JUMPSTART Interactive LTD Terms and Conditions
1.1. The following words shall have the meanings assigned to them:
- 1.1.1. Associate means any software consultancy firm, company or individual that the Company may employ to work to provide the Services
- 1.1.2. Client means the person specified as the client in the Proposal
- 1.1.3. Company means Jumpstart Interactive LTD, a limited company registered in England and Wales with registered number OC343577
- 1.1.4. Company Materials means all documents, materials, data, proprietary software (and the media on which they are each recorded), which are owned by the Company at the date of this agreement or created independently of this Agreement
- 1.1.5. Marketing Plan means any marketing plan which has been developed by the Company and approved by the Client as the basis for future Services to be performed for the Client
- 1.1.6. IPR means means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:(i) whether registered or not,(ii) including any applications to protect or register such rights,(iii) including all renewals and extensions of such rights or applications,(iv) whether vested, contingent or future,(v) in whichever part of the world existing
- 1.1.7 Products means all products, documents and materials designed or produced by the Company as part of the Services, including but not limited to Websites, 3D online environments, online and print advertising campaigns, email marketing campaigns, logos and branded materials, marketing materials, online games and training materials, and multimedia presentations, marketing consultancy documentation (including the Marketing Plan (if applicable) and brand guidelines) and mobile and tablet applications
- 1.1.8. Project Deadline means the expected completion deadline for the Services as set out in the Proposal
- 1.1.9. Proposal means the document titled “Proposal”
- 1.1.10. Services means the services as defined in Proposal or the Marketing Plan;
- 1.1.11. Server means the computer equipment operated by the Company in connection with the provision of the Services (including any server space provided by a Third Party Service Supplier)
- 1.1.12. Third Party Services means those services provided by Third Party Service Suppliers which are necessary or appropriate to the provision of the Services, including but not limited to internet services, internet search engines, pay-per-click services and the provision of external server space
- 1.1.13. Third Party Service Suppliers means any third party used by the Company to provide Third Party Services, including but not limited to internet service providers, internet search engine providers, pay-per-click service providers and providers of external server space
- 1.1.13. Web Site means the internet site designed by the Company and the area on the Server allocated by the Company for the Client’s use as a site on the Internet
1.2. These Terms and Conditions (“Terms”) and the Proposal (together with any document specifically referred to in either as constituting part of the Agreement) shall constitute the entire agreement (“Agreement”) between the parties in relation to the provision of Services and supersedes any and all previous agreements entered into between the parties. No representation, warranty or other statement (whether in writing or otherwise) made by the Company shall be of any effect (and is expressly disclaimed by the Company) unless it has been specifically reduced into writing and set forth in the Terms or Proposal.
1.3. The Agreement shall not come into effect unless the Proposal has been signed by a director of the Company and accepted by the Client. The Client shall have accepted the Proposal by signing it or by accepting the provision of Services specified therein.
1.4. In the event of any conflict between the Terms and the Proposal, the Proposal shall take precedence over the Terms.
2.1. The Company shall provide the Services specified in the Proposal or the Marketing Plan to the Client.
2.2. The Company may change any aspect of the Services or Third Party Services at any time during the course of the Agreement and without notice to the Client, provided such changes do not substantially affect the Proposal, the Marketing Plan or the Fees.
3.1. Unless otherwise specified in the Proposal or Marketing Plan, the Services shall be provided as follows:
- 3.1.1. Agreement of the Proposal or Marketing Plan
- 3.1.2. Specification of the Products (as required) (“Specification Phase”)
- 3.1.3. Design of the Products (“Design Phase”)
- 3.1.4. If required, developing, building or production of the Products (as the case may be)
- 3.1.5. Final sign off of the Products/go live/launch (“Launch”)
3.2. Unless otherwise specified in the Proposal or the Marketing Plan, the Company shall submit its work for the approval of the Client at the Specification Phase and the Design Phase. If the Client does not approve the work submitted for approval, the Client shall notify the Company and the Company shall amend such work in line with the Client’s instructions (subject always to the provision of Clause 11) and present such amended work to the Client for approval. In the event that the Client notifies the Company that it does not approve such amended work, the Company shall further amend such work in line with the Client’s instructions and shall re-submit such amended work for approval.
3.3. In the event that the Client notifies the Company that it does not approve the amended work presented for the second time in accordance with Clause
3.2, the Company shall amend such work in line with the Client’s instructions, until the Client approves the work. Any work carried out in accordance with this Clause 3.3 shall be charged in accordance with Clause 8.
