CODE

Terms and Conditions

INTRODUCTION.

The best work comes out of great relationships. Honesty, respect and gratitude are the keys to a great relationship and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust. We aim to ensure that everyone coming to RCCO Creative Limited enjoys the Services we provide.

However, to ensure that we are all protected and that the expectations are clear, PLEASE KINDLY READ THESE TERMS AND CONDITIONS (the “Agreement” or “Terms and Conditions Document” ) as they apply to the Services we are rendering to you. These terms and conditions form a legally enforceable agreement without further reference to you. It is important that you read and understand them. Please ensure that they are in line with what you want. If you have any questions or need clarifications, please call us on 0207 310 8003 or send us an email at studio@rcco.uk. By ordering our services, you are bound by these terms and conditions.

BACKGROUND

A

The Company has expertise in website and application design, development and support services.

B

The parties have agreed that The Company will provide its Services to the Client on the terms of this Agreement. A detailed arrangement of this can be found in the Service Description Document.

THE PARTIES AGREE:

1. Definitions and interpretation

1.1 Words shall have the meanings given to them in this Agreement, including without limitation as set out below:

Agreement or Terms and Conditions Document

means the main body of these Conditions together with its schedules, the Service Description Document and the annexes to each Schedule, as each may be amended from time to time in accordance with their terms;

Authorised Contact

means each authorised representative appointed by each of the Client and The Company as their respective project managers, whose details are set out in the Service Description Document, or as otherwise notified to the other party in writing;

Application(s)

means either or both the web and mobile application development identified as ‘the Application in the Service Description Document to this Agreement, as well as all associated documentation and Specifications for such Application(s);

Bribery Laws

means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;

Business Day

means a day, other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in England. This includes the Company’s business hours which is 9am to 5.30pm (UK time);

Change

means any change, amendment or alteration to the Specification, the Project or this Agreement;

Change Control Note

means a written note which details the impact the proposed Change will have on any part of the Specification, the Project or this Agreement, in such form as the parties agree;

Change Control Procedure

means the procedure for agreeing Changes as set out in this Agreement;

Commencement Date

means the date stated in the Service Description Document

Company

means RCCO Creative Ltd, a company incorporated in England and Wales whose registered number is 11632821 and whose registered office is at 3.6 Bank Studios 23 Park Royal Road, London, England, NW10 7JH.

Confidential Information

means any and all confidential information (whether in oral, written or electronic form) given including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and the Clients, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any Associate, person, firm, or organisation associated with that party;

Consumer Prices Index or CPI

means the Consumer Prices Index as published by the UK Office for National Statistics;

Content

means all text, graphics, images, sound, data, software, and materials used in performing the Services;

Client

means the Client as stated in the Service Description Document.

Client Content

means any Content, materials and assets provided or made available by the Client to be incorporated into the Services;

Design Progress Tests

means the design tests as outlined in the Project Plan to assess whether the design to be used in the Services is conforming with the Specification and/or with applicable requirements in line with the Project Plan under this Agreement;

Fees

means the fees payable and other amounts payable under this Agreement for the Services, as set out in the Service Description Document;

Final Test(s)

means the Final Tests (including the Extended Final Test, if any) conducted at the end of the Project to determine the suitability of the Services to the agreed Specifications.

Force Majeure

means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire; flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;

Good Industry Practice

means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;

Intellectual Property Rights

means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

  1. whether registered or not;
  2. including any applications to protect or register such rights;
  3. including all renewals and extensions of such rights or applications;
  4. whether vested, contingent or future; and
  5. wherever existing;
Party

means either The Company or the Client

Parties

means both The Company and the Client

Project

means the project for the design and development of the Services for the Client in accordance with the Specification ;

Project Completion

means the date when the Project is to be completed in accordance with the Specification;

Project Plan

means the outline timetable and sequence of events (if any) as set out in the Project Plan Schedule, as updated from time to time in accordance with the Change Control Procedure;

Services

means the website design and development services, the application design and development services and any other additional services as detailed in the Service Description Document;

Service Description Document

means the Document attached to this Terms and Conditions Document which includes the description of the Services to be provided by The Company to the Client;

Specification

means the specification for the Services agreed between the parties and set out in the Service Description Document or as otherwise agreed;

Company’s Content

means any Content developed by The Company either before or during the term of this Agreement that is included in the Services, as detailed in the Specification;

