FANATIC DESIGN LTD (T/A Fanatic)
Loft 3, The Tobacco Factory, Bristol, BS3 1TF
Company Number : 4666485
- DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
ACCOUNT FORM: the account form completed by the Client detailing the Client’s primary contact details;
AGREEMENT: these terms together with any Project Scope, Confirmation, Account Form;
BUSINESS DAY: any day (other than Saturday or Sunday) on which ordinary banks are open for normal business in the UK;
CLIENT MATERIALS: any and all content provided by the Client to Fanatic in respect of the Services;
COMMENCEMENT DATE: the date set out in the Project Scope;
CONFIDENTIAL INFORMATION: in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not the information is expressly stated to be confidential or marked as such;
DATA PROTECTION LEGISLATION: all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the UK GDPR (the retained EU law version of the General Data Protection Regulation ((EU) 2016/679), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018); the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003;
DELIVERABLES: the deliverables to be provided by Fanatic as part of the Services and identified in the Project Scope;
DESIGN SERVICES: the design services to be undertaken by Fanatic as described in the Project Scope;
DEVELOPMENT SERVICES: the development services to be undertaken by Fanatic as described in the Project Scope;
DUE DATE: the date when payment of the Fees are due and as set out the Project Scope;
FANATIC MATERIALS: any and all content provided or created by Fanatic pursuant to the Services and incorporated into any of the Deliverables;
FANATIC: Fanatic Design Limited (Company Number : 466485) whose registered office is at Loft 3, The Tobacco Factory, Bristol, BS3 1TF;
FEES: the sums to be paid by the Client to Fanatic for the Services, as agreed by the Parties, and as set out in the Project Scope;
HOSTING & SUPPORT SERVICES: the provision of hosting services as further detailed in the Project Scope, or described in Fanatic’s hosting & support levels packages document;
IPR: patents, rights to inventions, copyright and related rights (including moral rights), trade marks, business names, domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms or protection which either subsist or will subsist now or in the future in any part of the world;
MARKETING SERVICES: the marketing services to be undertaken by Fanatic as described in the Project Scope;
MILESTONES: the milestones, if any, set out in the Project Scope;
NON-FANATIC DEFECT: any failure in the Services (including any Deliverables) that causes it to fail any part of the Acceptance Tests and that has been caused by an act or omission of the Client, or by any other party associated with the Client for whom Fanatic has no responsibility;
PROJECT SCOPE: the project scope set out in the following (as appropriate):
- QUOTATION: One page summary document detailing costs;
- SPECIFICATION DOCUMENT: longer document detailing the scope for the project, including costs;
- EMAIL ORDER: an email thread giving instructions for project tasks, with costs;
- CONFIRMATION: an email from Client confirming the go ahead of one of the above scope items;
SERVICES: the Design Services, Development Services, hosting Services, Marketing Services and Support Services (as applicable);
SNAGS: any functionality, design, error or bug found during user acceptance testing to be not performing as set out in the Project Scope;
SUPPORT SERVICES: the support services, if any, to be provided by Fanatic and detailed in the Project Scope;
THIRD PARTY SOFTWARE: any third party software that is incorporated or used as part of the Deliverables and which Fanatic has agreed in the Project Scope that it will provide.
- Unless the context otherwise requires, each reference in this Agreement to:
- writing, includes a reference to any communication effected by electronic transmission or similar means;
- a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time and shall include all subordinate legislation made from time to time;
- a Clause or paragraph is a reference to a Clause of this Agreement; and
- a Party or the Parties refer to the parties to this Agreement.
- The headings used in this Agreement are for convenience only and have no effect upon the interpretation of this Agreement.
- Words imparting the singular include the plural and vice versa, references to any gender include the other gender and references to persons include corporations.
- In the event of conflict between this Agreement and any Project Scope then the order of precedence shall be (i) the Project Scope, and (ii) these terms.
- Project Scope and Client Materials
- Fanatic shall provide the Services materially in accordance with the Project Scope.
- Either Party may request or propose amendments to the Project Scope. Any proposed amendments must be made in writing.
- The Client Materials shall be provided by the Client in accordance with the Project Scope or as requested by Fanatic under Clause 3, as applicable.
- Client’s Responsibilities
- shall promptly, at Fanatic’s request, provide Fanatic with any and all information, data, systems, documentation and access to resources and Client Materials that Fanatic reasonably requires in order to perform its obligations under this Agreement;
- shall be fully responsible for the Client Materials and for the content, accuracy, and completeness of the same and shall indemnify Fanatic against any and all damages, losses, and expenses arising as a result of any claims or proceedings on the grounds that the Client Materials contain any material that is unlawful or otherwise offensive (including, but not limited to, material that is obscene, offensive, defamatory, threatening, incites violence, or that breaches the Intellectual Property Rights of any third party);
- acknowledges that Fanatic’s ability to perform its obligations under this Agreement is dependent on the Client’s full and timely cooperation and the Client hereby agrees to provide the same;
- warrants that all information provided by it (including that in the Account Form and any Client Materials) is materially accurate and complete and that it will notify Fanatic promptly on becoming aware of any change to the same;
- will comply with the additional obligations (if any) set out in the Project Scope.
