1.  Interpretation

1.1       The definitions and rules of interpretation in this clause apply in the Contract.

Acceptance: the completion, deemed completion, acceptance or deemed acceptance of the Customer Site pursuant to clause 4.

Acceptance Tests: the tests to be carried out by Internet Creation on the Customer Site to test compliance with the Specification prior to Acceptance.

Accepted Customer Site: has the meaning given in clause 4.4.

Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Approved Product: any Proposed Product which is then approved by the Customer in accordance with clause 7.8.

Browser: a computer program through which the user is enabled to access the world wide web or web and view websites.

Bug: any defect, error report, problem or difficulty with the Customer Site and/or Supplier Software.

Bug Report: any written report detailing Bugs provided to Internet Creation by the Customer in relation to Acceptance and/or the Warranty Period.

Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in Scotland.

Conditions: these terms and conditions as amended from time to time in accordance with clause 25.10.

Contract: the contract between Internet Creation and the Customer for the supply of Products in accordance with these Conditions.

Confirmation: Internet Creation’s written acknowledgement of the Order incorporating these Conditions.

Customer: the person, firm or company who purchases Products from Internet Creation, and as may be detailed as such in the Order.

Customer Check: any assessment, check, examination, or review to be carried out by the Customer over any Proposed Product or any part of it.

Customer Default: means a breach of or default from the Contract or any of these Conditions by the Customer, the Customer’s agents, the Customer’s sub-contractors and/or the Customer’s employees as the case may be.

Customer Materials: any works, items, content, advice or materials provided to Internet Creation by the Customer from time to time for incorporation in the Customer Site, use with a SEO Product, Email Marketing Product or any other Product.

Customer Site: the website as may be detailed in the Confirmation and/or Order.

Customer Site Backup Service: has the meaning described in clause 8 and for a minimum fee of £5 per month.

Deposit: means the non-refundable sum (subject to clause 22.8) specified in any Confirmation and/or invoice.

Domain and Hosting Services: any products and/or services related to domain name registration, domains generally, website hosting, computer server hosting, Servers, email, registration, transfer, renewals, upgrades, data and/or disk space, bandwidth and any other similar or related services provided by a Third Party in relation to website domains, emails and hosting services.

Email Products: means mail box products and services.

End Date: has the meaning given in clause 2.5.

Excluded Pre-Existing Work: any Pre-Existing Work or part of it where Internet Creation has not procured the relevant third party consent/licence for use, or is unlikely to be able to do so, as the case may be.

Force Majeure Event: has the meaning given in clause 24.

FTP: means File Transfer Protocol.

IMAP: means Internet Message Access Protocol.

Initial Period: means 12 months, subject to clause 9.1.

Initial Period Expiry: means either:

(a)        if the Initial Period is 12 months, the expiry date is the date occurring 12 months after the Start Date; or

(b)        if the Initial Period is shorter or longer than 12 months, the expiry date is the date occurring on the last date of that period of time.

Intellectual Property Right and /or IPR: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Internet Creation: Internet Creation Limited, a limited company registered in Scotland with company number SC235322 and having its registered address at 2 George Square, Carnegie Campus, Dunfermline, Fife KY11 8QF.

Losses: all actual losses, damages, costs, expenses (including reasonable professional advisers’ costs and disbursements, reasonable legal costs and disbursements) incurred by the relevant party. The term Loss shall have a corresponding meaning.

Member Section: any part of the website which requires a password in order to gain entry and/or to receive member Products from Internet Creation.

Non-Supplier Defects: those defects described in clause 4.3.

Normal Hours: 8am – 6pm on a Business Day.

Open-Source Software: any open-source software and/or anything similar, included, or used in the development of the Supplier Software or with which the Supplier Software is compiled or to which it is linked.

Order: the Customer’s written or oral order for the supply of Products, as may be set out in the Order Form, or the Customer’s written acceptance of Internet Creation’s quotation, as the case may be.

Our Site: www.internetcreation.net and/or such other site as may be notified to the Customer from time to time.

Out of Date: means when a Third Party has released a newer version of a product or service, and/or an update to a product or service, but that product or service has not been replaced with the newer version and/or updated.

Password: has the meaning given in clause 3.1.

Policies: means any policies, including any Internet Creation privacy policy, cookie policy, website terms, or other terms and conditions, as may be updated from time to time.

POP: means Post Office Protocol, a protocol used to retrieve email from a mail server.

Pre-Existing Work: the works, concepts, images, items, materials and Supplier Software either used, developed or procured to be developed by Internet Creation or its personnel at any time for use in relation to Supplier’s business or any or all of Supplier’s customers generally and not specifically for the provision of the Products or any deliverables to the Customer.

Price: has the meaning set out in clause 11.1.

Printed Products: means the printed brochure, sign, postcard and/or other related products as may be agreed to be supplied by Internet Creation.

Products: the product(s) and/or related service(s) to be supplied to the Customer by Internet Creation (as may include but are not limited to Customer Site, Email Products, Domain and Hosting Services, Printed Products, SEO Products etc) and are as detailed in the Confirmation and/or Order.