Final Test Period

means the period of 30 days from delivery of the Services to the Client or such longer period as set out in the Service Description Document (or other applicable Schedule);

Third Party Content

means any Content owned or licensed by a third party either before or during the term of this Agreement, as detailed in the Specification;

VAT

means United Kingdom value added tax, and any other tax imposed in substitution for it;

Term

Shall have the meaning stipulated in Clause 2

Website

means the website identified as ‘the Website’ in the Service Description Document to this Agreement, as well as all associated documentation and Specifications for such website;

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1

the singular includes the plural and vice versa;

1.2.2

references to subclauses, clauses, Schedules are to subclauses, clauses, Schedules of this Agreement, and references to paragraphs are to paragraphs in a Schedule;

1.2.3

references to this Agreement include the Service Description Document and its’ Schedules;

1.2.4

references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

1.2.5

‘including’ (or similar words) means including without limitation;

1.2.6

clause headings do not affect their interpretation; and

1.2.7

references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.

2. Term and Duration

2.1 This Agreement will commence on the Commencement Date and will terminate on Project Completion date unless agreed otherwise between the parties or terminated earlier in accordance with this Agreement.

3. Development project

3.1 The Company shall undertake the Project in accordance with the Specification and subject to the terms of this Agreement and the Client shall pay The Company the Fees in accordance with the Service Description Document and otherwise comply with the terms of this Agreement.

3.2 The Project will start on the Commencement Date and shall be completed on or before Project Completion.

3.3 The Project shall follow the Project Plan.

3.4 Specification of Services:

As defined in the Service Description Document

4. Services

4.1 The Company shall provide the Services in accordance with the terms of this Agreement, including as set out in Schedule 1 the Service Description Document.

4.2 The Services provided by The Company under this Agreement do not include any ancillary services not expressly included in the Service Description Document.

4.3 The parties agree that The Company is being appointed as an exclusive provider of the Services.

5. Fees and expenses

5.1 The Fees, payments and expenses for the Services are as set out in the Service Description Document.

6. Price variation

6.1 The parties agree that the Fees for the Services are fixed in accordance with Schedule 1 (the Service Description Document) (subject to any Changes agreed in accordance with the Change Control Procedure).

6.2 Thereafter any increase in the Fees shall be discussed and agreed between the parties. If agreement is not reached within 14 Business Days of the Company notifying the Client of the proposed increase, the Company shall be entitled to increase the Fees in line with the increase (if any) in prices as identified by the Consumer Price Index from the date such Fees were last increased, provided that the Company shall not be entitled to increase the Fees under this clause more than once every 12 months.

7. Taxes and duties

7.1 All amounts due under this Agreement are exclusive of VAT (where applicable), sales or other tax applicable which shall be paid in addition by the Client at the rate and in the manner for the time being prescribed by law.

8. Invoicing and payment

8.1 The payment plan shall be in accordance with the Schedule Payment as stipulated in the Service Description Document.

8.2 At the point in which any payment is due, the Company shall invoice the Client electronically to the email address contained in the Service Description Document (or any changes made in accordance to the Service Description Document for all sums due under this Agreement

8.3 Client shall pay such sums in full within 30 days from the date of invoice or on the due date for payment specified in the Service Description Document, if earlier.

8.4 Amounts payable to the Company under this Agreement shall be paid into the bank account stipulated in the Service Description Document by electronic funds transfer, unless otherwise notified by the Company to the Client in writing in accordance with this Agreement:

9. Interest

9.1 Where sums due hereunder are not paid in full by the due date, the Company may, without limiting its other rights, charge interest on such sums at the Late Payment of Commercial Debts rate.

9.2 Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.

10. Parties’ Obligations

10.1 Each of the Company and the Client shall comply with their respective designated responsibilities specified in this Agreement.

10.2 The Company shall undertake the Project:

10.2.1

in accordance with Good Industry Practice

10.2.2

with all reasonable skill and care;

10.2.3

at the times and in the manner required in the Specification or otherwise specified in this Agreement;

10.3 The Company shall respond promptly from time to time to the Client’s reasonable requests for additional information or assistance to ensure the successful completion of the Project.

