Terms & Conditions
1.1 In this Agreement the following expressions shall have the following meanings:
- ‘ACCEPTANCE OR ACCEPTED ACCEPTANCE’ Any part of the website which has successfully passed the acceptance testing to be carried out by the Customer pursuant to clause 6.
- ‘BESPOKE SOFTWARE’ The software to be designed by OPTIMUM AND FOCUS EDUCATION in accordance with this agreement and which is more particularly defined in the Specification.
- ‘CONTRACT VARIATION’ A change to the Specification or any other part of this Agreement agreed in writing by both parties, pursuant to clause 5. Contract Variation shall be deemed to include ‘Authors Corrections’.
- ‘DEVELOPMENT TIMETABLE’ The timetable for development, delivery and testing of the Software agreed between the parties and set out in this document.
- ‘EQUIPMENT’ The hardware on which the software will be installed and operated in accordance with this agreement.
- ‘FEE’ The amount, method and timetable for payment as particularised in this document subject to any amendment in accordance with clause 2.
- ‘INTELLECTUAL PROPERTY RIGHTS’ All copyright, design right, registered designs, patents, trade and service marks (registered and unregistered), semiconductor topography rights know-how rights and confidential information and all other intellectual property rights throughout the world for the full term of the rights concerned.
- ‘INTERNET’ The global network of computer and communication tools accessible to individuals and organisations.
- ‘SOFTWARE’ The Bespoke Software and the Underlying Software.
- ‘SPECIFICATION’ The detailed Specification document prepared by OPTIMUM AND FOCUS EDUCATION and approved by Customer as set out in the First Schedule to this agreement.
- ‘CUSTOMER MATERIAL’ Without limitation, documentation, photographs, artwork and other material provided by the Customer to OPTIMUM AND FOCUS EDUCATION and approved for incorporation into the Bespoke Software.
- ‘TEST VERSION’ The pre-tested version of the Software (or part thereof) provided by OPTIMUM AND FOCUS EDUCATION for the purpose of Acceptance testing.
- ‘UNDERLYING SOFTWARE’ The operating software platform in which the Software runs.
- 2.1 Customer shall pay the Fee in the amount and manner as set out in the proposal document, subject to receipt of a valid VAT invoice.
- 2.2 All invoices submitted by OPTIMUM AND FOCUS EDUCATION are payable within 30 days of receipt.
- 2.3 Where the payment of any invoice or any part thereof is not made on the due date, OPTIMUM AND FOCUS EDUCATION, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest (before as well as after judgement) on the outstanding amount at the rate of 4% per annum above the HSBC base rate for the time being in force from the due date until the outstanding amount is paid.
- 2.4 Should the Customer fail to make any payment when due under this agreement OPTIMUM AND FOCUS EDUCATION shall either have the right to terminate the Contract by notice in writing forthwith without affecting its rights under the Contract or at OPTIMUM AND FOCUS EDUCATION’s absolute discretion, to suspend the service and further work until the default is made good.
3. Summary of services to be provided by OPTIMUM AND FOCUS EDUCATION
- 3.1 In consideration of the payment by the Customer to OPTIMUM AND FOCUS EDUCATION of the Fee and subject to the terms and conditions of this Agreement, OPTIMUM AND FOCUS EDUCATION shall;
- 3.1.1 Design, develop and supply the Software in accordance with the Specification and the Development Timetable;
- 3.1.2 Provide additional services including search engine optimisation, social media, pay per click advertising, video, illustrations, copywriting and photography.
- 3.1.3 Deliver the Test Version to Customer by the date stated in the Development Timetable;
- 3.1.4 Achieve Acceptance of the Software in accordance with the procedure set out in clause 6.
- 3.1.5 Host the solution if appropriate on OPTIMUM AND FOCUS EDUCATION’s servers at a prior agreed cost per annum.
4. Customer’s obligations
- 4.1 Customer shall provide to OPTIMUM AND FOCUS EDUCATION all necessary information available to Customer as may be reasonably required by OPTIMUM AND FOCUS EDUCATION for the development of the Software including, without limitation, Customer Material that the Customer wishes included in the Software.
- 4.2 The Customer shall provide the Customer Material by the date specified in the Development Timetable.
- 4.3 Customer shall provide all reasonable assistance to OPTIMUM AND FOCUS EDUCATION where deficiencies (without prejudice to the Customer’s obligations as set out in clause 6).
