Following are the terms of business (hereinafter Terms of Business or Agreement) of Matt Bray Creative Limited a company registered in England and Wales, company No. 08741337, with registered offices at Rectory Mews, Crown Road, Wheatley, Oxfordshire, OX33 1UL (hereinafter Matt Bray, We, Our or Us) for the provision of design services including website design services and website hosting services either as individual service items or collectively as a package combined with such other services as may be agreed from time to time (hereinafter the Services) between Matt Bray and you the customer (hereinafter Customer, You or Your).
Matt Bray and Customer are also referred to jointly as (the) Parties and individually as (the) Party (as the case may be).
By purchasing or agreeing to purchase the Services You agree to be bound by these Terms of Business to the exclusion of any other form of agreement howsoever expressed. These Terms of Business are subject to change, such changes and their date of coming into force being notified on the Matt Bray website (http://mattbray.com)
1. Interpretation and Definitions
i. This Agreement includes the Statement of Work and any amendments or additions or replacements made in accordance with the provisions of this Agreement.
ii. Except where the context expressly requires otherwise, references to clauses and schedules are references to clauses and schedules of or to this Agreement.
iii. “writing”, includes communication effected by electronic or facsimile transmission or similar means.
iv. A statute or a provision of a statute is a reference to that statute or provision as enacted, amended or re-enacted at the relevant time.
v. The headings used are for convenience only and shall have no effect upon the interpretation of this Agreement.
vi. References to the singular include the plural and vice-versa and references to either gender shall include the other gender.
Agreement means the terms and conditions in this agreement including the Statement of Work together with any amendments agreed in writing between Matt Bray and Customer
Business Day/Working Day any day not including a Saturday, Sunday or UK Public Holiday
Content Management means functionality provided by Matt Bray to enable the Customer to change, add or delete Information on a Website independently of Matt Bray
the earliest of the dates this Agreement is notified as being in effect by the exchange of acceptance confirmation emails between the Parties, by Matt Bray being provided by the Customer with a written notice to proceed or this Agreement is signed as hard copy by the Parties
Fees means the amounts set out in the Statement of Work and payable in accordance with the terms of this Agreement
Information means material and information of any kind and in any medium supplied by the Customer in relation to or to be included in the Services
Intellectual Property/ Intellectual Property Rights means all intellectual property, including patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or capable of being registered and including registrations and applications for registration of any of these, or rights to apply for the same, rights to receive equitable remuneration in respect of any of these and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world
Know How means all information, methods and knowledge employed by Matt Bray whether or not patentable and including any improvement or modifications developed by Matt Bray
Primary Host means the hosting service organisation selected by Matt Bray and with which Matt Bray will arrange to provide hosting to the Customer
Service(s) means the service or services to be provided as set out in the Statement of Work
Site means the internet web pages, associated applications, software, screen designs, screen layouts developed by Matt Bray and any Third Party Software which collectively form the Site as set out in the Specification, including subsequent amendments as may be agreed in writing between the Parties. Matt Bray may or may not host the Site as provided for in this Agreement
Specification means the specification of the Services as set out in the Statement of Work.
Statement of Work means the agreed Services to be carried out under this Agreement and the Fees to be paid in consideration thereof
Term means the term of this agreement as set out herein
Third Party Software means any software or applications or services not belonging to Matt Bray but comprising part of the Site
User is any visitor accessing Information held on the Site (and duly authorised if such authorisation is required to gain access to certain areas of the Site)
Working Hours hours between 09.00 and 17.00 on a Business Day
2. Commencement and authorisation to enter into this Agreement
a. This Agreement comes into force on the Effective Date and You warrant that You have the authority to enter into this Agreement or where required that You have obtained all necessary authority and approval to do so.
b. The Parties agree that they shall each bear their own costs of entering into this Agreement
The Services to be provided under this Agreement are set out in the Statement of Work together with the Fees relating to the provision of each of the Services.