11. Client obligations

11.1 The Client shall:

11.1.1

provide accurate and complete Client Content to the Company at the time and in the format required by the Specification to enable the Company to provide the Services;

11.1.2

respond promptly from time to time to the reasonable requests of the Company for relevant information, instructions and assistance, including reasonable access to and cooperation by the Client personnel, to ensure the successful completion of the Project. The Company shall not be held liable for any delay to the project due to the lack of adequate and timeous communication from the Client.

12. Design Progress Tests and Final Tests

12.1 The parties shall work together to agree within the timeframes set out in the Project Plan, The Design Progress Tests shall be three rounds of tests to evaluate whether or not the designs to be used in the Services have are in accordance with, the Specification or other agreed test requirements as stated in the Service Description Document and Project Plan, Each round shall be referred to as a “Test Period” for the relevant round.

12.2 The Client shall perform the Design Progress Tests within the Test Period. The Client shall give feedbacks during the said Test Period and the Company shall implement these feedbacks.

12.3 Any feedback or amendment requests outside the three Test Periods as stated in the Project Plan shall be treated as additional work and shall be subject to the Change Control provisions in Clause 23

Final Test

12.4 At the completion of the Project, the Client shall be provided a staging link where the Client will test the Website and/or the Application in a live environment for 10 business days (The Final Test Period). The Client shall test the Website and/or the Application in a real environment. All bugs and feedback will be logged through the Company’s tool so that the Company can keep track of these bugs and feedbacks.

12.5 At the end of the Final Test Period, the Company shall confirm all the bugs and fix all the bugs that are attributable to some act or default of the Company or that are not in tandem with the Project Specifications. This fix to the bugs shall be completed within 10 business days and a new staging link will be provided to the Client. For the purpose of this clause, the bugs attributable to the act and default of the Company shall be limited to:

12.5.1

Functional Defects - bugs that restrict the user from successfully completing the core user journeys outlined in the UX phase. For example, if a user cannot submit a form or access a page.

12.5.2

Security Defects - bugs that jeopardize the security and integrity of the application or the application’s data. This can either be in the form of a package dependency needing to be updated/patched or users having incorrect access to areas of the application that should be limited.

12.5.3

Design Defects - where the final product does not align with the design mockups signed off in the Design Progress Tests phase.

12.6 At the receipt of the staging link, the Final Test process in Clause 12.4 will be repeated.

12.7 Any feedback or amendment requests made during the Final Test that are outside the Specifications and the Company’s default shall be treated as additional work and shall be subject to the Change Control provisions in Clause 23

12.8 The process in Clause 12.4 - 12.6 shall be repeated until the Website/Application is determined to be ready for live and accepted by the Parties, if this is not done, the Final Test period shall be deemed completed 30 days after the first Final Test.

12.9 At the end of the duration stipulated in clause 12.8, If the Website/Application being tested performs in accordance with the agreed Specification or other agreed test standards and meets the agreed testing criteria for the Final Tests, it shall be deemed to have passed the Final Tests. If the Website/Application fails to pass the Final Tests, the Client shall cooperate with the Company in identifying in what respects the Website/Application failed to conform to the Specification or otherwise failed to pass the Final Tests. The Website/Application shall not be deemed to have failed the Final Tests by reason of any failure to provide any facility or function not specified in the Specification or other agreed test standards.

12.10 If the Company is unable to remedy any failure of the Website/Applications so that it conforms with the Specification within a further final test period agreed by the parties (Extended Final Test Period), then:

12.10.1

the Company shall promptly discount from the final invoice, such sum of money covering the effort required to fix the said non-conformity with Specifications in respect of the rejected Services. Provided that in the case of a minor non-conformity with the Specification or other agreed test standards, the Client shall not unreasonably delay in its Acceptance of the Website/Application so long as the Company uses its reasonable endeavours in accordance with Good Industry Practice to rectify such non-conformity as soon as possible and when it cannot, repay the agreed sum in 12.10.1

For the purposes of this subclause, ’minor non-conformity’ means a cosmetic defect or a failure of the Website/Application to conform with the Specification but which does not have a material effect on any specific functionality.

12.11 A written statement of Acceptance will be promptly issued by the Client when the relevant Website/Application has passed all the Design Progress Tests and/or Final Tests.

