Development Terms & Conditions
Development Terms and Conditions
1.1 In this Agreement, unless the context otherwise requires:
Acceptance Tests: (if applicable) the tests to be carried out following completion of the Services, as agreed between the parties;
Agreement means these terms and conditions, MPL’s Proposal, and any other documents expressly referenced therein;
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Client means the party receiving the Services, as detailed in the Proposal;
Client Materials means any materials provided to MPL by the Client in connection with the provision of the Services;
Deliverables means the outputs of the Services, produced by or on behalf of MPL, as described in the Proposal;
Group means in relation to a party, the party, any holding company of it and any subsidiary of the party or its holding company, where “holding company” and “subsidiary” shall have the meaning ascribed to them in Section 1159 of the Companies Act 2006 as may be amended from time to time;
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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 right, 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 and Intellectual Property Right means any one of the Intellectual Property Rights;
MPL means Multicom Products Limited incorporated and registered in England and Wales with company number 02447353 whose registered office is at 101 Victoria Street, Bristol, BS1 6PU;
Proposal means the document provided to the Client by MPL, which sets out the scope of the Services, Deliverables, the Service Charges and/or the payment terms;
Service Charges means the charges payable to MPL by the Client, as detailed in the Proposal;
Services means the design, development and delivery of the Deliverables to the Client by MPL, as well as any related services detailed in the Proposal; and
VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
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 Words in the singular shall include the plural and vice versa.
1.5 A reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time whether before or after the date of this Agreement and, in the case of a statute, includes any subordinate legislation made under that statute whether before or after the date of this Agreement.
1.7 A reference to writing or written includes faxes and e-mail.
1.8 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them.
1.9 Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
2.1 The signed Proposal constitutes an offer by the Client to purchase the Services in accordance with these terms and conditions.
2.2 The Client’s offer shall only be deemed to be accepted by MPL when it issues written acceptance or commences performance of the Services, at which point the Agreement shall come into existence. Subject to earlier termination in accordance with this Agreement, the Agreement shall terminate on completion of the Services.
2.3 Any samples, drawings, descriptive matter or advertising issued by MPL are issued or published for the sole purpose of giving an approximate idea of the works and materials produced by MPL. They shall not form part of the Agreement or have any contractual force.
2.4 Any quotation or estimate given by MPL shall not constitute an offer and is only valid for 30 days from its date of issue.
3.1 MPL shall provide the Services to the Client in accordance with this Agreement in all material respects. MPL shall confirm the proposed start date of the Services in advance.
3.2 MPL shall use its reasonable endeavours to meet any performance dates specified in the Proposal (or otherwise expressly agreed), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 MPL may provide the Client with periodic updates on the Services, including details of any unresolved issues to be addressed by the parties.
3.4 Where applicable, MPL shall conduct the Acceptance Tests and notify the Client of the results. Where the Acceptance Tests are not passed, MPL shall use its reasonable endeavours to remedy any defects in the Deliverables and re-perform the Acceptance Tests within 30 days. For the avoidance of doubt, the Deliverables shall only be deemed defective if they fail to pass the relevant Acceptance Test criteria and MPL shall not be obliged to make any changes to the Deliverables except to remedy such failure.
3.5 The Client may request changes to the Services and/or Deliverables up to 7 days prior to the proposed commencement of the Services. MPL shall inform the Client of any variation to the Service Charges as a result of such changes. After that time, MPL shall not be obliged to accept any change requests.
4.1 The Client acknowledges that MPL’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide). In particular, the Client shall:
(a) provide all relevant Client Materials in a timely fashion and in accordance with any timetable agreed by the parties for the performance of the Services;
(b) provide all instructions, information, access and assistance as reasonably required by MPL to enable it to provide the Services.
4.2 MPL shall have no liability for any failure to provide or delay in providing the Services in accordance with the terms of this Agreement to the extent such failure or delay results from the failure of the Client to comply with any of its obligations under this Agreement.
4.3 The Client acknowledges and agrees that this Agreement relates to development services only and the Client’s ability to use and enjoy the benefit of the Deliverables, and any commitments set out in the Proposal relating to other products or services, are conditional on the existence of a licence between the parties (on MPL’s standard terms unless otherwise agreed) for the applicable MPL products and/or services.
5.1 In consideration of MPL providing the Services to the Client, the Client shall pay the Service Charges as set out in the Proposal, which shall state whether they shall be on a time and materials basis, a fixed price basis or a combination of both (in the event that no charging basis is specified, it shall be a time and materials basis). Clause 5.2 shall apply if the Services are provided on a fixed price basis, clause 5.3 shall apply if the Services are provided on a time and materials basis, and the remainder of this clause 5 shall apply in either case.
5.2 Where the Services are provided for a fixed price, the total Service Charges shall be set out in the Proposal. MPL reserves the right to vary the Service Charges payable in the event of any change to the Services or Deliverables being agreed, or in the event that any failure or delay in the performance of the Client’s obligations results in an increase in MPL’s costs for providing the Services.
5.3 Where the Services are provided on a time and materials basis, The Service Charges shall be calculated in accordance with MPL’s standard daily rate(s) (unless otherwise stated in the Proposal). MPL shall keep a record of the time spent by its employees, consultants and/or agents on the provision of the Services, as well as the costs incurred for expenses and materials.
5.4 MPL shall invoice the Client as set out in the Proposal or otherwise monthly in arrears. Where an upfront payment is required, such payment must be received prior to commencement of the Services.
5.5 The Client shall pay invoices in full, without deduction, withholding or set-off, within 15 days of date of invoice in cleared funds to the bank account nominated in writing by MPL. Time for payment shall be of the essence of the Agreement.
