These Terms and Conditions and any Schedules hereto (Terms) set out the terms under which we, Bear & Co. Limited, (registered in England and Wales with company number 09156536, with our registered office at 71–75 Shelton Street London WC2H 9JQ), provide brand, website and marketing-related services to our clients. (The company was previously named 27th Anchor Limited and referred to as 27A.)
All services provided by us shall, unless otherwise agreed by us in writing, be subject to these Terms. By requesting us to provide any services to you, you hereby agree to be bound by these Terms. Schedule 1 sets out additional provisions which apply to particular types of services.
1.1 The definitions and rules of interpretation in this clause apply in these Terms:
Back End Code: this is the more complex functionality than Front End Code and enables a website to perform processes and store information. It includes databases and programming using languages such as PHP and Java.
Bespoke Items: has the meaning given in clause 9.2.
Bespoke Software: any bespoke software created by us and commissioned by you. Any Bespoke Software created for use with Bear & Co. will be in the form of a Bear & Co. App.
Browser Support Checklist: a detailed list of browsers and their version numbers for the purposes specified in paragraph 2.8 of Schedule 1.
Business Day: any day (other than a Saturday or Sunday) when banks are normally open for business in London.
Change Request: a variation to an existing Project outside of the original scope of the Project.
Client Materials: all Documents, information and materials provided by you relating to the Services including computer programs, data, servers, hosting, reports and specifications, as may be specified in the Order Form or SOW.
Client Zone: a password protected area on our website that clients can access.
Content: material that you wish to appear on your website, such as any imagery, photography, text and documents, and which is prepared and/or provided by you.
Contract: your order for Services and our acceptance of it, in accordance with clause 2.2. Debugging Process: has the meaning given in paragraph 2 of Schedule 1.
Bear & Co.: the content management system that enables you to perform certain administrative tasks on a Website and licensed to you, and for which an annual fee is payable.
Bear & Co. App: Back End Code which operates separately from Bear & Co. but which connects to Bear & Co. via the Bear & Co. Open API.
Deliverables: all Documents, products and materials developed by us pursuant to an Order Form or SOW in any form, including Information Architecture, Functional Specifications, designs, graphics, computer programs (whether created on a bespoke basis or otherwise), data, reports and specifications (including drafts) or any other deliverables specified in the Order Form or SOW.
Dependency Date: a date by which it is critical to complete a Project task to ensure that a corresponding task reliant on its completion is not delayed. We will notify you of any Dependency Dates.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Draft Design Concept: means any Deliverable that has not been selected, finalised and approved as described in paragraph 1 of Schedule 1. We retain all rights in the Draft Design Concepts, but you will acquire rights in the Final Design Concept.
Final Design Concept: means any Deliverable that has been selected, finalised and approved as described in paragraph 1 of Schedule 1. Only one final design of the alternative Draft Design Concepts provided can be selected as the Final Design Concept.
Inappropriate Content: has the meaning given in paragraph 6 of Schedule 1. Information Architecture: is the identification of types of Content and interactivity, and their configuration within a Website. The principles at play in Information Architecture are in general use across the internet and are usually to some degree repetitive. Accordingly, you will not acquire any rights in respect of the Information Architecture.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Non-Supplier Defect: has the meaning given in paragraph 1.3 of Schedule 1. Notified Purposes: has the meaning given in clause 13.3(b). Order Form: a document generated by us and sent to you for you to consider and, if thought fit, send to us for the purposes of clause 2.2.
Our Equipment: any equipment, including tools, systems, cabling or facilities, provided by us or our subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between you and us under which title passes to you. Our Manager: our manager for a Project appointed under clause 7.3.
Personal Data: shall have the meaning given in the Data Protection Act 1998. Pre-existing Materials: all Pre-existing Software, Documents, information and materials provided by us relating to the Services which existed prior to the commencement of the Contract including computer programs, software, content management systems, Bear & Co. App, data, research, reports and specifications or as otherwise specified in the Order Form or SOW. Pre-existing Software: Bear & Co. and any other web framework, content management system or Back End Code 2.2 which existed prior to the creation of the Bespoke Software.
Project: a project as described in an Order Form or SOW. Services: the services to be provided by us under the Contract as set out in an SOW, together with any other services which we provide or agree to provide to you. Server: any computer server administered by or on behalf of us, as referred to in the Order Form or SOW.
(b) prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, Order Form, SOW, or implied by law, trade custom, practice or course of dealing.