12.12 Except for where the Client has rejected the Website/Application as stated above, the Client’s Acceptance of the Website/Application shall occur at the earliest of:

12.12.1

the Client providing written Acceptance of the Website/Application to the Company;

12.12.2

the Website/Application passing the Acceptance and Final Tests in accordance with this clause;

12.12.3

the Website/Application being used in a live environment or in commercial use for 30 days; and

12.12.4

the expiration of the Test Period and of the Extended Test Period (if any) in circumstances where the Client has failed to complete the Design Progress Tests and/or Final Tests, unless the Client’s failure or inability to complete the Design Progress Tests and Final Tests during the relevant Test Period or Extended Test Period (if any) is attributable to some act or default of the Company.

13. Warranties

13.1 The Company warrants and represents to the Client that:

13.1.1

the Company has the right, power and authority to enter into this Agreement and grant to the Client the rights contemplated in this Agreement, and to perform the Services;

13.1.2

it has all rights and licences to provide the Company Content and any Third Party Content (which it has been agreed in the Specification that the Company will license);

13.1.3

the Services (excluding any Client Content or Third Party Content) does not:

a)

infringe the Intellectual Property Rights of any third party;

b)

contain Content which is fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;

c)

contain any viruses or other harmful or intrusive programs or other code.

13.1.4

the Company will perform the Services in accordance with Good Industry Practice and with reasonable care and skill;

13.2 The Client acknowledges that the Company is not liable for any loss or damage incurred by the Client to the extent that this results from any failure by the Client to discharge its obligations under this Agreement.

13.3 The Client warrants and represents to the Company that:

13.3.1

the Client has the right, power and authority to enter into this Agreement and grant to the Company the rights contemplated in this Agreement, and to receive the Services;

13.3.2

it has all rights and licences to provide the Client Content and to grant all necessary licences to the Company to develop the Services and provide the Services;

13.3.3

any Client Content will not:

a)

be fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or otherwise contrary to law;

b)

infringe the Intellectual Property Rights of any third party; or

c)

contain any viruses or other harmful or intrusive programs or other code.

13.4 All other warranties and representations as to the Services, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.

13.5 Any warranties given by the Company shall be subject to the Client using the Services in compliance with this Agreement and any documentation supplied with it.

14. Intellectual Property Rights

14.1 The provision of Clause 14.3 does not apply to the Client if the Service Description Document expressly excludes the transfer of the Intellectual Property Rights in the Content to the Client.

14.2 If the Service Description Document includes a Condition for payment before the Intellectual Property Rights in the Content can be transferred to the Client, Clause 14.3 would only be applicable on the receipt of the full payment for the Intellectual Property Rights as contained in the Service Description Document.

14.3 In consideration of the Fees payable under this Agreement and the parties’ mutual obligations under this Agreement, the Company assigns to the Client all the Intellectual Property Rights in the Content, Specification, user documentation and all other materials created or obtained by the Company exclusively for the Client for the Services pursuant to this Agreement, provided that:

14.3.1

all Client Content shall remain the property of the Client or its licensors, and the Client grants to the Company a non-exclusive, non-transferrable, royalty-free licence of such of the Client’s Intellectual Property Rights in the Client Content as are necessary for the Company to fulfil its obligations under this Agreement; and

14.3.2

except as otherwise stated in this Agreement, all Company Content and Third Party Content shall remain the property of the Company or its licensors (as the case may be) and, subject to the Client’s compliance with the terms of this Agreement including payment of all Fees, the Company grants to the Client a non-exclusive, non-transferrable, royalty-free licence (or sublicence (as the case may be)) of such of Company’s Intellectual Property Rights in the Company Content and of such of the Third Party Content as are necessary for the Client to fulfil its obligations under this Agreement and to enable the Client to make use of the Services, which licence or sublicence:

a)

in the case of software, shall be a licence of object code only unless otherwise expressly provided;

b)

in the case of Third Party Content it shall be on such terms as Company may grant in accordance with the terms between Company and the Third Party Content owner; and

c)

shall be to the extent and for the purpose only of using and maintaining the Services.

14.4 Except as expressly agreed in this clause 14 (Intellectual Property Rights), no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

14.5 Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with this Agreement provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.

15. Intellectual Property Rights indemnity

15.1 The Client shall indemnify and keep indemnified, and hold harmless, the Company against all claims, losses damages, costs and expenses incurred by the Company as a result of or in connection with any action, demand or claim that use or possession of any Client Content infringes the Intellectual Property Rights of any third party.