Proposed Product: any design, proof, or proposal of a Product (except Customer Sites, which are subject to the Acceptance process listed in clause 4) submitted to the Customer by Internet Creation for a Customer Check.

Renewable Products: are the products and services listed as such in clause 9.1.

Renewed Period: has the meaning set out in clause 9.3.

Renewed Anniversary Date: the date occurring either:

(c)        12 months (or such other period if another Initial Period is agreed in accordance with clause 9.1) after the previous Initial Period Expiry; or

(d)        if the Contract is now in a Renewed Period, the date occurring 12 months (or such other period if another Initial Period is agreed in accordance with clause 9.1) after the start of that most recent Renewed Period, as the case may be.

Retainer: has the meaning set out in clause 11.2.

SEO Products: means search engine optimisation products and/or services.

SEO Page: the web pages developed by Internet Creation in order to increase the ranking and prominence of a Customer Site (and/or its web pages) in the result pages of search engines.

Server: a computer server supplied by a Third Party, including but not limited to the servers used by Clook (http://www.clook.net/), and which may or may not be based within the European Economic Area.

Specification: means any specification provided to Internet Creation by the Customer or agreed between Internet Creation and the Customer in writing.

Start Date: has the meaning given clause 2.4.

Supplier Software: any bespoke software either developed or procured to be developed by Internet Creation or its personnel at any time for use in relation to Supplier’s business or any or all of Supplier’s customers generally and not specifically for the provision of the Product or any deliverables to the Customer.

Third Party: any third party who provides products or services.

Third Party Products: any Third Party products used by Internet Creation in order to provide the Products, including but not limited to any Domain and Hosting Services, google analytics, image and/or Server.

Transfer Fee: means the fee charged plus VAT for any transfer of an Accepted Customer Site to a Windows-based Server or other Server (no fee is charged for transfer to another Linux-based Server)..

Unsuitable Content: has the meaning given in clause 19.1.

Visitor: a visitor to the Customer Site.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Warranty Period: a period of 30 days from Acceptance.

 

2.         Application of conditions

2.1       These conditions shall:

(a)        apply to and be incorporated in the Contract; and

(b)        prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2       No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Internet Creation unless in writing and signed by a duly authorised representative of Internet Creation.

2.3       The Order constitutes an offer by the Customer to purchase Products in accordance with these Conditions.

2.4       The Order shall only be deemed to be accepted when Internet Creation issues written acceptance or Confirmation of the Order at which point and on which date the Contract shall come into existence (Start Date).

2.5       If termination occurs in accordance with clauses 9.2(b), 9.3(b) and/or 22 the date of termination will be the date of expiry of the notice period and the time of termination of the Contract will be at midnight on the date of expiry of the notice period (End Date).

2.6       Any samples, drawings, descriptive matter or advertising issued by Internet Creation and any descriptions of the Products contained in Internet Creation’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.

2.7       Any quotation given by Internet Creation shall not constitute an offer, and is only valid for a period of 3 calendar months from its date of issue, unless otherwise stated in writing.

2.8       All of these Conditions shall apply to the supply of both goods and services except where application to one or the other is specified.

 

3.         CUSTOMER RESPONSIBILITIES AND OBLIGATIONS

3.1       The Customer acknowledges that Internet Creation’s ability to provide the Products is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any Order, Customer Materials and/or Specification provided by the Customer and any information and data the Customer provides to Internet Creation. Accordingly, the Customer shall (at its own cost):

(a)        co-operate with Internet Creation in all matters relating to the Products (including but not limited to the obligations set out in clauses 7, 19 and 20);

(b)        ensure that any representative appointed to deal with Internet Creation in relation to the Products acts professionally and promptly and has the necessary expertise and authority to contractually bind the Customer on matters relating to the Products;

(c)        provide in a timely manner such Customer Materials, Customer Checks, Specification, information, designs, data, content and/or documentation as Internet Creation may reasonably request, and the Customer shall ensure that it is/they are accurate in all material respects;

(d)        be responsible for ensuring that any Browsers used by the Customer are the latest edition available and for preparing the relevant Customer equipment for the supply of the Products;

(e)        be responsible for making regular backup copies of its data (the Customer agrees that if the Customer Site Back Up Service is agreed to be provided by Internet Creation, this only applies to a re-loading of the data of the Accepted Customer Site at the last date saved by Internet Creation in accordance with clause 8);

(f)         be responsible for protecting its own data and the Customer Site against Viruses by ensuring that the Customer has appropriate and up–to date anti-Virus protection software;

(g)        be responsible for the selection, use of, and results obtained from any other programs, equipment, materials or services used in conjunction with the Customer Site and/or any of the Products;

(h)        comply with any Policies;

(i)         be the sole owner of any username, identification code, password or any other piece of information (Password) issued to it by Internet Creation;

(j)         be responsible for maintaining the confidentiality, security of and use of any Password provided by Internet Creation as part of its security procedures.