Delivery to us of your purchase order or Order Form constitutes an offer by you to purchase the Services specified in it on these Terms. No offer or purchase order placed by you shall be deemed accepted by us other than by our express written acceptance, at which point a contract for the supply and purchase of those Services on these Terms will be established. Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order, Order Form or other Document shall not govern these Terms or the Contract. Statement of Work or SOW: the detailed plan describing a Project and setting out the estimated timetable and responsibilities for the provision of the Services, which may be included as part of the Order Form or, if appropriate, separately agreed in accordance with clause 4.3.
Third Party Products: any third party products or services, 3.1 including (but not limited to) software (including open source binaries), printing, photography, direct mailing, fulfilment, pay-per-click advertising, consumer and market research, brand planning, communication planning, media planning and 4. buying, field marketing distribution (e.g. hand-outs or door- to-door), event planning, organisation and delivery, trade 4.1 mark checking, courier services, supplied as part of the Services, as may be referred to in the Order Form or SOW.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
You: the person, firm or company who purchases Services from us. Your Equipment: any equipment, systems, cabling or facilities provided by you and used directly or indirectly in the supply of the Services.
Your Manager: your manager for a Project, appointed in accordance with clause 8 Website: any website, extranet or intranet to be planned, designed, built, and/or hosted by us, as specified in the Order Form or SOW.
. 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
. 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
. 1.4 The schedules form part of the Contract and shall have effect as if set out in full in the body of these Terms.
. 1.5 Words in the singular shall include the plural and vice versa.
. 1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment.
. 1.7 A reference to writing or written includes faxes and e-mail.
2. APPLICATION OF TERMS
2.1 These Terms shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in your purchase order, confirmation of order, Order Form, SOW, or implied by law, trade custom, practice or course of dealing.
2.2. Delivery to us of your purchase order or Order Form constitutes an offer by you to purchase the Services specified in it on these Terms. No offer or purchase order placed by you shall be deemed accepted by us other than by our express written acceptance, at which point a contract for the supply and purchase of those Services on these Terms will be established. Your standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order, Order Form or other Document shall not govern these Terms or the Contract.
2.3 Estimates and quotations are given by us on the basis that no agreement or Contract shall come into existence except in accordance with clause 2.2./p>
3.1 The Services supplied under the Contract shall be provided by us after we have accepted your order in accordance with clause 2.2 and, if required, we have formulated a separate SOW in accordance with the provisions of clause 4 below.
4. STATEMENTS OF WORK
SOW(s) may be provided together with an Order Form. If a separate SOW is prepared and provided it shall be agreed in the following manner:
(a) Unless otherwise agreed by us, you shall provide us with a written brief setting out your requirements and specifications of the Services which you are requesting from us, including a description of what work is to be done, any dates by which it or each stage of the work is requested to be started and finished, Deliverables, Client Materials and such other information as we may request to allow us to prepare a draft SOW;
(b) We shall, as soon as reasonably practicable, provide you with a draft SOW, which shall be expressly entitled 'Statement of Work'; and
(c) We and you shall discuss and agree the draft SOW and when it has been agreed by email/fax/post, it shall become subject to these Terms.
For the avoidance of doubt, do document shall be an SOW unless it is expressly entitled 'Statement of Work' and agreed by both you and us.
4.2 Once the SOW has been agreed in accordance with clause 4.1(c), no amendment shall be made to it except in accordance with clause 5 and clause 17.
4.3 In the case of any conflict between an SOW and an Order Form, the SOW shall prevail.
5. CHANGE CONTROL
Your Manager and Our Manager shall make contact at least once every month (or at such other intervals as you or we shall reasonably request) to discuss matters relating to the Services. If either party wishes to increase the scope of a Project, it shall submit details of the Change Request to the other in writing by email and/or via our Client Zone.
5.2 If either party makes a Change Request, we shall, within a reasonable time, provide a written estimate to you by email and/or via our Client Zone of:
. (a) the likely time required to implement the change; 6.5
. (b) any variations to our charges arising from the change;
. (c) the likely effect of the change on the Order Form or SOW; and
. (d) any other impact of the change on the terms of the Contract.
5.3 We may, from time to time and without notice, change the Services in order to comply with any applicable safety, statutory, regulatory or technical requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If we request a change to the scope of the Services for any other reason, you shall not unreasonably withhold or delay consent to it provided that such changes do not materially affect the nature, quality or cost of the Services.