15.2 The Company shall indemnify and keep indemnified, and hold harmless, the Client against all claims, losses, damages, costs and expenses incurred by the Client as a result of or in connection with any action, demand or claim that use or possession of the Services (excluding any Client Content) infringes the Intellectual Property Rights of any third party.

16. Limits on liability

16. 1Subject to the following subclauses, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed the total amounts payable under this Agreement.

16.2 The above limits on liability shall not apply in respect of the indemnities under clauses 15 (Intellectual Property Rights indemnity), and a party’s liability for a breach of their obligations under clause 19 (Confidential Information).

16.3 The Company’s liability to the Client in contract, tort (including negligence), for misrepresentation (whether innocent or negligent), for breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profit business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever, even if foreseeable.

16.4 The parties agree that the limitations on liability in this Agreement are fundamental to the Agreement and are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.

16.5 Notwithstanding the above neither party excludes or limits any liability for:

16.5.1

personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or

16.5.2

fraud or fraudulent misrepresentation; or

16.5.3

any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

16.5.4

any other liability to the extent the same cannot be excluded or limited by law.

17. Insurance

17.1 The Company must for the duration of this Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement, and will provide to the Client upon request sufficient evidence of such insurance cover.

18. Force Majeure

18.1 A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:

18.1.1

promptly notifies the other of the Force Majeure event and its expected duration, and

18.1.2

uses reasonable endeavours to minimise the effects of that event.

18.2 If, due to Force Majeure, a party:

18.2.1

is unable to perform a material obligation, or

18.2.2

is delayed in or prevented from performing its obligations for a continuous period of more than [90] days,

the other party may, within a further [ten] days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

19. Confidential Information

19.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this Agreement.

19.2 Each party undertakes to:

19.2.1

disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (including Company personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and

19.2.2

procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

19.3 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.

19.4 The provisions of this clause shall not apply to information which:

19.4.1

is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;

19.4.2

is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;

19.4.3

is independently developed by the recipient, without access to or use of such Confidential Information; or

19.4.4

is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.

19.5 The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of three years thereafter.

19.6 Each party (the ‘Indemnifier’) shall indemnify and keep indemnified and hold harmless the other (the ‘Indemnitee’) from and against any losses, damages, liability, costs (including legal fees) and expenses which the Indemnitee may incur or suffer as a result of or arising from any breach by the Indemnifier of its obligations under this clause.

20. Anti-bribery

20.1 Each party shall comply with applicable Bribery Laws relating to prevention of bribery and corruption, and each shall use all reasonable endeavours to ensure that:

20.1.1

all of that party’s personnel;

20.1.2

all of that party’s subcontractors; and

20.1.3

all others associated with that party,

involved in performing services for or on behalf of that party or otherwise involved with this Agreement so comply.

20.2 Without limitation to the above subclause:

20.2.1

neither party shall (directly or indirectly) offer or give or request, agree to receive or accept any bribe, other improper payment or advantage or bribe any UK or foreign public official in breach of applicable Bribery Laws; and

20.2.2

each party shall implement, maintain and enforce adequate procedures designed to prevent persons associated with that party engaging in conduct which contravenes the Bribery Act 2010.

20.3 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in the foregoing subclauses.

20.4 The expressions ‘adequate procedures’, ‘associated with’ and ‘foreign public official’ shall be construed in accordance with the Bribery Act 2010 and associated guidance published under that Act.

21. Termination

21.1 This Agreement shall commence on the Commencement Date and terminate on the acceptance of the Services in accordance with the Project Plan and the receipt by the Company of all sums due from the Client under this Agreement.

21.2 Without prejudice to any other rights that it may have, the Company may terminate this Agreement immediately on written notice to the Client if the Client has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid ten Business Days after the Client has received a written notification from the Company that the payment is overdue.

21.3 Either party may without prejudice to its other rights and remedies by notice in writing to the other party immediately terminate this Agreement if the other:

21.3.1

is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach;

21.3.2

is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986 (IA 1986)) or becomes subject to a moratorium under IA 1986, Pt A1 or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or becomes subject to a restructuring plan under Part 26A of the Companies Act 2006 (CA 2006) or a scheme of arrangement under CA 2006, Pt 26 or any analogous event occurs in any applicable jurisdiction.

