1. GENERAL
1.1 These Terms and Conditions shall, in addition to and in conjunction with any Order entered into between the Parties, govern the basis upon which Upshot Media shall provide Services to the Client.
2. INTERPRETATION
2.1 The following definitions and rules of interpretation apply in these Terms and Conditions.
2.2 Definitions: Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Board Ordering System: means Upshot Media’s proprietary board ordering system;
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 15 (Charges and payment);
CMS: means a content management system;
Commencement Date: has the meaning given in clause
3.2 (Basis of contract);
Contract: the contract between Upshot Media and the Client for the supply of Services consisting of these Terms and Conditions and any Order entered into between the Parties;
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression “change of control” shall be construed accordingly; Client: the person who, or firm or entity which, purchases Services from Upshot Media and “you” and “your” shall be construed accordingly; Client Default: has the meaning set out in clause 14.3 (Client’s obligations);
Data Controller: has the meaning giving to it in the Data Protection Legislation;
Data Protection Legislation: means: (i) the GDPR for as long as it is directly applicable in the United Kingdom and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom; and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
Data Subject: has the meaning given to it in the Data Protection Legislation;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 35 (Variation);
Upshot Media: means Upshot Media Ltd, a limited liability company incorporated and registered in England with company number 05528247, the registered office of which is at 51 Briars End, Witchford, Ely, Cambridgeshire, CB6 2GB, and “we” and “us” shall be construed accordingly; “Upshot CMS” means Upshot Media’s proprietary content management system; and
“VAT”: means value added tax chargeable under the Value Added Tax Act 1994 and any similar or additional tax.
References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement. In the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to ‘writing’ or ‘written’ includes email and manuscript but not fax. References to ‘content’ include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.
3. BASIS OF CONTRACT
3.1 Any request by the Client for Upshot Media to provide services shall constitute an offer (an “Offer”) by the Client to purchase Services in accordance with these Terms and Conditions and any Order to be entered into between the Parties.
3.2 The Offer shall only be deemed to be accepted when Upshot Media issues written acceptance of the Order, which, when signed or otherwise confirmed in writing by both Parties shall bring the Contract into existence (the “Commencement Date”).
3.3 Any samples, drawings, descriptive matter or advertising issued by Upshot Media, and any descriptions or illustrations contained in Upshot Media's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.4 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.5 Any quotation given by Upshot Media shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
4. SUPPLY OF SERVICES
4.1 Upshot Media shall supply the Services to the Client in accordance with the Specification in all material respects.
4.2 Upshot Media shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 Upshot Media reserves the right to unilaterally amend the Specification if necessary to comply with any applicable laws or regulatory requirements, or if the amendment will not materially affect the nature or quality of the Services, and Upshot Media shall notify the Client in any such event.
5. SCOPE OF SERVICES
5.1 These Terms of Use and the Order, both as amended from time to time, set out the scope of the Services which Upshot Media will provide to the Client.
5.2 The scope of the Services we provide you with may only be amended by mutual written agreement between you and us.
6. Website Design Services
6.1 Where the Client commissions Upshot Media to design or build a Site, such a Site be classified as one of the following:
(a) a website built on the Upshot CMS of which there are three versions (an “Upshot CMS Site”), such a website being itself further classified as either ‘Starter’, ‘Brochure’, ‘ecommerce’ or “Booking System”;
(b) a website built on a third-party CMS, including (without limitation) WordPress or Magento (a “Third Party CMS Site”); or
(c) a fully bespoke website built on a bespoke CMS (a “Bespoke Site”).
6.2 Where the Client requires a Bespoke Site, unless expressly agreed in writing between the Parties, these Terms and Conditions shall apply.
7. Hosting Services
7.1 Upshot Media provides website hosting services via a third-party hosting provider. Accordingly, Upshot Media cannot guarantee that the Site will remain available at all times and shall not be liable for any losses, costs, expenses or damages incurred by the Client as a result of the Site being unavailable as a result of any issue with its third-party hosting provider or any other event which is beyond Upshot Media’s control. Upshot Media is, however, able to provide enhanced hosting services with increase reliability and security at additional costs as agreed between the Parties.
7.2 Upshot Media reserves the right to deactivate any Site where the Client has not paid any applicable hosting Charges by the due date in accordance with any invoice from Upshot Media.