5.4 If you wish us to proceed with any change in scope requested by you:
. (a) We have no obligation to do so unless you have accepted the necessary variations to our charges, the Order Form, SOW, and any other relevant terms of the Contract to take account of the change as specified by email or in the Client Zone.
. (b) You must accept the Change Request via our Client Zone and/or by email. Your acceptance in this way will be binding to the Contract agreed for the Project.
5.5 Subject to your explicit approval, we may charge for our time spent in assessing a Change Request from you on a fixed cost basis in accordance with clause 6.
6. CHARGES AND PAYMENT
6.1 The total price for the Services shall be the amount set out in the Order Form and/or SOW.
6.2 The price stated in the Order Form or SOW is an estimate based on certain assumptions – that each Project proceeds without undue or unforeseen complication, that the approach of everyone involved is reasonably constructive, efficient, decisive and expeditious, and that the scope of the Services remains as specified in the Order Form and/or SOW. The Order Form or SOW may also include additional assumptions specific to the circumstances. If any of these 7.3 assumptions turn out not to be true, then you will become liable to pay us additional charges, in accordance with the Order Form or SOW.
6.3 The total price shall be paid to us (without deduction or set-off) in full or in any instalments as are set out in the Order Form or SOW. At the end of a period specified the Order 8. Form or SOW in respect of which an instalment is due, we shall invoice you for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 6.4.
6.4 Any prices contained the Order Form or SOW exclude:br>
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom we engage in connection with the Services, the cost of any materials and the cost of Third Party Products reasonably and properly provided by third parties and required by us for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us; andbr>
(b) VAT, which we shall add to our invoices at the appropriate rate, where applicable.
6.5 Unless agreed otherwise in the Order Form or SOW, you shall pay each invoice submitted to you by us immediately on receipt in full and in cleared funds.
6.6 We shall be entitled to increase any recurring fees specified in the Order Form or SOW annually in line with the Consumer Price Index.
6.7 Without prejudice to any other right or remedy that we may have, if you fail to pay us any sums due under the Contract on the due date, we may:
. (a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of The Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and we may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
. (b) suspend all Services until payment has been made in full.
6.8 All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision. This clause 6.8 is without prejudice to any right to claim for interest under the law, or any such right under this agreement or the Contract.
6.9 We may, without prejudice to any other rights we may have, set off any of your liability to us against any of our liability to you.
6.10 Any deposits or initial payments are non-refundable, save as otherwise agreed by us in writing.
7. OUR OBLIGATIONS
7.1 We shall perform the Services with reasonable skill and care and we shall use reasonable endeavours to provide the Services and to deliver the Deliverables to you in accordance in all material respects with the Order Form and SOW.
7.2 We shall use reasonable endeavours to meet any performance dates specified in the Order Form or SOW, but any such dates shall be estimates only and time for delivery shall not be of the essence of the Contract.
7.3 We shall, if we deem necessary, appoint Our Manager in respect of a Project. We shall use reasonable endeavours to ensure that the same person acts as Our Manager throughout the term of the Project, but we may replace him from time to time where reasonably necessary in the interests of our business.
8. YOUR OBLIGATIONS
8.1 You shall:
. (a) co-operate with us in all matters relating to the Services and appoint Your Manager in relation to a Project, who shall have the authority contractually to bind you on matters relating to that Project, and through whom questions and enquiries relating to the Services or Deliverables will be channelled;
. (b) provide for us, our agents, sub-contractors and employees, in a timely manner and at no charge, such access to your premises, office accommodation, data and such other facilities as reasonably requested by us;
. (c) provide, in a timely manner, such Client Materials and other information as we may request and ensure that it is accurate in all material respects;
. (d) be responsible (at your own cost) for preparing the relevant premises for the supply of the Services;
. (e) inform us of all health and safety rules and regulations and any other reasonable security requirements that apply at your premises;
. (f) ensure that all Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms with all standards reasonably requested by us in order for us to perform the Services;
. (g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation and/or use of Our Equipment, the use of Client Materials and the use of Your Equipment insofar as such licences, consents and legislation relate to your business, premises, staff and equipment in all cases before the date on which the Services are to start; and
8.2 You shall indemnify us against all damages, losses and expenses arising as a result of any claim that the Client Materials infringe the Intellectual Property Rights of a third party.
8.3 If our performance of our obligations under the Contract is prevented or delayed by any act or omission by you, your agents, sub-contractors or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay. We reserve the right to invoice you for any expenses reasonably incurred by us as a result of such delays.
8.4 You shall not, without our prior written consent, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as our employee or sub- contractor of ours in the provision of the Services.
