1.1 You indicate acceptance of these terms and conditions of service by placing an order with Grow Creative Co. These terms and conditions will not be varied for individual customers.
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 "Demonstration" or "Demo" means a non Development version of the website developed in accordance with the specifications;
1.1.2 "Development" means a Development version of the website incorporating the required changes to the Demonstration version;
1.1.3 "Parties" means Grow Creative Co and the Client together;
1.1.4 "Specifications" means the specifications for the Website set out in the Order Form;
1.1.5 "Develop" means to design, write, build and programme the multimedia and internet products.
1.1.6 "Maintenance Fees” means that part of the Fees attributable to the Maintenance Services as set out in the Order Form;
1.1.7 "Cancellation Fees” means the sums payable by the Client in the event that it decides not to proceed with the Package as set out in the Order Form;
1.1.8 "Final Version” means the final version of the Website prepared in accordance with the Specifications and ready for live installation such that the website will be publicly available on the internet on the agreed domain;
1.1.9 "Hosting Services” means the services required for the Website to be connected to the Internet and to be provided by Grow Creative Co;
1.1.10 "Bug” means any fault, error or malfunction in software which materially affects the operation of that software;
1.1.11 "Virus” means a self replicating computer program which is designed to cause or which is likely to cause damage to the user's files and/or annoyance to the user;
1.1.12 "Materials” means source materials provided by the Client to be incorporated where appropriate in the Website during its development including without limitation those listed in the Order Form;
1.1.13 "Intellectual Property Rights ” means Copyright, Design Rights, Registered Designs, Trademarks, Patents, and Confidential Information and Ideas and Moral Rights and all other rights whatsoever of a like nature world wide whether those rights are registered or not;
1.1.14 "Maintenance Services” means the services for the maintenance of the Website, if required, as more specifically described in the Order Form and not relating to web hosting services;
1.1.15 "Website” means the interactive, computer based online information transaction and communication product or service accessible and operated via a telecommunications connection to the internet whose Development shall be in accordance with the Specifications;
1.1.16 "order form" means either an email confirming services required or a completed form confirming services required;
1.2 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.3 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
2. Operative Provision
In consideration of the payment by the Client to Grow Creative of the Fees Grow Creative agrees to provide the Package in accordance with and subject to these terms and conditions.
3. Obligations of Grow Creative Co
Grow Creative Co shall:
3.1 complete the Development of the Website;
3.2 provide the Hosting Services where purchased and specifically mentioned on the order form in accordance with the Grow Creative Co web hosting terms and conditions;
3.3 grant to the Client the non-exclusive right and licence to use the Website Materials;
The Development shall be as follows:
4.1 Design Phase
4.1.1 Grow Creative Co shall develop and deliver to the Client the Demonstration version;
4.1.2 Upon delivery of the Demonstration Version, the Client shall request in writing any changes required to the Demonstration Version after which period Grow Creative Co shall inform the Client, in its reasonable opinion, of which amendments it shall consider acceptable, appropriate and technically feasible and Grow Creative Co shall incorporate such amendments into the Development Version;
4.2 Final Phase
4.2.1 Grow Creative Co shall Develop and deliver to the Client the Development Version;
4.2.2 Upon delivery of the Development Version, the Client shall within 14 days request in writing any changes required to the Development Version after which period Grow Creative Co shall inform the Client, in its reasonable opinion, of which amendments it shall consider acceptable, appropriate and technically feasible and Grow Creative Co shall incorporate such amendments into the Final Version;
4.3 Grow Creative Co reserves the right to charge further sums in addition to the Fees for amendments requested by the Client under Clauses 4.1 and 4.2 which go beyond the Specification. Such additional Fees will not be charged without prior written notice;
4.4 Grow Creative Co shall deliver the Final Version incorporating the agreed amendments to the Client;
4.5 Upon completion and delivery of the Final Version Grow Creative Co shall provide the Hosting Services where purchased and specified in accordance with the Grow Creative Co web hosting terms and conditions;
5.1 Upon delivery of the Final Version and for a period of 12 months thereafter, Grow Creative Co shall provide the Maintenance Services and the Client shall pay the Fees. Inclusive Updates / adjustments are classifiable as work taking no longer than 45 minutes and are only offered if specified in the quantity on the order form. Extra time for work may be charged for at £25 an hour. Maintenance includes an annual licence as described in these terms for one year.
