1DEFINITION AND INTERPRETATION
1.1In these terms and conditions:
Additional Services Agreement means a supplementary addendum to this Agreement for the provision of Additional Services;
Additional Services means the services agreed to be provided by Plug and Play as specified in an Additional Services Agreement;
Agreement (as defined in the Part 1 (Commercial Terms Sheet)) means the agreement between Plug and Play and the Client incorporating the following documents: (i) Commercial Terms Sheet (ii) these terms and conditions (iii) Data Processing Terms and Conditions (iv) the Scope of Work and, where applicable (v) any Additional Services Agreements;
Business Day means a day other than a Saturday, Sunday or public holiday in England and Wales;
Client as defined in Part 1 (Commercial Terms Sheet);
Client Content means the information, data and other content provided by the Client to Plug and Play for incorporation in the Deliverables (including all copy, graphic images, registered company logos, names and trademarks);
Deliverables means the results of the Services supplied by Plug and Play to the Client in whatever form including, where applicable, the code, documentation, design work and/or website produced by Plug and Play in accordance with this Agreement but excluding Client Content;
Error means any material failure of the Deliverables to comply with the Scope of Work;
Hosting Services means the hosting of the Deliverables on a Third Party ISPs server as described in clause 12;
Initial Services means the Retained Services and/or Project Services agreed to be provided by Plug and Play as specified in Part 1 (Commercial Term Sheet);
IPR means any and all registered and unregistered copyright patents, design rights, database and compilation rights, Marks, rights in goodwill or to sue for passing off, database rights, rights in computer software, rights in confidential information (including know-how and trade secrets), business and domain names 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;
Fees means as defined in Part 1 (Commercial Terms Sheet) and fees pursuant to clause 7.3;
Marks means any and all names, brands, logos, trademarks, service marks, trade names and domain names;
Scope Creep means work on the Services which for any reason exceeds the estimated timescales and/or any other assumptions set out in the Scope of Work;
Plug and Play means as defined in Part 1 (Commercial Terms Sheet);
Project Services means as defined in Part 1 (Commercial Terms Sheet);
Retained Services means any on-going services including Hosting Services, digital marketing services, support and maintenance services and any other services set out in Part 1 (Commercial Terms Sheet) or any Additional Services Agreement;
Scope of Work means a document prepared by Plug and Play for the Client which details the Services and Deliverables to be provided by Plug and Play. The first Scope of Work is set out in Part 4 (Scope of Work) and supersedes any previous proposal given to the Client;
Services means the Initial Services and any Additional Services, as applicable; and
Third Party ISP(s) means the third party internet service providers used by Plug and Play to provide the Hosting Services.
1.2The headings in these terms and conditions are for ease of reference only and shall not in any way affect their construction or interpretation.
1.3Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.4References to any party shall include its personal representatives, lawful successor in title and permitted assigns.
1.5The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2SERVICES
2.1Subject to the payment of the Fees and the provision of Client Content, Plug and Play agrees to supply the Services and Deliverables in accordance with the terms of this Agreement.
2.2Prior to commencement of the Initial Services, Plug and Play require the Client to pay a non-refundable deposit for the Initial Services. Plug and Play shall not commence the Initial Services until the Client has given its written acceptance of the Scope of Work, has executed this Agreement and paid any deposit that may be due.
2.3The Client acknowledges that Plug and Play shall allocate time and resources to the Services on the basis of the chargeable time estimates set out in the Scope of Work. The Client accepts that its failure to promptly provide information, instructions or otherwise respond fully to communications from Plug and Play will mean that the allocated resources are no longer available and will result in the Services having to be rescheduled which could cause significant delays to the Services and an adjustment to the Fees as a result. Such delays may be for a longer period than the period of delay by the Client.
2.4Any dates and times for performance of the Services by Plug and Play as set out in any document or discussion between the parties are estimates only and time shall not be of the essence in respect of these. Plug and Play shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in performance of the Services.
