Terms of Business

Terms of Business

By and between D3R Ltd, incorporated and registered in England and Wales with company number 05746888 whose registered office is at Friars House, 52a East Street, Chichester PO19 1JG (the "Supplier") and the Customer, each a "party" and together the "parties".

If you have any questions or would like more information please contact us:

D3R Ltd, Friars House, 52A East Street, Chichester, PO19 1JG

Tel: 0333 800 2288 / terms@d3r.com

  1. Background

      1. The Supplier is a software developer, and provides design, development, eCommerce and hosting services.
      2. The Supplier wishes to provide services to the Customer as indicated in a Statement of Work.
  2. Nature of each agreement

    1. Each Agreement sets out the terms and conditions under which parties agree that the Supplier shall licence the Software and provide the Services.

    2. Each Statement of Work will constitute a separate binding contract between the parties, which incorporates (with the necessary changes) these terms and conditions and the Statement of Work.

    3. To the extent that there is a conflict or inconsistency between these terms and conditions and any Statement of Work, these terms and conditions shall prevail over such Statement of Work to the extent of the conflict or inconsistency, unless and only to the extent that the relevant terms and conditions have been specifically referred to and expressly amended by the Statement of Work.

  3. Interpretation

    1. The definitions and rules of interpretation in this clause apply in each Agreement

      Acceptance Criteria: means the criteria or specifications in relation to the acceptance of Deliverables (if any) set out in a Statement of Work.

      ADM Fees: has the meaning set out in clause 5.2.

      Affiliate: in relation to a party hereto, any person from time to time controlling, controlled by, or under common control with, that party.

      Agreement: these terms and conditions and any Statement of Work as the samemay be amended, modified or supplemented from time to time in accordance withthe terms and conditions hereof.

      Background IPR:

      includes:

      (a) all pre-existing Intellectual Property Rights (including in any software, applications, materials, information, data, ideas, etc) owned by Supplier prior to the Effective Date; and
      (b) Intellectual Property Rights in any work product created generally by Supplier during the Term for use within its business and not specifically and exclusively for the Customer, whether created by Supplier as a result of the provision of the Services or otherwise (including any core content management system functions or features, web-site "back-end" functions or software used to host online the Deliverables).

      Business Day: any day which is not a) a Saturday or a Sunday, b) a public holiday in England or c) any day between Christmas and New Year.

      Confidential Information: any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of an Agreement, or subsequently comes lawfully into the possession of such party from a third party.

      Control: a business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity or any other comparable equity or ownership interest with respect to a business entity other than a corporation.

      Customer: the party set out as the customer in a statement of work entered into in accordance with these Terms.

      Customer Materials: any hardware, software, applications, materials, trade marks, service marks, information, data, ideas, etc, including all Intellectual Property Rights in the same, provided or made available by the Customer to Supplier for use in connection with an Agreement.

      Data Controller: has the meaning of "data controller" or "controller" in the Data Protection Legislation, as the case may be.

      Data Processor: has the meaning of "data processor" or "processor" in the Data Protection Legislation, as the case may be.

      Data Protection Legislation: the Data Protection Act 1998 and, from 25 May 2018 the General Data Protection Regulation (Regulation (EU) 2016/679) and any equivalent or replacement legislation in the UK.

      Deliverable: items (if any) created by Supplier specifically and exclusively for the Customer and identified as deliverables in a Statement of Work, excluding (i) any Customer Materials; (ii) any Background IPR; and (iii) any Third Party Materials.

      Effective Date: in relation to an Agreement, the date on which the relevant Statement of Work is agreed by both parties.

      Fees: Fixed Fees and Time & Materials Fees.

      Fee Estimate: an estimate of the fees which will be payable in relation to Services only where included in the relevant Statement of Work.

      Fixed Fee: a fixed fee set out in a Statement of Work.

      Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

      Managed Platform Services: Services which are (i) managed by the Supplier, or (ii) indicated on the relevant Statement of Work as being 'managed services', 'managed platform services' or 'subscription services'

      Project Services: means Services which are not Managed Platform Services.

      PCI-DSS: means, either: (i) the version of the Payment Card Industry Data Security Standard(developed and published jointly by American Express, Discover, MasterCard and Visa) which is currently in force; except (ii) where a later version of Payment Card Industry Data Security Standardhas been published (but is not in force), in which case, the Supplier may, in its sole discretion, select such later version of the security standard to be the PCI DSS.

      Personal Data: has the meaning given in the Data Protection Legislation.

      R&D Tax Credit: means any R&D tax relief or credit (such term including, for the avoidance of doubt, any corporation tax relief or R&D tax credit under Part 13 Corporation Tax Act 2009 or any R&D expenditure credit under Chapter 6A of Part 3 Corporation Tax Act 2009, each as from time to time amended or re-enacted).

      Services: the services set out in a Statement of Work.

      Software: the computer programs software and user documentation listed in Schedule 1.

      Source Code Materials: the source code of the Software and all technical information and documentation required to enable the Customer to modify and operate the Software.

      Specification: the agreed specification (if any) for the Deliverables set out in a Statement of Work.

      Specified Deliverables: Deliverables with a Specification to be provided for a Fixed Fee.

      Statement of Work: a statement agreed to by the parties and, (i) if in paper format, signed and dated by the Customer; (ii) if by e-mail, confirmed by each party; or (iii) if sent by the Supplier's online quote tool, approved electronically by the Customer.