8.5 Any consent given by us in accordance with clause 8.4 shall be subject to you paying to us a sum equivalent to the higher of: (i) 50% of the then current annual remuneration of our employee or sub-contractor; (ii) £25,000.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 As between you and us, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by us. Subject to clauses 9.2, 9.3 and 9.4, and to payment by you of all sums due to us under any Contract, we transfer to you ownership of all Intellectual Property Rights in the Bespoke Items (as defined in 9.2 below), subject to you agreeing to license back to us the Intellectual Property Rights so transferred to you, so as to enable us to perform the Services required of us under any Project.
9.2 For the purposes of this clause 9:
. (a) Bespoke Items means any Final Design Concept, Front End Code, Bespoke Software and Bear & Co. App.
. (b) Bespoke Items specifically exclude any Pre-existing Software, Pre-existing Materials, interactive animation scripts, Information Architecture and Draft Design Concepts.
. (c) Notwithstanding anything to the contrary in these terms or any Order Form or SOW, specifically excluded from Bespoke Software are any changes to Bear & Co. or Pre-existing Materials even if these have been commissioned by you. It also excludes any open source binaries used in the Bespoke Software.
9.3 You acknowledge that your use of any Pre-existing Materials in which we do not own the Intellectual Property Rights (such as any Third Party Products or open source binaries) shall be subject to the terms of any associated third party licence.
9.4 Where the Services result in the creation of any additional Intellectual Property Rights (such as, but not limited, to Intellectual Property Rights in software or interactive applications) not referred to in these Terms, the Order Form or the SOW, such Intellectual Property Rights shall, unless we agree in writing, vest automatically in us. Any licence of such Intellectual Property Rights shall be on such terms as you and we shall agree in writing.
10. SOFTWARE LICENSING
10.1 Subject to the payment of an annual licence fee, we agree to license any Pre-existing Software to you on a non-exclusive, non-transferrable, worldwide basis to such extent as is necessary to enable you to use the Deliverables and the Services on the terms and for the duration of the Contract. If these Terms or the Contract is terminated, such licence will automatically terminate, unless otherwise agreed in writing. If we agree to your hosting of Bear & Co. or any other Pre- existing Software after the Warranty Period or as otherwise agreed in the Order Form or SOW, you will also be required to enter into a separate software licensing agreement.
11. CONFIDENTIALITY AND OUR PROPERTY
11.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents or sub-contractors and any other confidential information concerning our business or our products or services which you may obtain. You shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to us, and shall ensure that such employees, agents or sub- contractors are subject to obligations of confidentiality corresponding to those which bind you.
11.2 We shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to us by you, your employees, agents or sub-contractors and any other confidential information concerning your business or your products or services which we may obtain. We shall restrict disclosure of such confidential material to such of our employees, agents or sub-contractors as need to know the same for the purpose of discharging our obligations to you, and shall ensure that such employees, agents or sub- contractors are subject to obligations of confidentiality corresponding to those which bind us.
11.3 All materials, equipment and tools, drawings, specifications and data supplied by us to you (including Pre-existing Materials and Our Equipment) shall, at all times, be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good clause by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.
11.4 The provisions of clauses 11.1 and 11.2 shall not apply to any confidential information which:
. (a) at the time of receipt by a party is in the public domain not as a result of a breach of this agreement;
. (b) is lawfully received by the party concerned from a third party on an unrestricted basis (provided always that the each party shall remain obligated to comply with Clause 10 if such third party is in breach of any obligation of confidentiality owed by the third party);
. (c) is already independently and lawfully known to the party concerned before receipt hereunder; or
. (d) as may be required by law, court order or any governmental or regulatory authority.
. 11.5 This clause 11 shall survive termination of the Contract, however arising.
12. LIMITATION OF LIABILITY
12.1 This clause 12 set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
. (a) any breach of the Contract;
. (b) any use made by you of the Services, the Third Party Products, the Deliverables or any part of them; and
. (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 All warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Terms limits or excludes our liability:
. (a) for death or personal injury resulting from negligence; or
. (b) for any damage or liability incurred by you as a result of our fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
. (a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits however arising under this Contract;
. (b) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of business and/or similar losses however arising under this Contract;
. (c) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any depletion of goodwill and/or similar losses however arising under this Contract;
. (d) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss or corruption of data or information and/or similar losses however arising under this Contract;
. (e) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any pure economic loss and/or similar losses however arising under this Contract;
. (f) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses and/or similar losses however arising under this Contract;
. (g) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct, special, indirect or consequential loss, costs, damages, charges or expenses and/or similar losses however arising in respect of Third Party Products.
