HotLizard - Terms & Conditions
In these Terms of Business, the following words and phrases have the following meanings: -
'the Company' - HotLizard Ltd, registered office being Aspire House, Tower Business Park, Kelvedon Road, Tiptree, Colchester, Essex, CO5 0LX
'the Client' - the person, firm or body requiring the products or services from the Company and engaging business relations through verbal, electronic and/or written arrangements.
'Confidential Information' shall mean the Software, the Website, the services provided by HotLizard pursuant to this agreement and all information of a proprietary and/or confidential nature regarding the Client's business and or/ the Client's employees whether such information be oral, written, computerised or otherwise.
'Contract' - this agreement between the Client and the Company, comprising this proposal and these Terms of Business whereby the Company agrees to supply products and/or services to the Client.
'Date of Development Completion' shall mean the date upon which the Software and Website development work is completed in accordance with the Functional Specification document and the Software and Website is released to the Client for testing.
'Date of Going Live' shall mean the date upon which the Software and Website are fully operational in accordance with the Product Specification or Functional Specification document.
'Date of Purchase' shall mean the date upon which the Client requested the Company to supply products and/or services from the Company through verbal, electronic and/or written arrangements.
'Standard Product' - the standard software as defined within the Product Specification Document / Quotation.
'Project' - means the design and installation of the Website and the development and installation of the Software as envisaged in these Terms of Business and as more fully detailed in the Functional Specification document and/or Product Specification document.
'Service' - the Service requested of the Company by the Client and set out in the accompanying proposal and Functional Specification and including hosting and support.
'the Product Specification Document' means the document detailing the parameters of the Standard Product.
'the Quotation' means the document detailing the price of the products or services supplied to the Client by the Company and attached as schedule 2 to the Web Hosting and Support Proposal agreement of even date.
'the Functional Specification Document' means the document detailing the parameters of the Project and the functional specifications for the Website and Software.
'the Software' means the computer software to be supplied to the Client by the Company for the performance of the functions set out in the Product Specification document and consisting of the totality of the processes, routines, logic using in processing information expressed in the form of machine executable codes and including the source codes, object codes and all Upgrades to the Software and any accompanying documents (whether electronic or otherwise)
'the Website' means the website created and designed pursuant to this agreement, the Functional Specification document and/or the Product Specification document, including but not limited to any logo, service names, source codes, object codes, programming, text, graphics, icons, designs, colours, layouts, images, photographs, animations, video, audio, music, text and applets incorporated therein, all Upgrades to the Website and any accompanying documents (electronic or otherwise).
'Upgrades' means all alterations, patches and amendments as the case may be, which are required to enable the Software and the Website to comply with the terms of the Functional Specification document or the product to comply with the terms of the Product Specification but which are not enhancements nor material deviations from the Functional Specification document or Product Specification document.
These terms apply to this Contract between the Company and the Client and are deemed to be acceptable by the Client and the Company on their signature of this Contract.
The Client requests the Company to supply standard products and/or bespoke development services and/or web design services and/or web hosting services and/or support services. Dependent upon the combination of products and/or services supplied the following terms will apply.
The Company contracts with the Client to supply standard products, and the Company shall provide those standard products as detailed in the Product Specification Document subject to the provisions of this Contract.
Without prejudice to its other rights and remedies, the Client shall be entitled to reject the Standard Product upon the basis that the Standard Product does not meet the Product Specification Document.
The Company contracts with the Client to supply bespoke development Services and/or website design Services, and the Company shall provide such services in accordance with the Functional Specification document and subject to the provisions of this Contract.
Without prejudice to its other rights and remedies, the Client shall be entitled to reject the bespoke development Services and/or website design Services upon the basis that the Software and Website do not meet the Functional Specification Document.
- Render such assistance to the Company as the Company may reasonably require in order to meet the Project objectives
- Provide such information which is in the Client's possession and that the Company reasonably requires to perform in terms hereof by the dates agreed in the Functional Specification.<.li>
- Make available to the Company free of charge such of the Client's staff as shall be reasonably necessary for the performance of the Company's obligations under this Agreement.