4. Hosting Services terms
a. Where specified, Matt Bray will provide the Customer with hosting services, such hosting services to be provided by the Primary Host with Matt Bray providing intermediate management of the Site between the Customer and the Primary Host.
b. By managing the hosting services for the Customer, Matt Bray is bound by the terms of service of the nominated Primary Host, in particular the service levels and response times. By agreeing to use the hosting services under this Agreement the Customer expressly agrees to be further bound by the terms of service of the nominated Primary Host as they apply to the hosting services provided to the Customer and that such terms shall apply in equal part to the Customer.
5. Obligations and Undertakings of Customer
The Customer warrants and agrees:
a. that Information supplied is accurate, complete and true. Matt Bray reserves the right at its discretion to decline to publish or to omit or to suspend any Information otherwise accepted for publication that in the reasonable opinion of Matt Bray is, or becomes, inaccurate, incomplete or untrue.
b. that the Information complies with the requirements of relevant legislation being in force or applicable in England (including the rules of recognised regulatory authorities and the laws of the European Union).
c. that all Information is legal, decent, honest, truthful, does not infringe a third party’s rights and otherwise complies with relevant codes and regulations under the British Code of Advertising Practice and codes under the general supervision of the Advertising Standards Authority.
d. to assume responsibility for the sufficiency and correctness of the content and quality of the information submitted to Matt Bray for use in the Services.
e. to signify approval in writing and thereafter assume responsibility for the correctness of the content and quality of proofs, images, layouts and other samples submitted in return by Matt Bray for Customer approval prior to the final printing of documents or for publication as a web page or series of web pages and to bear the cost of any additions or amendments following such Customer approval. Requests for further amendments or additions following Customer approval will be completed by Matt Bray as soon as is reasonably possible but without strict time obligation for completion.
f. to make timely responses to requests for information and/or direction from Matt Bray in order that Matt Bray is able to meet its obligations under this Agreement.
g. that all payments shall be made in accordance with the terms of this Agreement.
h. to grant to Matt Bray a non-exclusive, royalty-free licence to use the Information during the term of this Agreement (and for any reasonable period following termination to allow administrative and housekeeping activities) for the sole purpose of performing its obligations under this Agreement.
6. Obligations and Undertakings of Matt Bray
In consideration of payment by the Customer of the Fees, Matt Bray warrants and agrees:
a. to perform its duties with reasonable skill and care and to provide design(s) and, where applicable, technical development original in nature that will not infringe any third party intellectual property rights
b. to provide the Services (and for website design, subject to the provisions of clause 9) in accordance with the Specification (as far as is reasonably practicable) as set out in the Statement of Work and as may be amended from time to time by agreement in writing between the Parties
c. use reasonable endeavours to meet requested deadlines but time shall not be of the essence in the fulfilment of the obligations of Matt Bray under this Agreement
d. to be responsible to procure (where such procurement is permissible) at the Customer’s expense and with the Customer’s assistance any necessary rights, permissions, licences or consents in respect of any Third Party Software that forms a part of the Customer Specification insofar as Matt Bray does not already have such rights, permissions, licences or consents
e. to grant to the Customer for the duration of this Agreement a non-exclusive, non transferable, royalty-free licence to the Site for the use envisaged under this Agreement.
Matt Bray reserves the right to subcontract any or all of its obligations under this Agreement but such subcontract arrangements shall not relieve Matt Bray of any of its obligations to the Customer under this Agreement.
a. In selecting the Services You warrant that You have made proper and due evaluation and that You consider the Services to be fit for purpose for the use intended.
b. In respect of web design and subject to the prior approval by the Customer of individual elements comprising the Site Matt Bray shall provide a warranty period of five (5) working days for the Customer to perform an evaluation of the completed Site using the nominated proprietary browsers and agrees to correct items that do not comply with the Specification that are notified within this warranty period, subject to such items being correctable. Following the five day warranty period and in the absence of written notification to the contrary, approval by the customer shall be deemed to have been given. Correction (where correctable) of non compliant elements of the Specification shall be the sole liability of Matt Bray and the sole remedy of the Customer.