3.4. If the Client does not notify the Company that it does not approve any work submitted in accordance with Clauses 3.2 or 3.3 within 30 days of submission of that work to the Client, the Client shall be seemed to have approved the work and the Company shall be entitled to progress the Services in accordance with Clause 3.1.
3.5. Launch under Clause 3.1.5 shall constitute final approval of the Products and/or Services and all Products and/or Services launched in accordance with Clause 3.1.5 shall be deemed to be in all respects in accordance with the provisions of this Agreement.
4. Obligations of the Client
4.1. The Client shall provide all copy, images, logos and trademarks for the Services, except where specified in the Proposal. The Client hereby warrants that any material provided under this clause does not infringe the intellectual property rights of any third party and shall indemnify the Company for any loss or damage suffered by the Company as a result of the Client’s breach of this clause.
5.1. The Company makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Server and the Company shall have no liability for any loss or damage to any data stored on the Server.
5.2. The Client shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server
5.3. The Client warrants that it will use the Services and Products only for lawful purposes. In particular, the Client represents, warrants and undertakes to the Company that;
- 5.3.1. The Client will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will the Client authorise or permit any other person to do so;
- 5.3.2. The Client will not publish, post, link to or transmit
- 184.108.40.206. any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way;
- 220.127.116.11. any material containing a virus or other hostile computer program;
- 18.104.22.168. any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction; provided by the Company to the Client.
5.4. The Client shall keep secure any identification, password and other confidential information relating to the Client’s account and shall notify the Company immediately of any known or suspected unauthorised use of the Client’s account or breach of security, including loss, theft or unauthorised disclosure of the Client’s password or other security information.
5.5. The Client shall observe the procedures which the Company may from time to time prescribe and shall make no use of the Server which is detrimental to other customers of the Company
5.6. The Client shall procure that all electronic mail and other electronic material transmitted using the Server is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner
5.7. Any access to other networks connected to the Company must comply with the rules appropriate for those other networks
5.8. While the Company will use every reasonable endeavour to ensure the integrity and security of the Server, the Company does not guarantee that the Server will be free from unauthorised users, hackers or other malicious parties, and the Company shall be under no liability for non-receipt or misrouting of electronic mail or for any other failure of electronic mail or other electronic material transmitted using the Server
6. Responsibilities of the Company
The Company shall provide the necessary computer equipment, communications facilities, software tools, stationery and other consumables that the Company requires to perform the Services.
6.2. Supervision of the Company’s staff and/or sub-contractors
The Company may assign any of its staff or Associates it considers appropriate to provide the Services and the Company shall be responsible for the conduct and the quality of work carried out by its own staff and that of its Associates.
7. Third Party Service Suppliers
7.1. The Company shall select and use Third Party Service Suppliers for the provision of such Third Party Services as the Company at its sole discretion deems necessary for or appropriate to the provision of the Services.
8.1. The Client shall pay the fees specified in the Proposal or the Marketing Plan, plus VAT at the applicable rate (“Fees”).
8.2. The Company shall charge on an hourly or daily rate (as applicable) for the Services, as set out in the Proposal or the Marketing Plan. The Company’s hourly rate shall be one seventh of the daily rate.
8.3. If the Company is on a retainer with the Client, the Company shall advise the Client at the end of each month of the spend on the Services for that month (based on the Company charging rates). If the spend on the Services for that month is less than the retainer fee paid by the Client (as detailed in the Marketing Plan), the Company shall roll the difference into the following month (but for the avoidance of doubt, the Client shall not be entitled to a refund of any unused portion of the retainer fee). If the spend on the Services for that month is more than the retainer fee, the Company shall be entitled to invoice for such additional time at its usual charge out rates.
8.4. Where the Company amends work pursuant to Clause 3.3, such amendment shall be charged at the Company’s hourly rate.
8.5. Where the Services are for the hosting of the Website, the fees shall be payable quarterly or annually in advance.
8.6. Unless otherwise agreed in the Proposal or the Marketing Plan, the Company shall issue an invoice for the Fees payable on a monthly basis and the Client shall pay the Fees within 14 days of the date of such invoice.