2.5The Client acknowledges that requests for Additional Services during the delivery of the Initial Services may impact any estimated delivery dates and Plug and Play is entitled to adjust any estimated delivery dates further to accommodate the Client’s requests.
3VARIATION TO SCOPE OF WORK, SERVICES & TERMS
3.1The terms of this Agreement shall apply to the exclusion of any other terms and conditions of the Client.
3.2Plug and Play may amend these terms and conditions from time to time.
3.3If the Client wishes to amend the Scope of Work at any time following its acceptance of the Scope of Work, it shall notify Plug and Play of the proposed amendments. Plug and Play will use reasonable endeavours to accommodate the Client’s revised requirements but the Client acknowledges that this may result in a change in any estimate an adjustment to the Fees and timelines which have been given by Plug and Play. Plug and Play shall notify the Client of any revision to the Fees and shall not be obliged to proceed with any amendments to the Scope of Work unless the Client agrees in writing its acceptance of the revised Fees.
3.4If Plug and Play determines, in its sole discretion, that it cannot accommodate a Client’s proposed changes to the Scope of Work, it reserves the right to refuse the Client’s request.
3.5Plug and Play reserves the right to decline a request for Additional Services for any reason and at any time. Where Plug and Play is willing to accept a request to provide Additional Services, it shall not commence such Additional Services until the Client has given its written acceptance of the relevant Scope of Work for the Additional Services, paid any deposit that may be due and signed an Additional Services Agreement where required by Plug and Play.
3.6Any typographical, clerical or other error or omission in this Agreement, any sales literature, quotation, the Scope of Work, price list, acceptance of offer, invoice or other document or information issued by Plug and Play shall be subject to correction without any liability on the part of Plug and Play.
3.7Except as set out in this clause 3 no variation of these terms and conditions or this Agreement shall be effective unless it is made in writing and signed by both parties.
4CORRECTION OF ERRORS
4.1During the performance of the Services if the Client notifies Plug and Play of any Errors, Plug and Play shall endeavour to correct such Errors.
4.2Where however there are no Errors but the Client notifies Plug and Play of additional changes or modifications that it requires to be made to the Deliverables and such changes or modifications are outside the remit of the Scope of Work then clause 3.3 shall apply.
4.3Where Plug and Play is unable to correct any Error notified by the Client it shall make a proportional refund to the Client of any monies already paid by the Client to Plug and Play for the specific deliverable exhibiting the unfixable Error less the cost of all other work already done by Plug and Play in performing the Services. Where Plug and Play makes a refund to the Client in accordance with this clause 4.3 it shall have no further liability to the Client in respect of such Errors.
4.4If any Errors result from a defect which is caused by an act or omission of the Client, and through no fault of Plug and Play, then Plug and Play shall provide assistance reasonably requested by the Client in remedying any such defect but reserves the right to charge the Client for such assistance at its then current prices and fees and which the Client shall pay. Where the Client is not prepared to pay then Plug and Play is under no obligation to provide further assistance.
5CLIENT OBLIGATIONS
5.1The Client agrees:
5.1.1to pay the Fees for the Services and any other sums due to Plug and Play in accordance with this Agreement;
5.1.2to fully cooperate with Plug and Play in the provision of the Services;
5.1.3that this Agreement does not include the provision of equipment, telecommunications or other services necessary to host or access the Deliverables (unless Plug and Play has agreed in writing to provide Hosting Services) and the Client is responsible for providing and maintaining suitable equipment, telecommunications and support services to facilitate access to the Deliverables;
5.1.4to act in good faith towards Plug and Play at all times;
5.1.5to keep all passwords provided by Plug and Play secret at all times;
5.1.6not to interfere or attempt to interfere with the proper working of the Deliverables and in particular shall not attempt to circumvent security, tamper with, hack into, or otherwise disrupt any computer system, server, website, router or any other internet connected device of Plug and Play; and
5.1.7to only use the Deliverables subject to the terms and conditions of any licence granted to it by Plug and Play pursuant to clause 10.2 and any applicable laws and regulations.