5.6 If the Client fails to pay any sum due under this Agreement within 15 days from date of receipt of the related invoice, MPL shall be entitled to charge interest on a daily basis on such overdue amounts and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate 8% above the base rate for the time being in force of the Bank of England or such other rate as provided by the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. MPL shall be entitled to claim fixed compensation in respect of each late payment in the amounts set out in section 5A of the aforementioned Act.
5.7 The Service Charges are exclusive of amounts in respect of VAT. The Client shall, on receipt of a valid VAT invoice from MPL, pay to MPL such additional amounts in respect of VAT as are chargeable on a supply of the Services.
5.8 Without prejudice to any other rights or remedies it may have, in the event that any Service Charges are overdue, MPL may suspend provision of the Services or withhold Deliverables without liability to the Client unless and until all overdue Service Charges are paid in full (together with applicable interest).
6.1 MPL warrants that:
(a) the Services shall be provided using reasonable care and skill;
(b) all individuals who deliver the Services shall be appropriately skilled and qualified; and
(c) the Deliverables shall substantially conform with any specifications specified in the Proposal.
6.2 Where no acceptance testing procedure is otherwise specified, the Client shall notify MPL of any defects in the Services and/or Deliverables, or non-compliance with the warranties in clause 6.1, within 5 Business Days of delivery of such Services and/or Deliverables. Where MPL (acting reasonably) agrees that such Services or Deliverables are defective and/or non-compliant, it shall attempt to remedy and redeliver the same. The remediation of the Services and Deliverables in accordance with this clause shall constitute the Client’s sole and exclusive remedy for any breach of the warranties set `out in clause 6.1.
6.3 MPL does not warrant or represent that the Services or Deliverables will meet any specific requirements of the Client and MPL shall not be liable for any failure of the Services or Deliverables to meet any requirement or standard which is not expressly agreed by the parties and set out in the Proposal.
6.4 For the avoidance of doubt, MPL is not obliged to accommodate any requests for alterations to the Deliverables once completed and/or delivered to the Client in accordance with the Proposal. It may agree to do so at its sole discretion and shall be entitled to charge for its time spent in doing so in accordance with this Agreement.
7.1 Subject to clause 7.2, neither party may assign this Agreement or any rights granted under it without the prior written consent of the other party.
7.2 MPL may sub-contract elements of the Services where appropriate.
8.1 Each party undertakes that it shall not at any time during this Agreement or for a period of 5 years following its expiry or termination disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its Group, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except as permitted by clause 8.2.
8.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, agents, consultants or sub-contractors (Representatives) who need to know such information for the purposes of carrying out the party’s obligations under this Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 8 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
(b) as may be required by law, court order or any governmental or regulatory authority.
8.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement.
9. Intellectual Property Rights
- All Intellectual Property Rights in the Client Materials (including the methods and techniques on which they are based) are retained by the Client and/or its licensors. Nothing in this Agreement serves to transfer any such rights.
- The Client grants MPL a non-exclusive, non-transferable licence to use the Client Materials solely for the purpose of delivering the Services to the Client.
- All Intellectual Property Rights in the Services and Deliverables (including the methods and techniques on which they are based) are retained by MPL and/or its licensors. Nothing in this Agreement serves to transfer any such rights.
9.4 Subject to receipt of all applicable Service Charges, and the parties entering into a suitable agreement pursuant to clause 4.3, MPL grants the Client a non-exclusive, non-transferable licence to use the Deliverables solely for its own business use and for use in connection with the receipt of MPL’s other products and/or services.
9.5 The Client may not sell, lease, assign, sublicense, reverse-engineer, disassemble, or otherwise transfer the Deliverables.
10.1 Either party may terminate this Agreement up to 7 Business Days prior to the commencement of the Services. After that time, if the Client purports to terminate the Agreement (other than in accordance with clause 10.2), MPL may accept such termination subject to payment by the Client of:
(a) 50% of the Service Charges payable or estimated as being payable if purported termination is less than 7 Business Days prior to the commencement of the Services; or
(b) 100% of the Service Charges payable or estimated as being payable if purported termination is after commencement of the Services.
10.2 Either party may terminate this Agreement at any time on written notice to the other if the other:
(a) fails to pay any amount due under this Agreement by the due date for payment and remains in default 14 days after receiving written notice requiring it to make payment; or
(b) is in material breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
(c) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
10.3 Termination by either party in accordance with the rights contained in this clause 10 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
10.4 Clauses 8, 9, 11 and 12.8 shall survive any effective expiry or termination of this Agreement.
11.1 This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and sub-contractors) to each other in respect of:
(a) any breach of this Agreement;
(b) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.2 Nothing in this Agreement shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.2 and clause 11.4, MPL’s total liability arising under or in connection with this Agreement, whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, shall be limited to the Service Charges received by MPL as at the time any claim is made.
11.4 Subject to clause 11.2, neither party shall be liable to the other, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for the following types of loss whether direct or indirect and howsoever caused:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) loss or corruption of data or information; or
(g) any special, indirect or consequential damage or loss suffered by the other party.
11.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
12.1 Force majeure. MPL shall not be liable to the Client for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion.
12.2 Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
12.4 Amendments. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
12.6 Notices. Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the signatories of this Agreement at the address set out for such party in this Agreement. Notices may be sent by first-class mail, fax, or e-mail, provided that faxes and e-mails are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes and e-mails shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in this clause 12.6.
12.7 Entire agreement. This Agreement and the documents annexed as appendices to this Agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
12.8 Non-solicitation. The Client shall not (except with the prior written consent of the other party) for the duration of this Agreement or for a period of 6 months following expiry or termination, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of MPL any person employed or engaged by it in the provision of the Services, other than by means of a national advertising campaign open to all and not specifically targeted at any of the staff of MPL.
12.9 Governing law and jurisdiction. This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.