3.2       Internet Creation may rely upon instructions and communications given or entered by the Customer or anyone else using the Customer’s Password, and the Customer will be bound to any expense incurred in reliance on such instructions and communications.

3.3       Access to certain content on Our Site is restricted.

3.4       Access to Our Site is provided on a non-exclusive, non-transferable, revocable basis.

3.5       Internet Creation has the right to disable any username, identification code, password or any other piece of information, at any time, if in its opinion, the Customer has failed to comply with any provision of any Policy or this Contract.

3.6       The Customer shall be responsible for the accuracy and completeness of the Customer Materials on the Customer Site in accordance with clause 18.

3.7       If there is (or, in Internet Creation’s opinion whilst acting reasonably, there appears to be) a Customer Default:

(a)        Internet Creation shall without limiting its other rights or remedies have the right to suspend the provision of the Products and/or performance of any services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Internet Creation’s performance of any of its obligations;

(b)        Internet Creation shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from Internet Creation’s failure or delay to perform any of its obligations as set out in this clause 3.7; and

(c)        the Customer shall in all circumstances be liable to pay to Internet Creation on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Internet Creation confirming such costs, charges and losses to the Customer in writing.

 

4.         DEVELOPMENT AND ACCEPTANCE OF CUSTOMER SITE

4.1       Once Internet Creation has completed the Products (or part of them, as the case may be):

(a)        Internet Creation shall run the Acceptance Tests in relation to the completed Products; and

(b)        the Customer may provide a Bug Report to Internet Creation within 14 Business Days of notification by Internet Creation that the Products (or part of them) are ready for testing by the Customer.

4.2       If any failure to pass the Acceptance Tests results from a Bug, Out of Date Browser or other defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom Internet Creation has no responsibility (Non-Supplier Defect), the Customer Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. Internet Creation may agree to provide such assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay Internet Creation in full for all such additional services and products at Internet Creation’s then current fees and prices.

4.3       Acceptance of the Customer Site shall be deemed to have taken place upon the occurrence of any of the following events (whichever date occurs earliest):

(a)        when the Customer Site has passed the Acceptance Tests (in which case Internet Creation shall notify the Customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing);

(b)        if the Customer does not submit a Bug Report during the time period listed in clause 4.1, the date of Acceptance shall be deemed to be the 14th Business Day; or

(c)        should a Bug Report have been submitted, either:

(i)         the date when the Bugs have been fixed by Internet Creation; or

(ii)        should Internet Creation determine (in its sole discretion, acting reasonably) that the Bug is caused by a Non-Supplier Defect, on the date that said determination is made,

and the status of the Customer Site at this point shall be known as the Accepted Customer Site.

 

5.         THIRD PARTY PRODUCTS

5.1       Any Third Party Products shall be supplied in accordance with the relevant Third Party’s standard terms and the Customer agrees that it is the Customer’s responsibility:

(a)        to review the said Third Party’s terms before deciding whether or not to agree to comply with them;

(b)        to notify Internet Creation of any request to change the scope of the Products in terms of clause 23 and to accept the consequences of any additional request or request for change as detailed in that clause 23 should the Customer decide to proceed with said request, including but not limited to instances where:

(i)         the Customer decides not to comply or to negotiate with any such terms detailed in clause 5.1; and/or

(ii)        to use a different Third Party Product or a different Third Party.

 

6.         DOMAIN NAMES AND HOSTING

6.1       Internet Creation may, but is not obliged to, introduce or offer Domain and Hosting Services via a Third Party.

6.2       The Customer agrees that if it instructs Internet Creation at any point in relation to any Domain and Hosting Services, the Customer is liable and responsible for:

(a)        the upkeep, modification and update of any details with the Third Party in relation to the Customer Site and the Domain and Hosting Services (such as contact details, email addresses etc);

(b)        checking the location of the Server used by any Third Party in relation to the Domain and Hosting Services and whether or not said location affects the Customer in any way, including in relation to any obligations the Customer may have under the Data Protection Act 1998 or other relevant legislation;

(c)        compliance with the terms and conditions set by any Third Party in relation to the Domain and Hosting Services (especially in relation to payment of any costs, title to use any selected domain name or use of the domain name in good faith).

6.3       The Customer agrees that if it fails to comply with any of the grounds set out in clause 6.2 (such as a failure to update contact details which means that invoices are not received or paid etc, resulting in the Customer’s domain name being made available to another party) the Customer is fully liable and responsible for the consequences.

6.4       The Customer agrees to fully indemnify and hold harmless Internet Creation in relation to any claim resulting from any Domain and Hosting Services carried out on behalf of the Customer.

 

7.         OTHER PRODUCTS INCLUDING EMAIL, EMAIL MARKETING, SEARCH ENGINE OPTIMISATION (‘SEO’) AND PRINTING

7.1       Internet Creation may, but is not obliged to, introduce or offer Email Products via a Third Party.

7.2       Email Products are only provided on a POP3 basis. IMAP is not available.

7.3       Without prejudice to any other rights Internet Creation may have, should any Customers be discovered to have set up any IMAP system whilst using any Domain and Hosting Service, Internet Creation reserve the right to terminate the Contract and/or the provision of any (or part of any) Product on notice. The Customer accepts liability for all and any Losses it may incur should this occur.