7.3 Upshot Media shall have the right obtain an SSL/TLS certificate for the Site where it is required by law and to charge the amount paid by Upshot Media to the Client as well as any additional Charges payable to Upshot Media in connection with the installation of the SSL/TLS certificate. Upshot Media shall include all SSL/TLS costs in any quotation or Order Form to the client. Upshot Media shall invoice the costs for SSL/TLS at the date when the SSL/TLS certificate is purchased and then, subsequently, at each renewal date of the SSL/TLS certificate.
7.4 Charges for hosting services shall be payable by the Client to Upshot Media by direct debit at an agreed “authorised” rate. Upshot Media shall not take any additional amounts by direct debit without the Client’s prior written permission.
7.5 The Client shall have the right to host any Site or website that is not an Upshot CMS Site on a server provided by a third party, provided that where the Client requires that Upshot Media resolves any issues or communicates with the third-party hosting provider, Upshot Media shall be entitled to charge its Standard Hourly Rate for providing such services.
8. Support Services
8.1 Upshot Media is able to provide two types of support services:
(a) Day to day support services (“Day to Day Support Services”); and
(b) support services on a contractual basis (“Support Contracts”).
8.2 Day to Day Support Services are chargeable at Upshot Media’s Standard Hourly Rate and include time spent by Upshot Media answering queries relating to any of the following:
(a) the Site or other Client websites;
(b) queries relating to hosting, email or the unavailability of any Client Site or website; and
(c) investigation by Upshot Media of email issues, including blocked IP address, hacking, virus, malware and any similar or related technical issues.
8.3 Queries relating to problems with Upshot Media’s third-party servers for hosting the Site, including network outages or power failures, shall not, however, be chargeable to the Client by Upshot Media.
8.4 Support Contracts are support services provided on a monthly basis which are chargeable at reduced rates when compared with the Standard Hourly Rate on an hour per hour basis. The price for Support Contracts shall be agreed in writing between the Parties.
8.5 Support Contracts shall include the following features and services: (a) priority over Upshot Media customers who are on Day to Day Support Services;
(b) availability between Monday to Friday from 9am to 5pm, with a response time of 4 hours;
(c) telephone and email support;
(d) a free CMS licence for Upshot CMS Sites;
(e) assistance with updates to web pages including page text, images, products and similar changes, but excluding design, feature and technical changes;
(f) extension installations for Magento Sites, provided that the Client shall bear the purchase cost of any paid extensions; and
(g) plug-in installations and for WordPress Sites, provided that the Client shall bear the purchase cost of any paid plug-ins.
8.6 The number of hours included in a Support Contract is limited to a fix amount per month (the “Monthly Quota”) and unused hours in any Support Contract expire at the end of the respective Support Contract and cannot be rolled over into any subsequent Support Contract. Additional hours beyond the Monthly Quota in any given Support Contract period shall be chargeable at Upshot Media’s Standard Hourly Rates.
8.7 Support Contract hours are strictly limited to the services described in clause
8.5 and shall not be transferable or useable in respect of new website design or development, new functionality or SEO services.
9. Email Account Services
9.1 Upshot Media may provide the Client with iMAP or POP3 email services in conjunction with hosting services provided by Upshot Media to the Client (“Email Account Services”).
9.2 Where Upshot Media provides Email Account Services, the Client shall be responsible for backing up emails on their own computers and devices (as the case may be).
9.3 Upshot Media does not recommend the use of iMAP or POP3 Email Account Services on multiple devices due to reliability issues and recommends that the Client uses a hosted exchange solution where the Client wishes to access emails across multiple devices.
9.4 Where the Client requests iMAP or POP3 Email Account Services, Upshot Media shall provide the Client with the set-up details for each email account. The Client shall, however, be responsible for setting up the email accounts on individual devices. Upshot Media is able to provide basic instructions for several common devices. However, where the Client requires assistance in setting up email accounts on individual devices or with the resolution of any email related issues, Upshot Media’s Standard Hourly Rate shall apply.
9.5 The Client understands and agrees that iMAP and POP3 Email Account Services are delivery method only solutions and do not involve email storage or backup solutions. In particular, the Client understands and agrees that the iMAP and POP3 Email Account Services are not suitable for sending bulk emails or linking to third party software, which may send emails in bulk, such as statements or invoices.
