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(1) Wenso Limited trading as Wenso Solutions , a company incorporated in England and Wales(06703581) having its registered office at Suite 2, Ground Floor,Universal Square, Devonshire Street North,Manchester - M12 6JH. Any person or company who enter into a contract with Wenso (the "Customer").
1. Definitions and interpretation
1.1 In this Agreement: "Acceptance Criteria" has the meaning given to it in Clause [5.2]; "Acceptance Period" means a period of 10 Business Days beginning on the date of actual delivery of the Website to the Customer; "Agreement" means this agreement (including the Schedule) and any amendments to it from time to time; "Business Day" means any week day, other than a bank or public holiday in England; "Business Hours" means between [09:00] and [17:30] London time on a Business Day; "Charges" means the amounts payable by the Customer to Wenso under or in relation to this Agreement (as set out in the Schedule); "Confidential Information" means the Customer Confidential Information and Wenso's Confidential Information; any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to Wenso or vice-versa that is marked as "confidential", described as "confidential" or should have been reasonably understood by the parties at the time of disclosure to be confidential; "Customer Works" means the works and materials provided to Wenso by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website; "Credit" means a credit for Wenso on the Website, in the form specified in the Schedule; "Defect" means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of: (a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents or sub-contractors; (b) an incompatibility between the Website and any other application, program or software (other than the Customer Works, the Third Party Works and any software identified as compatible in the Schedule). "Delivery Date" means the date for delivery of the Website specified in the Schedule; "Effective Date" means the date of execution of this Agreement ; "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); "Personal Data" has the meaning given to it in the Data Protection Act 1998; "Schedule" means the schedule attached to this Agreement; "Scripts" means those elements of the Website consisting of programs written in a computer scripting language; "Services" has the meaning given to it in Clause [3.1]; "Third Party Works" means: (a) the works and materials identified as such in the Schedule; and (b) the other works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works); "Term" means the term of this Agreement; "Unlawful Content" has the meaning given to it in Clause [7.1]; and "Website" means the website developed or to be developed by Wenso for the Customer under this Agreement.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement. 1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
This Agreement will come into force on the Effective Date and will continue in force until the acceptance of the Website by the Customer in accordance with Clause , upon which it will terminate automatically, unless terminated earlier in accordance with Clause .
3.1 Wenso will: (a) design and create the Website; (b) incorporate the Customer Works specified in the Schedule or agreed in writing by the parties, together with the Third Party Works, into the Website; (c) keep the Customer informed of the progress of the Website's development; (d) provide the Customer with reasonable access to the Website during the Term; and (e) delivery the Website and the files comprising the Website to the Customer in accordance with Clause , (the "Services"). 3.2 Wenso will use reasonable endeavors to perform the Services in accordance with the timetable set out in the Schedule; however, Wenso does not guarantee that that timetable will be met. 3.3 Wenso may sub-contract the provision of the Services; providing that if Wenso does sub-contract the provision of the Services, Wenso will remain liable to the Customer for the performance of the sub-contracted obligations.
4.1 The Customer will provide Wenso with: (a) such co-operation as is required by Wenso (acting reasonably) to enable the performance by Wenso of its obligations under this Agreement; and (b) all information and documents required by Wenso (acting reasonably) in connection with the provision of the Services. 4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by Wenso to enable Wenso to fulfill its obligations under this Agreement. 4.3 The Customer will supply to Wenso all those Customer Works that are specified in the Schedule. 4.4 The Customer will fulfil its obligations under Clause [4.3] in accordance with the timetable set out in the Schedule or, if no timetable is set out, promptly following the receipt of a written request for the relevant Customer Works from Wenso. Wenso shall not be in breach of this Agreement by virtue of any delay in the performance of its obligations under this Agreement arising out of a breach by the Customer of this Clause [4.4]. 4.5 The Customer hereby grants to Wenso a licence to copy and use the Customer Works during the Term for the purposes of fulfilling its obligations and exercising its rights under this Agreement.
5.1 Wenso will use reasonable endeavors to deliver the Website to the Customer for acceptance testing on or before the Delivery Date. 5.2 During the Acceptance Period, the Customer will carry out acceptance tests to determine: (a) whether the Website conforms in all material respects with the specification of the Website in the Schedule; and (b) whether the Website has any Defects, (the "Acceptance Criteria"). 5.3 If the Website meets the Acceptance Criteria, the Customer will send to Wenso a written notice during the Acceptance Period confirming acceptance of the Website. 5.4 If the Website does not meet the Acceptance Criteria: (a) the Customer will send to Wenso a written notice during the Acceptance Period setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria; and (b) Wenso will have a further remedial period (of 20 Business Days) to modify the Website so that it meets the Acceptance Criteria. 5.5 The Website will be deemed to have been accepted by the Customer if: (a) the Customer does not give any notice to Wenso under Clause [5.3] or Clause [5.4] (or where applicable Clause [5.6]) during an Acceptance Period; or (b) the Customer publishes the Website or uses the Website for any purpose other than development and/or testing. 5.6 Before the end of any remedial period under Clause [5.4(b)], Wenso shall re-deliver the Website to the Customer, and the provisions of this Clause  shall re-apply in relation to re-delivered Website, save that if the Website still does not meet the Acceptance Criteria upon re-delivery, the Customer may elect by written notice to Wenso: (a) to re-apply Clause [5.4]; or (b) to terminate the Agreement forthwith, such notice to be sent by the Customer and received by Wenso during the relevant Acceptance Period.