      Taxes: any form of taxation, levy, duty, charge, contribution or impost of whatever nature, including VAT, and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest) for which the Customer is legally liable, exclusive of any taxes based on the net income of Supplier.

      Term: has the meaning set out in clause 19.

      Third Party Materials: any materials which are embedded in the Deliverables the Intellectual Property Rights in which are owned by or are licensed to Supplier by a third party.

      Time & Materials Fees: the fees which are due in relation to time and materials Services (including, but not limited to ADM Fees), in accordance with clauses 11.3 and 11.4

    2. The headings in these terms and conditions do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedulesare to clauses and schedulesof an Agreement.

    3. Unless the context otherwise requires:
      (a) references to the Supplier and the Customer include their permitted successors and assigns;
      (b) references to statutory provisions include those statutory provisions as amended or re-enacted;
      (c) references to "including" or "includes" shall be deemed to have the words "without limitation" inserted after them.

    4. In the case of conflict or ambiguity between any provision contained in the body of these terms and conditions and any provision contained in the schedulesor appendices, the provision in the body of these terms and conditions shall take precedence.

    5. Words in the singular include the plural and those in the plural include the singular.

    6. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns.

  4. Provision of service

    1. Subject to the payment of the Fees by the Customer in accordance with an Agreement, Supplier shall provide the Services to the Customer. Supplier may at its sole discretion stop or suspend providing the Services, including any hosting services where the Fees are not paid in accordance with an Agreement.

    2. The Statement of Work may outline an estimated timetable which is provided for planning purposes. Supplier shall use its reasonable endeavours to perform the Services in accordance with the estimated timetable.

    3. If the Customer requests additional Services from the Supplier ("Requested Services"), and the Supplier agrees to perform such Requested Services, the Requested Services shall form part of the Services to be provided under an Agreement. If the fees in relation to Requested Services are not otherwise agreed in writing between the parties, the Requested Services shall be charged at the Supplier's standard rate, and paid by the Customer in accordance with clause 11.

    4. Where a Statement of Work sets out a Fixed Fee in relation to creative Services, the Supplier shall not be required to perform more than four (4) design iterations in relation to such portion of the Services.

    5. Changes to the scope or nature of the Services shall only be made if confirmed in writing by the parties. Supplier will advise the Customer if such changes necessitate any increase in the Fees payable to it and/or the Fee Estimate.

  5. Agile Delivery Model

    1. Where the Statement of Work indicates an 'agile development model' or 'ADM' applies in relation to Services, the Statement of Work shall set out:

      (a) a block of hours of effort towards the Services (the "Hours Block");

      (b) an hourly rate in relation to the provision of the Services in the Hours Block (the "Block Rate"); and
      (c) an expiry date upon which the relevant ADM shall expire (the "Block Expiry Date").

    2. The fees for Services provided under an ADM ("ADM Fees") shall be classified, and invoiced, as Time & Materials Fees. TheADM Fees shall be calculated based on the time and materials of the Services performed.

    3. Subject to clause 5.4, each hour of Services provided under an ADM shall be charged at the Block Rate

    4. Unless otherwise agreed by the Parties in writing, upon the earlier of:
      (a) the number of hours of Services provided under an ADM exceeding the Hours Block; or
      (b) the Block Expiry Date occurring,
      the ADM shall expire, and the Services shall be charged at the Time & Materials Fees (and not at the Block Rate).

    5. For the avoidance of doubt:
      (a) upon an ADM expiring because of the passing of the Block Expiry Date, the unused portion of the Hours Block shall have no redemption value, and future Services shall be charged at the Time & Materials Fees (and not the Block Rate); and
      (b) the Hours Block multiplied by the Block Rate shall not operate as a Fee Estimate.

  6. On-going services

    1. Where a Statement of Work sets out 'on-going services', the Statement of Work may specify a number of days per calendar month of Services which are to be provided to Customer. If such Services are not consumed within the relevant calendar month, each wholly unconsumed day may be rolled over to become available in the subsequent calendar month, subject always to a cap of one half of the days granted per calendar month being able to roll over. By way of example, if four (4) days of on-going services are available per calendar month, no more than two (2) calendar days may roll over into the subsequent month. If the number of days of Services in a calendar month is reached, Client may elect for up to ten (10) per-cent or less of the allocated effort for Services in the subsequent calendar month to be transferred and brought forward into the relevant calendar month. Additional hours, in excess of these amounts, requested and delivered, shall be charged at the overage fee rate, as set out in the Time & Materials Fee.

    2. Where a Statement of Work sets out a 'full time equivalent' or 'FTE' for a staff member providing Services, each full time equivalent is intended to provideapproximately forty (40) hours of the relevant Services per week (adjusted pro-rata where a week contains fewer than five (5) Business Days). In any case, if the number of hours of therelevant Services both requested and provided in a single week (adjusted pro-rata where a week contains fewer than five (5) Business Days) exceeds forty (40), the applicable fees shall be the number of hours of the relevant Services, multiplied by the 'FTE' rate as set out in the Time and Materials Fee.