c. Matt Bray will use reasonable endeavours to keep abreast of developing technology but due to the nature and pace of change within the technologies supporting internet and browser design Matt Bray offers no warranty that the Site will continue to be available into the future strictly in accordance with the Specification.
d. Where the Services include website design Matt Bray makes no warranty in respect of the accuracy of information obtained through the Site or in respect of goods obtained through the Site or any transactions conducted through the Site.
e. Where the Services include website hosting Matt Bray will use reasonable endeavours to maintain continuity but cannot guarantee that the hosting service will be available at all times or that access will be uninterrupted, secure or remain error free. Provided always that Matt Bray uses reasonable endeavours to restore the hosting service promptly such interruption shall not be considered a breach of these Terms of Business and the Parties agree that time shall not be of the essence in the process of restoring the hosting service.
f. To the fullest extent permitted by applicable laws Matt Bray makes no other warranties express or implied including but not limited to warranties of merchantability and fitness for a particular purpose of any of the Services provided under this Agreement.
9. Website Design Limitations
a. Certain technical limitations are present within the design and display characteristics of websites arising from variations in software, software versions, browser software (in particular the proficiency of older versions of browsers), different operating systems and the like. Provided always that Matt Bray uses reasonable endeavours and operates to accepted industry standards to minimise such limitations their occurrence and effect shall not constitute a breach of the obligations of Matt Bray under this Agreement.
b. Where technical limitations prevent the development of the Site exactly in accordance with the Specification Matt Bray will propose the nearest alternative solution for approval by the customer. The Customer agrees not to unreasonably withhold approval of such alternative solutions.
c. Matt Bray will use reasonable endeavours to create websites that are search engine friendly but cannot guarantee specific search engine responses or that search engine rankings will not vary over time.
10. Variations to the Services
Requests for variation to the Services from either Party are to be submitted to the other Party in writing. The Parties agree to give full consideration to variation requests and not unreasonably to withhold approval. Agreed variations are to be recorded in writing, to include any variances in the Fees and the delivery schedules.
11. Acceptable Use of Websites
a. Where the Services include website design the Customer warrants that it shall not use the Services for purposes which in the reasonable opinion of Matt Bray are inappropriate, antisocial or illegal and if so notified You agree to cease such use with immediate effect. Such use shall be a serious breach of these Terms of Business and We reserve the right to terminate provision of the Services either temporarily or permanently and without notice in the event You use or attempt to use the Services for such purposes. You agree to bear all costs and expenses, direct or indirect and howsoever arising out of your misuse of the Services under this clause 11.
b. Where the Customer is provided with Content Management functionality You agree to remove or amend or for Matt Bray to remove or amend without notice any Customer uploaded content that in the reasonable opinion of Matt Bray is contrary to the obligations of the Customer under this Agreement.
c. For the avoidance of doubt the term inappropriate, antisocial or illegal purposes includes but is not limited to:
Pornography, gambling, Illegal content (including content deemed illegal in the country of access or use even though not deemed to be so within the United Kingdom), copyrighted material of any nature or description where you do not have written permission to use the material, mass emailing, video or audio hosting or streaming, general file hosting (files which are not normally considered website files).
12. Payment – Design Services and Website Design Services
The Fees payable by the Customer to Matt Bray for the Services will be invoiced immediately upon completion of the Services or, in the case of projects extending beyond one month, Services will be invoiced monthly on a percentage completion basis.
13. Payment – Website Hosting Services
a. Website hosting services are provided for a minimum term of 12 months, effective from the hosting start date as set out in the Statement of Work renewable thereafter for subsequent terms each of 12 months duration. Renewal shall take effect automatically subject only to the provision by the Customer of notice to terminate, such notice to be given in writing a minimum of 60 (sixty) days prior to the expiry of the then current term.
b. Payment is to be made annually in advance upon presentation of the invoice. Subject to Matt Bray agreement payment for hosting services may be made by monthly instalments paid in advance, each instalment being made by standing order on the first day of the month the payment is due, which standing order the Customer warrants to maintain in force for the duration of the instalment payment agreement.
