that provision shall be deemed not to be a part of this Agreement, and it shall not affect the validity, lawfulness or enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
2.10. Time of the Essence Any times, dates or periods specified in the Agreement may be extended or altered by agreement in writing between the parties. However, time shall not be of the essence, except where it is expressly stated to apply.
2.11. Rights of Third Parties Nothing in this Agreement shall create or confer any rights or other benefits, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, in favour of any person other than the parties to this Agreement.
2.12. Further Assurance Each party shall, at the cost and expense of the other party, use all reasonable endeavours to do all such further acts and things and execute or procure the execution of all such other documents as that party may from time to time reasonably require, for the purpose of giving that party the full benefit of the assets, rights and benefits to be transferred to the other party under this Agreement.
2.13. Assignment Each party shall not be entitled to assign, transfer, charge or licence the whole or any part of its rights and/or obligations under this Agreement to any third party without consent of the other party. 2.14. Governing law This Agreement shall be construed in accordance with the laws of England and each party hereby irrevocably submits to the non-exclusive jurisdiction of the courts of England.
2.15. Miscellaneous The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law. Any variation to this Agreement must be in writing and agreed by the parties. This Agreement may be executed in counterpart.
3.1. Each party warrants to the other that it has the full right, power and authority to enter into and perform this Agreement and has not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement.
3.2. The Client warrants that it has sufficient rights (including Intellectual Property Rights) in the Client Content to grant to Bread Digital the rights set out in this Agreement and has obtained and will maintain and renew, as appropriate, all necessary licences, authorisations and consents which are necessary for Bread Digital to provide the Project.
3.3. Bread Digital warrants that it has sufficient rights (including Intellectual Property Rights) in and relating to the Project to grant to the Client the rights set out in this Agreement and has obtained and will maintain and renew, as appropriate, all necessary licences, authorisations and consents which are necessary for the Client to make commercial use of the Project.
3.4. Except as expressly provided this Agreement, each party expressly disclaims any further representations, warranties, conditions or other terms, express or implied, by statute, collaterally or otherwise, including but not limited to implied warranties, conditions or other terms of satisfactory quality, fitness for a particular purpose or reasonable care and skill.
4.1. Save for
4.2, both parties agree that the maximum liability of Bread Digital in contract, tort (including negligence) or otherwise arising in connection with this Agreement shall be limited to the total of the the aggregate Fees and Support Fees paid or payable by the Client.
4.3. Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees acting in the course of their duties.
5.1. Either party will not be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure or delay is the result of any cause or circumstance beyond the reasonable control of that party including acts of god, war, civil commotion or industrial dispute and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If either party is prevented from performing its obligations for a period exceeding six (6) months due to Force Majeure then the other party may terminate this Agreement on one month’s written notice.
6.1. Bread Digital shall provide electronic commerce services to the Client including (but not limited to) website design and build services CD-ROM/DVD production services domain name registration website hosting website adaptation website maintenance and development database design and image enhancement search engine and directory registration 2D and 3D animation 3D modelling website statistics and marketing services (‘Services’) as an independent contractor in accordance with these Conditions
6.2. Any dates for the commencement or completion of the Services and any response times agreed with the Client are estimates only and shall not be contractually binding.
6.3. website design/CD-ROM/DVD production and related services
6.3.1. Bread Digital and the Client shall meet before the Commencement Date (set out in Bread Digital (‘Schedule’) and prepare and agree a specification for the Services (‘Specification’).
6.3.2. Following the commencement date Bread Digital shall where requested produce the Beta Test (working demonstration version of the Services) materially in accordance with the Specification.
6.3.3. If the Client wishes to make alterations to the Beta Test then the Client shall provide Bread Digital (within 14 days of delivery of the Beta Test) with full written details of the alterations and with such further information as Bread Digital shall require.
6.3.4. If the Client fails to notify Bread Digital of any alterations to the Beta Test in accordance with Condition
6.3.5 it will be deemed to have accepted the Beta Test (‘Accepted’)
6.3.6. As soon as reasonably practicable following receipt of a request pursuant to Condition
6.3.7 Bread Digital shall submit to the Client a full written quotation specifying any resulting increase in the Fees (as set out in the Schedule)
6.3.8. Upon receipt of a quotation issued by Bread Digital pursuant to Condition
6.3.9 the Client may elect either to accept such quotation or to withdraw the proposed alterations.