  7. Hosting services

    1. Where a Statement of Work sets out 'hosting services' these will be partiallysub-contracted to a third party supplier. In relation to any such Services, theCustomer shall not, nor shall it permit, enable, or assist others (except as to endusers) to use the Services for:


      (a) any breach of any applicable law or generally accepted transmission orapplication protocols applicable to the internet or any part of it or to anything connected to it or to any user of it;


      (b) civil infringement of and/or criminal offences relating to copyright, trade marksor any other intellectual property right in any jurisdiction;


      (c) commission of any criminal offence (including deliberate transmission ofcomputer viruses) under the Computer Misuse Act 1990 (UK) or any similarlegislation in any country;


      (d) knowingly or recklessly transmitting, displaying or posting to a publicly accessible service any material which is unlawful or actionably defamatory or an invasion of privacy, breach of an intellectual property right or breach of a right of publicity in any jurisdiction with which any publicly accessible service reasonably appears to have any connection or from which it may reasonably be apprehended that a publicly accessible service is likely to be significantly accessed;


      (e) transmitting, transferring, displaying or posting to a publicly accessible service any material in breach of the Data Protection legalisation or data protection laws in any other country or of any material which is confidential or is a trade secret or which affects the national security of the United Kingdom or the said territory or which may expose Supplier to any retribution or penalty under the laws and/or regulations and/or decrees of the United Kingdom or any other country relating to the export of or dealing with military or potentially military resources;


      (f) use of the Services or the internet in any matter which is a violation or infringement of any rights of any kind of nature (whether like to any of the foregoing or otherwise) of any person, firm or company;


      (g) unauthorised access to the network management equipment used to provide the Services; or


      (h) forgery of Internet addresses or other fields in IP packets; or


      (i) any sending of unsolicited email messages or any mass mailing of unsolicited advertising material; or


      (j) any activity that potentially could harm the network used to provide the Services, its clients' networks or other networks, including but not limited to traffic flooding, malicious overflows; or


      (k) any activity that Supplier decides at its absolute discretion is an unsuitable use of the Services.

    2. Where a Statement of Work sets out 'dedicated hosting services' (whether virtual dedicated, or dedicated), Supplier offers a service level, subject to clauses 7.3and 7.4, to the Customer of 100% website availability each calendar month in relation to such dedicated hosting services.

    3. The calculation of 100% website availability shall exclude any downtime where no fault is observed or confirmed by Supplier, or which arises from, or is otherwise indirectly caused by:

      (a) any cause other than a fault by Supplier, including faults or negligence of the Customer or problems associated with equipment connected on the Customer's side of any delivery point;

      (b) a disconnection of the Customer's connection where the Customer's connection or equipment is causing disproportional negative effects on the performance, quality and/or operation of (i) the Supplier's general network connection or (ii) a third party supplier's general network connection;

      (c) the suspension of the Service as permitted under a provision of this Agreement;

      (d) requested upgrades;

      (e) scheduled maintenance;

      (f) a force majeure event; or

      (g) any malicious external attacks such as a DoS attack.

    4. In respect of any failure to achieve the service level set out in clause 7.2, the Customer's sole and exclusive remedy shall be a service credit as set out in this clause 7.4. Supplier shall credit the Customer with 0.5 days service credit for each hour when the service is not available, subject to:


      (a) a maximum credit in any one calendar month of 50% of the monthly fee for the relevant hosting service;


      (b) Customer shall not be entitled to any credit if any payment of Fees is overdue;


      (c) the credit shall be made for the element of the hosting service that was not available, it will not be made for the whole Fees (e.g. if a dedicated server and backup service are ordered, but the backup service is not available for a period of time, the credit will be calculated based on the price of the backup service, not the combined price of the dedicated server and backup service).

    5. Unless set out otherwise in a Statement of Work, the fees in relation to hosting services shall start to accrue when the production environment in relation to the Deliverables or Services is created (which is typically in advance of the Customer being able to enter content into a staging website, and before the website can launch).

  8. Acceptance of specified deliverables

    1. Unless otherwise agreed in writing between the parties, where the Services are to be provided in stages Supplier will not proceed to the next stage unless there is acceptance of the agreed Specified Deliverables from the then current stage in accordance with Clause 8.2. Notwithstanding the foregoing, all Specified Deliverables shall be submitted to the Customer for acceptance in accordance with the procedure set out in this Clause 8.

    2. Unless a different time period or acceptance process is provided for in a Statement of Work or otherwise agreed in writing between the parties, the Customer shall notify Supplier in writing within 10 Business Days following receipt of any Specified Deliverable by the Customer if the relevant Deliverable fails to meet the Acceptance Criteria or Specification (as applicable). This notice shall state in reasonable detail the reasons for the Specified Deliverable failing to meet the Acceptance Criteria, or Specification (as applicable). Acceptance by the Customer shall not be unreasonably withheld or delayed and shall be deemed to be given by the Customer:


      (a) after the passage of 10 Business Days without notice of non-acceptance following delivery of the relevant Specified Deliverables to the Customer;


      (b) if the Customer uses the relevant Specified Deliverables for any purpose whatsoever (other than acceptance testing); or


      (c) where the relevant Specified Deliverables materially conform to the terms and conditions of an Agreement, including the relevant Specification.

    3. Supplier will use its reasonable endeavours to correct any problems with the Specified Deliverables within 20 Business Days from receipt of notice from the Customer under Clause 8.2, or present the Customer with a plan to correct such problems within a period of time that is reasonable under the circumstances. Supplier will, for the avoidance of doubt, carry out such activity free of additional charge, save that where the relevant failure to pass the Acceptance Criteria or materially conform to the Specification (as applicable) has been due to some fault of the Customer (including any of the circumstances described in Clause 22) such activity shall be carried out at the Customer's expense on a time and materials basis. Following correction or amendment, all Specified Deliverables will be resubmitted to the Customer in accordance with the procedure set out in Clause 8.2.