21.4 The Client may without prejudice to its other rights and remedies by notice in writing to the Company immediately terminate this Agreement if the Company ceases carrying on business in the United Kingdom.

21.5 Either party for convenience may terminate this Agreement on not less than 30 days prior written notice to the other.

21.6 In the event of termination of this Agreement for any reason:

21.6.1

the Client shall immediately pay all outstanding invoices of the Company;

21.6.2

the Company shall promptly invoice the Client for all Services performed and Deliverables supplied but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Client;

21.6.3

In addition to the obligations contained in Schedule One, each party shall within 14 days of such termination return (or, at the other party’s option, destroy) all the other party’s Confidential Information in its possession or under its control and all copies of such information.

21.6.4

the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.

21.7 Any provision of this Agreement that either expressly or impliedly survives the expiry termination of this Agreement shall remain in full force and effect.

22. Notices

22.1 Any notice or other communication given by a party under this Agreement shall be:

22.1.1

in writing and in English;

22.1.2

signed by, or on behalf of, the party giving it (except for notices sent by email); and

22.1.3

sent to the relevant party at the address set out in clause 22.3.

22.2 Notices may be given, and are deemed received:

22.2.1

by hand: on receipt of a signature at the time of delivery;

22.2.2

by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;

22.2.3

by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and

22.2.4

by email: two Business Days after sending to the correct address.

22.3 Notices and other communications shall be sent to the Authorised Contact details contained in the Service Description Document.

22.4 Any change to the contact details of a party as set out in clause 23.3 shall be notified to the other party in accordance with clause 23.1 and shall be effective:

22.4.1

on the date specified in the notice as being the date of such change; or

22.4.2

if no date is so specified, four Business Days after the notice is deemed to be received.

22.5 All references to time are to the local time at the place of deemed receipt.

22.6 This clause does not apply to notices given in legal proceedings or arbitration.

23. Change control.

23.1 All Changes to the Project, the Specification and this Agreement shall take place in accordance with the following Change Control Procedure. Either party may submit at any time a request for Change to the other party.

23.2 Where the Company originates a Change, it shall provide with the Change request, a Change Control Note.

23.3 Where the Client originates a proposed Change, it shall provide the Company with such information (as is within the Client’s reasonable possession or control) which the Company reasonably considers is relevant to such Change or may assist the Company in the preparation of a Change Control Note - The Company will provide the Client within 14 days of receiving the request for a Change (or such other period as may be agreed between the parties) with a Change Control Note.

23.4 The recipient of an Change request shall act reasonably and in good faith in deciding whether to accept or decline it in its sole discretion, but in any event do so within 14 days of receipt of the Change request (or such later time as may be agreed) indicating acceptance of the change, or setting out in full its reasons for declining.

23.5 Where the Client and the Company agree to implement a Change, the costs of implementing a Change shall be paid in addition to the amounts due for providing the Services, relevant deliverables or allocation of resources associated with the Change as set out in the Change Control Note, except where the parties (acting reasonably) agree in writing that the Change is attributable to some act or default of the Company, in which case the Change shall be at the Company’s expense.

23.6 The parties shall have no obligations in respect of a Change Control Note unless they expressly agree to do so by them both executing the Change Control Note or otherwise agree to do so in writing.

24. Dispute resolution

24.1 If there is a dispute between the parties in relation to any matter under this Agreement, the parties’ respective Authorised Contacts (as contained in the Service Description Document) shall meet to try to resolve any such dispute and if they fail to do so with a reasonable time the matter in dispute shall be referred to a senior manager of the Company and the Client respectively, for them to try to resolve the matter in dispute, failing which the provisions of clause 33 (Governing Law and Jurisdiction) shall apply.

25. Compliance with law

25.1 Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties hereunder, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach to the extent that such breach is directly caused or contributed to by any act or default of the other party or its employees, agents and representatives.

26. Entire agreement

26.1 This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.

27. Data Protection

28. Each Party shall comply with its respective obligations, and may exercise its respective rights and remedies, set out in Schedule One

29. Marketing and Promotion.

29.1 The Client hereby grants the Company a non-exclusive, non-transferable right to use the Client’s trade name, trademarks, a description of the services and refer to the Client as a service recipient in the Client’s listings and other marketing documentation and activities relating to the Services (“Granted Marketing Materials”), provided that such use is in accordance with this Clause 29, good business practice and in a manner to promote the reputation, goodwill and legitimate interest of both Parties.

