- Obligation to provide Development Services
1.1 The Provider shall provide to the Customer any Development Services specified in Section 3 of the Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 1.
2.1 The Provider shall use all reasonable endeavours to ensure that the Development Services are provided in accordance with the timetable set out in Section 7 of the Statement of Work, and that copies of the Website are delivered to the Customer in accordance with that timetable.
2.2 The Customer acknowledges that a delay in the Customer performing its obligations under these Terms and Conditions may result in a delay in the performance of the Development Services; and subject to Clause 21.1 of the main body of these Terms and Conditions the Provider will not be liable to the Customer in respect of any failure to meet the Development Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.
2.3 The Provider shall ensure that the Source Code, and any interpreted code, comprised in the Website created by or on behalf of the Provider during the provision of the Development Services is written to a professional standard, conforms with any coding standards document agreed between the parties.
2.4 The Provider shall keep the Customer reasonably informed of the progress of the Development Services and, in particular, shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.
2.5 The Customer must promptly, following receipt of a written request from the Provider to do so, provide written feedback to the Provider concerning the Provider's proposals, plans, designs and/or preparatory materials relating to the Website and made available to the Customer with that written request.
2.6 The Provider shall during the course of the Development Services make accessible to the Customer a current development version of the Website for the purposes of enabling the Customer to assess the progress of the Development Services and provide feedback to the Provider regarding the Website.
2.7 If the Contract terminates before the delivery of the completed Website to the Customer, the Provider must within 14 days following such termination deliver to the Customer all work in progress towards the Website.
3.1 During each Acceptance Period, the Provider shall ensure that the Website is accessible to the Customer and the Customer shall carry out the Acceptance Tests.
3.2 The Provider hereby grants to the Customer a non-exclusive non-transferable and non-sublicensable licence to use the Website during each Acceptance Period solely for the purpose of conducting the Acceptance Tests.
3.3 The Provider shall provide to the Customer at the Provider's own cost and expense all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.
3.4 Before the end of each Acceptance Period, the Customer shall give to the Provider a written notice specifying whether the Acceptance Tests have been passed or failed.
3.5 If the Customer fails to give to the Provider a written notice in accordance with Paragraph 3.4 or uses the Website for any purpose other than the conduct of the Acceptance Tests, then the Website shall be deemed to have passed the Acceptance Tests.
3.6 If the Customer notifies the Provider that the Acceptance Tests have been failed, then the Customer must provide to the Provider, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.
3.7 If the Customer notifies the Provider that the Website has failed the Acceptance Tests:
(a) if the Provider agrees with the Customer that the Website does not comply with the Acceptance Criteria, then the Provider must correct the issue and re-supply the Website to the Customer before the end of the Remedy Period; or
(b) otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Website does not comply with the Acceptance Criteria and, if appropriate, a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.
3.8 Notwithstanding the other provisions of this Paragraph 3, but subject to any written agreement of the parties to the contrary, the maximum number of rounds of Acceptance Tests under this Paragraph 3 shall be 3, and if the Acceptance Criteria have not been met by the end of the final round of Acceptance Tests, the Provider shall be deemed to be in material breach of the Contract.
3.9 If the Customer notifies the Provider that the Website has passed the Acceptance Tests or the Website is deemed to have passed the Acceptance Tests under this Paragraph 3, then subject to Clause 21.1 of the main body of these Terms and Conditions the Customer will have no right to make any claim under or otherwise rely upon any warranty given by the Provider to the Customer in these Terms and Conditions in relation to the conformance of the Website to the Website Specification or the absence of Website Defects from the Website, unless the Customer could not reasonably have been expected to have identified the breach of that warranty during the testing process.
Intellectual Property Rights
4.1 The Provider hereby:
(a) assigns to the Customer all of its Intellectual Property Rights in the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding Intellectual Property Rights in the Customer Materials and the Third-Party Materials, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term; this assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights; and
(b) grants to the Customer a worldwide, non-exclusive and non-expiring licence to copy, store, publish and otherwise use all other elements of the Website.
providing, except in relation to works assigned by this Paragraph 4.1 to the Customer or otherwise owed by the Customer, the Customer must not: sell, resell, rent, lease, supply, distribute or redistribute the Website; use the Website to create any new website or web application (other than the Website itself). This assignment and/or licence shall take effect in respect of a work upon and from the delivery of that work to the Customer.
4.2 To the maximum extent permitted by applicable law:
(a) the Provider irrevocably and unconditionally waives all moral rights (including rights of paternity and rights of integrity) in respect of the Website to which the Provider may at any time be entitled; and
(b) the Provider undertakes to ensure that all individuals involved in the preparation of the Website will irrevocably and unconditionally waive all moral rights (including rights of paternity and rights of integrity) in respect of the Website to which they may at any time be entitled.
5.1 The Provider may include the Provider Credit on each page of the Website in a position to be agreed by the parties acting reasonably.
5.2 The Customer must retain the Provider Credit on the Website and any adapted version of the Website, must not interfere with the Provider Credit in any way which will have or may reasonably be expected to have a negative impact upon the value of the Provider Credit to the Provider, and may only remove the Provider Credit at the Provider's request.
6.1 The Provider warrants to the Customer that:
(a) the Website as provided will conform in all material respects with the Website Specification;
(b) the Website will be supplied free from Website Defects and will remain free from Website Defects for a period of at least 12 months following the supply of the Website;
(c) the Website will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d) the Website shall incorporate security features reflecting the requirements of good industry practice.
6.2 The Provider warrants to the Customer that the Website, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law; providing however that the Provider shall have no liabilities under this Paragraph 6.2 in respect of any such breach caused by the Customer Materials or the Third-Party Materials.
6.3 The Provider warrants to the Customer that the Website, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law; providing however that the Provider shall have no liabilities under this Paragraph 6.3 in respect of any such infringement caused by the Customer Materials or the Third-Party Materials.
6.4 If the Provider reasonably determines, or any third-party alleges, that the use of the Website by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may, acting reasonably at its own cost and expense:
(a) modify the Website in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Website Defects into the Website and must not result in the Website failing to conform with the Website Specification; or
(b) procure for the Customer the right to use the Website in accordance with these Terms and Conditions.
Acknowledgements and warranty limitations
7.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Website will be wholly free from defects, errors and bugs.
7.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Website will be entirely secure.
7.3 The Customer acknowledges that the Website is only designed to be compatible with that software (including web browser and web server software) that is specified as compatible in the Website Specification; and the Provider does not warrant or represent that the Website will be compatible with any other software.
7.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Website; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Website or the use of the Website by the Customer or any other person will not give rise to any legal liability on the part of the Customer or any other person.
Termination of Development Services
8.1 Either party may terminate the Development Services under the Statement of Work by giving to the other party at least 30 days' written notice of termination at any time after the end of the Minimum Term.
8.2 If the Development Services are terminated in accordance with the provisions of this Paragraph 8:
(a) the Customer must pay to the Provider any outstanding Charges in respect of Development Services provided to the Customer before the date of effective termination of the Development Services;
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Development Services that were to be provided to the Customer after the date of effective termination of the Development Services;
(c) the Provider must promptly deliver to the Customer such elements of the Website as are complete and all work in progress in respect of the Website; and
(d) the Contract will continue notwithstanding such termination.
8.3 For the avoidance of doubt, the Development Services shall automatically terminate upon the termination of the Contract.