7.4       The Customer acknowledges and agrees that Internet Creation does not guarantee first position or consistent top ten positions for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a Customer Site.

7.5       The Customer acknowledges that Internet Creation has no control over the policies of search engines with respect to the type of websites and/or content that they accept or the way in which websites are ranked either now or in the future. As a result search engines may:

(a)        change algorithms without notice rendering previous work by Internet Creation less useful and/or obsolete; or

(b)        stop accepting submissions from Internet Creation for an indefinite period of time with or without notice; or

(c)        cease to list a Customer Site at its discretion, however should a Customer Site not reappear within thirty (30) days of it not being listed then Internet Creation will re-optimise the applicable Customer Site based on the current policies of the relevant search engine at a cost to be agreed between the parties, and Internet Creation shall not be liable to Customer for any such actions of search engines.

7.6       Internet Creation is not responsible for changes made to the Customer Site by:

(a)        other parties; or

(b)        the Customer in choosing to link to or obtain a link from a particular website without prior consultation with Internet Creation, that adversely affect the search engine rankings of the Customer Site.

7.7       For the purposes of Internet Creation providing the Products (except Printed Products), the Customer agrees to provide the following:

(a)        administrative or back-end access to the Customer Site for analysis of its content and structure;

(b)        permission for Internet Creation to make changes to the Customer Site for the purpose of optimisation;

(c)        permission for Internet Creation to communicate directly with any applicable third parties connected with the Customer Site in order to provide the Products;

(d)        access to existing traffic statistics for the Customer Site in order for analysis and tracking purposes; and

(e)        where the Customer Site, SEO Page, or Email Marketing Product is lacking in textual content, Customer will provide additional text content in electronic format for the purpose of creating additional or richer web pages.

7.8       The Customer agrees:

(a)        to always provide prompt and diligent responses, Customer Checks and reviews where asked by Internet Creation in relation to any Proposed Product or part of it;

(b)        that the Customer shall not unreasonably refuse or delay approval over any Proposed Product or part of it (including but not limited to: any SEO Page, any proposed content/format for Email Marketing or any design/proposal/proof for a Printed Product);

(c)        that once any approval is given over any Proposed Product, Internet Creation is not liable for any errors (including errors introduced by Internet Creation) not corrected by the Customer;

(d)        that any alterations to any Approved Product (except to the extent caused by the default of Internet Creation) and any additional proposals for any Product or part of it will be chargeable on a time and materials basis in accordance with clause 11.3;

(e)        that where the Customer waives any right to and/or fails to carry out a Customer Check within any reasonable deadlines detailed by Internet Creation, the Proposed Product may be deemed to have been approved by the Customer (Deemed Approval) and Internet Creation shall not be liable for any errors in the finished Product and shall be indemnified by the Customer against any resulting losses.

7.9       To the extent that any Pre-Existing Work is incorporated into a Product, it shall remain the property of Internet Creation. Internet Creation hereby grants (and if the Pre-Existing Work shall include any third-party materials, endeavour to procure the grant from these third parties) to Customer a non-exclusive, transferable, irrevocable, worldwide and perpetual licence to use such Pre-Existing Work as part of the SEO Product.

7.10     For the purposes of Internet Creation providing any of the Products, the Customer grants Internet Creation a limited, non-exclusive, non-transferable, revocable and worldwide licence to access and use the:

(a)        Customer Sites;

(b)        Customer Materials; and

(c)        name, logo, company name and trademark of Customer.

7.11        The Customer shall not be entitled to reject any Printed Products if Internet Creation delivers up to and including 5% more or less than the quantity of Printed Products ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Products was delivered.

7.12        The Customer agrees and accepts that due to differences in equipment, paper, inks and other conditions between colour proofs and the production of Printed Products, a reasonable variation in colour between the completed Printed Product and the Proposed Printed Product will be acceptable to the Customer (unless otherwise specifically agreed in writing).

7.13        Internet Creation may deliver any of the Products by instalments. Each instalment shall constitute a separate contract. Any delay in delivery or defect in instalment shall not entitle the Customer to cancel any other instalment.

7.14        Unless otherwise agreed in writing, delivery of the Printed Products shall be made to Internet Creation’s place of business and shall be completed on completion of loading of the Printed Products at Internet Creation’s place of business. Risk in any Printed Products shall pass to the Customer on delivery. The Customer shall take delivery of the Printed Products within five days of Internet Creation giving notice that delivery is available, after which time storage charges may be chargeable.

 

8.         CUSTOMER SITE BACKUP SERVICE

8.1       The Customer agrees that it is solely responsible in relation to its use of the Products for risk of Loss of or damage to any data, storage media, software, proprietary materials or other resources.