- Provide a full and final version of the copy, logos and other materials required by the date indicated within the Functional Specification.
Once the Functional Specification document has been agreed and signed by both parties any changes to the design or functionality required by the Client for the site will be subject to additional charges at the Company's prevailing hourly rate.
Once the design of the Website has been approved and signed-off in writing by the Client, any changes to the design and subsequent build of the site required by the Client will be subject to additional charges at the Company's prevailing hourly rate.
Once the copy has been received and implemented within the Website, any changes to the copy required by the Client and which cannot be made by the Client itself will be subject to additional charges at the Company's prevailing hourly rate.
Once any variable materials on the site have been received and implemented within the Website including but not limited to email addresses and items for drop-down lists, any changes to the materials required by the Client and which cannot be made by the Client itself will be subject to additional charges at the Company's prevailing hourly rate.
The Company reserves the right to charge for rectifying any damage caused wilfully or otherwise by the Client to the Software and/or Website.
In consideration of the product and or services supplied by the Company under this Contract in full, the Client shall pay to HotLizard the amount as detailed on the Quotation.
In respect of development and design services as defined within the Quotation the Quotation will only be considered an estimate until the Functional Specification has been completed and agreed. The final project price, should this differ from the Quotation price will be provided to the Client by the Company at that point.
Support Services are charged monthly and shall be invoiced annually in advance, the first payment being due prior to the date of going live. The minimum term for Support Services is 12 months. Thereinafter 3 months notice is required to discontinue the service, this includes the discontinuation of individual NetResourcer user accounts.
Hosting Services are charged monthly and shall be invoiced annually or quarterly in advance, our website hosting costs are based on our hosting matrix and the first payment is due prior to the date of going live. The minimum term for Hosting Services is 12 months, thereinafter 3 months notice is required to discontinue the service, this includes the discontinuation of individual NetResourcer user accounts. Failure to pay your hosting invoice within the payment terms may result in your site being suspended and will also incur a £50 reconnection fee which would be payable prior to the site being restored.
Standard Product rental is charged monthly and shall be invoiced annually in advance, the first payment being due on the date of purchase. The minimum term for Standard Product rental is 12 months, Thereinafter 3 months notice is required to discontinue the service, this includes the discontinuation of individual NetResourcer user accounts.
Payment for a Project comprising Web Design and/or Bespoke Development Services are payable as follows:
- 50% upon date of purchase/order confirmation,
- 40% upon site handover for client testing (completion of development),
- 10% prior to the date of go-live or 30 days after completion of development, whichever is the sooner.
Unless otherwise stated on the original quotation.
Quotations for additional work are payable as follows:
- 100% will be invoiced on order confirmation for immediate payment, only once payment has been received will the work be scheduled for development.
The Company reserves the right to charge reasonable Project expenses to the Client in respect of the Company carrying out its obligations under the Contract. Expenses shall include but not be limited to travelling expenses, accommodation expenses and subsistence and shall only be payable if agreed in advance by the Client in writing.
The Company reserves the right to charge for consultancy time and expenses if required to participate in meetings with the Client and/or third parties outside the contract between the two parties provided that any such expenses shall only be payable if agreed in advance by the Client in writing.
All payments are calculated exclusive of VAT and will bear VAT at the applicable rate Without prejudice to any other rights or remedies available to the Company, the Company reserves the right to charge interest on undisputed invoices unpaid within 30 days of the date of receipt of invoice. A rate of 4% above Barclays base lending rate (or such other rate as may substitute the same) will apply calculated on a day-to-day basis on the outstanding amount (both before and after any judgement) as from the time of the invoice until the outstanding amount is paid in full.
All intellectual property and other rights within the Software (excluding the Standard Product) and Website for bespoke development and design vest solely in the Client and the Company hereby assigns to the Client with full title guarantee, free from all encumbrances, all intellectual property rights in and relating to the Software and the Website and, in the case of the copyright, such assignment is made as a present assignment of future copyright.
All rights for Standard Products vest solely in the Company and through the Contract to purchase and supply a Standard Product, the Company grants the Client an irrevocable, royalty free licence to use the Standard Product. The licence is granted in perpetuity.