5.2The Client acknowledges that Plug and Play’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of the Client Content and other information provided by the Client. Therefore the Client agrees to provide complete and accurate Client Content and any other information that may be required for the Deliverables.
5.3Where the Client fails to provide the Client Content and/or other required information or materials or to reply to any request for information from Plug and Play or delays in doing so, Plug and Play shall not be liable for any delay or failure on its part to perform the Services as a result and reserves the right to:
5.3.1cease providing the Services and charge for the work completed to date and any wasted expenditure incurred by Plug and Play as a result of the unexpected delay to the work including but not limited to the cost of unused time slots pre-allocated to the Services; or
5.3.2change the Scope of Work to account for the lack of information in which case any resulting change to the Fees shall be borne by the Client.
6CLIENT CONTENT
6.1The Client shall be responsible for any Client Content it submits to Plug and Play for inclusion in the Deliverables and shall obtain all necessary licences, permissions, waivers and authorities in respect of any Client Content before submitting such materials to Plug and Play.
6.2Plug and Play reserves the right to refuse to handle in any way and/or remove any content from the Deliverables any Client Content which:
6.2.1may be deemed offensive, illegal or in any way controversial; or
6.2.2it reasonably suspects infringes any applicable laws, regulations or third party rights (such as material which is offensive, defamatory or in breach of any third party IPRs).
6.3The Client acknowledges that (where the Deliverables take the form of a website, mobile application or similar, developed by Plug and Play for the Client) Plug and Play has no control over any content placed on the Deliverables by visitors to the Deliverables and does not purport to monitor or moderate the content of the Deliverables.
6.4The Client shall indemnify and hold harmless Plug and Play at all times from and against all claims, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities any costs and liabilities incurred by Plug and Play as a result of Plug and Play’s use of the Client Content including any third party claim arising out of or in connection with the Client Content.
7FEES
7.1Where no Fees are specified in Part 1 (Commercial Terms Sheet) or an Additional Services Agreement, the Fees shall be calculated on a time and materials basis at Plug and Play’s current rates which may be adjusted or may vary from time to time. In either case, Plug and Play shall use specialist software to keep timesheets of all work undertaken for the Client and such timesheets shall be conclusive and binding on both parties.
7.2The Client acknowledges and agrees that:
7.2.1all Fees quoted are estimates only, never fixed fees (unless expressly stated to be so in Part 1 (Commercial Terms Sheet) or an Additional Services Agreement), due to the nature of the work involved and so are subject to change. Estimated Fees are not binding on Plug and Play and shall be kept under review and in the event of an Scope Creep or anticipated Scope Creep shall be adjusted on notice to the Client;
7.2.2Fees have been calculated on the basis of the assumptions set out in Part 1 (Commercial Terms Sheet) and any assumptions in the Scope of Work or an Additional Services Agreement and the initial understanding of the work required detailed in the Scope of Work and that the remit of work required may change as the Client’s understanding of its own requirements changes.
7.3Plug and Play reserves the right to increase the Fees in the event of:
7.3.1Scope Creep;
7.3.2any assumptions specified in Part 1 (Commercial Terms Sheet) the Scope of Work or an Additional Services Agreement being or becoming incorrect or changing over time;
7.3.3where the Client requires further amendments to Deliverables which are not specified in the Scope of Work;
7.3.4where the Client approves a deliverable and subsequently changes their mind resulting in additional time spend by Plug and Play;
7.3.5the provision of Additional Services;
7.3.6renewal of the Hosting Services; and/or
7.3.7where the Client delays in providing any information required by Plug and Play or fails to perform any of the Client’s obligations under this Agreement.
7.4Any increase to the Fees under clause 7.3 shall be calculated and charged for on a time and material basis at Plug and Play’s then current rates and invoiced on a monthly basis unless otherwise specified by Plug and Play.
7.5Plug and Play’s rates may be subject to change from time to time.