8.2       If the Customer Site Backup Service is agreed to provided by Internet Creation, Internet Creation will:

(a)        store and maintain a version of the Accepted Customer Site but not any other Customer data or other data associated with the Customer Site (including but not limited to storage media, software, proprietary materials or other resources);

(b)        when requested to provide the Customer Site, will provide the Accepted Customer Site to the Customer.

9.         AUTOMATIC RENEWAL FOR CERTAIN RENEWABLE PRODUCTS

9.1       If any of the following Products are agreed to be provided by Internet Creation (Email Product, SEO Product, and/or Domain and Hosting Services (Renewable Products), unless otherwise agreed in writing, any Renewable Product:

(a)        is supplied for an Initial Period of 12 months (unless otherwise agreed in writing, subject at all times to a minimum Initial Period of 6 months from the Start Date); and

(b)        must be paid by standing order or direct debit to the bank details nominated by Internet Creation.

9.2       If any Renewable Products are provided by Internet Creation, the Contract shall continue for the Initial Period, and shall continue in accordance with clause 9.3 until and unless:

(a)        the Contract is terminated earlier in accordance with clause 22; or

(b)        either party gives at least three months written notice to the other party before the Initial Period Expiry (such notice to take effect on the Initial Period Expiry).

9.3       Subject to clause 22, if notice is not provided in accordance with clause 9.2(b):

(a)        the Contract shall be renewed and continue again for the same duration as the Initial Period (each such period being a ‘Renewed Period’) until termination occurs in accordance with clauses 22 or 9.3(b);

(b)        notice of termination of the Contract may be given by either party during a Renewed Period if at least three month’s written notice to Internet Creation is given before the Renewed Anniversary Date (such notice to take effect on the Renewed Anniversary Date).

9.4       The Customer understands the importance of, and is solely responsible for:

(a)        maintaining up to date contact details;

(b)        making timely payment of any invoice in accordance with clause 12;

(c)        ensuring any standing order and/or direct debit it sets up in accordance with clause 9.1 is functioning correctly; and

(d)        that failure to comply with any of clauses 9.4(a), (b) and (c) above may result in, but is not limited to, the following occurrences:

(i)         payment is not received by Internet Creation and the supply by Internet Creation of all, any or part of the Products and/or services are then suspended and/or terminated without notice (including but not limited to the potential loss of the Customer Site, the domain name and/or connected email addresses, Email Products and related content);

(ii)        both general and/or important correspondence, information, updates and/or changes to the Service are not received which may affect the Customer’s business.

9.5       If termination occurs:

(a)        during any Initial Period in accordance with 9.1 and/or 9.1(a);

(b)        in a Renewed Period; and/or

(c)        during the provision by Internet Creation of a Retainer and/or where a Retainer applies,

any Deposit will be forfeit to Internet Creation in accordance with clause 22.8 and Internet Creation reserves the right to invoice:

(i)         for any Third Party or other costs in accordance with clause 11.6 which are incurred and/or which will be incurred by Internet Creation despite said termination (including but not limited to domain name renewals); and/or

(ii)        for the time and materials worked by Internet Creation until the End Date in accordance with Internet Creation’s standard fee rates.

9.6       The Customer agrees to reimburse Internet Creation on demand for any invoice issued in accordance with clause 9.5.

9.7       The Customer shall indemnify Internet Creation against all Losses arising as a result of any action or failure to act in accordance with this clause 9.

10.       TRANSFER OF CUSTOMER SITE AND/OR FILES

10.1        Internet Creation are happy to help transfer the Accepted Customer Site to another provider or another hosting entity subject to:

(a)        payment of the relevant Transfer Fee in advance (if any); and

(b)        prompt communication of all relevant contact details and any other requests for information in order to facilitate the transfer, failing which any time spent by Internet Creation personnel in relation to the transfer will be charged on a time and materials basis in accordance with clause 11.3.

10.2        Any requests for FTP will be charged on a time and materials basis.

11.       PRICE

11.1     The price of the Products shall be as set out in the Confirmation and/or the invoice (‘the Price’).

11.2        Clause 11.3 shall apply if the Products are to be provided on a time and materials basis. Clause 11.4 shall apply if the Products are to be provided for a fixed price (‘Retainer’). If any Products and/or services are provided which are not covered by a Retainer, clause 11.3 shall apply to those extra Products, work and/or services. The remainder of this clause 11 shall apply in every case.

11.3        Where the Products are provided on a time and materials basis:

(a)        the Charges shall be calculated in accordance with Internet Creation’s standard fee rates, as amended from time to time;

(b)        Internet Creation’s standard hourly fee rates for each person are calculated on the basis of an eight hour day, working Normal Hours during a Business Day, at £55 per hour;

(c)        Internet Creation shall be entitled to charge an overtime rate of 50 per cent of the standard fee rate on a pro-rata basis for each hour or for any time worked by persons whom it engages on the Products which do not fall upon a Business Day or fall out with Normal Hours.