9.6 Upshot Media is able to provide alternative email account service solutions that include back-ups and are more stable than the iMAP and POP3 Email Account Services and the fees for such services shall be agreed between the Client and Upshot Media directly.
9.7 Upshot Media cannot guarantee the security of Client email accounts and shall be liable to the Client for any compromise or breach of security in respect of the Client’s email accounts to the minimum extent permitted by law.
9.8 Notwithstanding any provisions of this clause 9 (Email Account Services) Upshot Media reserves the right to charge for investigating any iMAP and POP3 Email Account Services issues that are not caused by issues with Upshot Media’s servers at its Standard Hourly Rate.
10. Domain Name Services
10.1 Upshot Media is able to register and obtain domain names on behalf of the Client. Where Upshot Media obtains domain names on behalf of the Client:
(a) Upshot Media shall be entitled to charge the Client for the costs incurred in obtaining the domain name; and
(b) the Client shall be the legal owner of the domain name.
10.2 The Client shall be fully responsible for ensuring that any and all of its domain names are renewed in a timely fashion and any domain name registrar or related or associated fees shall be paid by the Client.
10.3 Upshot Media assumes no liability whatsoever as a result of the Client’s failure to renew any domain names or in respect of any failure by the Client to pay any fees due to any domain name registrar or any other third party in respect of any domain names.
11. SEO Services
11.1 Upshot Media shall provide any one or more of the following SEO services as agreed between the Parties:
(a) site map set-up and submission;
(b) Google Analytics set-up;
(c) Google Webmaster Tools set-up;
(d) Google business (local) set up services to allow a website to appear on Google Maps;
(e) URL structure of pages related services;
(f) keyword analysis;
(g) ongoing page and/or product submission (local only); and
(h) content writing and submission services.
11.2 Upshot Media cannot and does not warrant or guarantee any particular results in respect of SEO services in terms of page ranking on search engines or otherwise. Upshot Media will, however, use established practices in order to attempt to achieve improvements in page ranking for the Site or any other Client website (as the case may be).
12. PPC Services
12.1 Upshot Media can provide PPC services via Google AdWords.
12.2 Upshot Media cannot and does not warrant or guarantee any particular results in respect of PPC Services, including common metrics such as click through rate, cost per click and conversion rate.
12.3 All costs payable to any third-party advertising provider, such as Google AdWords, shall be payable by the Client directly from the Client’s credit or debit card stored in the Client’s account on the relevant advertising platform.
12.4 The Client shall be responsible for monitoring charges it incurs from any third-party advertising platform and shall hold harmless and indemnify Upshot Media in respect of any unexpected charges it incurs from any third party.
12.5 Upshot Media shall invoice its own fees for PPC services separately from any charges incurred from any advertising platform.
12.6 The Client shall be responsible for approving any advertisements which are displayed or are to be displayed on any third-party advertising platform, including Google AdWords.
13. Website Documentation Services
13.1 The Client is responsible for ensuring that it complies with all applicable laws and regulations, including in respect of laws and regulations that apply to its Site or other websites, and, except where required by law, Upshot Media shall have no liability or responsibility in this regard in any way whatsoever.
13.2 Notwithstanding clause 13.1, Upshot Media may from time to time be able to offer the Client website documentation (including website terms of use, privacy policy and cookie policy templates) or other similar services to assist the Client with ensuring its compliance with applicable laws and regulations.
13.3 Where Upshot Media provides such website documentation or update services, the Client recognises and agrees that such services are provided by Upshot Media only for the purposes of providing the Client with a convenient and relatively cost-effective method of helping to ensure and demonstrate that the Client has taken steps to ensure that its Site complies with certain high-risk areas of applicable legislation and not for the purposes of ensuring the Client’s full legal compliance with any particular law or regulation. Although Upshot Media believes that the website documentation and update service it provides will offer the Client a good degree of protection under applicable legislation, as Upshot Media is not a law firm, it cannot and does not guarantee, warrant or represent that the Site or (more generally) the Client’s business will be compliant with any particular legislation (including the GDPR) whether in respect of its use of such documentation or otherwise. Furthermore, Upshot Media cannot and does not guarantee, warrant or represent that the Site or any other Client website will be found to be compliant in the event of any investigation by any regulatory authority (including the Information Commissioner’s Office). Accordingly, such website documentation and update service (as the case may be) is used by the Client entirely at its own risk in respect of legal compliance, and in accordance with clause 24 (Data Protection), the Client is entirely responsible for its own compliance with Data Protection Legislation.
