legal.)

1. Definitions and interpretation

1.1 In the Agreement:

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

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

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

“Agreement” means the agreement between the Company and the Customer incorporating these Terms and the Proposal, and any amendments to it from time to time;

“Business Day” means any week day, other than a bank or public holiday in England;

“Business Hours” means between 09:00 and 17:00 London time on a Business Day;

“Charges” means the amounts payable by the Customer to the Company under or in relation to the Agreement (as set out in the Proposal);

“Company” means Specific Gravity Ltd, a limited company incorporated in England and Wales (registration number 6972853) having its registered office at Sparkhouse Studios, Rope Walk, Lincoln, LN6 7DQ;

“Confidential Information” means:

(a) any information supplied by one party to the other party (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;

(b) the terms (but not the existence) of the Agreement; and

(c) The information provided in the documents listed in the proposal and any confidential information available via the online client area.

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the customer for services under the Agreement as specified in the Proposal;

“Customer Works” means the works and materials provided to the Company by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Project;

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

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

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

“Delivery Date” means the date for delivery of the Project specified in the Proposal;

“Effective Date” means the date when the Company sends to the Customer its written confirmation that the Agreement is agreed, following the Customer’s acceptance of the Proposal and these Terms;

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

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

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

“Proposal” means the proposal document issued by the Company / attached to these Terms detailing the scope of the Services and other matters relating to the Agreement;

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

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

“Term” means the term of the Agreement;

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

“Project” means the service as described in the Proposal to be delivered by the Company for the Customer under the Agreement; and

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

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

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

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

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

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2. Term

The Agreement will come into force on the Effective Date and will continue in force until the acceptance of the Project by the Customer in accordance with Clause [5], upon which it will terminate automatically, unless terminated earlier in accordance with Clause [14].

3. The Services

3.1 The Company will:

(a) provide and deliver the Project;

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

(d) provide the Customer with reasonable access to the Project during the Term;

(the “Services“).

3.2 The Company will use all reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, the Company does not guarantee that the timetable will be met.

4. Customer obligations

4.1 The Customer will provide the Company with:

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

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

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

5. Delivery and acceptance

5.1 The Company will use all reasonable endeavours to deliver the Project to the Customer for acceptance testing on or before the Delivery Date.

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

(a) whether the Project conforms in all material respects with the specification of the Project in the Proposal; and

(b) whether the Project has any Defects;

(the “Acceptance Criteria“).

5.3 If the Project meets the Acceptance Criteria, the Customer will send to the Company a written notice during the Acceptance Period confirming acceptance of the Project.

5.4 If the Project does not meet the Acceptance Criteria:

(a) the Customer will send to the Company a written notice during the Acceptance Period setting out in detail the respect(s) in which the Project does not meet the Acceptance Criteria; and

(b) the Company will have a further remedial period of 20 Business Days to modify the Project so that it meets the Acceptance Criteria.

5.5 The Project will be deemed to have been accepted by the Customer if:

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

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

6. Third Party Works

6.1 Third Party Works will be licensed to the Customer under the relevant licensor’s standard terms and conditions for online use, or on licence terms notified by the Company to the Customer.

6.2 Any licence fees for Third Party Works are included in the Charges (unless the parties agree otherwise).

7. Unlawful Content

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

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

8. Charges and payment

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

8.2 The Customer will pay the Charges to the Company within 14 days of the date of issue of an invoice issued in accordance with Clause [8.1].

8.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise.

8.4 Charges must be paid by debit or credit card, PayPal or bank transfer (using such payment details as are notified by the Company to the Customer from time to time).

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

(a) charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or

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

9. Intellectual Property Rights

9.1 All copyright and other Intellectual Property Rights in the Project (excluding the Customer Works and the Third Party Works) will as between the parties be the sole property of the Company and from the date of acceptance of the Project by the Customer the Company grants to the Customer a non-exclusive worldwide licence of such Intellectual Property Rights for the purposes of:

(a) publishing and operating the Project;

(b) backing-up the Project; and

subject always to the other terms of the Agreement.

9.2 The Customer may only sub-license the rights granted in Clause [9.1] for the purposes set out in that Clause.

9.2 The assignment of Intellectual Property Rights in Clause [9.1(a)] is for the full term of those rights, including all extensions, renewals, revivals and reversions.

9.3 Subject to full payment of the Charges, the Company undertakes not to design or create (or be involved in the design or creation) of any project that has the look and feel of which is:

(a) identical to the look and feel of the Project; or

(b) substantially similar to the look and feel of the Project.

9.4 Without prejudice to Clause [9.5], the Company waives (and will ensure that its employees and subcontractors waive) any moral rights they may have in the Project arising under Chapter 4 of the Copyright, Designs and Patents Act 1988 and, so far as is legally possible, any broadly equivalent rights anywhere in the world.

9.5 The Company may include the statement “Designed and developed by” together with a link to the Company’s website on each page of the Project in a position and in a form to be agreed by the parties. The Customer will retain any such credit and link in any adapted version of the Project, and the Customer will (and will only) remove any such credit and link from the Project at the Company’s request.

10. Warranties

10.1 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.