11.4        Where the Products are provided on a Retainer basis or for a fixed price for a period of time or a specific Service:

(a)        the total price for the Products shall be the amount set out in the Specification for that period of time, and/or for the relevant Products. The total price shall be paid to Internet Creation as invoiced to the Customer; and

(b)        if a renewal occurs in accordance with clause 9.2, Internet Creation may increase the total price of the Products as from the date of each such renewal for the Renewed Period. Any such increase will be notified to the Customer;

11.5     Internet Creation may, by written notice to the Customer, revise or increase the Price (and any other charges) but only to reflect changes due to:

(a)        at any point:

(i)         any factor beyond Internet Creation’s control (including foreign exchange rate fluctuations, increases in taxes or duties, increases in any insurance charges, and increases in the prices charged to Internet Creation by its suppliers, Third Parties (including suppliers of Domain and Hosting Services or search engines) whether on account of labour, materials or otherwise);

(ii)        any request by the Customer to change the level or scope of Products or the Specification;

(iii)       any clerical, administrative or arithmetical error in the Contract; or

(iv)       any Customer Default;

(b)        once during any Retainer, or if no Retainer is agreed, once during any 12 month period. Internet Creation will endeavour to give the Customer written notice of any such increase before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Internet Creation in writing within two weeks of the date of Internet Creation’s notice and Internet Creation shall have the right without limiting its other rights or remedies to terminate the Contract by giving 4 weeks’ written notice to the Customer.

11.6        The Price is exclusive of value added tax (VAT) and any other costs (such as the costs of Third Party Products), which will be charged for separately.

12.       PAYMENT

12.1     Payment, including the payment of any Deposit to account of the Price, will be due as stated in the Confirmation and/or invoice. If nothing about payment date is so stated, the outstanding balance of the Price (including any revisal of the Price in accordance with clause 11.5) will be due within 7 days of the date of the invoice. Unless caused by Internet Creation, subsequent changes of the date(s) upon which the Products are to be provided, shall not change the due date for payment of any part of the Price.

12.2     Any discounts or other reductions in the Price granted by Internet Creation are subject to the Customer’s compliance with its obligations under the Contract and may be withdrawn by Internet Creation by notice to the Customer if the Customer breaches any such obligation.

12.3     Time of payment shall be of the essence and payment shall not be deemed to have been made until Internet Creation has received cleared funds.

12.4     Without limiting its rights in any way, Internet Creation reserves the right to suspend provision of the Products and/or the performance of any services (including but not limited to, switching off any Customer Site, whether live or not) and demand immediate payment for any Products and/or Order if any payment under any contract between the Customer or any person associated with the Customer, and Internet Creation becomes overdue.

12.5     Internet Creation may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Internet Creation to the Customer. The Customer shall not be able to exercise any right of set off without the written permission of Internet Creation.

13.       RESTRICTIVE COVENANT AND REFERRAL FEE

 

13.1     To protect Internet Creation’s business interest in the stability and integrity of Internet Creation’s workforce, including any sub-contractors, the Customer shall not, without the prior written consent of Internet Creation, at any time after the Start Date until the expiry of six months after the expiry or termination of the Contract, solicit or entice away from Internet Creation or employ or engage or attempt to employ or engage any person who is, or has been, employed as an employee or engaged as a sub-contractor of Internet Creation.

 

13.2     Any consent given by Internet Creation in accordance with clause 13.1 shall, unless Internet Creation otherwise agree in writing, be subject to the Customer paying to Internet Creation a sum equivalent to the highest of (a) £3,000; (b) 20% of the then current or, in the case of a former employee or sub-contractor, former annual remuneration of the relevant Internet Creation employee or sub-contractor; or (c) 20% of the annual remuneration to be paid by the Customer to the relevant employee or sub-contractor.

 

14.       WARRANTIES

14.1     Internet Creation warrants that:

(a)        the Products will be provided with reasonable care and skill;

(b)        the Customer Site and/or Supplier Software are proprietary to Internet Creation (except as otherwise stated in these Conditions or elsewhere by Internet Creation) and that it has the right to licence the relevant IPRs as detailed in these Conditions in and to the Customer Site and/or Supplier Software, and to provide the Products to the Customer;

(c)        during the Warranty Period:

(i)         the Customer Site will perform substantially in accordance with the Specification; and/or

(ii)        the Supplier Software will conform in all material respects to the Specification.

14.2     If within the Warranty Period, the Customer provides Internet Creation in writing of any Bug Report in consequence of which the Products, Customer Site and/or Supplier Software (or part of them), fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended any part of the Products, Customer Site and/or Supplier Software or having used it outside the terms of this licence for a purpose or in a context other than the purpose or content for which it was designed or in combination with any other software not provided by Internet Creation, or it has not been loaded onto Supplier–specified or suitably configured equipment, Internet Creation shall, at Internet Creation’s option, do one of the following:

(a)        repair the Customer Site and/or Supplier Software; or

(b)        terminate any relevant licences granted by Internet Creation to the Customer, by notice in writing to the Customer and refund any of the Price paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Customer Site and/or Supplier Software to the date of termination) on return of the Supplier Software and all copies thereof,

provided the Customer provides all the information that may be necessary to assist Internet Creation in resolving the Bug, including a documented example of any Bug or sufficient information to enable Internet Creation to re-create the defect or fault.