13.4 Where the Client purchases website documentation from Upshot Media directly, the Client shall, prior to purchasing the documentation, enter into a customer licence agreement provided by Upshot Media (the “Customer Licence Agreement”). If for any reason the Client has not entered into the Customer Licence Agreement at the time of purchasing the documentation, it shall enter into it as soon as practicable afterwards and the Customer Licence Agreement shall have effect from the date when the Client first had access the website documentation.
13.5 The Client shall be responsible for ensuring the compliance of such website documentation referred to in this clause 13 (Website Documentation Services) and obtaining independent legal advice to ensure that such documentation adequately protects the Client and its individual circumstances. Accordingly, the Client agrees to hold harmless and indemnify Upshot Media in respect of any damages, losses, costs or expenses it suffers as a result of its website documentation and/or its update service being found to be non-compliant with applicable legislation in any way.
13.6 Where the Client has obtained independent legal advice in relation to the website documentation and amendments are made to the documentation, the Client understands that it may not be able to utilise the website documentation update service and the Client shall be responsible for updating its website documentation for any relevant changes in law. In such an event and unless otherwise agreed by the Parties (for example, if it is agreed that Upshot Media is to provide legal updates in some other manner), the Charges for the website documentation shall remain payable as shall any Charges for the update services up to the point in time when the Client notifies Upshot Media in writing that it no longer requires the update services.
13.7 Upshot Media has partners who can assist the Client with their website documentation if required. In such a case, additional terms (including those third-party partners’ terms) may apply.
14. CLIENT’S OBLIGATIONS
14.1 The Client shall: (a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate; (b) co-operate with Upshot Media in all matters relating to the Services; (c) provide Upshot Media with such information and materials as Upshot Media may require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (d) where necessary, prepare the Client's premises for the supply of the Services; (e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; (f) comply with all applicable laws and regulations; (g) keep all materials, equipment, documents and other property of Upshot Media (“Supplier Materials”) at the Client's premises in safe custody at its own risk, maintain Upshot Media Materials in good condition until returned to Upshot Media, and not dispose of or use Upshot Media Materials other than in accordance with Upshot Media's written instructions or authorisation; and (h) comply with any additional obligations as set out in the Specification or Order.
14.2 The Client acknowledges that Upshot Media’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 any information and data the Client provides to Upshot Media. Accordingly, the Client shall:
(a) provide Upshot Media with access to, and use of, all information, data and documentation reasonably required by Upshot Media for the performance by Upshot Media of its obligations under this agreement;
(b) provide Upshot Media, as soon as is reasonably practicable, with any Materials or content which Upshot Media requires to complete the Website, including text, images and any other relevant content; and
(c) be responsible for the accuracy and completeness of the Materials on the Site and ensure that they remain up to date at all times.
14.3 If Upshot Media's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
(a) without limiting or affecting any other right or remedy available to it, Upshot Media shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Upshot Media's performance of any of its obligations;
(b) Upshot Media shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this clause
14.3 (Client’s obligations); and (c) the Client shall reimburse Upshot Media on written demand for any costs or losses sustained or incurred by Upshot Media arising directly or indirectly from the Client Default.
15. PROJECT MANAGEMENT
15.1 Each party shall appoint a project manager who shall:
(a) provide professional and prompt liaison with the other Party; and
(b) have the necessary expertise and authority to commit the relevant Party.
15.2 Upshot Media shall not be liable for any costs, losses or expenses, damages or loss of earnings incurred as a result of the Client’s failure to meet the deadlines for construction of the Site or any deadlines relating to the provision of any other Services by Upshot Media to the Client.
16. ACCEPTANCE TESTS
16.1 Once Upshot Media has completed the design and development of the Site, Upshot Media shall run tests on the Site to ensure it functions in accordance with the Specification (the “Acceptance Tests”).
16.2 Upshot Media shall notify the Client when the tests have been passed.
16.3 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Upshot Media has no responsibility (a “Non-Supplier Defect”), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. Upshot Media shall provide assistance reasonably requested by the Client in remedying any Non-Supplier Defect by supplying additional services or products, provided that the Client shall pay Upshot Media in full for all such additional services and products at Upshot Media’s Standard Hourly Rate.