29.2 The Granted Marketing Materials shall include a credit-mark to the Company at the footer of the Website. The footer shall state “Created by RCCO”. The Colour will be subtle and the size of the credit-mark shall not exceed 16px. The Parties agree that the Client can opt against the credit-mark with the payment of £1000 or £5% of the total fees paid for the Project, whichever is higher.

29.3 The Client shall remain the exclusive owner of the Granted Marketing Materials which may be used by the Company hereunder. The Company may only use such Granted Marketing Materials in accordance with the restrictions and limitations set forth in this Clause 29. Neither this Agreement nor the Company’s use of such Granted Marketing Materials shall convey to the Company any right or title to said Granted Marketing Materials or affect in any way the exclusive ownership of the Client of said Granted Marketing Materials and of any registrations thereof. To this effect, the Company shall:

29.3.1

only use the Granted Marketing Materials in relation to the Marketing and Promotion of its’ Services and showing it’s success rate.

29.3.2

not use the Granted Marketing Materials in any way that it knowingly know is detrimental to the interests of the Client; and

29.3.3

not represent or act as agent for Client and shall have no authority to act in the name of, or on behalf of, or enter into any agreement or other commitment on behalf of the Client, or give any condition or warranty or make any representation on the Client’s behalf.

30. Personnel and Subcontracting

30.1 The Company 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 the Company.

30.2 The Company Personnel shall at all times remain the employees or subcontractors of the Company (or of the Company’s sub-contractor(s)) and shall remain under the overall control of the Company. The Company and the Client acknowledge and agree that the Company’s personnel are not employees of the Client, nor shall anything in this Agreement deem them employees of the Client.

31. Conflicts within agreement

31.1 In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:

31.1.1

the terms and conditions in the main body of this Agreement and;

31.1.2

the Service Description Document and the other Schedules

31.2 Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

32. General

32.1 Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.

32.2 Provisions which by their terms or intent are to survive termination of this Agreement will do so.

32.3 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

32.4 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

32.5 The Company may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice to the Client. The Client shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without the Company’s prior written consent.

32.6 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.

32.7 If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

32.8 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

32.9 All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.

32.10 Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

33. Governing law and jurisdiction

33.1 This Agreement is governed by the law of England and Wales. All disputes under this Agreement not otherwise resolved by the parties in accordance with the process set out in clause 24 (Dispute resolution) shall be subject to the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE ONE - DATA PROTECTION ADDENDUM

1. Definitions

1.1 In this Schedule:

applicable law

means applicable law of the United Kingdom (or of a part of the United Kingdom);

Controller

has the meaning given in applicable Data Protection Laws from time to time;

Data Protection Laws

means all applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either Party or the Services, including:

a)

the GDPR;

b)

the Data Protection Act 2018;

c)

any laws which implement any such laws;

d)

any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and

e)

all guidance, guidelines and codes of practice issued by any relevant Data Protection Supervisory Authority relating to such Data Protection Laws (in each case whether or not legally binding);

Data Protection Supervisory Authority

means any regulator, authority or body responsible for administering Data Protection Laws;

Data Subject

has the meaning given in applicable Data Protection Laws from time to time;

GDPR

means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);

International Organisation

has the meaning given in applicable Data Protection Laws from time to time;

Personal Data

has the meaning given in applicable Data Protection Laws from time to time;

Personal Data Breach

has the meaning given in applicable Data Protection Laws from time to time;

Processing

has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);

Processor

has the meaning given in applicable Data Protection Laws from time to time;

Protected Data

means Personal Data received from or on behalf of the Parties by the other Party, or otherwise obtained in connection with the performance of the obligations under this Agreement; and

Sub-Processor

means any agent, sub-contractor or other third Party engaged by the Company (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data.

1.2 Unless otherwise expressly stated in this Agreement the Company’s obligations and the Client’s rights and remedies under this Schedule are cumulative with, and additional to, any other provisions of this Agreement.

2. Compliance with Data Protection Laws

The parties agree that the Client is a Controller and that the Company is a Processor for the purposes of processing Protected Data pursuant to this Agreement. Each Party shall, and shall ensure its Sub-Processors and each of the Company Personnel shall, at all times comply with all Data Protection Laws in connection with the processing of Protected Data and the provision of the Services. Nothing in this Agreement relieves any of the Parties of any responsibilities or liabilities under Data Protection Laws.