6.1 Third Party Works will be licensed to the Customer under the relevant licensor's standard terms and conditions for online use, or on licence terms notified by Wenso to the Customer. 6.2 Any licence fees for Third Party Works are included in the Charges (unless the Schedule specifies otherwise or the parties agree otherwise).
7.1 The Customer must ensure that the Customer Works will not: (a) infringe any person's Intellectual Property Rights or other legal rights; (b) breach any laws or regulations; or (c) give rise to a cause of action against any person, in each case under any applicable law ("Unlawful Content"). 7.2 Any breach by the Customer of Clause [7.1] will be deemed to be a material breach of the Agreement for the purposes of Clause . 7.3 The Customer hereby indemnifies and undertakes to keep indemnified Wenso against any and all damages, liabilities, cost, losses and expenses (including legal expenses) suffered or incurred by Wenso and arising out of any breach or alleged breach by the Customer of Clause [7.1].
8.1 Wenso will issue invoices for the Charges to the Customer on the relevant invoicing dates set out in the Schedule, or (if earlier) upon the acceptance of the Website by the Customer. 8.2 The Customer will pay invoiced Charges to Wenso within 10 days of the date of issue of the relevant invoice under Clause [8.1]. 8.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. 8.4 Charges must be paid by [debit or credit card, direct debit, bank transfer or by cheque] (using such payment details as are notified by Wenso to the Customer from time to time). 8.5 If the Customer does not pay any amount properly due to Wenso under or in connection with this Agreement, Wenso may: (a) charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of [HSBC Bank Plc.] from time to time (which interest will accrue daily until the date of actual payment and will be compounded quarterly); or (b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 [Upon and from the date of acceptance of the Website by the Customer,] Wenso hereby: (a) assigns to the Customer all existing and future copyright and other Intellectual Property Rights in the Website (excluding the Scripts, Customer Works and Third Party Works) (b) grants to the Customer a non-exclusive irrevocable perpetual worldwide licence of all copyright and other Intellectual Property Rights in the Scripts for the purposes of: (i) publishing, operating and marketing the Website (ii) backing-up the Website; and (iii) updating and adapting the Website, and the Customer may sub-license the rights granted in this Clause [9.1(b)] for the purposes set out herein. 9.2 The assignment of Intellectual Property Rights in Clause [9.1(a)] is for the full term of those rights, including all extensions, renewals, revivals and reversions. 9.3 Without prejudice to Clause [9.4], Wenso waives (and will ensure that its employees and subcontractors waive) any moral rights they may have in the Website arising under Chapter 4 of the Copyright, Designs and Patents Act 1988 and, so far as is legally possible, any broadly equivalent rights anywhere in the world. 9.5 Wenso may include the Credit together with a link to Wenso's website on each page of the Website in a position and in a form to be agreed by the parties. The Customer will retain any such Credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such Credit and link from the Website at Wenso's request.