5. Contract variations
- 5.1 Should the Customer wish to vary the content, such request shall be in writing. In the event that Customer requests a Contract Variation, OPTIMUM AND FOCUS EDUCATION shall notify Customer in writing within 14 days of the request, of any increase or decrease in the Fee, and any alterations to the Development Timetable which will be required.
- 5.2 If Customer accepts the estimate, this Agreement shall be amended in accordance with OPTIMUM AND FOCUS EDUCATION’s estimate. If Customer does not accept the estimate within 7 days of receipt, this Agreement shall continue in force unchanged.
- 5.3 If OPTIMUM AND FOCUS EDUCATION incurs additional costs and/or fails to meet the Development timetable due to Customer failing to comply with its obligations under this Agreement, OPTIMUM AND FOCUS EDUCATION may at its absolute discretions and without prejudice to its rights under this contract (including the right to terminate under clause 13) request a reasonable Contract Variation to alter the Price and the Development Timetable as appropriate. Customer shall not unreasonably withhold consent to a Contract Variation proposed by OPTIMUM AND FOCUS EDUCATION under this clause.
- 5.4 Authors Corrections shall be charged at OPTIMUM AND FOCUS EDUCATION’s prevailing rates on a time and material basis.
6. Delivery, testing, and acceptance of the software
- 6.1 Upon completion of various parts of the development work in accordance with the Specification, OPTIMUM AND FOCUS EDUCATION shall deliver to Customer a Test Version by the date set out in the Development Timetable to enable Customer to carry out the technical and functional testing of the Software and where appropriate, to ensure the design, visual and editorial content of the software.
- 6.2 On receipt of the Test Version, the following cycle of testing and correction shall occur.
- a. Customer shall within the period of fourteen working days of receipt of the Test Version (or where relevant, a corrected Test Version) do the following;
- i. Undertake such functional and performance testing as it considers necessary in order to test compliance of the test Version with the Specification; if the test Version complies with the Specification, the Customer shall notify OPTIMUM AND FOCUS EDUCATION of acceptance.
- ii. If the Test Version does not comply with the Specification, the Customer shall notify OPTIMUM AND FOCUS EDUCATION in writing of the deficiencies that it has discovered. Such notification shall identify in sufficient detail including in relation to each and every deficiency, whether the deficiency is (a. a failure of the Test Version to work (i.e. “a hang up”, “stall” (in which case the notification shall include the circumstances which gave rise to such an error)) or (b. a failure of the Test Version to comply with the Specification).
- b. OPTIMUM AND FOCUS EDUCATION shall correct any deficiencies properly identified in accordance with 6.2 (a.(ii) and deliver to Customer a corrected Test Version.
- a. Customer shall within the period of fourteen working days of receipt of the Test Version (or where relevant, a corrected Test Version) do the following;
- 6.3 If Acceptance testing of the Software has now been satisfactorily completed by the date for acceptance specified in the Development Timetable or 3 months from delivery of the first Test Version (whichever is the later), the Customer shall, at its option and without prejudice to any of its other rights and remedies, be entitled to any of the following options;
- 6.3.1 fix a new date for Acceptance of the Test Version; or
- 6.3.2 terminate this Agreement and request removal of the Software subject to clause
- 6.4 Customer shall not be entitled to reject the Software in accordance with 6.3.2 but shall follow the procedure set out in clause 6.5 where
- i. The Test Version or corrected Test Version fails to comply with the Specification in a minor way which does not substantially affect the operation of the Website
- ii. The aesthetic design of the Test Version or corrected Test Version (as opposed to its functionality) fails to meet the Customer’s approval.
- iii. The failure of the Test Version or corrected Test Version to comply with the Specification was as a result of a deficiency not notified by the Customer to OPTIMUM AND FOCUS EDUCATION in accordance with clause 6.2(a.(ii).
- 6.5 Where the conditions set out in clause 6.4 are satisfied, OPTIMUM AND FOCUS EDUCATION and the Customer will use best endeavours to agree an appropriate reduction in the Fee. If the parties are unable to agree the reduced Fee within 1 month after termination of this Agreement, the matter shall be referred to mediation using a mediator jointly nominated by the parties whose jurisdiction will be solely the appropriate reduction as referred to in this clause.