16.4 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the website has passed the Acceptance Tests;
(b) the Client has indicated that it is happy to accept the Site;
(c) the Client uses any part of the website for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(d) the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Upshot Media is ready to commence running such Acceptance Tests or retests.
16.5 Once the Site has been accepted, any further changes to the Site shall be chargeable at Upshot Media’s Standard Hourly Rate.
17. CHARGES AND PAYMENT
17.1 The Charges for the Services shall be calculated on a time and materials basis, and:
(a) unless otherwise agreed in writing between the Parties or set out elsewhere in these Terms and Conditions, the Charges for the Services shall be calculated in accordance with Upshot Media's hourly rates, which are £90 per hour (the “Standard Hourly Rates”);
(b) Standard Hourly Rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
(c) Upshot Media shall be entitled to charge an overtime rate of fifty per cent. (50%) above the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 17.1(b) (Charges and payment); (d) Upshot Media shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Upshot Media engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Upshot Media for the performance of the Services, and for the cost of any materials; and (e) if in the course of a project, it becomes clear that the amount or complexity of the work involved will significantly exceed Upshot Media’s initial estimate, Upshot Media reserve the right to increase the Charges, provided that Upshot Media provides the Client with prior written notice of such an increase.
17.2 Upshot Media reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
17.3 Unless otherwise agreed between the Parties, Upshot Media shall charge the Client on the following basis for any Services it provides:
(a) fifty per cent. (50%) of the total Charges for the Services shall be payable up front prior to commencement or provision of the Services;
(b) subject to clause 17.12 (Charges and payment) a further twenty five per cent. (25%) of the total Charges shall be payable on the sign-off of a design or specific piece of work as set out in the Order (the “Second Instalment”); and
(c) the final twenty five per cent. (25%) of the total Charges shall be payable on completion of the provision of the Services by Upshot Media to the Client (the “Final Instalment”). 17.4 The Client agrees that the Final Instalment shall be payable on completion of the provision of the Services by Upshot Media, even where the Client is unable to accept the Services.
17.5 The Client shall pay each invoice submitted by Upshot Media: (a) within fourteen (14) days of the date of receipt of such invoice or the due date stated on the invoice, whichever is earlier; and (b) in full and in cleared funds to a bank account nominated by Upshot Media to the Client in writing. 17.6 Time for payment shall be of the essence of the Contract. 17.7 All amounts payable by the Client under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by Upshot Media to the Client, the Client shall, on receipt of a valid VAT invoice from Upshot Media, pay to Upshot Media such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. 17.8 If the Client fails to make a payment due to Upshot Media under the Contract by the due date, then, without limiting Upshot Media's remedies under clause 26 (Term and termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 17.7 (Charges and payment) will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%. 17.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
17.10 Upshot Media reserves the right to recover any unpaid sums which are overdue by any legal means and shall be entitled to charge any costs it incurs in recovering any unpaid sums due from the Client from the Client, including any legal fees Upshot Media incurs in so doing.
17.11 Payment of our Charges will be required to be made by BACS or CHAPS payment.
17.12 Where Upshot Media has commenced work on the design or a specific piece of work, if the Client decides to cancel the Services after it has given approval for work on the design or specific piece of work to commence, the Second Instalment shall immediately become due and payable in full by the Client to Upshot Media. 18. WARRANTIES 18.1 Each of the Parties warrants to the other that it has full power and authority to enter into and perform this Contract. 18.2 This Contract sets out the full extent of Upshot Media’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded. 19. CLIENT RESPONSIBILITIES 19.1 The Client shall be responsible for saving passwords sent to it by Upshot Media and, if the client loses its password, for changing it. The Client is solely responsible for ensuring that the password it uses is sufficiently secure and Upshot Media assumes not liability whatsoever in respect of a security breach caused by the Client’s use of a compromised, insecure or otherwise inadequate password. 19.2 Where the Client runs an ecommerce website or other online platform for selling goods and/or services, the Client is responsible for ensuring that it complies with relevant legislation, including having a PCI certificate in place where required by law. Upshot Media assumes no responsibility for the Client’s PCI or other compliance responsibilities, although Upshot Media is able to assist with such compliance by putting the Client in contact with its specialist PCI compliance partner. 