Terms and Conditions
The provision by Ehaus Limited (Ehaus) of any Web Services to the Customer shall be governed by the following terms and conditions as may be varied by any written proposal or quotation or by both parties in writing.
All Web Site construction work will, to the extent possible, be carried out using existing modules from the current standard System Software feature set used in the construction of all Ehaus Web Sites. Where practical Ehaus will indicate an existing Web Site to be used as a reference (the Reference Site) for the construction work.
In the event of any doubt as to the exact scope of any feature or function specified for the Web Site under construction, the feature or function will be implemented in accordance with the equivalent feature or function actually used in the latest version of the standard System Software feature set or, if applicable, in the Reference Site.
All charges set out in any proposal or quotation are provided as best estimates unless specifically stated to be on a fixed price basis and all such work carried out will be logged and charged for monthly in arrears. If Ehaus anticipates that any work items for which a fixed price has not been provided, will exceed the estimate given in any proposal or quotation, it shall inform the Customer as soon as practicable, and provide a written estimate of the additional work involved. The new work will not commence until the Customer has confirmed its agreement in writing.
All dates set out in any proposal or quotation are provided as a best estimate of the amount of time the work will take and neither party shall suffer any penalty, cost or other liability to the other party for failure to meet any such dates.
In the event that any work that the Customer requires has not been detailed in a written proposal or quotation or goes beyond the features available in the current standard System Software feature set, Ehaus will provide the Customer with a written estimate of the amount of additional work involved. Work will not commence until the Customer has confirmed its agreement in writing.
Ehaus may, at any time, issue a Completion Notice indicating to the Customer that the work items required in the construction of the Customer's Web Site and set out in any proposal or quotation, have been substantially completed. The Completion Notice shall list all work items, if any, that remain outstanding as against the list of work items set out in such proposal or quotation together with a timetable for completion of such outstanding work items, if any.
All prices set out in any proposal or quotation exclude VAT.
It is Ehaus’ standard policy to list the Customer on the client page of its web site, and to display a discreet link to the Ehaus web site from the Customer’s web site.
All charges relating to any programming and development work (the Construction Charges) shall become due and payable within 30 days of written confirmation to proceed with such work.
The Completion Date shall be the date on which the Customer's Web Site is made freely available, without restriction, to the commercial internet or the date on which all work items listed in the Completion Notice if any have been completed, whichever date is the sooner.
The Annual Maintenance Charge shall become due and payable on the Completion Date or (subject to prior termination under these terms) on any subsequent anniversary of the Completion Date (the Renewal Date).
In the event this Agreement is automatically renewed in accordance with the provisions of Clause 7.1 below this Agreement shall continue in full force and effect on the same terms save that any rise in the Annual Maintenance Charges shall be limited to no more than the percentage increase in the Retail Prices Index (RPI) over the preceding 12 month period plus 1%.
3. Hosting, Maintenance & Support
The Annual Service Charge is calculated by taking into account the maintenance and support requirements of the entire site, including the number of pages on the site, the size and type of catalogue database(s), frequency of updates applied, site functionality, site applications as well as hosting, bandwidth requirements and related support services. The Customer acknowledges that any change to the Web Services provided hereunder made during the continuation of this agreement may result in additional charges to the Annual Service Charge becoming due from the date of any such change.
All additional work carried out on the Customer's Web Site not covered by the Annual Service Charge will be agreed between the Customer and Ehaus in writing and in advance of any work being carried out. All additional work shall be charged on a time basis at Ehaus' standard rates from time to time.
4. Availability & Bandwidth
Ehaus will use its best endeavours to make the Customer's Web Site continuously available to the commercial internet at all times subject to routine and emergency maintenance, data loading, line faults, downtime occasioned by 3rd parties or problems with the commercial internet.
Unless a provision for dedicated bandwidth has been agreed in writing, if the Customer’s average use of bandwidth exceeds the amount allotted to it under these terms from time to time then the Customer will be liable for the difference between the charges due under the level of bandwidth used and that amount originally allotted to it under these terms.