7.6In the event that Plug and Play is to incur expenses or third party costs in the provision of the Services, it shall notify the Client in advance. Expenses or third party costs shall be invoiced by the Client at the end of the month in which the expense is incurred and shall be charged for at the rate imposed by the relevant third party.
8PAYMENT
8.1Plug and Play shall invoice the Client in accordance with and to include any stage payments specified in Part 1 (Commercial Terms Sheet) or any Additional Services Agreement. Unless agreed otherwise in Part 1 (Commercial Terms Sheet) or any Additional Services Agreement, where stage payments are agreed the final payment shall be due on completion of the Deliverables and before ‘go live’ and / or supply of files or assets created.
8.2The Client shall pay the Fees and any other charges due on the date of Plug and Play’s invoice for the same.
8.3All Fees and other charges are exclusive of value added tax and any similar taxes. All such taxes are payable by the Client.
8.4If the Client fails to make any payment when due to Plug and Play whether under this Agreement or any other agreement between the parties, then without affecting any other rights which Plug and Play may have Plug and Play shall be entitled to:
8.4.1suspend performance of all or any of the Services (including Hosting Services), including removing the Deliverables until paid; and /or
8.4.2to be paid compensation and charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), or, if higher or if no such rate exists, at a rate of 8.5% per annum above the sterling base rate from time to time of the Bank of England, which shall accrue from day to day both before and after judgement, from the invoice date until payment is made in full and shall be compounded quarterly; and/or
8.4.3retain any deposit already paid by the Client.
8.5Pending payment to Plug and Play in full of all sums due from the Client, Plug and Play will reserve possession of any documents and title to any aspect of the Services and Deliverables that would otherwise be the property of the Client.
8.6The time for payment of the Fees (or any part thereof) shall be of the essence.
8.7The Client shall pay all amounts due to Plug and Play in full without any set-off, abatement, cross claim, deduction or withholding of any kind other than as required by law.
9WARRANTIES
9.1Each party warrants to the other:
9.1.1that 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; and
9.1.2(except to the extent that Plug and Play provides Deliverables that incorporate Client Content) that it has sufficient rights (including IPR) in the items to be delivered under this Agreement to enable the rights set out in this Agreement to be enjoyed and the various obligations to be fulfilled and that it has obtained and will maintain and renew, as appropriate, all necessary licences, authorisations and consents which are necessary for the full implementation of this Agreement.
9.2The Client warrants that the Client Content is adequate to enable Plug and Play to carry out its obligations under this Agreement and acknowledges that Plug and Play accepts no responsibility for and will not incur any liability in respect of the Client Content.
9.3Where the Client has not instructed Plug and Play to provide Hosting Services, the Client warrants that it has sufficient resources, expertise and financial resources to host the Deliverables in a suitable manner.
9.4Plug and Play makes no warranty as to the quality, stability or reliability of, nor does it accept any liability for, any third party software, plug ins, content management systems (CMS)s, application programming interfaces (API)s, or other third party provided code (whether open source or otherwise) on the Deliverables for any purpose whether provided by Plug and Play or otherwise. The Client acknowledges that Plug and Play is unable to control changes or other modifications that may be made to third party software by the relevant third party provider after the date upon which it is installed on the Deliverables and therefore this is provided at the Client’s own risk.
9.5Plug and Play makes no warranty to resolve Errors caused by browser or device updates published after completion of the Services.
10INTELLECTUAL PROPERTY RIGHTS
10.1All IPRs in the Deliverables and any methodologies and technologies used and/or provided by Plug and Play in the supply of the Deliverables and Services shall remain vested in Plug and Play or its licensor (“PP IPRs”).
10.2If notwithstanding clause 10.1, any PP IPRs are acquired by the Client, the Client hereby assigns (by way of present and future assignment) all such PP IPRs to Plug and Play and where required shall procure the assignment of all such PP IPRs to Plug and Play.
10.3Subject to compliance by the Client with this Agreement and payment of the Fees, Plug and Play hereby grants the Client a royalty-free, non-transferable, worldwide, non-exclusive licence to use the Deliverables and all IPRs in the Deliverables in its business.