    4. Where Specified Deliverables which have been resubmitted in accordance with Clause 8.3 still do not confirm with the Acceptance Criteria and/or the Agreement, the Customer shall be entitled to:


      (a) accept such part of the re-submitted Specified Deliverables (or any part thereof)as Customer may decide and, if applicable, pay a pro-rated reduction in the Fees inrespect of such part; or

      (b) require Supplier to correct the defects identified at no extra cost to the Customer by such date as agreed by the parties, in which case the revised Specified Deliverables shall be subject to all the provisions of the Agreement (including this Clause 8).

    5. The Customer acknowledges and agrees that it is responsible for any penetration testing or other data security and data protection evaluation or assessment, other than the annual penetration testing of the core content management system which Supplier shall be responsible for.

  9. Obligations of the customer

    1. Throughout the Term the Customer shall afford Supplier such access to the Customer's facilities and the Customer's personnel as may be necessary to enable the Supplier to provide the Services.

    2. Customer shall carry out the Customer's responsibilities as identified in the Statement of Work

    3. The Customer shall advise Supplier in writing in advance of any Customer policies, rules or regulations which are then in force for the conduct of personnel at the Customer premises and Supplier shall ensure that its personnel comply with any such rules and regulations.

    4. The Customer agrees to promptly provide or make available all information reasonably requested by Supplier to perform the Services in a readily usable form so far as reasonably possible or as otherwise specifically agreed.

    5. The Customer agrees that personnel it assigns to work on matters related to the Services, whether employees of the Customer or third parties, will be qualified for the tasks to which they are assigned and will conduct themselves in a co-operative fashion.

  10. Research and development

    1. Unless otherwise specified in a Statement of Work, the Customer warrants that it shall not claim any R&D Tax Credit in relation to the performance of, or its receipt of, the Services or the Deliverables or any payment made or to be made to, or at the direction of, the Supplier in respect thereof.

    2. The Customer shall indemnify the Supplier and keep the Supplier indemnified from and against any and all claims, actions, liabilities, taxation, additional taxation or reduced R&D tax credit, losses, damages, costs, fines, penalties and expenses (including without limitation legal expenses) suffered or incurred by the Supplier which arises out of or in connection with, directly or indirectly, a breach of Clause 10.2together with any tax payable by the Supplier in respect of any payment made under this indemnity.

  11. Payment

    1. A Statement of Work may set out a Fixed Fee (which may be one-off or recurring), a Fee Estimate and/or Time & Materials Fees.

    2. In consideration of the provision of the Services and Deliverables, the Customer shall pay to Supplier the Fees in pounds Sterling.

    3. Subject to clause 11.4, all Time & Materials Fees incurred in relation to a Statement of Work shall be payable in full. Time & Materials Fees shall be made against Supplier's invoices which, unless otherwise agreed or specified in the relevant Statement of Work, shall be payable by the Customer within fourteen (30) days following the date of the invoice.

    4. Supplier reserves the right to charge interest in respect of late payment of any amounts due under an Agreement at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998, as amended from time to time.

    5. Unless otherwise stated in a Statement of Work, provided that Customer has consented to Supplier in advance, Customer shall be responsible and Supplier shall be reimbursed for:


      (a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably incurred and


      (b) all expenses of stock photographs, stock video, stock audio, fonts, illustrations or icons which it requires Supplier to use in providing the Services or any Deliverables.

    6. All amounts payable under or in connection with an Agreement are exclusive of all Taxes, which, if applicable, shall be payable by the Customer at the rate prevailing at the time.

    7. The Customer shall pay any withholding tax or other similar taxes applicable to the Services or the Deliverables or otherwise required by law to be deducted from any payment by the Customer to Supplier pursuant to an Agreement. Should the Customer be required to pay any such withholding tax of other similar taxes, the relevant fees and charges shall be increased such that Supplier shall receive the same amount after payment of any withholding tax or other similar taxes as it would otherwise have received had no withholding tax or other similar taxes been incurred. The Customer and Supplier shall cooperate in good faith to respond to any query from the applicable tax authorities in connection with withholding tax or other similar taxes and shall each make available to the other any information or documents and all relevant approvals or authorisations which the applicable tax authorities may reasonably require.

  12. Confidentiality

    1. Each party agrees to, during the term of any Agreement and thereafter, keep confidential, and shall not use for its own purposes (other than implementation ofan Agreement) nor without the prior written consent of the other disclose to anythird party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any Confidential Information. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

  13. Warranties

    1. Each party warrants to the other party that it has full power and authority to enter into and perform its obligations under an Agreement.

    2. Supplier warrants that:


      (a) all Specified Deliverables furnished to the Customer pursuant to an Agreement will comply in all material respects with the relevant Specification;


      (b) it shall perform its obligations under an Agreement in a timely manner, using reasonable care and skill; and


      (c) in respect only of any Services or Specified Deliverables which constitute new web-site developments and which are furnished on a fixed price (and not time and materials basis) for a period of one (1) year from the date on which the Services or Specified Deliverables are accepted in accordance with clause 8, it shall correct any faults, errors, bugs and failures to comply with specification, or any warranty or term of an Agreement.

    3. Except as provided for in Clauses 13.1 and 13.2, the Supplier and its licensors exclude all implied representations, warranties and terms of any kind whatsoever (whether implied by common law, statute or otherwise) to the fullest extent permitted by applicable law (including any implied representations, warranties or terms that the Services or the Deliverables are of satisfactory quality or fit for their purpose).