- 6.6 If the parties are unable to agree on the identity of the mediator, he shall be appointed by the President for the time being of the Design Business Association on request of either party.
- 6.7 If the dispute cannot be settled by mediation, the matter shall be referred to an arbitrator using an arbitrator jointly nominated by the parties whose jurisdiction will be solely the appropriate reduction as referred to in clause 6.5.
- 6.8 If the parties are unable to agree on the identity of the arbitrator, the arbitrator shall be appointed by the Centre for Effective Dispute Resolution, whose decision shall be final within the meaning of the Arbitration Acts.
7. OPTIMUM AND FOCUS EDUCATION’s warranties
- 7.1 The Software shall operate in accordance with the Specification on the Equipment.
- 7.2 If OPTIMUM AND FOCUS EDUCATION receives written notice from the Customer after Acceptance of any breach of the said above warranties, then OPTIMUM AND FOCUS EDUCATION shall at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question provided that a. the defect or error in question was not known by the Customer prior to Acceptance and could not have been discovered if the Customer had carried out suitable testing in accordance with clause 6.2(a. and b. written notice of the defect or error in question was received no later than 3 months after the date of Acceptance).
- 7.3 The Software shall not infringe the Intellectual Property Rights of any third party.
8. Client’s warranties
- 8.1 The Client warrants and represents to us that any information or material which is supplied to us will be accurate and in no way misleading and will not infringe any third party’s copyright, registered design, or other intellectual property rights or obligation of confidentiality. The Client will indemnify us against all actions, suits, claims, demands, losses, damages or expenses we may directly or indirectly incur in consequence of any information or material provided by the Client or in consequence of performing any work for the Client.
9. Client’s property
- 9.1 The Client’s property and all property supplied to us by, or on behalf of the Client while in the possession of us or in transit to or from the Client, will be deemed to be at the Client’s risk unless otherwise agreed. The Client should insure accordingly.
10. Limitation of liability
- 10.1 OPTIMUM AND FOCUS EDUCATION’s liability for any breach of this Agreement shall be limited to an amount equal to the amount of monies paid to OPTIMUM AND FOCUS EDUCATION under this Agreement other than in respect of death or personal injury.
- 10.2 OPTIMUM AND FOCUS EDUCATION shall have no liability for any representation (unless such a representation was in writing and signed by an authorised officer of OPTIMUM AND FOCUS EDUCATION) which was made prior to entering into this contract whether the representation was made by itself, its employees, servants or agents or otherwise unless such a representation was fraudulent representation. No representation (unless such a representation was in writing and signed by an authorised officer of OPTIMUM AND FOCUS EDUCATION) shall become a term of this contract.
- 10.3 OPTIMUM AND FOCUS EDUCATION shall not be liable for any failure to the Software to comply with the Specification where such failure is caused by a defect in third party software; by a problem of incompatibility arising between the Software and third party software whose use was not authorised in writing by OPTIMUM AND FOCUS EDUCATION or where such failure is caused by a computer virus, logic bomb or any other invasive program.
11. Intellectual property rights
- 11.1 Save as expressly provided in this agreement, the Intellectual Property Rights in the Bespoke Software shall remain the property of OPTIMUM AND FOCUS EDUCATION prior to during and on termination of the contract.
- 11.2 Hosting of Bespoke Software will be provided by OPTIMUM AND FOCUS EDUCATION unless agreed otherwise in writing prior to commencement of contract.
12. Intellectual property rights indemnities
- 12.1 Customer shall indemnify OPTIMUM AND FOCUS EDUCATION against any loss, damage, cost or expense (including legal costs) which OPTIMUM AND FOCUS EDUCATION incurs, suffers or becomes liable for as a result of or in connection with any claim that the use of the Customer Material in accordance with this Agreement infringes the Intellectual Property Rights of a third party.
- 12.2 OPTIMUM AND FOCUS EDUCATION shall indemnify Customer against any loss, damage, costs or expense (including legal costs) which OPTIMUM AND FOCUS EDUCATION incurs, suffers or becomes liable for as a result of or in connection with any claim that the Software infringes the Intellectual Property Rights of a third party.