14.3     The sole remedies for breach of the warranty in clause 14.1 are set out in clause 14.2.

14.4     The warranty set out in clause 14.1 shall not apply to the extent that any failure of the Customer Site to perform substantially in accordance with the Specification is caused by any Customer Materials or Customer Default.

14.5     This Contract sets out the full extent of Internet Creation’s obligations and liabilities in respect of the supply of the Products. All conditions, warranties or other terms concerning the Products which might otherwise be implied into the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

14.6     Without limitation, Internet Creation specifically denies any implied or express representation that the Supplier Software will be fit:

(a)        to operate in conjunction with any hardware items or software products other than with those that are advised in writing by Internet Creation as being compatible with the Supplier Software; or

(b)        to operate uninterrupted or error-free.

14.7     Internet Creation does not warrant or guarantee that it will be able to rectify all Bugs, nor that any Bug which does not materially affect the Customer’s operations using the Customer Site and/or the Supplier Software will be able to be corrected.

14.8     Any unauthorised modifications, use or improper installation of the Customer Site and/or the Supplier Software by, or on behalf of, the Customer shall render all Internet Creation’s warranties and obligations under the Contract null and void.

14.9     Internet Creation shall not be obliged to rectify any particular Bug if attempts to rectify such Bug other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of Internet Creation.

14.10  The Customer acknowledges that the only warranties in relation to the Third-Party Products, Open Source Software, Customer Site and Supplier Software (to the extent that Internet Creation or its suppliers use Open Source Software as part of the Customer Site and/or that software) or the supply thereof, are those contained in the licence from the third-party supplier(s) of the same, and that to the extent that any of such warranties are given to Internet Creation, it will pass on the benefit of such warranties to the Customer.

14.11  Any Open-Source Software provided by Internet Creation may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided on a no warranty basis ‘as is’ and expressly subject to the disclaimer in clause 14.7 and 14.9.

14.12  Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform the Contract and that those signing the Contract are duly authorised to bind the party for whom they sign.

 

15.       LIMITATION OF LIABILITY

15.1     Neither party excludes or limits liability to the other party for:

(a)        fraud or fraudulent misrepresentation;

(b)        death or personal injury caused by negligence;

(c)        a breach of any obligations implied by section 12 of the Sale of Goods Act 1979; or

(d)        any matter for which it would be unlawful for the parties to exclude liability.

15.2     Subject to clause 15.1, Internet Creation shall not in any circumstances be liable whether in contract, delict (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

(a)        any Loss (whether direct or indirect) of:

(i)         profits;

(ii)        anticipated profits;

(iii)       business;

(iv)       business opportunities;

(v)        revenue;

(vi)       turnover;

(vii)      reputation; or

(viii)     goodwill;

(b)        any Loss, corruption or damage (whether direct or indirect) of:

(i)         data;

(ii)        information; or

(iii)       software;

(c)        Loss (whether direct or indirect) of:

(i)         anticipated savings; or

(ii)        wasted expenditure (including management time);

(d)        any Loss or liability (whether direct or indirect) under or in relation to any other contract; or

(e)        any Loss or liability whether directly or indirectly caused by hacking; or

(f)         any Loss or liability (whether direct or indirect) under or in relation to any use by Internet Creation and/or the Customer in any way of Open Source Software and/or Third Party Products; or

(g)        any indirect or consequential Loss or damage.

15.3     Clause 15.2 shall not prevent claims, which fall within the scope of clause 15.4, for:

(a)        direct financial loss that are not excluded under any of the categories set out in clause 15.2(a) to clause 15.2(d); or

(b)        tangible property or physical damage.

15.4     Subject to clause 15.1, Internet Creation’s total aggregate liability in contract, delict (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract or any collateral contract shall:

(a)        in respect of any cause of action related to the provision of the Products, be limited to the greater of:

(i)         the amount of insurance proceeds which Internet Creation recovers from any relevant insurer; and

(ii)        the total charges paid for the Products by the Customer to Internet Creation during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period; and

(b)        in respect of any other cause of action related to the Contract (including any cause of action related to the Supplier Software), be limited to the amount of the Price.

15.5     Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. Internet Creation shall not be liable for any delay in delivery of the Products that is caused by an event, circumstance or cause within the scope of clauses 23 and 24, or the Customer’s failure to provide Internet Creation with adequate delivery instructions, or comply with clause 3.

 

16.       TITLE TO THE PRODUCTS

16.1     Title in the Products as set out in clause 17.2(b) will not be passed until Internet Creation has received payment in full cleared funds for:

(a)        the services and/or Products; and

(b)        any other Products or services that Internet Creation has supplied to the Customer in respect of which payment has become due.