6.3.10 The Client shall be deemed to have accepted any website and/or related material and/or database produced by Bread Digital (‘website’) as being in conformity with the Specification and the Beta Test and shall be bound to make payment of the Fees unless notification is given to Bread Digital in accordance with Condition 6.3.8 6.3.8. If the Client issues a notice of rejection to Bread Digital of the Services Bread Digital shall (as soon as is reasonably practicable) alter the Services in accordance with the amendments required by the Client provided that such notice of rejection shall only be valid if the Services are not materially in accordance with the Specification and the Client has complied fully with its obligations.
7.1. Where agreed in writing Bread Digital will normally arrange hosting for the website subject to the provisions of Clause 7 and the annual subscription for this will be included in the initial quotation for the
design. FTP access details to your website files can be issued on request.
7.2. Clients wishing to arrange web hosting and domain names away from Bread Digital can do so at any time. We will however advise you if the arrangements appear to be unsuitable for our requirements. If the website is to be hosted by a web host other than Bread Digital , you agree to grant Bread Digital access to the web space via FTP.
7.3. Bread Digital accepts no responsibility for web server downtime or interruptions to service caused by circumstances beyond our control.
7.4. Accounts are to be used by the primary owner only. Account holders are not permitted resell, store or give away web-hosting services of their website to other parties. Web hosting services are defined as allowing a separate, third party to host content on the owner’s web site. Exceptions to this include advertisement banners, classified advertisements, and personal advertisements.
7.5. Bread Digital reserves the right to refuse service and or access to its servers to anyone.
7.6. Bread Digital does not allow the servers it uses to be used for the storage publication distribution or dissemination of the following content and reserves the right to suspend or cancel a Client’s access to any or all services provided by it when it decides that the Client is displaying or distributing the following:
7.6.1. Material that is in breach of any law, statute or regulation, including but not limited to, the unauthorised distribution or copying of copyrighted software or other data
7.6.2. Material that is obscene, pornographic or indecent Material that is defamatory, libelous unlawfully threatening or harassing.
7.6.3. Material which contains any viruses or other computer programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any personal information.
7.6.4. Material relating to Hacking, Cracking, Warez and IRC.
7.7. Software downloads may only be hosted if you are the writer and copyright owner of the software, all other software including freeware, shareware and trial software is forbidden. Audio and video downloads may only be hosted if you are the creator and copyright owner of the work.
7.8. Whilst Bread Digital undertakes to use its reasonable endeavors to ensure that the amount of downtime is kept to a minimum the Client acknowledges that Bread Digital does not give any warranty as to the continued availability of the servers it uses and the nature of the services to be provided by Bread Digital and the industry in which Bread Digital works are such that no guarantees can be given as to the continued availability of particular services.
7.9. High bandwidth usage Bread Digital offers a high use policy by maintaining very large ratios of bandwidth per Client. In rare cases, Bread Digital may find a Client to be using server resources to such an extent that he may jeopardize server performance and resources for other Clients. In such instances, Bread Digital reserves the right to impose the High Resource User Policy for the consideration of all Clients. 7.9.1. High Resource User Policy
220.127.116.11. Resources are defined as bandwidth and/or processor utilization and/or storage space. Bread Digital may implement the following policy to its sole discretion:
18.104.22.168. When a website is found to be monopolising the resources available Bread Digital reserves the right to suspend that site immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. Clients may be offered an option whereby Bread Digital continues hosting the website for an additional fee using a suitable dedicated server.
7.10. The Client acknowledges that he has no right, title or interest in the IP address allocated to him, and that any IP address allocated to him is allocated as part of the services and is not portable or otherwise transferable by the Client in any manner whatsoever.
7.11. Unsolicited email (spam) is considered an unacceptable use of a domain. Whether the unsolicited email originates directly from the Clients webspace area or otherwise, abuse reports received concerning a domain may result in suspension or closure of the service without refund.
7.12. The Client is responsible for undertaking any data back up programs, database, web files or other digital material.
8.1. If Bread Digital are responsible for arranging hosting then a POP3 email account with five addresses or more will be provided for the domain within the quoted costs (As an alternative forwarding to an existing email account elsewhere can be arranged). You will be given the appropriate user name and password details for each account and the incoming mail server name. Requests for changes to user/password combinations may be made by email or telephone and will be actioned within 48 hours.