    4. Notwithstanding any other provision of an Agreement, the Customer acknowledges and agrees that Supplier does not represent, warrant or guarantee that:
      (a) the Services or the Deliverables will be error or "bug" free
      (b) it has not included or used any Open-Source Software or any libraries or code licensed from time to time under the General Public Licence (as those terms are defined by the Open Source Initiative or the Free Software Foundation) or anything similar in, or in the development of, the Software.

  14. Data protection

    1. The Supplier does not wish to process any Personal Data on the Customer's behalf and the parties will agree procedures to avoid the processing of Personal Data. However, if the Customer requires the Supplier to process Personal Data for the purposes of an Agreement the Supplier will be the Data Processor in respect of such Personal Data. Where in connection with an Agreement, the Supplier processes Personal Data on behalf of the Customer, the Supplier will:


      (a) process such Personal Data only on the Customer's instructions and only to the extent necessary for the performance of its obligations pursuant to an Agreement;


      (b) not disclose such Personal Data to any person except as required by the DataProtection Legislation, as required or permitted by an Agreement or with theCustomer's prior written consent;


      (c) implement appropriate technical and organisational measures designed to prevent unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, any Personal Data


      (d) ensure that persons authorised to process Personal Data are bound by confidentiality obligations;


      (e) not transfer any Personal Data from the European Economic Area (EEA) or the European Union (EU) to a country outside the EEA or the EU unless the Customer consents to such transfer, it is on the basis of a European Commission adequacy decision or appropriate safeguards are in place, in accordance with the Data Protection Legislation and the Supplier shall provide details of any such transfers to the Customer promptly on request;


      (f) oblige any subcontractors that process Personal Data in connection with an Agreement for which the Customer is a Data Controller to keep such Personal Data secure and confidential;


      (g) provide, at the Customer's cost on a time and materials basis, commercially reasonable assistance to enable the Customer to fulfil its obligations to respond to requests exercising data subjects' rights under applicable Data Protection Legislation to the extent that the Customer does not have the ability to fulfil its obligations without assistance from the Supplier;


      (h) as requested by Customer, delete or return (in respect Supplier shall charge the Customer in accordance with the Time & Materials Fee) the Personal Data after the termination of this Agreement and delete copies unless applicable law requires continued storage of the Personal Data;


      (i) promptly notify the Customer of any communications from data subjects or the Information Commissioner's Office; and


      (j) at the Customer's cost on a time and materials basis, make available to the Customer information to demonstrate compliance with this Clause 14 and, where agreed, on reasonable notice and subject to appropriate confidentiality obligations, contribute to an audit or inspection by Customer (no more than once in any 12 month period) or the Information Commissioner's Office, in each case where it is strictly necessary to comply with the Data Protection Legislation.

    2. The Customer acknowledges and agrees that it is responsible for "data protection by design", "data protection by default" and any other form of information security and data protection requirement (together "Data Protection Design"). In respect of the core content management system, the hosting, database design and related infrastructure of the Services or Deliverables, Supplier shall be responsible, in the first instance, for Data Protection Design. Where Customer instructs Supplier, or itself makes decisions, in respect of Data Protection Design, Customer shall be responsible for such instructions and decisions, and, in respect of such instructions or decisions Supplier does not represent, warrant or guarantee that the Deliverables or the Services will achieve or enable the Customer to demonstrate Data Protection Design.

    3. Where the Supplier processes Personal Data on the Customer's behalf and in accordance with the instructions:


      (a) the Customer shall ensure that the relevant Statement of Work, or other instructions that Customer provides in writing in advance to Supplier and which are compatible with this Agreement, sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of Personal Data and categories of data subject; and


      (b) the Customer undertakes that it has all permissions necessary to do so from the Data Controller and/or Data Subject and that the Supplier's processing will not be in breach of the Data Protection Legislation.

    4. The Customer shall indemnify the Supplier from and against any and all claims, actions, liabilities, losses, damages, costs, fines, penalties and expenses (including without limitation legal expenses) suffered or incurred by the Supplier which arise out of or in connection with, directly or indirectly a breach of Clause 14.3(a).

  15. PCI-DSS

    1. Subject to clause 15.2, the Supplier shall:


      (a) process individual credit and debit card account number data in compliance with the PCI DSS and as set out in a Statement of Work, when instructed by the Customer to;


      (b) meet and maintain compliance with applicable PCI DSS requirements;


      (c) present the details of PCI DSS scope and responsibilities addressed by Supplier in Supplier's PCI DSS attestation of compliance;


      (d) provide Customer, upon written request, with a copy of its PCI DSS attestation of compliance Supplier (where applicable, if the Customer is on an approved payment gateway solution, and the cost of providing any such copies shall be charged at Supplier's standard rate); and


      (e) process credit and debit card number data received from the Customer solely to provide Services or Deliverables under an Agreement or for other uses specifically required by law or the PCI DSS.

    2. Where the Customer requests an approach, implementation, process or equivalent which is not, or not capable of being performed, in compliance with PCI DSS:


      (a) clause 15.2 shall not apply; and


      (b) the Supplier is not responsible for the implications or consequences of such request as they relate to PCI DSS.

  16. Limitation of liability

    1. Subject to clause 16.3, neither party shall have any liability for any losses or damages which may be suffered by the other or any Affiliate of the other (or any person claiming under or through the same), whether the same are suffered directly or indirectly or are immediate or consequential, or which fall within any of the following categories:


      (a) indirect, special or consequential losses or damages even though that party wasaware of the circumstances in which such special damage could arise;


      (b) loss of profits;


      (c) loss of anticipated savings;


      (d) loss of business, business opportunity and management time;


      (e) loss or corruption of data or information; or


      (f) loss of goodwill.