10.1 The Customer warrants to Wenso that it has the legal right and authority to enter into and perform its obligations under this Agreement. 10.2 Wenso warrants to the Customer: (a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; (b) that it will perform its obligations under this Agreement with reasonable care and skill; (c) that the Website (excluding the Customer Works and Third Party Works) will not infringe any person's Intellectual Property Rights under English law; and (d) that the Website will operate without any Defects upon the date of acceptance of the Website. 10.3 If the Customer demonstrates to Wenso that the Website suffers from any Defect during the period of 30 days following the date of acceptance, Wenso will, for no additional charge, carry out any work necessary in order to remedy the Defect. 10.4 The Customer acknowledges that Wenso has designed the Website to work with the web browser technology specified in the Schedule, and Wenso does not warrant that the Website will work with any other web browser technology. 10.5 The Customer further acknowledges that Wenso does not purport to provide any legal advice under this Agreement or in relation to the Website and Wenso does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person. 10.6 All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out herein. To the maximum extent permitted by applicable law and subject to Clause [11.1], no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11.1 Nothing in the Agreement will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; (c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law. 11.2 The limitations and exclusions of liability set out in this Clause  [and elsewhere in the Agreement]: (a) are subject to Clause [11.1]; (b) govern all liabilities arising under the Agreement [or any collateral contract] or in relation to the subject matter of the Agreement [or any collateral contract], including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and [(c) will [not limit or exclude / limit and exclude] the liability of the parties under the express indemnities set out the Agreement[,and any amounts paid under any indemnity in the Agreement shall not count towards any aggregate liability cap under Clause [11.10]].] 11.3 Wenso will not be liable to the Customer in respect of any loss of profits, income, revenue, use, production or anticipated savings. 11.4 Wenso will not be liable to the Customer for any loss of business, contracts or commercial opportunities. 11.5 Wenso will not be liable to the Customer for any loss of or damage to goodwill or reputation. 11.6 Wenso will not be liable to the Customer in respect of any loss or corruption of any data, database or software. 11.7 Wenso will not be liable to the Customer in respect of any special, indirect or consequential loss or damage. 11.8 Wenso will not be liable to the Customer for any losses arising out of a Force Majeure Event. 11.9 Wenso's liability to the Customer in relation to any event or series of related events will not exceed the greater of the total amount paid and payable by the Customer to Wenso under the Agreement during the 5 month period immediately preceding the event or events giving rise to the claim. 11.10 Wenso's aggregate liability to the Customer under the Agreement [and any collateral contracts] will not exceed the greater of the total amount paid and payable by the Customer to Wenso under the Agreement.
12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Wenso under this Agreement. 12.2 Wenso warrants that: (a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Wenso on behalf of the Customer; and (b) it has in place appropriate security measures (both technical and organisational) against: (i) unlawful or unauthorised processing; and (ii) loss or corruption, of Personal Data processed by Wenso on behalf of the Customer.
13.1 Wenso will: (a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause ; and (b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 13.2 The Customer will: (a) keep confidential and not disclose Wenso's Confidential Information to any person save as expressly permitted by this Clause ; and (b) protect Wenso's Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 13.3 Confidential Information of a party may be disclosed by the other party to that other party's [officers, employees, agents, insurers and professional advisers], provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed. 13.4 The obligations set out in this Clause  shall not apply to: (a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence); (b) Customer Confidential Information that is in possession of Wenso prior to disclosure by the Customer, and Designer Confidential Information that is in possession of the Customer prior to disclosure by Wenso; or (c) Customer Confidential Information that is received by Wenso, and Designer Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information. 13.5 Nothing in this Agreement shall restrict a party from making any disclosure of Confidential Information that is: (a) required by law; or (b) required by a governmental authority, stock exchange or regulatory body[, provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement]. 13.6 Subject to Wenso's compliance with the other provisions of this Clause , Wenso may make public disclosures relating to the subject matter of this Agreement (including press releases, public announcements and marketing materials) without the consent of the Customer.
14.1 Either party may terminate this Agreement at any time by giving at least 30 days written notice to the other party 14.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party: (a) commits any [material breach] of any term of this Agreement, [and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or [(b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach). 14.3 Either party may terminate this Agreement immediately by giving written notice to the other party if: (a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up [(other than for the purpose of a solvent company or organisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or (d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order. 14.4 The Agreement may also be terminated by the Customer under Clause [5.6].
15.1 Upon termination all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.3, 8.5, 9, 11, 13.1 to 13.5, 15, and 16.3 to 16.12]. 15.2 Termination of this Agreement will not affect either party's accrued rights (including Wenso's accrued rights to invoice for and to be paid the Charges) as at the date of termination. 15.3 If this Agreement is terminated under Clause 14.1, or by the Customer under Clause 5.6, 14.2 or 14.3 but not in any other case: (a) Wenso will promptly provide to the Customer an electronic copy of the Website (as constituted at the date of termination); and (b) the Customer will be entitled to a refund of any Charges paid by the Customer to Wenso in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Wenso (such amount to be calculated by Wenso using any reasonable methodology). 15.4 Save as provided in Clause [15.3(b)], the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Wenso.
16.1 Any notice given under this Agreement must be in writing (whether or not described as "written notice" in this Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant person as notified by one party to the other in accordance with this Clause 16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below): (a) where the notice is delivered personally, at the time of delivery; (b) where the notice is sent by recorded signed-for post, 48 hours after posting; and (c) where the notice is sent by or email, at the time of the transmission (providing the sending party retains written evidence of the transmission). 16.3 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach. 16.4 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted). 16.5 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties. 16.6 The Customer hereby agrees that Wenso may freely assign any or all of its contractual rights and/or obligations under the Agreement. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement. 16.7 The Customer will not, without Wenso's prior written consent either during the Term or during the Acceptance Period, engage or employ any third party, company or contractor to work on the website or any of its code created by Wenso, which will be considered as breach of this agreement. 16.8 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party's power, which are necessary to enable the parties to exercise their rights and fulfill their obligations under this Agreement. will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.