8.2. Bread Digital accepts no responsibility for email server downtime or interruptions to service. Email accounts must not be used for bulk emailing operations whether opt-in or otherwise other than in connection with direct mail activities agreed in advance with Bread Digital.
8.3. Once the Client email account is initially set up and operational, Bread Digital is not responsible for subsequent problems caused by the operating system of your computer.
8.4. Bread Digital is not responsible for establishing or troubleshooting the Client’s Internet dial up and/or broadband facility, which provides connection to the Internet and incoming mail server and outgoing mail server. This is the responsibility of your own individual ISP who normally provides appropriate telephone support and we reserve the right to charge a support fee in accordance with the hourly rate for any of our time involved
9.1. The Client acknowledges and agrees that where a domain name registration requested by the Client is unsuccessful for whatever reason Bread Digital liability shall be limited to the naming authority fees and not the value of the domain name and the Client further acknowledges that this limitation is reasonable.
9.2. Title in and to any domain name registered by Bread Digital on behalf of the Client shall remain with Bread Digital (who shall be entitled to register such domain name in its own name) until all monies owed by the Client to Bread Digital have been paid in full.
9.3. Bread Digital will advise Clients on selecting domain names and register these for them as requested at current rates, but cannot guarantee a certain name will be available.
9.4. If you require the transfer of a domain name during your contract we reserve the right to charge an administration fee in accordance with the hourly rate for the work involved.
10.1. The Client shall promptly provide Bread Digital with accurate up to date and complete information and materials required by Bread Digital in providing the Services.
10.2. If any failure by the Client to comply with any of its obligations set out in Condition
10.1 results in a delay in the performance of the Services then Bread Digital shall not be liable for such delay and shall be entitled to an extension of time for performing its obligations.
10.3. The Client represents and warrants to Bread Digital that none of the Client Material (any items or materials hardware or software provided by the Client) nor the use by Bread Digital of the Client Material will infringe any intellectual property rights whether vested contingent or future including patents trade and service marks trade names rights in designs copyrights typography rights database rights trade secrets and know-how in each case whether or not registered and including registrations and applications for registrations of any of the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the same anywhere in the world (ÔIPRs’) of any third party or any privacy right or publicity right or any other right of any other nature of any person or by offensive illegal immoral obscene libellous or defamatory.
10.4. The Client undertakes to indemnify Bread Digital and to keep fully indemnified against all actions proceedings claims costs loss damage or expense whatsoever whether arising in contract or tort which Bread Digital may suffer or incur as a result of any defect in the Client Material.
10.5. The Client undertakes to indemnify Bread Digital and to keep fully indemnified against all actions
proceedings claims costs loss damage or expense whatsoever whether arising in contract or tort which Bread Digital may suffer or incur as a result of the sale of any defective product from Bread Digital servers. 10.6. All the Client Material which is held by Bread Digital or in transit to or from the Client shall be deemed to be entirely at the Client’s risk and Bread Digital shall not be liable for any loss of or damage to the Client material whilst in the possession of Bread Digital or in transit or aforesaid and the Client shall insure all the Client Material for all risks.
11.1. Any Third Party Products (those products that have been supplied to Bread Digital by a third party including (but not limited to) hardware and software and that have been used by Bread Digital in the provision of the Services) which Bread Digital agrees to supply to the Client will be supplied in accordance with the relevant suppliers’ conditions of supply and the Client acknowledges and agrees that it shall be entitled only to rely on any warranties provided by the relevant supplier.
11.2. The Client acknowledges that in many circumstances Bread Digital has no title to or property in the Third Party Products and that Bread Digital cannot transfer any such rights to the Client but that any such Third Party Products are licensed to Bread Digital directly by the third party on its standard terms and conditions of business and the Client acknowledges that it shall accept and be deemed to have accepted such terms and conditions when such Third Party Products are acquired by Bread Digital.
11.3. The Client agrees at all relevant times to comply with any terms and conditions relating to Third Party Products and acknowledges that failure to do so may result in the availability of such Third Party Products being denied and the Client agrees to indemnify Bread Digital and to keep Bread Digital fully indemnified against all actions proceedings claims costs loss damage or expense whatsoever whether arising in contract or tort which Bread Digital may suffer or incur as a result of any breach by the Client of any terms and conditions relating to Third Party Products.