20. THIRD PARTY APPLICATIONS AND PRODUCTS 20.1 Third party products and applications shall be supplied in accordance with the relevant licensor’s standard terms. Licence fees and any other charges relating to third party products and applications (including any test transaction fees) shall be chargeable by Upshot Media to the Client in addition to any Charges. 21. WEBSITE AND CONTENT MANAGEMENT SYSTEM TRAINING 21.1 Where the Services involve Upshot Media building a Site for the Client, Upshot Media shall provide, at no extra cost to the Client: (a) 90 minutes of Skype or similar website and CMS training; and (b) 30 minutes worth of answers to any written questions Upshot Media receives from the client, together the “Website Training”. 21.2 Any additional training beyond the Website Training shall be chargeable by Upshot Media to the Client at Upshot Media’s Standard Hourly Rates. Additional training is purchasable from Upshot Media in half day or full day increments of £200 and £400 respectively. 21.3 The Parties agree that Website Training does not affect support and bug fixes where an error is detected by the Client. 22. INTELLECTUAL PROPERTY RIGHTS 22.1 Unless otherwise agreed in writing between the Parties, all Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Materials, arising in connection with this agreement shall be the property of Upshot Media, and Upshot Media hereby grants the Client a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site. 22.2 The Upshot CMS and the Board Ordering System are proprietary to Upshot Media. Any intellectual property and any other property subsisting in the Upshot CMS and/or the Board Ordering System shall at all times remain the property of Upshot Media. The Client shall acquire no rights in the Upshot CMS or the Board Ordering System whatsoever, nor shall it, if it wishes to host its Site elsewhere, have any right to transfer any or all of (or provide any access to any third party to) the Upshot CMS or the Board Ordering System to a third-party provider. Upshot Media shall, however, provide the Client with the Materials. 22.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 22.1 (Intellectual property rights). 22.4 The Client shall indemnify Upshot Media against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party or Upshot Media’s own Intellectual Property Rights. 22.5 The Client grants Upshot Media and its licensors a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Materials provided by the Client to Upshot Media for the term of the Contract for the purpose of providing the Services to the Client. 22.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 22 (Intellectual property rights).
23. SITE CONTENT
23.1 The Client shall ensure that any Materials on the Site or which the Client uploads or requests to be uploaded to the Site (directly or indirectly) do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
23.2 Upshot Media shall not be liable to the Client in any way whatsoever for the content of the Site or any other Client website, including for any Materials that constitute Inappropriate Content and the Client is entirely responsible for the Materials uploaded to the Site or any other Client website. Upshot Media reserves the right to remove any content from the Site or any other Client website which Upshot Media is hosting, directly or indirectly without prior notice to the Client where it suspects or is notified that such content constitutes Inappropriate Content. 23.3 Images that have been purchased by Upshot Media for use on the Site or any other Client website are strictly for the use on that respective website only and the Client shall not use any such images for any other purpose whatsoever. 23.4 The Client acknowledges that Upshot Media has no control over any content placed on the Client’s website by visitors to the Client’s website and does not purport to monitor the content of the Site.
23.5 The Client shall indemnify Upshot Media against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content or any use of any content in any way that infringes or may infringe any third party’s Intellectual Property Rights.
23.6 Upshot Media may include the statement “Designed by Upshot Media”, “Website by Upshot Media”, or a similar phrase, on the Client’s website.
24. DATA PROTECTION
24.1 The Parties recognise that, for the purposes of the Client’s own Personal Data, Upshot Media is a Data Controller and in respect of Upshot Media’s Personal Data, the Client is a Data Controller.
24.2 The Parties further recognise that, in respect of Personal Data processed on behalf of the Client, the Client is the Data Controller and Upshot Media is the Data Processor, and accordingly that the data processing agreement contained in the Schedule (Data Processing Agreement) to this Contract shall apply and form part of the Contract.
24.3 Upshot Media shall process the Client’s Personal Data for the purposes of providing Services to the Client
24.4 Upshot Media may disclose the Client’s Personal Data to third parties only in the following circumstances:
(a) in the event that Upshot Media sells or buys any business or assets, in which case Upshot Media will disclose the Client’s personal data to the prospective seller or buyer of such business or assets;
(b) if Upshot Media or substantially all of its assets are acquired by a third party, in which case Personal Data held by it about its customers will be one of the transferred assets;
(c) if Upshot Media is under a duty to disclose or share the Client’s Personal Data in order to comply with any legal obligation, or in order to enforce or apply the terms of the Contract and other agreements; and/or (d) to protect the rights (legal or otherwise), property, or safety of Upshot Media, its customers, clients, partners, suppliers or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction.