3. Instructions

The Parties shall only process (and shall ensure its Personnel only process) the Protected Data in accordance with satisfying the purpose of this Agreement and the other Party’s written instructions from time to time except where otherwise required by applicable law (and in such a case shall inform the other Party of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). A Party shall immediately inform the other Party if any instruction relating to the Protected Data infringes or may infringe any Data Protection Law.

4. Security

The Parties shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

5. Sub-processing and Personnel

0.1

A Party shall not permit any processing of Protected Data by any agent, sub-contractor or other third Party (except its own employees and subcontractors) without the prior specific written authorisation of that Sub-Processor by the other Party and only then subject to such conditions as the other Party may require.

0.2

The Company shall ensure that access to Protected Data is limited to the authorised persons who need access to it to supply the Services.

1. Assistance

1.1 A Party promptly provide such information and assistance (including by taking all appropriate technical and organisational measures) as the other Party may require in relation to the fulfilment of the other Party’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws).

1.2 The Parties shall provide such information, co-operation and other assistance to the other Party as the other Party reasonably requires (taking into account the nature of processing and the information available to each Party) to ensure compliance with the other Party’s obligations under Data Protection Laws, including with respect to:

1.2.1

security of processing;

1.2.2

data protection impact assessments (as such Term is defined in Data Protection Laws);

1.2.3

prior consultation with a Data Protection Supervisory Authority regarding high-risk processing; and

1.2.4

any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or any complaint or request relating to either Party’s obligations under Data Protection Laws relevant to this Agreement, including (subject in each case to the Client’s prior written authorisation) regarding any notification of the Personal Data Breach to Data Protection Supervisory Authorities and/or communication to any affected Data Subjects.

2. Data Subject Requests

2.1 The Company shall (at the Client’s cost) record and refer all requests and communications received from Data Subjects or any Data Protection Supervisory Authority to the Client which relate (or which may relate) to any Protected Data promptly (and in any event within seven days of receipt) and shall not respond to any without the Client’s express written approval and strictly in accordance with the Client’s instructions unless and to the extent required by law.

3. International Transfers

3.1 None of the Party shall process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the other Party (which may be refused or granted subject to such conditions as the other Party deems necessary).

4. Audit

4.1 The Company shall (and shall ensure all Sub-Processors shall) promptly make available to the Client (at the Client’s cost) such information as is reasonably required to demonstrate the Company’s and the Client’s compliance with their respective obligations under this Schedule and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose at the Client’s request from time to time. The Company shall provide (or procure) access to all relevant premises, systems, personnel and records during normal business hours for the purposes of each such audit or inspection upon reasonable prior notice (not being more than seven Business Days) and provide and procure all further reasonable co-operation, access and assistance in relation to any such audit or inspection.

5. Breach

5.1 Either of the Parties shall promptly (and in any event within 48 hours) notify the other Party if it (or any of its Sub-Processors or the Company Personnel) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data.

5.2 The Party shall promptly (and in any event within 48 hours) provide all information as the other Party requires to report the circumstances referred to in paragraph 6.1 (above) to a Data Protection Supervisory Authority and to notify affected Data Subjects under Data Protection Laws.

6. Deletion/Return

6.1 Either Party shall (and shall ensure that each of the Sub-Processors and Company Personnel shall without delay (and in any event within seven days), at the other Party’s written request, either securely delete or securely return all the Protected Data to the Party in such form as the Party reasonably requests after the earlier of:

6.1.1

the end of the provision of the relevant Services related to processing of such Protected Data; or

6.1.2

once processing by the Party of any Protected Data is no longer required for the purpose of the Party’s performance of its relevant obligations under this Agreement,and securely delete existing copies (except to the extent that storage of any such data is required by applicable law and, if so, the Party shall inform the other Party of any such requirement (together with confirmation of the relevant law(s).

7. Survival

7.1 This Schedule shall survive termination or expiry of this Agreement for any reason.

8. Rights of Data Subjects

8.1 Nothing in this Agreement affects the rights of Data Subjects under Data Protection Laws (including those in Articles 79 and 82 of the GDPR or in any similar Data Protection Laws) against the Client, the Company or any Sub-Processor.