12.5 Our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of any Contract shall be limited to the price paid or payable in the twelve months immediately preceding any claim for the Services for the particular element of the Project to which the claim relates.
13. DATA PROTECTION
13.1 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of us in connection with the Services.
13.2 We warrant that, to the extent we process any Personal Data on your behalf:
. (a) we shall act only on your instructions; and
. (b) we have in place appropriate technical and organisational security measures against unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
13.3 You warrant and undertake to us that:
. (a) your Personal Data has been and shall be obtained and processed (in so far as your Personal Data has been processed) lawfully;
. (b) the Services to be provided by us will be entirely consistent with and appropriate to the specified and lawful purposes which you have notified under the Data Protection Act 1998 for your Personal Data (Notified Purposes);
. (c) you have not and will not during the continuance of any Contract use or disclose your Personal Data or any part of it in a manner incompatible with the Notified Purposes;
. (d) your Personal Data is adequate, relevant and not excessive in relation to the Notified Purposes; and
. (e) your Personal Data is accurate and you shall keep your Personal Data fully up to date at all times during the continuance of any Contract. 13.4 You shall indemnify us against any loss or damage which we may sustain or incur as a result of any breach by you of the provisions of this clause 13.
14.1 Unless the nature of the Services to be provided requires otherwise and is specified in the Order Form or SOW, subject to clause 14.2 and Schedule 1, the Contract shall terminate automatically on completion of the Project in accordance with the Order Form or SOW.
14.2 Without prejudice to any other rights or remedies which the parties may have and where the nature of the Services to be provided is on an ongoing basis, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
. (a) the other party commits a material breach of any of these Terms or the Contract and (if such a breach is 15. remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
. (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
. (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); 16.
. (d) a receiver is appointed of any of the other party's 16.1 assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, the said three month period may not be possible or may be subject to additional fees for retrieving such materials from archiving or recreating deleted files; and
(d) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
15. FORCE MAJEURE
We shall have no liability to you under the Contract if we are prevented from or delayed in performing our obligations under the Contract or from carrying on our business by acts, events, omissions or accidents beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport network, power outage or electrical failure, theft of computers or related equipment, hostile computer act, telecommunications failures, non-availability of third party data centres, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub- contractors (including the suppliers of any Third Party Products).
16.1 For our marketing purposes, you agree that we may include your company name, any Design Concepts (whether or not in draft, accepted or final form) in our portfolio and marketing materials, to show clients and potential clients examples of our work.
16.2 Except in the case of any client or potential client that is a material competitor of yours, you agree that we may demonstrate Bespoke Software to clients and potential clients.
16.3 Subject to clause 16.1 above, you agree that we may make announcements from time to time via online channels such as but not limited to Twitter, Facebook, LinkedIn and the news or blog on www.27thanchor.com, that our services have been provided to you or that a particular Website or campaign is live.
16.4 Where we have designed or build the Website, we may include the statement 'Designed by Bear & Co. Group' and 'Powered by Bear & Co.' or words to similar effect on the home page of the Website as an active hyperlink to www.27thanchor.com and www.bearand.co respectively.
Subject to clause 4 and clause 5, no variation of the Contract shall be valid unless it is agreed by both parties. This can be executed via the Client Zone, email or in writing.
18.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
18.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
19.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
19.3 The parties agree, in the circumstances referred to in clause 19.1 and if clause 19.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
20. STATUS OF PRE-CONTRACTUAL STATEMENTS
These Terms, together with the documents referred to herein, constitute the entire agreement and understanding between the parties in respect of the matters dealt with in these Terms and supersede, cancel and nullify any previous agreement between the parties in relation to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination. Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and clauses or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract. Nothing in this clause shall operate to exclude any liability for fraudulent misrepresentation.
21.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.
21.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.
22. NO PARTNERSHIP OR AGENCY
22.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
24.1 Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery.
24.2 A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this clause 24 is not within business hours (meaning 9.00 am to 5.30 pm on a Business Day), at 9.00 am on the first Business Day following delivery.
24.3 To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
25. DISPUTE RESOLUTION
25.1 If any dispute arises in connection with these Terms or any Contract, directors or other senior representatives of the parties with authority to settle the dispute will, within 21 days of a written request from one party to the other, meet at our offices in a good faith effort to resolve the dispute.