    2. Subject to clause 16.3, the total liability of the Supplier arising under or in connection with an Agreement, whether in contract, tort (including negligence) or otherwise (a"CustomerClaim"), shall be limited for all Customer Claims in aggregate to an amount equal to the total Fees paid or payable by the Customer to Supplier under the relevant Agreement in the successive twelve (12) month period prior to the most recent Customer Claim.

    3. The exclusions in this clause 14 shall apply to the fullest extent permissible at law but neither party excludes any liability for death or personal injury caused by its negligence, or the negligence of its employees or agents, or for fraud or fraudulent misrepresentation.

  17. Intellectual property rights

    1. Subject to any express provision in an Agreement to the contrary, each party acknowledges and agrees that no Agreement assigns or transfers any Intellectual Property Rights between the parties and that nothing in an Agreement shall be deemed to give a party any right, title or interest whatsoever in the other party's Intellectual Property Rights.

    2. In respect of Project Services, subject to:


      (a) the Customer's compliance with the terms and conditions of each Agreement;


      (b) completion of the Services in respect of the relevant Statement of Work; and


      (c) receipt by Supplier of payment in full for the relevant Statement of Work,

      all Intellectual Property Rights in the Deliverables shall, upon delivery to Customer, vest in and be owned by the Customer, provided always that Supplier will retain ownership of the Background IPR (including any Background IPR that becomes embedded in the Deliverables, which shall be licensed to the Customer in accordance with Clause 17.4) and any third party will retain the rights in and to any Third Party Materials that become embedded in the Deliverables. Subject to the foregoing, Supplier hereby assigns and transfers to the Customer all rights, title and interest it may have or obtain in such Deliverables.

    3. In respect of Managed Platform Services , Intellectual Property Rights in the Deliverables (including any Background IPR that becomes embedded in the Deliverables, which shall be licensed to the Customer in accordance with Clause 17.4) shall, upon delivery to Customer, as between the parties, continue to vest in and be owned by the Supplier, and Supplier shall, subject to:


      (a) the Customer's compliance with the terms and conditions of each Agreement;


      (b) completion of the Services in respect of the relevant Statement of Work; and


      (c) receipt by Supplier of the then current payment by the Customer of the relevant recurring licensing fee

      grant to the Customer a limited, non-exclusive, non-transferable, non-sublicensable, personal license for the term of this Agreement to use such Intellectual Property Rights for its own internal business purposes, and not for the benefit of any third party.

    4. Subject to Clause 17.5, upon delivery to the Customer, Supplier grants to the Customer a non-exclusive, non-transferable, non-sublicensable, personal licence to use the Background IPR (in object code form), embedded in the Deliverables solely for its own internal business purposes, and not for the benefit of any third party, to:


      (a) at any one time, run and use a single version of the Software on one or more computer systems at one or more premises; and


      (b) for development, test and/or disaster recovery purposes only, run and use the Software on one or more computer systems at one or more premises.

    5. For the purposes of clause 17.4 above:


      (a) in relation to Project Services, the grant of the licence shall be subject to Clauses 17.2(a) and 17.2(c) and the term of the licence shall be perpetual;


      (b) In relation to Managed Platform Services, the grant of the licence shall be subject to Clauses 17.2(a)and 17.2(c)and the term of the licence shall be for the duration of the relevant Statement of Work.


      (c) "Software" shall include the Software in object code and the Source Code Materials;


      (d) "singleversion" shall include both a single copy and multiple copies of the Software, provided that if multiple copies, the content of the "Config", "Modules" and "Core" folders of each of those copies is the same.

    6. The Customer shall not:


      (a) remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded on or in the Background IPR;


      (b) un-bundle any components of the Background IPR; or


      (c) except to the extent permitted by applicable law, reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Background IPR.

    7. Supplier shall notify the Customer of any commercial Third Party Materials made available on a paid-for basis that Supplier intends to incorporate into the Deliverables prior to the use of such paid-for Third Party Materials and shall provide details of their licences to the Customer. Customer acknowledges that ownership of all Third Party Materials shall remain vested in Supplier's licensors. Supplier shall use reasonable endeavours to procure a licence of the Third Party Materials for the Customer, but the Customer acknowledges that it will be responsible for obtaining such licence (at its own cost).

    8. Supplier acknowledges that ownership in and to any Customer Materials shall remain vested in Customer or its licensors. Customer grants the Supplier a non- exclusive, non-transferable, licence to use the Customer Materials solely to the extent necessary for the purposes of providing the Services for the duration of the Agreement.

    9. Notwithstanding Clause 17.8 and subject to Clause 17.10, if at any time (whether on termination of an Agreement or otherwise) the Customer requests Supplier to provide:


      (a) in respect of Project Services a copy of the Customer Materials and/or Source Code Materials, or


      (b) in respect of Managed Platform Services a copy of the Customer Materials

      Supplier may charge Customer on a time and materials basis at Supplier's standard rates for the time taken by Supplier to action Customer's request, including time taken to prepare such Customer Materials and/or Source Code Materials for delivery.

    10. Supplier reserves the right to withhold the release of any Customer Materials and/or Source Code Materials under this Agreement:


      (a) if Customer has failed in any way to comply with the terms and conditions of each Agreement; and/or


      (b) if any amounts due under a Statement of Work remain outstanding, until Supplier has received payment in full of such amounts.