8.7. All work remains copyrighted to the Company until settlement of the relevant Fees.
9. Copyright and Intellectual Property
9.1. Nothing in this Agreement will affect the rights (including IPR) in the Company Materials which are and shall remain vested in the Company.
9.2. To the extent that the Company Materials are used or incorporated into the Services or any part of the Products then the Parties acknowledge and agree that the Client is licensed to use the same upon the terms set out in clause 9.4.
9.3. All IPR produced by the Company for the Client under this Agreement (including without limitation, the copyright in any software, computer processes or code and any modifications of any software) (“Product IPR) shall at all times remain the property of the Company and the Company shall licence the use of the same to the Client upon the terms set out in clause 9.4.
9.4. The Company hereby grants to the Client a royalty-free, non-exclusive licence, revocable only for breach by the Client of the terms of this Agreement, to use the Company Materials and / or the Product IPR to the extent necessary to use the Products. The Client:
9.4.1. will not use the Company Materials or the Product IPR for any other purpose;
9.4.2. will not modify or reverse engineer or take any similar action in relation to any propriety software of the Company (except so far as required for interoperability);
9.4.3. will not assign, sublicense or deal with the Company Materials or Product IPR without the Company’s prior written consent;
9.4.4. hereby assigns to the Company, on their creation, all IPR which arise or are created by any use by it of, or work done by it on, the Company Materials or the Products.
9.5. Any IPR provided by the Client for use by the Company in connection with the Services which is the property of the Client shall remain the property of the Client and the Client shall grant a royalty free, non-exclusive licence of such intellectual property rights to the Company for the duration of this Agreement.
9.6. If any IPR provided by the Client for use by the Company in connection with the Services is the property of any third party and is not held by the Client under licence, the Client shall procure that all necessary consents, authorisations or licences to allow the use by the Company of such IPR in connection with the Services are obtained prior to the commencement of the Services.
9.7. Where any IPR provided by the Client for use by the Company in connection with the Services is held by the Client under licence (“the Master Licence”), the Client shall licence such IPR to the Company on the same terms as the Master Licence and the Client warrants that it is entitled to do so.
9.8. The Client shall indemnify the Company in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with any breach by the Client of Clauses 9.6 and 9.7.
9.9. Unless otherwise specified in writing by the Client, the Company shall reserve the right to show any Products created in connection with the Services provided on the Company website, and in any other Company promotional materials.
10.1. The Company and the Client agree to treat any information received from the other which is confidential or proprietary in nature or which is specified by the party providing the information as being confidential with the same degree of care and diligence with which they treat their own information that is of a confidential and proprietary nature and shall not disclose the same to any person, firm or company without the disclosing party’s consent unless required by law. The provisions of this clause shall continue for a period of two years from the termination of the Agreement, but the restrictions contained in this clause shall cease to apply to any information which is in the public domain.
11. Changes to this Agreement
11.1. If the Client or the Company wishes to change the Proposal or the Marketing Plan, the Client or Company (as the case may be) shall give notice to the other party of the change it wishes to make. The Company shall within 7 days inform the Client of the impact of the proposed change on the Fees. Where the Company fails to so inform the Client, the proposal to amend the Proposal or the Marketing Plan shall be deemed to have been rejected.
11.2. If the Client accepts the impact of the proposed change notified to it by the Company, the change and any change to the Fees shall be set out in a written document (“Revision”) which shall be executed by a director of the Company and a director or partner of the Client or some other person with the appropriate authority on behalf of the Client, which document shall also form part of this Agreement.
11.3. If any change to the Services under this Clause 11 shall result in an increase to the Fees such increase in Fees shall be paid in accordance with the provisions of Clause 8.2. In the event that any of the payment dates specified in Clause 8 have passed as at the date of the Revision, the appropriate proportion of the increase in the Fees shall be paid to the Company within 24 hours of the execution of the Revision.
12.1. The Company warrants that the Services will be provided with reasonable skill and care.
12.2. In the event of a fault in the Services, the Client must report the fault to the Company at the appropriate numbers or addresses or other such numbers or addresses that the Company may from time to time provide.
12.3. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE.
12.4. The Company will not be liable for any defects in Third Party Services supplied by or procured for the Client by the Company from any Third Party Service Supplier, including but not limited to any telecommunications provider, except insofar as the Company has the benefit of any warranties as to the Third Party Services from that Third Party Service Supplier, in which case the Company will make all reasonable efforts to assign to the Client all such warranty rights, and the Client’s sole claim to redress for any defects in those services will be against the Third Party Service Supplier.