Immediately after the Company reaches the Date of Development Completion, the Company shall deliver to the Client, the Software and Website cut to compact disk together with all programming documents that accompany same, including all source codes and object codes for the bespoke development and design and the underlying programming thereof.
All HotLizard website and job board solutions will contain a page that briefly describes the project undertaken and links through to the HotLizard website. This will be "hidden" to users and will only appear in the HTML sitemap of the site. In addition to this all Gecko and Chameleon solutions will have a 'Powered by HotLizard' presence in the footer of the site, which will also act as a link through the HotLizard website.
The Company warrants in favour of the Client that it has developed and created the Software (including the Standard Product) and Website without infringing any of the proprietary rights, title, intellectual property rights including but not limited to any trademark, copyright, patent or design rights of any third party in so doing.
The Company further warrants and undertakes to the Client that:
- it is able to enter into this Contract and fulfil all its obligations set out herein; and
- all services and products will be supplied with reasonable care and skill and by means of appropriately qualified and skilled personnel; and
- all services and products will be supplied in accordance with this Contract including the proposal document, Functional Specification and Product Specification Document; and
- all materials created in connection with the Services, including without limit all material published on the Website (excluding any content supplied by the Client), shall not infringe any third party rights.
The Company shall indemnify and keep indemnified and hold the Client harmless from and against all liabilities, losses, damages, costs, claims and expenses whatsoever (including legal costs and expenses) incurred or suffered by the Client howsoever arising out of or in connection with any action, claim, suit, demand, or proceedings (including any sums paid by the Client whether before or after the commencement of legal proceedings) made or brought against the Client by a third party in respect of any of the products or services provided by the Company, or otherwise as a result of the Company's negligence, act or omission or any breach by or on behalf of the Company of any of its obligations, warranties or undertakings set out in this Contract and no limitation on liability set out in this Contract shall apply to or have any effect in respect of this clause.
The Client warrants in favour of the Company that as far as it is aware materials including but not limited to logos, graphics, icons, image, photos, animations, video, audio music and text supplied to the Company by the Client do not infringe any of the intellectual property rights, proprietary rights, title, trademark, copyright, patent or design rights of any third party.
The Client warrants that as far as it is aware any personal data held on individuals on the Website is held with the individual's knowledge or consent and is subject to the provisions of the Data Protection Act, with whom the Client holds current registration.
Following the Date of Going Live an acceptance period of 30 days will apply. During this period the Client will have the right to test the Software and Website and accept or reject either if they do not meet the Client's requirements as set out in the Functional Specification.
If rejected, the Company will rectify any anomalies in order to ensure that the Software and Website meet the Client's requirements as set out in the Functional Specification document during this period. Any rectifications after this period will either be subject to the terms of contracted Support Services or will be fixed subject to charges at the Company's prevailing hourly rate for programming and creative services.
- Priority 1: Indicates the total inability to use NetResourcer, website or job board. Fix time 4 hours.
- Priority 2 - Indicates the ability to use NetResourcer, website or job board but user operation is severely restricted. Fix time 1 working day.
- Priority 3 - Indicates ability to use NetResourcer, website or job board but with limited functions that are not critical to overall user operations. Fix Time 5 working days.
- Priority 4 - Indicates that the problem has been by-passed or otherwise temporarily corrected and is not affecting user operations. Fix time 10 working days
The Company, its employees or agents shall not be liable for any consequential damage or loss (including, without limitation, consequential loss of profits or business opportunity) caused to, or suffered by, the Client as a result of, or arising out of, any fault, defect or error in the services or operation of the Software or Website.
Subject to the above paragraph, the Company's total aggregate liability in respect of any and all claims (whether arising out of one or more incidents and whether in respect of the negligence of the Company) by the Client arising out of or in respect of the services or the use of the Software or the Website (other than in respect of death or personal injury caused by the negligence of the Company, its employees or agents or any fraud) shall in no circumstances exceed the total of the charges paid or payable by the Client in respect of the original products and/or services provided (or to be provided) under this Contract. This Clause shall survive termination of this agreement for any reason whatsoever.