5.2 Thereafter the Client shall be entitled to request that Grow Creative Co continue to provide the Maintenance Services at the then prevailing rates and for such period as the Parties shall agree.
5.3 The Maintenance Services shall not include providing a server or server connection. Grow Creative Co registration includes a cross link scheme executed at Grow Creative Co's discretion. The final version will include a discreet 'designed by Grow Creative Co' link or similar.
6. Client Obligations
The Client will co-operate with and act in good faith towards Grow Creative Co and provide on request the Materials in the format that Grow Creative Co requests, including all those necessary to maintain the Website and enable Grow Creative Co to carry out its obligations hereunder.
7. Payment and Cancellation
7.1 The Client shall pay Grow Creative Co 20% of the agreed development fee upon acceptance of the quotation unless otherwise agreed. Upon completion and delivery of the Final Version Grow Creative Co shall issue an invoice for the balance. The Client shall pay Grow Creative Co the balance of the Fees including the Maintenance Fees within 14 days of receipt of a valid invoice in consideration of the supply to it of the Package, the Maintenance Services and the full right to resell the products provided that the Fees are paid to Grow Creative Co.
7.2 Grow Creative Co shall be entitled to charge interest on any overdue payment at the rate of 8% per annum above the base rate of the Bank of England from time in force.
7.3 Grow Creative Co shall be entitled to immediately restrict, suspend or terminate without notice, the Client's access to and use of the Website upon breach of any part this agreement whatsoever including without limitation the non-payment of any sums as and when they fall due until payment is made in full.
7.4 If the Client cancels an order at any time prior to final delivery Grow Creative Co shall be entitled to its reasonable losses and expenses incurred to the date of cancellation.
8 Intellectual Property Rights / Confidential Information
8.1 All Intellectual Property Rights of whatever nature in material devised by Grow Creative Co including all software code written by Grow Creative Co and its employees will vest in and belong to Grow Creative Co free of any interest of the Client or any third parties. The Client will do such acts as Grow Creative Co may reasonably require in order effectively to vest such rights in Grow Creative Co or to evidence the same;
8.2 Grow Creative Co hereby grants a nonexclusive royalty free annually renewable licence to the Client to use the Intellectual Property Rights for the purposes of this agreement throughout the world which licence shall take effect on receipt by Grow Creative Co of all Fees due under this Agreement save for the Maintenance Fees;
8.3 The Client hereby grants to Grow Creative Co a nonexclusive royalty free licence to use the Materials for the purposes of this Agreement;
8.4 The Client hereby warrants that it has or has obtained all necessary rights, permissions and licences for the use of the Materials supplied to Grow Creative Co and that it is fully entitled to grant to Grow Creative Co the rights in clause 8.3 above;
8.5 The Client undertakes to Grow Creative Co to indemnify and hold harmless Grow Creative Co in full and defend at its own expense Grow Creative Co against all costs and losses whatsoever and howsoever incurred by Grow Creative Co its servants or nominees arising out of any claim made against it or any of them in any jurisdiction in the world for infringement of any Intellectual Property Rights in the Materials;
8.6 The Client further warrants that all material that it supplies to Grow Creative Co is free of defamatory and other legally restricted material and it warrants that it shall fully indemnify and defend at its own expense Grow Creative Co against all costs and losses whatsoever incurred by Grow Creative Co its servants or nominees as a result of any claim made against it or any of them in any jurisdiction in the world as a direct or indirect result of the breach of this Clause;
8.7 Each party undertakes with the other that it will keep secret and confidential the terms of this Agreement and any information supplied by either party in connection with this Agreement or in connection with the business of the other party and in connection with the Website ("the Information”) and shall only disclose the Information or any part thereof (except to its own employees and then only on a need to know basis) with the other party's prior written consent PROVIDED THAT this Clause shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this Clause);
8.8 Not withstanding the provisions of this clause 8, Grow Creative Co shall be afforded full and reasonable credit on the Website as the Developer and designer of the Website;
8.9 Not withstanding the provisions of this clause 8, Grow Creative Co shall be entitled to refer, in the course of promoting or demonstrating Grow Creative Co, to the Website and Grow Creative Co's involvement in the design, Development and as the provider of the package.
9. Bugs and Viruses
9.1 All software created by Grow Creative Co is checked for Viruses using AVG Antivirus and Grow Creative Co accepts no responsibility for and bears no liability for any viruses discovered subsequent to Grow Creative Co's delivery of the Final Version to the Client.