10.2 The Company warrants to the Customer:

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

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

(c) that the use of the Project (excluding the Customer Works) by the Customer in accordance with the terms of the Agreement will not infringe the Intellectual Property Rights of any third party; and

(d) that the Project will continue to operate without any Defects for a period of 3 months from the date of acceptance of the Project (and if the Project does not so operate, the Company will, for no additional charge, carry out any work necessary in order to ensure that the Project operates without any Defects during this period).

10.3 The Customer acknowledges that the Company has created the Project to work with the technology specified in the Proposal, and the Company does not warrant that the Project will work with any other technology.

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

10.5 All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out herein. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

11. Limitations and exclusions of liability

11.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(d) exclude any liability of a party that may not be excluded under applicable law.

11.2 The limitations and exclusions of liability set out in this Clause [11] and elsewhere in the Agreement:

(a) are subject to Clause [11.1];

(b) govern all liabilities arising under the Agreement [or any collateral contract] or in relation to the subject matter of the Agreement [or any collateral contract], including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

[(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.

11.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

11.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.

11.5 Neither party will be liable for any loss of or damage to goodwill or reputation.

11.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.

11.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.

11.8 Neither party will be liable for any losses arising out of a Force Majeure Event.

11.9 The Company's liability in relation to any event or series of related events will not exceed the greater of the total amount paid or (if greater) payable by the Customer to the Company under the Agreement during the twelve month period immediately preceding the event or events giving rise to the claim.

11.10 The Company's aggregate liability under the Agreement and any collateral contracts will not exceed the greater the total amount paid or (if greater) payable by the Customer to the Company under the Agreement.

12. Data protection

12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Company under the Agreement.

12.2 The Company warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Company on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Company on behalf of the Customer.

13. Confidentiality and publicity

13.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause [13]. (For the purposes of this Clause [13], the terms of the Agreement constitute the Confidential Information of each party.)

13.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.

13.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.

13.4 These obligations of confidentiality will not apply to Confidential Information that:

(a) has been published or is known to the public (other than as a result of a breach of the Agreement);

(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or

(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.

13.5 Neither party will make any public disclosure relating to the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party, not to be unreasonably withheld or delayed.

14. Termination

14.1 Either party may terminate the Agreement at any time by giving at least 30 days written notice to the other party.

14.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).

14.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

15. Effects of termination

15.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.13].

15.2 Termination of the Agreement will not affect either party’s accrued rights (including the Company’s accrued rights to invoice for and to be paid the Charges) as at the date of termination.

15.3 If the Agreement is terminated under Clause [14.1], or by the Customer under Clause [14.2] or [14.3] (but not in any other case):

(a) the Company will promptly provide to the Customer an electronic copy of the Project;

(b) the Company will provide such assistance as is reasonably requested by the Customer to transfer the hosting of the Project to the Customer or another service provider, subject to payment of the Company’s reasonable expenses; and

(c) the Customer will be entitled to a refund of any Charges paid by the Customer to the Company in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to the Company (such amount to be calculated by the Company using any reasonable methodology).

15.4 Save as provided in Clause [15.3(c)], the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to the Company.

15.5 In accordance with Clause [14.2(c)]. If payment is 60 (sixty) days past the due date as specified on the invoice, the Company reserves the right to dispose of local and remote copies of any aspect of the Project including any Customer Works and Third Party Works used within the Project with or without written notice. Should the Company no longer have access to remote copies of any aspect of the Project the Customer and any third party must cease to use and dispose of all aspects of the Project. The Company is not liable for any damages or losses due to the disposal of the Project and is not required keep or make available a copy of the Project. Disposal of the Project will not affect either party’s accrued rights (including the Company’s accrued rights to invoice for and to be paid the Charges) as at the date of termination.

16. General

16.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by first class post, or sent by email], for the attention of the relevant person, and to the relevant address, or email address given below (or as notified by one party to the other in accordance with this Clause).

The Company

Specific Gravity Ltd, Sparkhouse Studios, Rope Walk, Lincoln, LN6 7DQ, and if md@specificgravity.co.uk.

The Customer

The addressee, address, and email address specified in the Proposal.

16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

(b) where the notice is sent by first class post, 48 hours after posting; and

(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

16.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

16.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

16.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

16.6 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

16.7 Each party may freely assign its rights and obligations under the Agreement without the other party’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.

16.8 The Company may subcontract any of its obligations under the Agreement to any third party, subject to obtaining the Customer prior written consent (not to be unreasonably withheld or delayed).

16.9 Neither party will, without the other party’s prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of the other party who has been involved in the performance of the Agreement.

16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.

16.11 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

16.12 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause [11.1], each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.

16.13 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

Record of Changes to this Agreement

Effective 26th August 2011

Definition of business hours changed from 9:00am-5:30pm to 9:00am-5:00pm
Definition of Project or Campaign changed to Project and modified
Modification to clause 8.4 – payment methods
Modification of clause 9.3 – no longer restricted to websites and web applications
Modification of clause 9.5 – no longer restricted to design
Modification of clause 10.3 – no longer restricted to web browser technology
Addition of clause 8.5(c), 14.2(c) and 15.5 – non payment, termination and disposal of Project

Please read these Terms carefully, as they set out our and your legal rights and obligations in relation to all services (excluding web hosting, domain name and digital certificate services which are subject to separate legal agreements available at http://www.gravitycan.com/legal.)

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