24.5 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
24.6 The Client acknowledges that Upshot Media is reliant on the Client for direction as to the extent to which Upshot Media is entitled to use and process the Personal Data. Consequently, Upshot Media will not be liable for any claim brought by a Data Subject arising from any action or omission by Upshot Media, to the extent that such action or omission resulted directly from the Client's instructions.
24.7 Upshot Media may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor's contract:
(a) is on terms which are substantially the same as those set out in the Contract; and
(b) terminates automatically on termination of the Contract for any reason.
25. LIMITATION OF LIABILITY
25.1 Nothing in the Contract shall limit or exclude Upshot Media's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
25.2 Subject to clause 25.1 (Limitation of liability), Upshot Media shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill or reputation; and (g) any indirect or consequential loss. 25.3 Subject to clause 25.1 (Limitation of liability), Upshot Media's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to fifty per cent. (50%) of the total Charges paid under the Contract in any calendar year. The parties understand, acknowledge and agree that that liability cap contained in this clause
25.3 (Limitation of liability) is fair and reasonable having regard to the Charges, the Services, the nature of the risk associated with the provision of the Services, the relative bargaining strengths of the parties and the availability of insurance to the parties.
25.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
25.5 This clause 25 (Limitation of liability) shall survive termination of the Contract.
25.6 Upshot Media excludes liability to the Client to the maximum extent permitted by law and for the purposes of the Limitation Act 1980, the limitation period for all claims and causes of action shall be two years from the date when the breach occurred.
25.7 Any and all limitations and exclusions of liability included in this Contract shall apply to the maximum extent that they are permitted by law. Additional limitations on liability
25.8 Upshot Media shall not be liable for, nor shall it have any obligation to become involved in, any dispute between the Client and any of the Client’s customers.
25.9 Upshot Media shall not be liable for any costs, losses, expenses or damages incurred by the Client due to the malfunction of the Site or any part of it.
25.10 Where the Site is a Third Party CMS Site (such as WordPress or Magento), Upshot Media cannot guarantee that the Site will remain secure as the Site’s code is not developed by Upshot Media. Accordingly, Upshot Media shall not be liable for any losses, costs, expenses or damages arising to the Client or any third party as a result of the Site crashing, being hacked or not functioning properly.
25.11 Upshot Media cannot guarantee that any Upshot CMS Site or any Bespoke Site will remain uncompromised from third party viruses. Accordingly, Upshot Media shall not be liable for any losses, costs, expenses or damages arising to the Client or any third party as a result of the Site crashing, being hacked or not functioning properly to the minimum extent permitted by law.
26. TERM AND TERMINATION
26.1 Subject to other provisions of this clause 26 (Term and termination), the Contract shall come into force on the Commencement Date and shall continue for a minimum period of one year thereafter (the “Initial Term”), unless terminated earlier in accordance with the Contract.
26.2 The Contract shall automatically renew after the Initial Term and shall continue indefinitely on a one (1) year rolling basis unless either Party gives at least thirty (30) days written notice to the other Party that they wish to terminate the Contract prior to the end of the respective one (1) year period, in which case the Contract shall terminate at the end of the relevant one (1) year period.
26.3 SEO Services shall have an initial term of 6 months (the “SEO Initial Term”), unless terminated earlier in accordance with the Contract. SEO Services shall automatically renew after the SEO Initial Term and shall continue indefinitely on a six (6) month rolling basis unless either Party gives at least thirty (30) days written notice to the other Party that they wish to terminate the Contract prior to the end of the relevant six (6) month period, in which case the Contract shall terminate in respect of SEO Services at the end of the relevant six (6) month period.
26.4 Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other Party if:
(a) the other Party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that Party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(c) the other Party commences negotiations with all or any class of any 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 its creditors;
(d) 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 the other Party;
(e) the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
(f) 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;
(g) 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;
(h) 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);
(i) the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(j) 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 26.4(b) to 26.4(i) (inclusive);
(k) the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(l) the other Party's financial position deteriorates to such an extent that in the terminating Party's opinion the other Party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) any warranty given by the other Party in clause 18 (Warranties) of these Terms and Conditions is found to be untrue or misleading.