10.4Plug and Play acknowledges that ownership in and to any Client Content shall remain vested in the Client or its licensors. The Client grants Plug and Play a non-exclusive licence to use the Client Content for the purposes of providing the Services.
10.5Plug and Play waives any moral rights as defined in sections 77 to 83 of the Copyright, Designs and Patents Act 1988 subsisting in any copyright work created for the Client under this Agreement.
10.6Nothing in this Agreement shall prevent Plug and Play from using any expertise acquired or developed during the performance of this Agreement in the provision of services for other companies or on its own behalf.
10.7None of the rights or licences granted by Plug and Play to the Client are sub licensable by the Client without Plug and Play’s prior written consent.
10.8No licence or other right is given to access, copy or make any use of the source code to the Deliverables. The Client shall not, and shall not permit any third party to, reverse engineer, translate, disassemble, hack, decompile, modify, prepare derivative works based on, or copy or exploit the Deliverables, except to the extent expressly permitted by applicable law. Breach of this clause shall constitute a material breach of this Agreement
11SUPPORT AND MAINTENANCE
Unless specifically agreed in the Scope of Work, Part 1 (Commercial Terms Sheet) or an Additional Services Agreement, Plug and Play shall not provide support or maintenance services to the Client.
12DATA MIGRATION
12.1Where Plug and Play has agreed to assist the Client with the migration of data, this shall be charged in accordance with Plug and Play’s then current rates as advised by Plug and Play to the Client.
12.2The Client acknowledges that given the nature of data migration, it is not possible for Plug and Play to guarantee how long the data migration process will take to complete. Any indication that Plug and Play does give the Client regarding the duration of this process shall be an estimate only and subject to ongoing review. Plug and Play shall update the Client on the progress of the migration at regular intervals.
13HOSTING SERVICES
13.1Where Plug and Play has agreed to provide the Hosting Services for the Deliverables these shall be provided by Plug and Play using the servers of Third Party ISPs.
13.2Plug and Play shall use reasonable endeavours to select reputable Third Party ISPs but shall not be responsible for any unavailability or interruption to the Deliverables caused by a Third Party ISP, its servers, other equipment, networks or any public network.
13.3Occasionally it may be necessary for Plug and Play to transfer the Deliverables to a different Third Party ISP.
13.4Either party may terminate the Hosting Services on three months prior written notice.
13.5The Hosting Services shall be charged for on a monthly basis in accordance with Plug and Play’s then current rates as advised by Plug and Play to the Client.
13.6Plug and Play reserves the right to suspend the Hosting Services at any time where the Client has failed to pay any sum when due to Plug and Play under this Agreement.
13.7Plug and Play reserves the right to terminate the Hosting Services if circumstances arise which render it unable to provide such services including termination of its arrangements with relevant Third Party ISPs.
14LIMITATION OF LIABILITY
14.1Subject to clause 14.4 Plug and Play’s liability for any claims arising out of or in connection with this Agreement, the Deliverables or the Services, however arising shall be limited in respect of all claims in aggregate to a sum equal to the total Fees (exclusive of VAT) paid by the Client.
14.2Notwithstanding any other provision of this Agreement, but subject to clause 14.4, Plug and Play shall have no liability however arising out of or in connection with this Agreement, the Deliverables or the Services for any:
14.2.1 direct or indirect loss of or damage to:
(a) profit;
(b) revenue;
(c) business;
(d) contract;
(e) opportunities;
(f) anticipated savings;
(g) data;
(h) goodwill;
(i) reputation;
(j) use;
14.2.2indirect or consequential loss or damage; or
14.2.3claim arising out of a claim against the Client by a third party.
14.3The term “however arising” in clause 14.2 covers all causes and actions giving rise to Plug and Play’s liability arising out of or in connection with this Agreement, the Deliverables or the Services including (i) any misrepresentation at any time, negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; or (iii) whether caused by any total or partial failure or delay in supply of the Services or Deliverables or defective Services or Deliverables.