25.2 The commencement of any form of alternative dispute resolution, whether as set out in clause 25.1 above or otherwise, shall not prevent the parties commencing or continuing court proceedings.
26. GOVERNING LAW AND JURISDICTION
26.1 These Terms, the Contract and any dispute or claim arising out of or in connection with them or their subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
26.2 Subject to clause 25, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms, the Contract or their subject matter.
1. CLIENT FEEDBACK AND APPROVALS
1.1 You undertake to provide written feedback by email or via our Client Zone as requested by Our Manager in response to any Deliverable provided to you as part of the Services, in accordance with the following provisions of this paragraph 1.
1.2 In the event that such feedback cannot be provided by a date notified to you in advance as being a Dependency Date, or within two Business Days of the date specified in the most recent timing plan, you shall inform us and arrange a new date to be within five Business Days of the Deliverable being provided, unless otherwise agreed in writing. Any request by you for a longer period of approval is not to be unreasonably withheld or delayed by us.
1.3 If no feedback or incomplete feedback is provided within the relevant timescale, or notice is not provided of any potential delays as specified in paragraph 1.2 above, the Deliverable will be deemed to have been accepted, and any further changes after then will be subject to additional charge.
1.4 You acknowledge and accept that delays or incomplete feedback will have a direct and negative impact on subsequent Deliverables and the Project delivery date, in some cases by many more days than the actual period of delay, particularly, but not only, if a Dependency Date is missed.
1.5 In accordance with paragraph 1.1 above, in response to any Draft Design Concepts provided to you as part of the Services, you shall notify us in writing either:
. (a) of your approval of one of the Draft Design Concepts, in which case the selected Draft Design Concept shall become the Final Design Concept; or
. (b) of suggested changes which you require to the Draft 2.3 Design Concepts, in which case we shall provide you with a further Draft Design Concept incorporating the suggested changes.
1.6 The procedure outlined in paragraph 1.5 above shall continue until such time as the Final Design Concept has been approved in accordance with the provisions of paragraph 1.8 below.
1.7 You acknowledge that any changes to the Draft Design Concepts arising in respect of paragraph 1.5(b) above may incur additional charges if the time or number of changes engaged by us in carrying out such changes exceeds the total 2.5 time or number of changes allocated for Draft Design Concept reviews as set out in the Order Form or SOW.
1.8 You are required to print the final artwork comprising the Final Design Concept and fax or scan and email such artwork back to us, thereby signifying your acceptance of it. In the event that you have not responded within the time period 2.6 specified pursuant to paragraph 1.2 above, indicating your acceptance or rejection:
. (a) you will be deemed to have accepted the Final Design Concept. In such a case, if there is more than one Draft Design Concept, we shall be entitled in our 2.7 absolute discretion to decide which one will be deemed to have been accepted as the Final Design Concept; and
. (b) we will be entitled to invoice you for all amounts due 2.8 as if you had accepted the Final Design Concept.
2. DEBUGGING PROCESS
2.1 Once we have completed the design and development of the Website, we shall run the following tests and processes (Debugging Process) to ascertain whether the Website complies in all material respects with the Order Form or SOW:
(a) Front End Code is checked for:
• W3C compliance using free software
• accessibility compliance using free software
• browser compatibility as defined in paragraph
• QA against designs
• SEO on-page factors
(b) customisations and configurations to Bear & Co. are tested by us against the agreed functional specification;
(c) you are provided with access to the Website to test and insert Content;
(d) you raise any bugs/issues encountered during Content insertion as tickets in our Client Zone;
(e) we review, respond and action raised tickets. You can monitor the status of all tickets within the Client
2.2 We shall provide you with the number of hours training on the Pre-existing Software and Bespoke Software as specified in the Order Form or SOW, in order that you can upload Content to the Website as part of the Debugging Process.
2.3 Any issues relating to the performance of the site as recorded by you will be notified to us in writing via our Client Zone or if separately requested by Our Manager, via email. Save for any Change Requests, which will be treated as defined in clause 5 of the main Terms, we will use our best endeavours to resolve each issue as part of our ongoing work to complete the Project.
2.4 Subject to paragraph 2.9 below, acceptance of the Website shall occur when the Debugging Process has completed. Acceptance is not to be unreasonably withheld or delayed by either party.
2.5 If any failure to complete the Debugging Process results from a defect which is caused by an act or omission by you, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Supplier Defect), the Website shall be deemed to have completed the Debugging Process, notwithstanding such Non-Supplier Defect.