- 12.3 OPTIMUM AND FOCUS EDUCATION shall, at its own expense, defend any action or claim brought against Customer which claims that the Software constitutes an infringement or alleged infringement of a third party’s Intellectual Property Rights, provided that:
- 12.3.1 OPTIMUM AND FOCUS EDUCATION shall be notified promptly in writing by Customer of any claim of which Customer is aware; and
- 12.3.2 OPTIMUM AND FOCUS EDUCATION shall have sole control of any action or claim and all negotiations for settlement or compromise.
- 12.4 If the Software or any part of it is held to constitute an infringement, OPTIMUM AND FOCUS EDUCATION may at its option and expense modify the software so that it is non-infringing without materially detracting from its overall performance.
- 13.1 Customer and OPTIMUM AND FOCUS EDUCATION shall, during and following termination of this Agreement, keep confidential any information disclosed to it by the other. Neither party shall disclose any such information to any Third Party save:
- a. any officer, employee, external BSI auditor or contract staff for the time being working for the party concerned who may reasonably need to know it;
- b. as otherwise required by law; provided that each party shall be responsible for ensuring that any person to whom information is disclosed complies with any conditions of confidentiality applied to such information under this Agreement.
- 13.2 Nothing in clause 11.1 shall apply to any information: a. which is (or which becomes) available to the public other than by breach of this Agreement or of any other duty; b. which the party receiving the information already possesses or which it obtains which originates independently in circumstances in which that party is free to disclose it.
- 14.1 The parties acknowledge and agree that OPTIMUM AND FOCUS EDUCATION may use the Client’s names, logos, domain names and trademarks, on OPTIMUM AND FOCUS EDUCATION’s web site and in OPTIMUM AND FOCUS EDUCATION’s sales material.
15. Force majeure
- 15.1 Neither OPTIMUM AND FOCUS EDUCATION nor Customer shall be liable for any delay or failure in performing any of the obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the part concerned (including without limitation any delay caused by an act or default of the other party).
- 15.2 Provided the party suffering the delay promptly notifies the other party in writing of the reasons for, and likely duration of the delay, the performance of that party’s obligations shall be suspended during the period that the circumstances persist and shall be granted an extension of time for performance equal to the period of the delay.
- 16.1 Either party may by notice in writing to the other, terminate this Agreement if the other party is in material breach of any term, condition or provision of this agreement and fails to remedy such breach (if capable of remedy) within 28 days of receipt of notice from the terminating party specifying such breach;
- 16.2 Either party may by notice in writing to the other, terminate this Agreement if: a. any distress or execution be levied on the other party or its assets; b. the other makes any arrangement or composition with its creditors; or c. any resolution or petition to wind up the other’s business (other than for the purpose of amalgamation or reconstruction) shall be passed, or if the receiver or administrative receive of the other’s undertaking, property or assets shall be appointed.
- 16.3 The rights of the termination under this Agreement shall be without prejudice to any other rights (of termination or otherwise) whether under this agreement or otherwise (including rights of termination arising at common-law) and such termination shall not be taken to waive the rights of either party to assert or exercise such rights.
- 16.4 Where OPTIMUM AND FOCUS EDUCATION has terminated this Agreement in accordance with this clause and the method of charging as set out in this document has been on a time and materials basis the Customer shall pay to OPTIMUM AND FOCUS EDUCATION within 14 days of termination in a sum of money representing the sum of the following:
- 16.4.1 All billings incurred up to the date of termination.
- 16.4.2 A charge representing the costs of unwinding the project and the premature termination of the project which shall be 25% of the sums owing (both parties accept that such is a genuine attempt to estimate the costs of unwinding the project and premature termination).
- 17.1 Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of that party’s rights hereunder not in any way affect the validity of the whole or any part of this Agreement nor prejudice its rights to take subsequent action.
- 18.1 Each party undertakes that it shall not during this Agreement and for a period of 12 months following expiry or termination employ or contract services of any person who is or was employed or engaged by the other.
19. Unenforceable clauses
- 19.1 In the event of any provision of this Agreement being held for any reason to be void, voidable or unenforceable this shall not affect the validity or the enforceability of any other provision of this Agreement or of the remainder of this Agreement as a whole.
20. Whole Agreement
- 20.1 This document constitutes the entire contractual relationship between the parties in relation to the services to be provided by OPTIMUM AND FOCUS EDUCATION to the Customer unless such is modified in writing in accordance with the procedures set out in this document.
- 21.1 This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.