14.4The exclusions and limitations of liability contained in this Agreement shall apply regardless of whether the loss or damage was foreseeable or whether the Client notifies Plug and Play of the possibility of any greater loss or damage but no such exclusion or limitation shall apply to the extent prohibited or limited by law. In particular nothing in this Agreement shall affect liability:
14.4.1 for death or personal injury caused by negligence to the extent prohibited by the Unfair Contract Terms Act 1977;
14.4.2 for fraudulent misrepresentation or other fraud; or
14.4.3 for any breach of any obligations implied by the Supply of Goods and Services Act 1982.
14.5Except where the Services or Deliverables are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of Plug and Play, in respect of compliance with descriptions, the quality or the fitness for purpose of the Services which are not expressly set out in this Agreement are excluded except to the extent such exclusion is prohibited or limited by law.
15LIMITATION PERIOD FOR CLAIMS
15.1Any and all claims which the Client may wish to bring arising out of or relating to this Agreement or the relationship with Plug and Play pursuant to this Agreement will be barred unless an action is commenced within one (1) year from the date on which the act or event giving rise to the claim occurred, or one (1) year from the date on which the Client knew or should have known, in the exercise of reasonable diligence, of the facts giving rise to such claims, whichever occurs later.
16FORCE MAJEURE
Neither party will 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 reasonably been prevented or overcome (“Force Majeure Event”). If either party is prevented from performing its obligations for a period exceeding three (3) months due to a Force Majeure Event then the other party may terminate this Agreement on one month’s written notice.
17CONFIDENTIALITY
17.1During the term of this Agreement and for five (5) 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”).
17.2Each 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.
17.3Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party’s Confidential Information.
17.4The provisions of this clause 17 shall not 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.
17.5The parties acknowledge and agree that they will each comply with the provisions in Part 3 (Data Processing Terms and Conditions) (as updated from time to time and available at www. plugandplaydesign.co.uk).
18TERMINATION
18.1Either party shall have the right to terminate this Agreement on one month’s written notice to the other party, except where Plug and Play provides Retained Services to the Client in which case either party may terminate this Agreement on three months’ written notice to the other party.
18.2Plug and Play shall have the right to terminate this Agreement immediately on written notice to the Client:
18.2.1if the Client commits any material breach of the terms of this Agreement (including failure to pay any invoice due to Plug and Play) 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 this Agreement if not remedied;
18.2.2if the Client (or any individual employed by or otherwise related to or acting on behalf of the Client) behaves in a manner which Plug and Play deems (in its absolute discretion) to be threatening, abusive or otherwise inappropriate; or
18.2.3if Plug and Play determines (in its absolute discretion) that its relationship with the Client has broken down to the extent that it is no longer tenable for Plug and Play to continue providing the Services.
18.3The Client shall have the right to terminate this Agreement immediately on written notice to Plug and Play if Plug and Play materially fails to provide all (or a substantial part) of the Services in accordance with this Agreement. The Client shall promptly notify Plug and Play of such failure in writing and on receipt of such notice, Plug and Play shall have a period of 30 days in which to remedy the failure. If the material failure is not remedied within the 30 day period, the Client shall have the right to terminate that part of the Services to which the material failure relates. In the event of such termination, the unaffected part of the Services shall continue in full force and effect.
18.4Either party may terminate if the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the non-terminating party is incorporated, resident or carries on business.
19CONSEQUENCES OF TERMINATION
19.1On termination of this Agreement for any reason, the Client shall immediately pay to Plug and Play all Fees, any expenses or third party costs and all other sums due to Plug and Play under this Agreement.
19.2On termination of this Agreement (except termination pursuant to clause 18.2) or on expiry of the Hosting Services without renewal where applicable and once all fees due have been paid:
19.2.1the Client’s further use of the Deliverables following termination shall be subject to the licence granted in clause 10 and all other relevant terms of this Agreement;
19.2.2Plug and Play shall return the Client Content to the Client, and shall provide to the Client an electronic copy of the Deliverables (including all content on the Deliverables); and
19.2.3Plug and Play shall provide such assistance as is reasonably requested by the Client to transfer the Deliverables to another provider of hosting services selected by the Client, subject to the payment of Plug and Play’s expenses and time reasonably incurred in relation to such transfer. The Client acknowledges that Plug and Play shall need to modify the Deliverables and this may have an impact on the functionality of the Deliverables.