13.1. Any Project Deadline specified in the Proposal shall be advisory only, and the Company shall not be liable for any failure to complete the Services by the Project Deadline.
13.2. Where it becomes apparent to the Company that the Services will not be completed by the Project Deadline, the Company will advise the Client in writing of the extension of the Project Deadline.
14. Limitation of Liability
14.1. Any claim under the Agreement by the Client shall be notified to the Company within 3 months of the Launch. If the Client does not notify the Company of its claim in accordance with this clause, the Company shall have no liability under this Agreement.
14.2. The Company shall use all reasonable efforts to fix a problem or bug notified to the Company in accordance with Clause 12.2 and, notwithstanding any other provision of these Terms, this shall constitute the Client’s only remedy in respect of such problem or bug.
14.3. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF THE COMPANY UNDER OR IN CONNECTION WITH THE AGREEMENT EXCEED THE FEES PAID BY THE CLIENT FOR THE SERVICES.
14.4. THE COMPANY SHALL NOT BE LIABLE TO THE CLIENT BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE EXPRESS TERMS OF THE CONTRACT, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT OR OTHERWISE), COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION WHATSOEVER (WHETHER CAUSED BY THE NEGLIGENCE OF THE COMPANY, ITS EMPLOYEES OR AGENTS OR SUB-CONTRACTORS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THE AGREEMENT SHALL LIMIT THE COMPANY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S NEGLIGENCE
14.5. The Company shall have no liability of any kind for the transmission or reception of information of whatever nature transmitted via the Server.
14.6. The Company shall have no liability whatsoever for the acts or omissions of other providers of telecommunication service or for faults in or failures of their apparatus.
15. Termination of the Contract
15.1. The Agreement will terminate:
- 15.1.1. on completion of the Services or, where the Services are ongoing, on three months’ written notice from either party; or
- 15.1.2. for any reason specified in this Clause 15
15.2. Either party may terminate the Agreement immediately on written notice to the other party if the other party has become bankrupt or insolvent or is the subject of any winding up proceedings (not being a members’ voluntary winding-up for the purposes of reconstruction or amalgamation) or is the subject of an appointment of a receiver, administrative receiver or administrator
15.3. If the Client fails to pay the Fees within 14 days of the day of which they became due for payment, the Company may terminate this Agreement immediately on written notice.
15.4. Without prejudice to Clause 15.3, if ether party is in material breach of this Agreement, and fails to remedy such breach within 14 days of written notification of the breach from the other party, that other party may terminate this Agreement immediately on written notice.
16. Consequences of Termination
16.1. In the event that the Agreement is terminated under Clause 15 any unpaid Fees (whether or not due under Clause 8) shall become immediately due and payable and the Company shall issue an invoice for such amount of Fees.
16.2. On termination of this Agreement, any Fees in respect of the hosting of the Website paid in advance in accordance with this Agreement shall not be refunded to the Client.
16.3. On termination of this Agreement, any Fees in respect of the Project Deposit shall not be refunded to the Client.
16.4. On termination of this Agreement, all licences to the Client under Clause 9 shall terminate.
17. Resolution of disputes
17.1. If any dispute or difference shall arise between the parties as to the meaning of this Agreement or any matter or thing arising out of or connected with this Agreement then it shall be referred to the determination of an arbitrator to be appointed by agreement of the parties or (in default of agreement) to be nominated by the President for the time being of the Chartered Institute of Arbitrators. The costs of such arbitration shall be borne equally by the parties. The arbitrator shall act as expert and not as arbitrator and his decision shall be final and binding upon the parties.
18.1. Neither party shall be liable for any default arising due to any act beyond the their control, including, but not limited to, acts of God, war, terrorist action, strike, lockout, industrial action, fire, flood, drought, tempest or failure of any telecommunications system.
18.2. This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts
18.3. This Agreement is personal to the Client and the Client shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations thereunder
18.4. No waiver by the Company of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision
18.5. If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected thereby
18.6. Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post or by fax and shall be deemed to be been received by the addressee within seventy-two (72) hours of posting or twenty-four (24) hours if sent by facsimile transmission to the correct facsimile number (with correct answerback) of the addressee.
18.7. Headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
18.8. No person not a party to this Agreement shall have any right to enforce any of its terms under the Contract (Rights of Third Parties) Act 1999.