    11. Customer acknowledges and agrees that Supplier may display a creation credit link on any website it develops for Customer for the purpose of crediting Supplier as the developer of the website. Such link shall be at Supplier's discretion and displayed in a discrete manner on the website homepage and such other pages of the website as the Supplier reasonably determines. Nothing in this clause 17.11 shall in any way prejudice Customer's ownership rights in respect of Project Services in any Deliverables under clause 17.2.

  18. Intellectual property rights indemnity

    1. Subject to Clause 18.2, Supplier shall indemnify the Customer against all claims, expenses, losses, damages, proceedings and costs that the Customer may sustain or incur as a result of a claim that the use, possession or receipt by the Customer in accordance with the terms and conditions of an Agreement of any of the Deliverables (excluding any Third Party Materials or Customer Materials embedded in the Deliverables) (an "Infringing Deliverable") infringes the Intellectual Property Rights of any third party (an "IPR Claim").

    2. Supplier shall have no liability if an IPR Claim is based on:


      (a) the Customer's products and/or or services, whether in whole or in part;


      (b) the Customers' use of the Deliverables in a manner not contemplated by the relevant Statement of Work;


      (c) use or combination of the Deliverables with the Customer's or any third party's products and/or services in a manner not contemplated by the relevant Statement of Work;


      (d) a modification of the Deliverables by anyone other than Supplier; or


      (e) the Customer's use of the Deliverables after notice of an IPR Claim from Supplier or any appropriate authority

    3. If any person makes an IPR Claim, Supplier may, at its option, do one of the following:


      (a) modify the Infringing Deliverable so that the Customer's use, possession or receipt of the Infringing Deliverable ceases to infringe the rights of the relevant third party;


      (b) procure promptly for the Customer the right to use, possess or receive the Infringing Deliverable free of any claim or liability for infringement; or


      (c) replace the Infringing Deliverable promptly with a non-infringing substitute work product.

    4. The Customer shall indemnify the Supplier against all claims, expenses, losses, damages, proceedings and costs that the Supplier may sustain or incur as a result of a claim that the use, possession or receipt by the Supplier of the Customer Materials infringes the Intellectual Property Rights or other rights of any third party (also an "IPR Claim").

    5. On a party (the "Indemnified Party") becoming aware of any facts that could give rise to an IPR Claim, the Indemnified Party shall:


      (a) promptly notify the other party (the "Indemnifying Party" ) in writing of the IPR Claim or potential IPR Claim together with all relevant facts;


      (b) not make any admissions or settlement in respect of any IPR Claim or potential IPR Claim without the consent of the Indemnifying Party;


      (c) immediately allow the Indemnifying Party to defend and have full conduct of any negotiations and settlement of any IPR Claim;


      (d) promptly provide the Indemnifying Party with all information and assistance reasonably required by the Indemnifying Party in respect of its defence of any IPR Claim; and


      (e) do all things reasonable to mitigate all losses arising from the IPR Claim.

  19. Term and termination

    1. Each Agreement shall commence on the Effective Date and continues indefinitely (the "Term"), unless terminated earlier by either party in accordance with its terms.

    2. Either party may terminate each Agreement (or the relevant part of it) at any time for convenience and without cause by providing:


      (a) where the Statement of Work specifies a Fixed Fee for Deliverables, subject to clause 19.4, written notice to the other party which can apply immediately, or at a set time in the future;


      (b) where the Statement of Work specifies a fixed number of days per month of Services, written notice to the other party which takes effect at the end of the calendar month after the month in which the notice was served; and


      (c) where the Statement of Work specifies a 'full time equivalent' or 'FTE', three months' written notice to the other party which shall take effect as set out in clause 19.5; and


      (d) in all other cases, at least three (3) months written notice to the other party.

    3. Upon a termination of an Agreement under clause 19.2 by either party:


      (a) subject to clause 19.4, all Services and all Statements of Work shall cease and terminate;

      and


      (b) the provisions of clauses 17.2, 17.3, 17.4, and 17.5 shall continue in effect.

    4. Upon termination under clause 19.2(a), where the relevant Deliverable has not been completed as at the date of termination, the Supplier shall invoice the Customer pro rata in relation to the portion of the estimated total effort which was actually applied towards completing the relevant Statement of Work, for the avoidance of doubt capped at the Fixed Fee.

    5. Upon a termination under clause 19.2(c) by the Customer, any Statement of Work that provides (in whole or in part) for the provision of a 'full time equivalent' or 'FTE' shall be wound down as follows:


      (a) the Statement of Work shall initially continue for a three (3) month notice period;


      (b) the Supplier shall give notice of each full time equivalent to be reduced and removed from the Services;


      (c) a maximum of one (1) full time equivalent may be reduced and removed from the Services in any three month period (excluding the initial notice period); and


      (d) when the number of remaining full time equivalent's providing the Services in relation to the relevant Statement of Work would be zero (or negative), then the relevant Statement of Work shall terminate.

      By way of example, if a Statement of Work included the provision of Services which required four full time equivalent workers, then a notice of termination provided on January 1 would allow for the Supplier to reduce the number of full time equivalent staff to three on April 1, to two on July 1, and to one on October 1. On January 1 the subsequent year, the final full time equivalent could be removed, and the Statement of Work would terminate.