14. Payment – General
a. The Fees set out in the Statement of Work are exclusive of UK VAT and/or other business taxes applicable under other jurisdictions. To the extent that such business taxes are properly chargeable by Matt Bray the Customer shall pay the same in addition to the Fees and charges against delivery of a valid tax invoice.
b. Where the Customer elects to provide its own website hosting Matt Bray reserves the right to require settlement of the Fees in full prior to release of the finished web pages and any associated code.
c. In addition to the Fees set out in the Statement of Work the Customer agrees to reimburse Matt Bray for all reasonable out-of-pocket expenses incurred in connection with the provision of the Services provided always that such expenses are the subject of prior approval by the Customer.
d. Any disputed invoice amounts are to be notified in writing immediately upon receipt of the invoice and the undisputed portion settled without deduction or set off in accordance with the settlement terms stated on the invoice.
15. Late Payments
a. Matt Bray shall have the right to charge interest on any amount which is not paid in accordance with the terms of this Agreement. Such interest shall accrue and be calculated in accordance with the rates and terms of the Late Payment of Commercial Debts Regulations 2013 for the period from the due date for payment until the date on which payment is made.
b. In the event of late payment Matt Bray reserves the right to suspend the provision of the Services until Your account is brought up to date. In the event of persistent late payments We reserve the right to terminate this Agreement forthwith in which event You shall remain liable for all outstanding amounts whether invoiced or due to be invoiced and for any hosting fees to the end of the current hosting agreement term.
16. Term and Termination
a. In the case of design, website design and associated services and subject to clause 30 (Survival) this Agreement shall remain in force until completion of the Services, such term to include the warranty period set out in clause 8 and the period for any work additional to the Services set out in the Statement of Work and as may be agreed in writing between the Parties.
b. In the case of hosting services and subject to clause 30 (Survival) this Agreement shall remain in force for the period that the Matt Bray hosting agreement remains in force with the Primary Host in respect of hosting services provided to the Customer and shall include the period to allow any transfer activities as set out in clause 17.
c. Matt Bray reserves the right to terminate this Agreement for convenience on the provision of a minimum of 10 (ten) Working Days notice.
d. Matt Bray reserves the right to terminate this Agreement without further notice if you are in breach of any of the terms of this Agreement and, if the breach is capable of remedy, fail to remedy it within 10 (ten) Working Days after being given written notice of the breach and requiring it to be remedied.
e. Either Party may terminate this Agreement forthwith by giving written notice to the other Party if the other Party goes into liquidation or has a bankruptcy order made against it or appoints a receiver or makes any voluntary arrangement with its creditors or becomes subject to an administration order (within the meaning of the Insolvency Act 1986).
f. Upon termination the Parties shall be relieved of further obligations to each other from the date such termination comes into effect save for the settlement by the Customer of any outstanding amounts invoiced or due to be invoiced and save for the provisions of clause 30 (Survival).
g. The termination of this Agreement given by this Clause 16 shall not prejudice any accrued rights or liabilities of either Party.
17. Transfer of Site to an alternative host
18. Ownership and Copyright of the Service
a. Restricted copyright of the text, graphics, photographs, designs, trademarks, or other material produced by Matt Bray under this Agreement shall not transfer to the Customer until payment of the Fees and any additional amounts agreed in writing between the Parties has been made in full. This grant of Copyright is restricted to use of the text, graphics, photographs, designs, trademarks and other material strictly for the purposes contemplated under this Agreement as set out in the Statement of Work. Use of the text, graphics, photographs, designs, trademarks and other material for any other purpose shall require the specific written permission of Matt Bray on a case by case basis. The Customer may not assign this restricted copyright to any third party without the prior written permission of Matt Bray.