- Reporting Fanatic shall provide regular reports detailing the progress of the Services. In particular, such reports shall indicate any important matters requiring the Client’s attention.
- Third-Party Software
- The Third-Party Software set out in the Project Scope shall be supplied/sourced and incorporated into the Deliverables in accordance with the applicable software licence agreements.
- The Client acknowledges that certain fees, including licence fees for Third Party Software, may be subject to ongoing payments (which the Client will be responsible for paying). [Where reasonably possible, Fanatic will identify these in the Project Scope.]
- The Client acknowledges and accepts that the Project Scope sets out the Deliverables to be provided by Fanatic, any other costs and expenses (including any hardware or additional software needed to utilise such Services) will be at the Client’s expense.
- Upon delivery of the Deliverables by Fanatic, the Client shall (acting reasonably) carry out acceptance tests on the Deliverables to ensure they materially comply with the Project Scope and to identify any Defects. In the absence of any time frames for such test in the Project Scope then the Client shall undertake the same within 14 Days.
- Any Snag(s) found during the acceptance tests set out above shall be promptly reported to Fanatic, and will be suitably batch resolved within a reasonable time frame depending on the nature of the Snags.
- Any Snags that represent functionality changes further to the Project Scope will be carried out at Fanatic’s then current hourly rate.
- The Deliverables shall be deemed accepted unless the Client has notified Fanatic of any Snags with 14 days of delivery of the same by Fanatic.
- Fees and Payment
- The Client shall pay Fanatic the Fees, within 30 days of receipt of Fanatic’s invoice for the same.
- Any and all sums quoted or invoiced under this Agreement shall be exclusive of VAT.
- If the Client fails to make any payment due to Fanatic on or by the due date for payment, then, without prejudice to Fanatic’s other rights and remedies (including, but not limited to those under Clause 14), the Client shall pay interest on the overdue sum from the due date for payment until the payment of that overdue sum, whether before or after judgement.
- Interest under clause 7c shall accrue daily at the rate of 4% per annum above the Bank of England’s base rate from time to time.
- Intellectual Property
- The Client warrants that they have the right to use all Client Materials supplied by them to Fanatic and that, where applicable, all necessary permissions and rights have been obtained. The Client (or the applicable licensors, as appropriate) shall retain ownership of all Client Materials and all Intellectual Property Rights subsisting therein at all times.
- Fanatic warrants that they have the right to use all Fanatic Materials supplied by them as part of the Deliverables and that, where applicable, all necessary permissions and rights have been obtained.
- Development work: All Intellectual Property Rights in the Deliverables shall (unless expressly stated to the contrary in any Project Scope and confirmation) remain the property of Fanatic. Subject to the Client complying with its obligations hereunder, Fanatic grants the Client a non-exclusive licence, unrestricted, perpetual, royalty free (save for the Fees) licence to use such Deliverables. Unless expressly stated to the contrary in the Project Scope and Confirmation, “use” for the purpose of this Clause 8c is limited to object code format only.
- Design work: subject to the Client having paid all invoices relating to the Project Scope, Fanatic will assign all Intellectual Property rights in any brand or logo designed pursuant to the Design Services.
- Each Party hereby warrants to the other that it has the full power and authority to enter into, and perform its obligations under, this Agreement.
- Fanatic shall perform its obligations under this Agreement with reasonable care and skill in accordance with generally established and recognised practices and standards prevailing in the technology design and development industry.
- Fanatic warrants that the Deliverables shall be materially free of errors, viruses, and material defects and that it will perform materially in accordance with any Project Scope for a period of 3 months from the date that acceptance takes place.
- The warranty provided in Clause 9c shall not apply to the extent that any non-conformity with the Project Scope arises out of modifications made to the Deliverables by the Client or any third-party without the direct involvement of Fanatic.
- Fanatic shall not be liable to the Client for any damage to software or hardware, damage to or loss of data, or for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill, or business opportunity, or for any indirect or consequential loss or damage.
- Nothing in this Agreement shall limit either Party’s liability under Clause 10d or Clause 11
- Subject to Clause 10d, each Party’s total liability to the other in respect of any claims based on any events in any calendar year arising out of or in connection with this Agreement, whether in contract, tort (including negligence), or otherwise shall not exceed the total amount of Fees paid by the Client to Fanatic in the 12 months prior to the event giving rise to the claim.
- Nothing in this Agreement shall limit or exclude either Party’s liability for death or personal injury caused by that Party’s negligence; fraud; any breach of the terms implied by Section 12 of the Sale of Goods Act 1979 or by Section 2 of the Supply of Goods and Services Act 1982; the deliberate or wilful misconduct of that Party, its employees, agents, or sub-contractors; or for any other form of liability which cannot be limited or excluded by law.