2.6 We shall provide you with assistance reasonably requested by you in remedying such Non-Supplier Defects by supplying such additional services or products as we see fit in our sole discretion. You shall pay us in full for all such additional services and products at our then current fees and prices.
2.7 We are not liable for any time or expenses associated with Your Project Manager or otherwise incurred by you in testing a Website or in providing any input or feedback to us at any stage of the Project.
2.8 Websites we produce will only be supported in the browsers and their version numbers specified in the Browser Support Checklist.
2.9 Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
. (a) you use any part of the Website for any revenue- 5.2 earning purposes or to provide any services to third parties;
. (b) the Website is or can be accessed and/or viewed by the public for more than three Business Days; or
. (c) you delay the start of the relevant Debugging Process for a period of ten Business Days from the date on which we are ready to commence such Debugging Process. For the avoidance of doubt this period includes any delay in your uploading of your Content to the Website via Bear & Co.
3. LEGAL COMPLIANCE
3.1 You shall be responsible for notifying us prior to our 6. acceptance of your Order in accordance with clause 2.2 of the 6.1 main Terms or before the preparation of the relevant SOW, of any specific advertising requirements or restrictions relevant to the particular profession, trade or industry in which you operate insofar as they affect the Services we are to provide. We shall have no obligation to investigate or verify any such advertising requirements or restrictions and we shall have no liability to you in the event that any information provided by you to us in this respect proves to be 6.2 inaccurate.
3.2 Although we aim to build and configure our networks and web applications with a view to PCI compliance, this cannot be guaranteed, not least because there are other conditions that your business must meet, independently from the Website.
4.1 We warrant that the Website will perform substantially in 6.4 accordance with the Order Form or SOW for a period of three months from acceptance (Warranty Period). If the Website does not so perform, we shall, for no additional charge, carry out any work necessary in order to ensure that the Website complies substantially in accordance with the Order Form.
You shall ensure that any Client Materials to be included on the Website do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights (Inappropriate Content).
You acknowledge that we have no control over any content placed on the Website by visitors to the Website and we do not purport to monitor the content of the Website. We reserve the right to remove content from the Website where we reasonably suspect that such content is Inappropriate Content.
You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Client Materials constitute Inappropriate Content. Whilst we shall use our best endeavours to ensure that the Website (if hosted by or via us) is available at all times, you acknowledge that such hosting is subject to the right of any third party provider of connectivity of any hosting services to the internet to temporarily suspend such connection, to make any modification, change, addition to, or replacement, technical issues associated with Bear & Co. or Bespoke Software.
The provision of technical and helpdesk support services by us is set out in our Technical Support and Helpdesk Policy, as such policy may from time to time be amended by us.
4.2 The warranty set out in paragraph 4.1 above shall not apply to the extent that any failure of the Website to perform substantially in accordance with the Order Form or SOW is caused by you or your Client Materials.
4.3 The warranty set out in paragraph 4.1 above shall not cover time spent investigating or accessing Client Materials where this is necessary in order to ensure that the Website complies substantially in accordance with the Order Form or SOW. 6.5
4.4 The warranty set out in paragraph 4.1 is waived by you if you choose to host the Website yourselves during the Warranty Period. 6.6
5. SUPPORT SERVICES
5.1 Support, if included as part of the Services and specified in the Order Form or SOW, means you may call, email or use our Client Zone Ticketing system up to the amount of support time shown in the Order Form or SOW for either:
. (a) helpdesk support which includes advice on using Bear & Co. to add Content to any Websites and to report faults where any Website does not appear to be functioning correctly; or
. (b) technical support includes the fixing of bugs identified after the three month warranty period, resolution of technical issues associated with Decibel or Bespoke Software.
5.2 The provision of technical and helpdesk support services by us is set out in our Technical Support and Helpdesk Policy, which is available on our website at www.bearand.co/terms, as such policy may from time to time be amended by us.
5.3 The period of technical and helpdesk support commences on the Business Day the Website is made available to you for the Debugging Process (Support Commencement Date), and shall continue unless the Contract is otherwise terminated in accordance with these Terms, with either party giving the other party written notice of termination, such notice being of a period of not less than 45 days and expiring on an anniversary of the Support Commencement Date.
6. HOSTING SERVICES
6.7 If any problems arise as a result of you accessing the Server to update or otherwise access the Website other than via any Pre-existing Software or other technology provided by us, we are under no obligation to provide support to you, although we may be prepared to do so, subject to your payment of our standard support charges.