b. Any additional or special restrictions in respect of ownership and copyright arising from third party services contracted by Matt Bray in support of the Service provision are set out in the Statement of Work as Special Conditions
c. Matt Bray shall retain the right to unlimited, indefinite, and royalty-free use of any of the text, graphics, photographs, designs, trademarks, or other material produced under this Agreement for its own publicity and advertising purposes.
d. Any items of text, graphics, photographs, designs, trademarks, or other material produced under this Agreement but not selected by the Customer for final use in the Service shall remain the full property of Matt Bray and/or its suppliers, associates and contractors.
e. For the avoidance of doubt ownership and copyright of all computer code associated with the provision of the Services under this Agreement, including but not limited to web design services shall remain the property of Matt Bray and/or its suppliers, associates and contractors.
f. Matt Bray retains the right to utilise the methods, skills and know-how used to create and deliver the Service to provide similar works or to create derivative works for future clients and customers of Matt Bray.
19. Copyright of Third Party Material
a. Where third party text, designs, images, photographs or other material are provided by Matt Bray to deliver the Service (Matt Bray Supplied Material) Matt Bray hereby warrants that all necessary clearances and permissions required to use the Matt Bray Supplied Material in the manner contemplated under this Agreement have been obtained.
b. Where Customer owned or third party text, designs, images, photographs or other material are provided to Matt Bray by the Customer for use in providing the Service (Customer Supplied Material) the Customer hereby warrants that it has obtained all necessary clearances and permissions required to use the Customer Supplied Material in the manner contemplated under this Agreement. The Customer shall indemnify, defend and hold harmless Matt Bray from and against all claims, costs, damages and expenses in connection with any claim by a third party that any part of the Customer Supplied Material directly infringes the copyright of a third party.
c. Should any such claim arise in respect of 19a and/or 19b the Parties agree to notify each other promptly of such claim and the Parties agree further that the defending Party shall be given control of the defence or settlement subject to the rights of the other Party to participate by way of its legal representatives.
d. Notwithstanding the foregoing, Matt Bray shall have no liability for any claim of infringement arising as a result of any use of or change to the structure or use of the Service other than as contemplated under this Agreement.
20. Intellectual Property
The Customer acknowledges and agrees that the skills, Know How and methods utilised by Matt Bray constitute valuable trade secrets and Confidential Information of Matt Bray and its associates. The Customer agrees that all such Intellectual Property Rights in the processes and means of delivery to provide the Services that can properly be claimed to be owned by Matt Bray shall remain at all times with Matt Bray. The Customer agrees further that the Intellectual Property Rights in any general improvements or changes to the Service provision and methodology during or subsequent to the Term of this Agreement, including improvements or changes suggested or made by the Customer shall at all times vest in Matt Bray and the Customer agrees to take all necessary actions to ensure all such rights are so assigned to Matt Bray.
a. All drawings, specifications, documents, designs and other incidental data supplied by Matt Bray relating to the know-how, business, clients, pricing, services, software, the Site, contracts (including this Agreement), website design, architecture and content (including any technical specifications) of Matt Bray is proprietary and confidential (Confidential Information). The Customer agrees that it will use such Confidential Information solely for the purposes of this Agreement and will not at any time during or after the termination of this Contract use or disclose the same either directly or indirectly to any third party without the prior written consent of Matt Bray.
b. If so requested by Matt Bray, the Customer, its employees, consultants and advisers to whom any Confidential Information requires to be disclosed agree to sign a Matt Bray confidentiality agreement.
c. With the sole exception of information required strictly for continuity purposes and within seven (7) days of the termination of this Agreement the Customer shall return to Matt Bray all Confidential Information in its possession or, at the sole option of Matt Bray, destroy the Confidential Information and warrant in writing its destruction.