- Data Protection
All personal data that the Parties may use in connection with this Agreement shall be collected, processed, and held in accordance with the provisions of the Data Protection Legislation. Nothing in this Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation or replace any obligations set out in the Data Protection Legislation.
- Data Processing
In the event that Fanatic are acting as a data processor for the Client (as defined in the Data Protection Legislation) then Fanatic and the Client will discuss and agree in good faith an applicable data processing agreement.
- Each Party undertakes that, except as provided by Clause 13b or as authorised in writing by the other Party, it shall, at all times during the term of this Agreement and 2 years after its termination or expiry:
- keep confidential all Confidential Information;
- not disclose any Confidential Information to any other party;
- not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
- not make any copies of, record in any way, or part with possession of any Confidential Information; and
- ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of Clauses 13a.1 to 13a.4 above.
- Either Party may disclose any Confidential Information to any sub-contractor or supplier of that Party, governmental or other authority or regulatory body, or employee or officer of that Party or of any of the aforementioned persons, parties or bodies, to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law.
- This clause 13 shall not apply to use Confidential Information to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.
- Each Party undertakes that, except as provided by Clause 13b or as authorised in writing by the other Party, it shall, at all times during the term of this Agreement and 2 years after its termination or expiry:
- Term and Termination
- This Agreement shall commence on the Confirmation date and, subject to the provisions of this Clause 14, terminate on the completion of all applicable Project Scopes.
- Fanatic shall be entitled to terminate this Agreement including any outstanding Project Scope at any time on 30 Business Days’ notice.
- Without prejudice to any other rights or remedies which may be available to it, either Party may terminate this Agreement with immediate effect by written notice to the other Party if:
- any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 14 Business Days of the due date for payment;
- the other Party commits any other material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 20 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
- that other Party ceases, threatens to cease, or starts any process that could result in the Party ceasing to carry on business.
- The termination or expiry of this Agreement shall be without prejudice to any rights, remedies, obligations, or liabilities which have already accrued to either of the Parties under this Agreement.
- On the termination or expiry of this Agreement:
- save as expressly stated to the contrary, all licences granted to Fanatic by the Client under this Agreement shall terminate immediately;
- Fanatic shall, where reasonably practical, return all Client Materials in its possession to the Client without undue delay;
- any provision of this Agreement that either expressly or impliedly survives the expiry termination of this Agreement shall remain in full force and effect.
- HOSTING & SUPPORT NOTICE PERIOD:
Notice given by the Client to cease Hosting & Support Services is a minimum of 30 days from the last day of the month in which notice is given in writing. Fanatic will delete all Client digital files after this notice period is over. The Client acknowledges and accepts that:
- Fanatic reserve the right to charge to cover any time required to support a migration away from a Fanatic managed server, or to supply files to the customer.
- LATE PAYMENT: as well as the terms set out in section 7, Hosting & Support Services are subject to a suspension of services on any outstanding hosting & support invoices not made within 30 days. A warning letter will be sent giving 7 days’ notice of such suspension. In the event of a suspension taking place, there will be a reconnection charge based on our current fixed charge (currently 60 GBP + VAT).
- MARKETING SERVICES NOTICE PERIOD: All Marketing Services are subject to a minimum 90 day term, and can be subsequently terminated on no less than a 60 day notice period by the Client in writing.
- Force Majeure
- Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. In the event that either Party to this Agreement cannot perform their obligations hereunder as a result of force majeure, the affected Party shall be entitled to a reasonable extension of the time for performing those obligations.
- In the event that either Party to this Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 60 Business Days, the other Party may at its discretion terminate this Agreement by written notice at the end of that period.
- No Waiver
No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.
Each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.
- Assignment and Sub-Contracting
- Neither Party shall assign, mortgage, charge or novate this Agreement , without the written consent of the other Party, such consent not to be unreasonably withheld.
- Fanatic shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission of Fanatic.
- Relationship of the Parties
Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency, or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
- Third Party Rights
Unless expressly stated otherwise, no part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
- All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
- Notices shall be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
- when sent, if transmitted by e-mail and a return receipt is generated; or
- on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
- on the tenth business day following mailing, if mailed by airmail, postage prepaid.
- In each case notices shall be addressed to the most recent address or e-mail address notified to the other Party.
- Entire Agreement
- This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
- Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty, assurance or other provision (made innocently or negligently) except as expressly provided in this Agreement.
Fanatic shall be entitled to declare that the Client is a client of Fanatic and use the Clients logo, name and brand in any marketing and publicity material (whether online or offline) and on its website. In addition, Fanatic will be entitled to include (i) images from the Deliverables and link’s to the Client website (where such website formed part of the Deliverables) and (ii) the phrase “Powered by Fanatic” on any website or application designed as part of the Design Services.
This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
- Law and Jurisdiction
- This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales
- Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.