9.2 Grow Creative Co recommends that all software created by Grow Creative Co is checked for Bugs and will use its reasonable endeavours to check for Bugs provided only that this is provided for in the Budget but accepts no responsibility for and bears no liability for any Bugs discovered subsequent to Grow Creative Co's delivery of the Final Version to the Client.
On receipt of the Final Version the Client agrees to arrange for the collection of all Materials incorporated in the Final Version and other materials provided by the Client. If these are not collected within 2 months of delivery of the Final Version Grow Creative Co reserves the right to dispose of them on giving to the Client not less than fourteen days notice.
11. Data Protection Act
The Client undertakes that it will not collect data from or via the Website without obtaining the appropriate registration and otherwise complying with its obligations under the Data Protection Act or equivalent legislation and that it will not collect any data from the Website without giving sufficient prior written notice to Grow Creative Co to apply for like registration.
12. Betting, Gaming and Lotteries Act
The Client undertakes that it will not use the Website for competitions within the meaning of the Betting Gaming and Lotteries Act 1963 or the Lotteries and Amusements Act 1976 and the Betting and Gaming Duties Act 1981 without full prior consultation with Grow Creative Co and first obtaining licenses under those Acts or any amending legislation.
13. Financial Services Act
The Client undertakes that it will not carry on or purport to carry on investment business through the Internet or advertise such services unless authorised to do so under the Financial Services Act 1986 and the Client further undertakes to comply with the provisions of the Financial Services Act 1986 or any other legislation regarding financial services in force at the time of this Agreement or subsequently in all other respects.
14. Obscene and Defamatory Material
Grow Creative Co gives no warranty or guarantee and explicitly and unequivocally excludes all responsibility and liability for all and any information and material contained on or within the Website or on the Internet as a result of Grow Creative Co providing the Package and services, whether such information or material is included by the Client personally, by any third party or by Grow Creative Co on the instructions of the Client. Grow Creative Co shall have no liability to any person and the Client shall indemnify and hold harmless Grow Creative Co in respect of all such information and material including without limitation any material that is offensive, obscene, defamatory or inflammatory.
15. Telecommunications and Broadcasting
The Client undertakes that it will obtain all necessary licences under UK Telecommunications and Broadcasting Legislation and that it will comply in every respect with such legislation.
The Client agrees and accepts that it may be subject to European and UK law on anti-competitive practices including without limitation abuse of a dominant position and concerted practices. The Client undertakes to Grow Creative Co that it will not, in respect of the Package or the Website, enter into any agreement that has as its object or effect the restriction of competition within the UK or Europe nor will it at any time seek to abuse a dominant position within its relevant market, unless such activity is specifically permitted by law.
Without prejudice to Clauses 11, 12, 13, 14, 15 and 16 above the Client undertakes that it will obtain all necessary licenses and permissions required throughout the world for any and all activities that it conducts through the Internet and that it will indemnify Grow Creative Co against all actions, claims, costs (including legal costs and expenses properly incurred), damages, demands or liabilities brought against or suffered by Grow Creative Co as a result of any breach by the Client of its obligations under this Agreement.
18.1 If the Client decides not to proceed further with the Package at any time it shall pay to Grow Creative Co the Cancellation Fees of 70% of the total of the complete package ordered.
18.2. Grow Creative Co shall be entitled to immediately restrict, suspend or terminate without notice the Client's access to and use of the Website and or terminate this agreement upon the Client's breach of any part this agreement whatsoever including without limitation the non-payment of any sums as and when they fall due.
18.3 Grow Creative Co will not be liable in any amount for failure to perform any obligation under this agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war or act of God.
19.1 These terms constitute the whole and only agreement between the Parties and shall apply to the exclusion of all other terms or conditions of contract.
19.2 Nothing in these terms shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
19.3 If at any time any part of these terms and conditions is or becomes unenforceable, such part will at Grow Creative Co's option be construed as far as possible to reflect the parties' intentions and the remainder of the provisions will remain in full force and effect.
19.4 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
19.5 Neither Party shall assign the benefit or burden of this Agreement without the prior written consent of the other Party.
19.6 The UK shall be considered the place of first publication of any material on the internet or Website.
19.7 These Terms and Conditions are made and shall be construed in accordance with the laws of England and you the Parties submit to the -exclusive jurisdiction of the English courts.
20.1 Grow Creative Co shall not be liable for loss of turnover, sale, revenue, profits or indirect, consequential or special loss.