12.1. Bread Digital acknowledges that upon payment of the Fees any and all of the IPRs in the Services (other than the Proprietary Software being the software programs and other copyright material created and owned by Bread Digital at any time and used by Bread Digital in providing the Services) developed for the Client are owned and will be the sole property of the Client.
12.2. Bread Digital hereby grants to the Client a non-exclusive perpetual royalty-free world-wide non-transferable licence to use the Proprietary Software in connection with the operation and development of the Services in its current form and design but for no other purpose whatsoever.
12.3. The Client hereby grants to the Bread Digital a non-exclusive perpetual royalty-free world-wide non-transferable licence to use the text, graphics, images and other related material featured, displayed or used in connection with the operation and development of the Services in its current form and design but for no other purpose whatsoever.
12.4. The Client acknowledges and agrees that new inventions designs or processes have or may have evolved during the provision of the Services and that the same will belong to Bread Digital and shall form part of the Proprietary Software.
12.5. In the event that any part of the Services supplied by Bread Digital infringes the rights of any third party Bread Digital will (as far as it is able) immediately replace the infringing part of the Services at its own expense with non-infringing material.
13.1. The Fees are due for payment within 30 days of the date of invoice.
13.2. All hosting domain management and mail accounts are set up on a prepay basis. Bread Digital reserves the right to change prices of accounts or services at any time in accordance with 7.9. Payment is due each anniversary year following the date the account was established and the Client will automatically be charged again at the end of their prepay period unless either party has given written notification of termination three months prior to expiry of the preceding period.
13.3. All renewal payments must be received within 30 days of the invoice date to ensure that no disruption to the service is incurred. Bread Digital reserves the right to suspend this and other services until any outstanding debt is cleared. Bread Digital will not be responsible for any data lost due to non-payment closure of an account. The Client is responsible for all money owed on the account from the time it was established to the time that the Client sends a written cancellation request subject to 13.2
13.4. Fees charged on a prepay basis are non-refundable.
13.5. The Client will be invoiced in accordance with the schedule.
13.6. Bread Digital reserves the right to invoice the Client for costs to date for unfinished work where the Client has caused a delay to the schedule.
13.7. VAT will be added at the current rate as appropriate.
13.8. At Bread Digital total discretion interest and compensation on outstanding invoices will be charged either in accordance with The Late Payment of Commercial Debts Regulations 2002 or at the rate of 5% above HSBC Bank base rate at the date of invoice and/or completion of the contract on the remaining balance of all invoices which are overdue for a period in excess of 30 days.
14.1. During the Term of this Agreement and for two (2) years thereafter, each party will treat as confidential all information that it obtains concerning, but not limited to, the business, finances, technology and affairs of the other, (“Confidential Information”).
14.2. Each of the parties will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party.
14.3. Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party’s Confidential Information.
14.4. The provisions of this clause 13 shall cease to apply to: (i) information that has come into the public domain other than by breach of this clause or breach of any other duty of confidence; (ii) information that is obtained from a third party without breach of this clause or breach of any other duty of confidence; and (iii) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure.
14.5. In the event of termination or expiration of this Agreement, each party shall return or on request of the other party, destroy the Confidential Information of that party.
14.6. Each party will comply with its obligations pursuant to the Data Protection Act 1998.
15.1. This Agreement shall commence on the Commencement Date and shall continue until the end of the Support Period unless and until terminated in accordance with clause 16.
16.1. Either party may terminate this Agreement on 90 days prior written notice.
16.2. Each party shall have the right to terminate this Agreement on written notice in the event that the other:
16.2.1. commits any material breach of the terms of this Agreement which, in the case of a breach capable of remedy, is not remedied within thirty (30) days of service of a notice specifying the breach and stating the intention to terminate the Agreement if not remedied;
16.2.2. holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986);
16.2.3. has a receiver, administrator, or other encumbrancer take possession of, or appointed over, or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; or
16.2.4. ceases or threatens to cease to carry on business or becomes unable to pay its debts within the
meaning of Section 123 of the Insolvency Act 1986.
16.3. Forthwith upon the termination or expiry of this Agreement, each party shall return to the other party all licensed materials and Confidential Information, and all copies in whole or part, of the other party or if requested by the other party, shall destroy them and certifying in writing to the Licensor that they have been destroyed.
16.4. Termination or expiry of this Agreement shall be without prejudice to any rights, liabilities or remedies of a party accrued before termination, nor shall it affect any provision of this Agreement which is expressly intended to come into or continue in force after termination or expiry.