26.5 Without affecting any other right or remedy available to it, Upshot Media may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment and the Client remains in default not less than seven (7) days after being notified in writing to make such payment;
(b) there is a change of control of the Client; or
(c) Upshot Media has made reasonable efforts to contact the Client in the course of the provision of the Services and has been unable to obtain a response for a consecutive period of thirty (30) days.
26.6 Without affecting any other right or remedy available to it, Upshot Media may suspend the supply of Services under the Contract or any other contract between the Client and Upshot Media if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 26.4(b) to clause 26.4(l) (Term and termination), or Upshot Media reasonably believes that the Client is about to become subject to any of them.
27. CONSEQUENCES OF TERMINATION
27.1 On termination of the Contract: (a) the Client shall immediately pay to Upshot Media all of Upshot Media's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Upshot Media shall submit an invoice, which shall be payable by the Client immediately on receipt; (b) all licences granted by Upshot Media under the Contract shall immediately terminate; and (c) Upshot Media shall return all Materials to the Client within a reasonable period of time.
27.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
27.3 Notwithstanding any other provision of the Contract, where the Contract is terminated pursuant to clause 26.5(c), all sums payable up until the completion of the phase of work which Upshot Media is currently working on at the time of termination shall be become due and payable, including full payment for the Services where Upshot Media considers, in its absolute discretion, to be appropriate.
27.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
28. GENERAL TERMS
28.1 Force majeure. Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
29. Assignment and other dealings
29.1 Upshot Media may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
29.2 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Upshot Media.
30. Publicity
30.1 Upshot Media shall be entitled to disclose the fact that it has worked for the client and where it has built a Site, shall be entitled to publicly display that Site or a link to that Site on Upshot Media’s own website(s), including https://www.clickon-office.co.uk/upshotme_eco2022/, or anywhere else that Upshot Media considers in its absolute discretion is appropriate from time to time, including on social media.
31. Confidentiality
31.1 This clause 31 (Confidentiality) is subject to clause 30 (Publicity).
31.2 The Parties agree that they shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by clause 31.4 (Confidentiality).
31.3 We may record telephone conversations for training and monitoring purposes.
31.4 Each Party may disclose the other Party's confidential information: (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party's obligations under the Contract. Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other Party's confidential information comply with this clause 31 (Confidentiality); and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. 31.5 Neither Party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
32. Non-restraint of trade
32.1 Provided that Upshot Media satisfies the confidentiality obligations in this clause 31 (Confidentiality), Upshot Media reserves the right to act for the Client’s competitors or parties with interests which conflict with or are opposed to the Client’s interests.
32.2 Upshot Media shall be entitled to undertake work for any person or persons that are in the same business sector as any other client of Upshot Media, including those that are in the same business sector as the Client. 33. No partnership or agency
33.1 Nothing in this Contract 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, or authorise any Party to make or enter into commitments for or on behalf of any other Party.
33.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
34. Entire Agreement
34.1 With the exception of any previous written correspondence between the Parties, this Contract 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.
34.2 Each Party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
34.3 Nothing in this clause 34 (Entire agreement) shall limit or exclude any liability for fraud.
35. Variation. Except as set out in the Contract, no variation of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
37. Updates to Terms. Notwithstanding clause 35, the supplier reserves the right to amend these Terms from time to time. Any such amendments shall take effect from the start date of the renewal term, provided the client is given not less than (30) Days’ written notice of the updated terms. If the client does not agree to the update terms, they may terminate the Contract in accordance with clause 26, prior to the start date of the next Renewal Term. Continued use of the service after the start date of the Renewal Term shall constitute acceptance of the Updated terms.
36. Waiver
36.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
36.2 A failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
36.3 No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
37. Severance
37.1 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.
37.2 If 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.
38. Notices
38.1 Any notice or other communication given to a Party under or in connection with the Contract shall be in writing and shall be delivered by email to the last used email of that Party, 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).
38.2 Any notice or other communication shall be deemed to have been received: if delivered by email between 9.00am and 5.00pm, at the time the email is delivered; if delivered by email at any other time, at 9.00am on the next business day following delivery; if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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, if sent by email, at 9.00 am on the next Business Day after transmission.
38.3 This clause 38 (Notices) does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
39. Rights and remedies. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
40. Third party rights
40.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
40.2 The rights of the Parties to rescind or vary the Contract are not subject to the consent of any other person. 41. Governing law. The Contract, 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. 42. 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 Contract or its subject matter or formation.