22. Limitation of Liability
a. Matt Bray shall not be liable for any loss of copy, artwork, photographs or other materials provided by or on behalf of the Customer which the Customer warrants that it has retained copies in sufficient quality and quantity for all purposes.
b. Nothing in this Agreement shall exclude or limit the liability of either of the Parties for death or personal injury caused by the negligence or act of fraud or fraudulent misrepresentation by that Party.
c. Matt Bray shall not be liable to the Customer, its officers, employees, contractors, representatives or agents for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, howsoever caused and You agree to indemnify Matt Bray in full against such liability.
d. The maximum aggregate liability of Matt Bray and that of its officers, employees, contractors, representatives or agents in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall not exceed a sum equal to the fees already paid for the Services during the current Agreement term.
23. Independent Operator
Nothing in this Agreement shall create a partnership or joint venture between the Parties save as expressly provided in this Agreement and neither Party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind the other Party.
24. Force Majeure
Neither party shall be liable to the other for delay or failure to perform its obligations under this Agreement resulting from war, armed conflict, civil disturbance, act of God, fire, explosion, accident, flood, industrial dispute, or other cause beyond the reasonable control of either party
25. Data Protection
The Parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
A failure or delay by Matt Bray to exercise any of its rights under this Agreement shall not be deemed to be a waiver of that right and a waiver by Matt Bray of a breach of any provision of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provision.
27. Third Party Rights
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
If any term of this Agreement is declared void or illegal, it shall be deleted and the remainder of this Agreement shall continue in force with the substitution of legal terms that approximate as closely as is legitimate to the terms declared void or illegal.
This Agreement shall not be altered, waived, modified, supplemented or amended except by agreement in writing between the Parties.
The representations warranties and covenants contained in clauses 19 (copyright of third party material), 20 (intellectual property), 21 (confidentiality) and 22 (limitation of liability) of this Agreement, shall survive the Term of this Agreement.
31. Special Conditions
Where the Services are made subject to any additional, special or particular conditions beyond the provisions set out in this Agreement such additional, special or particular conditions are set out in the Statement of Work and shall form a part of this Agreement.
32. Consumer Rights
Nothing in this Agreement shall affect the statutory rights of the Customer when entering into this Agreement as a Consumer as defined under UK Consumer Protection Legislation.
Notices under this Agreement must be in writing and will be sufficiently given if sent to either Party at their respective addresses set out in this Agreement or another address or contact which the Parties may specify by notice to the other under this provision. Such notice will be deemed to be received when delivered in person, when delivered by email provided an electronic receipt is produced or on the fourth business day after posting if sent by first class mail to an address within the UK or on the seventh business day after posting if sent by international airmail to an address outside of the UK
In the event of a dispute under this Agreement that cannot be resolved directly between the Parties the Parties irrevocably agree in all cases to pursue a resolution through mediation by using a recognised mediation process and a formally appointed mediation body. Only at a point where in the exclusive opinion of the appointed mediator the dispute or difference cannot reach a satisfactory conclusion may either or both of the Parties submit to the jurisdiction of the courts for the purposes of hearing and determining the dispute.
35. Legal Fees
In the event that any action is filed or taken in respect of any part of this Agreement the unsuccessful Party in such action shall be liable to pay to the successful Party a reasonable sum for the successful Party’s legal and attorney fees in addition to all sums that either of the Parties may be called upon to pay.
36. Entire Agreement
This Agreement represents the final, complete, and exclusive statement of the terms of the understanding and agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements made between the Parties. No other agreements, representations, warranties, inducements or promises made by or on behalf of either Party, whether oral or otherwise shall add to or vary this Agreement or be of any force or effect.
37. Governing law and jurisdiction
a. Subject to clause 39 (b) the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction for the purpose of hearing and determining any suit, action or proceedings and/or to settle any disputes arising out of or in any way relating to this Agreement or its formation or validity (“Proceedings”) and for the purpose of enforcement of any judgment against its property or assets.
b. Nothing in this clause 39 shall (or shall be construed so as to) limit the right of Matt Bray to take proceedings against the Customer in the courts of any country in which the Customer has assets or in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) if and to the fullest extent permitted by applicable law.