The Company shall keep secret and confidential the Confidential Information and not disclose it to any third party. The Company may disclose the Confidential Information only:
- with the Client's prior agreement as to manner, content and degree of disclosure, and
- if required by law, with the Client's prior agreement as to manner, content and degree of disclosure.
The Client agrees that the Software and Website produced shall only be used for lawful purposes and shall not intentionally use the service for the transmission of any material which is in violation of any law or regulation in the UK, or which is defamatory, obscene or in breach of third party intellectual property rights (including copyright).
The contract may be terminated by either party where there is or has been a persistent breach of any provisions of this Contract or a material breach of this Contract and, with regard to any material breach, the party in breach fails to remedy the same within 14 days of written notice from the other demanding such remedy. In such cases the contract will be terminated immediately on written notice from the other.
The Client shall be entitled to cancel the Project or to cease work on the Project and terminate this Agreement, provided that all payments signed for in the quotation and/or agreed to in the Functional Specification will become immediately due for services performed in full up to the date of cancellation. No refund or part payment will apply in the result of a project terminated or cancelled by the Client. The client shall be entitled to a refund upon cancellation in respect of any services that have not been performed up to the date of cancellation.
Upon termination of this Contract for any reason, each party shall (except to the extent permitted or required to exercise or perform its continuing rights, licences or obligations hereunder) return to the other party all property of the other party (including any specifications, drawings and information provided by either party to the other) then in its possession, custody or control and shall not retain any copies of the same.
Termination or expiry of this Contract shall not affect any rights of either party in respect of any antecedent breach of this Contract by the other party nor shall it affect any accrued rights or liabilities (or the coming into force of any accrued rights or liabilities) of either party. The provisions of those clauses intended to have continuing effect shall continue in full force and effect following the termination or expiry of this Agreement.
A party to the Terms of Business shall not be liable for any delay in or failure of performance if:
- that delay or failure arises from circumstances or events beyond that party's reasonable control or foresight ('a Force Majeure Event'); and
- it has taken all reasonable measures with the object of avoiding or minimising the delay or impact of the Force Majeure Event; and
- the party claiming the benefit of a Force Majeure Event has promptly given notice to the other party of the nature of the Force Majeure Event, an estimate of the duration of Force Majeure Event and the probable extent to which that party shall be unable to observe or perform its obligations under these Terms of Business. If any Force Majeure Event continues for a period of 14 days, the party not in default shall be entitled to terminate this Contract without liability.
All notices, requests, demands, consents, approvals or other communications (each a 'Notice') in relation to either party or otherwise shall be in writing and shall be delivered by electronic mail or prepaid registered post or in person or transmitted by facsimile to the addresses or facsimile numbers set out in the party's details or such other address or facsimile number as the addressee may specify.
Any provision of these Terms of Business which is prohibited or unenforceable in any applicable jurisdiction shall be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. Such prohibition or unenforceability shall not invalidate the remaining provisions of these Terms of Business nor affect the validity or enforceability of that provision in any other jurisdiction.
This Contract shall constitute the entire agreement between the parties in relation to its subject matter and shall supersede all prior agreements and understandings between them with reference to the subject matter of this agreement.
No amendment of any provision of these Terms of Business, nor any extension hereof, shall be valid or binding on a party unless made in writing duly executed by the parties hereto.
Except as otherwise expressly provided in these Terms of Business, no waiver in whole or in part of any of the provisions of this Agreement shall be valid or binding on a party unless in writing and duly executed by that party. Any waiver shall apply to the particular occasion in question and shall not be continuing and shall not constitute a waiver of any other provision.
Other than such failure or delay in respect of time limits specified in these Terms of Business, no failure to exercise and no delay in exercising any right, power or remedy under these Terms of Business shall operate as a waiver. No single or partial exercise of any right, power or remedy shall preclude any other or further exercise of that or any other right, power or remedy.
No person other than a party to this Contract may enforce this Contract by virtue of the Contracts (Rights of Third Parties) Act 1999.
This agreement, its interpretation, breach and enforcement shall be governed and construed in accordance with the laws of England.