6.8 The period of Website hosting commences on the Business Day the Website is made available for the Debugging Process (Hosting Commencement Date), and shall continue unless the Contract is otherwise terminated in accordance with these Terms, with either party giving the other party written notice of termination, such notice being of a period of not less than 45 days and expiring on an anniversary of the Hosting Commencement Date.
6.9 On expiry or termination of the Contract, we shall:
. (a) return to you your Client Materials and shall provide to you an electronic copy of the Website (including all content on the Website); and
. (b) provide such assistance as is reasonably requested by you to transfer the hosting of the Website from us to you or to another service provider, subject to payment of fees (at our then applicable standard hourly rates) and our reasonable expenses.
7. MARKETING SERVICES
7.1 Where the Services to be provided (whether by us or as Third Party Products) comprise marketing aspects including but not limited to pay-per-click advertising, search engine optimisation, social media, advertising, marketing strategy and campaign work (Marketing Services), you acknowledge that we cannot guarantee or quantify the results of any such campaign and you use such Marketing Services at your own risk.
7.2 The period during which we provide Marketing Services shall continue, unless the Contract is otherwise terminated in accordance with these Terms, until either party gives the other party written notice of termination, such notice being of a period of not less than 45 days before the last day of the then current three month period as specified in the Order Form, SOW or the most recent related invoice.
8. THIRD PARTY PRODUCTS
8.1 Third Party Products such as photography, illustration, painting, animation, video and fonts will usually be on a copyright licence basis only and may be subject to additional costs. You acknowledge and agree that you will comply with any such licence and be liable to pay any licence fees or other expenses incurred as a result of the use of such items.
8.2 All of the items listed in paragraph 8.1 above would be subject to your approval as part of the Client Feedback and Approvals stage as described in paragraph 1 above. If you later wish to replace an item after approval, for instance because its cost is too high or for any other reason, it would be subject to Change Control as defined in clause 3 of the main Terms.
8.3 The estimated costs of any such Third Party Products included in the Order Form or SOW are for guidance purposes only and you shall be liable to indemnify us for our full costs in this respect. This includes one or two-way technical integration of Third Party Products into the Website.
8.4 Where the Third Party Products include printing, you acknowledge that such services are prone to errors and you shall be responsible for checking and giving your approvals in writing to any mock-ups or 'pdf' documents provided to you.
8.5 Where the Third Party Products include the provision of direct mailing services, you are responsible for complying with the terms and conditions of the data supplier as regards the use and any subsequent use of mailing lists obtained.
8.6 If you choose to deliver video content from the Website (or any other website) in H.264 encoding (for Apple devices), you acknowledge and agree that you will be liable to pay any resulting patent licensing royalties.
8.7 Whilst we shall use all reasonable endeavours to ensure that any Third Party Products are supplied to your satisfaction, such Third Party Products are supplied on an "as is" basis and we shall have no liability in this respect and you are responsible for checking compliance with your requirements, legal or otherwise, and seeking any legal redress against the supplier in the event that any problems arise.
8.8 You acknowledge that the Pre-existing Software uses: (a) certain open source binaries, such as MIT and LGPL; and (b) certain third party software, such as Flowplayer. These are licensed for use and subject to restrictions pursuant to, and under separate agreements. By using those open source binaries, third party software or the Pre-existing Software, you agree to be bound by and comply with the terms of those separate agreements. We give no warranty in relation to and have no liability in connection with your use of these open source binaries or third party software.
9. BEAR & CO.
9.1 The annual licence fee for Bear & Co. falls due prior to the Website being made available to you for the Debugging Process. Thereafter the annual fee is due by each anniversary of that date.
10. TRADE MARK AND DOMAIN NAME SERVICES
10.1 We do not provide trade mark services or registration services for domain name services. We may, however, suggest or recommend brand or company names and domain names corresponding to those or marketing campaigns. You hereby irrevocably waive any claims against us in respect of any decision by any trade mark registration body or domain naming authority to refuse to register any trade mark or domain name and, without limitation, you acknowledge that any application or other administration fee payable is non- refundable in any event.
10.2 We accept no responsibility for the use of any domain name or trade mark by you and we shall take no part in any dispute between you and any third party in respect thereof. We reserve the right, on becoming aware of a dispute concerning a domain name, at our sole discretion and without giving any reason, to either suspend or cancel the relevant service associated with the domain name, and/or to make such representations to the relevant naming authority as we deem appropriate.
Questions, comments and requests regarding our terms are welcomed and should be addressed to email@example.com
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