Ehaus warrants that the provision by it of the Web Services under these terms to the Customer shall be performed with all reasonable care and skill.
Save as set out in these terms all other conditions or warranties express or implied, statutory or otherwise are hereby expressly excluded to the extent permitted by law.
Except in respect of death or personal injury caused by Ehaus' negligence, or as expressly provided in these terms, Ehaus shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or as specified in these terms, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Ehaus, its servants or agents or otherwise) which arise in connection with the provision of any services specified hereunder or its use by the Customer, and the entire liability of Ehaus under or in connection with these terms shall not exceed the amount of Ehaus' charges for the provision of any such services.
Ehaus shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Ehaus' obligations in relation to any of the services specified hereunder, if the delay or failure was due to any cause beyond Ehaus' reasonable control.
The Customer undertakes that the Customer’s data (whether stored or sent over the Internet) will not contain anything obscene, offensive or defamatory and will conform at all times with Ehaus' Acceptable Use Policy from time to time in force. The Customer will indemnify Ehaus and keep Ehaus fully and effectively indemnified against all actions, proceedings, claims, demands, damages and costs (including all legal costs on a full indemnity basis) occasioned to Ehaus as a result of any breach of this provision.
The Customer acknowledges that it may be required to obtain a licence for the use of certain data on its Web Site (including without limitation any data supplied by Nielsen BookData Limited). If requested to do so the Customer will provide Ehaus with written confirmation that it is entitled to use any such data on its web site.
Neither party shall pursuant to any of the provisions of this Agreement acquire or be deemed to have acquired any rights over or interest in any data, materials, resources, or property owned or licensed by the other party which is used in connection with the Customer's Web Site or the provision of the Web Services.
7. Term & Termination
Save as may be otherwise agreed in writing, this Agreement shall continue in force for a period of 12 months from the Completion Date, and thereafter shall be renewed automatically on each successive anniversary of the Completion Date (the Renewal Date) for a further period of 12 months unless and until terminated by either party in accordance with the provisions for termination set out in this Clause 7.
Either party may terminate this Agreement with effect from the next Renewal Date, by giving the other party not less than 1 month's notice in writing.
Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if the other commits any breach of this Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
Any termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of any party.
Upon expiry or termination of this Agreement Ehaus shall cease to use, delete and return all data, materials, resources or property, including any copies thereof, belonging to the Customer and shall cease to use all representations made pursuant to Clause 1.9 of this Agreement.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of its rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice its rights to take subsequent action.
This Agreement and documents expressly incorporated hereby constitutes the sole and entire binding contract and supersede all other proposals, agreements, statements, representations or warranties made by or between the parties relating to the subject matter hereof. Except as otherwise provided herein, no addition, amendment to or modification of this Agreement shall be effective unless it is agreed in writing and signed by or on behalf of both parties.
Unless otherwise expressly stated herein, all notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient as set out in this Agreement or such other address in the United Kingdom as the recipient may designate by written notice to the other party. Any such notice may be delivered personally or by first class pre-paid letter, email, or facsimile transmission, provided that if delivered by email or facsimile transmission a copy shall be posted or sent by hand within 24 hours of transmission, and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by email, or facsimile transmission the day of transmission if transmitted by 5:00pm or else the day following transmission.
Neither party may assign this Agreement or any part of this Agreement without the written consent of the other party, such consent not to be unreasonably withheld or delayed.
The headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
Each party will keep confidential any information imparted to it or its employees, agents or sub-contractors on the basis that it will keep confidential any information that by its nature would normally be regarded as confidential. Such confidentiality will not apply to information which is already in the public domain other than by reason of breach of this clause or which is required to be disclosed by law or which is obtained from a third party who is lawfully authorised to disclose the same.
This Agreement shall be governed by the laws of England and both parties hereby agree to submit to the exclusive jurisdiction of the English courts.