    6. Either party may terminate an Agreement with immediate effect by written notice to the other party if


      (a) the other party:


      (i) ceases to trade (either in whole, or as to any part or division involved in the performance of an Agreement); or


      (ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or


      (iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or


      (iv) the ability of that party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or


      (v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or


      (b) it is entitled to do so in accordance with Clause 23.2.

    7. On termination of an Agreement for whatever reason:


      (a) the Customer shall pay Supplier in full for all Services provided up to the date of termination and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;


      (b) each party shall promptly return to the other party all of the other party's Confidential Information (including any copies thereof) within its possession or control, provided always that Supplier may retain one copy of the Customer's Confidential Information for professional and audit purposes;


      (c) the obligations of confidentiality (but not the rights to use or disclose) under Clause 12 will continue to apply to the parties; and


      (d) the licence granted under Clause 17.7 shall cease.

    8. Termination of an Agreement for whatever reason shall not affect the rights and obligations of the parties which have accrued prior to the date of termination, including the right to claim damages as a result of a breach of the Agreement.

    9. Any provision of an Agreement which expressly or by implication is intended to come into or continue in force on or after termination of the Agreement will remain in effect.

  20. Waiver

    1. No failure or delay by a party to exercise any right or remedy provided under an Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

  21. Remedies

    1. Except as expressly provided in an Agreement, the rights and remedies provided under an Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  22. Excused performance

    1. Supplier shall not be deemed to be in breach of an Agreement or otherwise liable to the Customer as a result of any delay or other failure in the performance of its obligations under an Agreement if and to the extent that such delay or other failure is caused by or arises from:

      (a) the Customer's non-performance, delayed performance or other breach of its obligations under the Agreement;


      (b) Customer Materials supplied by the Customer being faulty, damaged or incorrectly prepared;


      (c) the delayed arrival or non-arrival of Customer Materials from the Customer;


      (d) errors in programs, coding information or operating instructions supplied by the Customer, including any failure of or defects in the Customer's systems;


      (e) any failure by the Customer to obtain all necessary rights and licences in relation to the Intellectual Property Rights of third parties;


      (f) any act or omission of the Customer that has a material adverse effect upon the performance by Supplier of its obligations under the Agreement; or


      (g) without limiting the application of Clause 23, any Force Majeure Event.

  23. Force majeure

    1. Notwithstanding any other provision of an Agreement, neither party to an Agreement shall be in breach of an Agreement or otherwise liable to the other as a result of any delay or failure in the performance of its obligations under an Agreement (other than an obligation to pay money ) if and to the extent that such delay or failure is caused by any event or circumstance not within the reasonable control of the party concerned ("ForceMajeureEvent"), and the time for performance of the relevant obligation(s) shall be extended accordingly.

    2. If any ForceMajeureEvent delays or prevents the performance of the obligations of either party for a continuous period in excess of one (1) month, then either party shall then be entitled to give notice to the other party to terminate an Agreement, specifying the date (which shall not be less than seven (7) days after the date on which the notice is given) on which termination will take effect.

  24. Entire agreement

    1. Each Agreement, and any schedules or documents annexed to it, or otherwise referred to here in, contain the whole agreement between the parties relating to the subject matter here of and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

    2. Each party acknowledges that, in entering into an Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not)("Representation") other than as expressly set out in the Agreement.

    3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in an Agreement.

  25. Variation

    1. No variation of an Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  26. Severance

    1. If any court or competent authority finds that any provision of an Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part- provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.

    2. If any invalid, unenforceable or illegal provision of an agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

  27. Counterparts

    1. Each Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of the agreement, but all the counter parts shall together constitute the same agreement.

  28. Third-party rights

    1. The Customer and any of its Affiliates may enforce the terms of an Agreement subject to and in accordance with this clause 28, the Agreement and the Contracts (Rights of Third Parties) Act 1999.

    2. It is agreed that an Agreement is intended to confer a benefit on the Customer and its Affiliates by making the Software available to them in accordance with the Agreement, provided that the rights of such Affiliates under the Agreement shall only be enforceable by the Customer on their behalf. The Customer will owe no duty to them to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit.

    3. Except as provided in clause 28.1, a person who is not a party to an Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of an Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

    4. The rights of the parties to terminate (if any), rescind or agree any variation, waiver or settlement under an Agreement is not subject to the consent of any person that is not a party to the Agreement.

  29. No partnership or agency

    1. Nothing in an Agreement 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

  30. Changes to these terms

    1. We amend these Terms from time to time. Upon, either: (a) a new Statement of Work being entered into; or (b) an existing Statement of Work being amended or changed in any way, the version of these terms and conditions which are set out at https://d3r.com/terms-of-business at such time shall apply to the relevant Statement of Work and all other Statements of Work in place between Customer and Supplier.

  31. Assignment

    1. Subject to Clause 31.2, neither party shall assign, novate, transfer, or otherwise dispose of any or all of its rights and/or obligations under an Agreement without the prior written consent of the other party (which may be withheld in that party's absolute discretion).

    2. The Supplier may enter into any sub-contract with any third party for the performance of its obligations under an Agreement without the prior written consent of the Customer. Any such sub-contract shall not excuse Supplier from performing its obligations under an Agreement.

  32. Notices

    1. Any notice of termination required to be given under an Agreement shall be in writing and shall be sent by recorded delivery to the relevant party at its address given above or as otherwise specified by notice from time to time. Any other notice or other communication required to be given under an Agreement shall be validly given if sent by e-mail without receipt of failure message.

  33. Governing law and jurisdiction

    1. Each Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

    2. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with an Agreement or its subject matter or formation (including non-contractual disputes or claims).