19.3On termination of this Agreement by Plug and Play pursuant to clause 18.2:
19.3.1the licences granted by Plug and Play to the Client under this Agreement shall terminate immediately; and19.3.2the Client shall cease all use of the Deliverables.
19.4Subject to clause 8.5 on termination (for whatever reason) of this Agreement, each party shall return to the other all licensed materials and Confidential Information, (and all copies), of the other party or if requested by the other party, shall destroy them.
19.5Termination or expiry of this Agreement shall be without prejudice to any rights, liabilities or remedies of a party accrued before termination (including payment to Plug and Play for all work done before termination is effective), nor shall it affect any provision of this Agreement which is expressly intended to come into or continue in force after termination or expiry.
19.6Clauses 10 (Intellectual Property Rights) and 14 (Limits on Liability) shall survive expiry or termination of this Agreement for any reason.
20PUBLICITY
20.1The Client agrees that:
20.1.1Plug and Play may make reference to the Client as a client of Plug and Play’s in its publicity materials;
20.1.2Plug and Play shall have the right to publicise its provision of the Services and Deliverables to the Client in materials promoting or advertising Plug and Play and its services; and
20.1.3where the Deliverables comprise a website, mobile application or similar:
(a) it shall allow Plug and Play to include a credit on the Deliverables; and
(b) Plug and Play may utilise the Client Content on Plug and Play’s website and in other promotional material; and
(c) web statistics and analytics relating to the Deliverables may be used by Plug and Play in promotional case studies.
20.2The Client shall participate in testimonials for Plug and Play on request including video testimonials and shall procure that Plug and Play has the necessary authorisations and permissions to use video testimonial submitted by the Client to Plug and Play.
21SUB-CONTRACT
21.1The Client agrees that Plug and Play may delegate or sub-contract the provision of all or any of the Services to such third parties as it deems fit without the Client’s consent.
21.2Notwithstanding such delegation or sub-contracting Plug and Play shall remain responsible for ensuring that the Services are performed in accordance with this Agreement.
21.3During the term of this Agreement and for 18 months thereafter the Client shall not, and shall procure that no other member of its group shall, directly or indirectly attempt to solicit or entice away or engage or employ any employee, consultant, subcontractor or officer of Plug and Play.
21.4The Client shall not contract directly with any employee, consultant or sub-contractor of Plug and Play and shall not do anything else which would or may have the effect of circumventing our entitlement to be paid the Fees.
22GENERAL
22.1Nothing 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 this Agreement or create any agency between the parties.
22.2Each 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 this Agreement. In the event of a conflict between the Scope of Work and these terms and conditions the Scope of Work shall prevail.
22.3Each 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.
22.4No 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.
22.5To 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.
22.6Nothing 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.
22.7Each 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.
22.8Each 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.
22.9This Agreement shall be construed in accordance with the laws of England and the parties agree that courts of England and Wales shall have exclusive jurisdiction in respect of all disputes and claims arising out or in connection with it.
22.10The 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.
22.11Any notice given under this Agreement shall be in writing and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to, the intended recipient’s address or by sending it as an attachment by electronic mail to the intended recipient’s email address.
22.12The address of a party for service of notices is the address set out in the Part 1 (Commercial Term Sheet) or such other address as a party may designate by notice given in accordance with this clause. A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting, or if sent by email shall be deemed to have been received at the time of sending, provided that if it is not sent within business hours (meaning between 9.00am and 5.30pm on a Business Day) it shall be deemed to be received when business hours next commence. In proving the time of sending, it is sufficient to prove that the notice was duly sent by electronic mail to the email address of the party.