17.       INTELLECTUAL PROPERTY RIGHTS

17.1     The Customer grants and warrants that it is entitled to grant to Internet Creation a non-exclusive, irrevocable licence to use the Customer Materials to the extent reasonably required by Internet Creation to perform its obligations pursuant to the Contract and that the Customer either owns or holds the relevant consent to use the Customer Materials.

17.2     Upon full payment of all and any Internet Creation invoices and on completion of the supply of the Products and/or services:

(a)        Internet Creation grants to the Customer an irrevocable, non-exclusive, world-wide licence to use the software codes, CSS (Cascading Style Sheets), HTML (HyperText Markup Language), mark-ups of the Customer Site Internet Creation creates for the Customer, for the sole purpose of the project agreed in the Specification; and

(b)        Subject to clauses 17.2(a) 17.3, 17.4 and 17.5, Internet Creation hereby assigns title (by way of present and, where appropriate future assignment) to the Customer of all IPRs in any visual graphics Internet Creation creates for the sole purpose of the project agreed in the Specification.

17.3     All other IPRs in the Customer Site (including in the Site Software) and/or Supplier Software (but excluding the Customer Materials, any Open Source Software, any Excluded Pre-Existing Work, and/or any Third Party Products), arising in connection with the Contract shall be the property of Internet Creation, and Internet Creation hereby grants the Customer a non-exclusive licence of such IPRs for the purpose of operating the Site and/or Supplier Software.

17.4     The Customer acknowledges that, in respect of any third party IPRs in the Products, Supplier Software, Customer Site, Pre-Existing Work, Specification and/or Customer Materials, the Customer’s use of any such rights is conditional on Internet Creation and/or the Customer (as the case may be) obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Internet Creation to license such rights to the Customer.

17.5     The Customer shall indemnify Internet Creation against all Losses arising as a result of any action or claim that its instructions, designs, the Customer Materials and/or Specification infringe the IPRs of a third party.

17.6     Internet Creation shall indemnify the Customer against all losses arising as a result of any action or claim that the Customer Site and/or Supplier Software infringes any IPRs of a third party in the UK, other than infringements arising from clause 17.4 (infringement due to failure to obtain a sufficient end-user licence), 17.5 (infringement is due to Customer Materials, instructions, designs or Specification) and/or 17.9 (infringement is due to Open-Source Software and/or Excluded Pre-Existing Work).

17.7     The indemnities in clause 17.5 and clause 17.6 are subject to the following conditions:

(a)        the indemnified party promptly notifies the indemnifier in writing of the claim;

(b)        the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;

(c)        the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

(d)        the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim (subject to clauses 17.8 and 17.9).

17.8     Nothing in this clause shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

17.9     Internet Creation shall not have any liability for any claim of infringement of IPRs to the extent that any claim or action referred to in clause 17.6 arises directly or indirectly through the possession, use, development, modification or maintenance of any Excluded Pre-Existing Work, Open-Source Software or through the breach of any Third Party licence relating to Open-Source Software and/or Excluded Pre-Existing Work, or by any of its Affiliates.

 

18.       PERSONAL LIABILITY OF DIRECTORS ETC

          If the Customer is a limited company, a limited liability partnership, a trust or an unincorporated voluntary association, the directors / members / trustees /office bearers (as the case may be) of the Customer each personally, jointly and severally, unconditionally and irrevocably (until all sums due to Internet Creation by the Customer have been paid) (a) guarantee the payment of all sums due to Internet Creation by the Customer; (b) indemnify and hold harmless Internet Creation in respect of any Losses sustained by Internet Creation as a result of trading with the Customer; and (c) agree that the foregoing guarantee and indemnity shall not be discharged or affected by (i) anything that would not have discharged or affected them if they had been a principal debtor instead of a guarantor; (ii) any waiver, failure to enforce or giving of time by Internet Creation; or (iii) any increase in any credit limit or facilities extended to the Customer.

 

19.       MATERIAL AND CUSTOMER SITE CONTENT

19.1     The Customer shall ensure that the Customer Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party IPRs) (Unsuitable Content).

19.2     The Customer will ensure that the Customer Materials are original works of authorship by the Customer and the use or possession thereof by Customer will not be subject or give rise to any claim for infringement of any Intellectual Property Rights of any third parties.

19.3     The Customer acknowledges and agrees that:

(a)        Internet Creation has no control over any content placed on the Customer Site by Visitors, or changes made to the Customer Site by the Customer or any others to whom the Customer allows access; and

(b)        unless expressly agreed as part of the Contract, Internet Creation:

(i)         is under no obligation to update and/or monitor the content, facilities and/or use of the Customer Site in any way;

(ii)        is under no obligation to fix any Bugs on the Customer Site caused by Visitors, the Customer or any others to whom the Customer allows access or who have obtained access in any other way;

(c)        Internet Creation reserves the right, in its sole discretion, to remove or request the removal of content from the Customer Site and/or Supplier Software where it reasonably suspects such content is Unsuitable Content and/or said content on the Customer Site poses a reputational risk to Internet Creation, and shall on demand grant Internet Creation immediate access in order to remove or alter any said content deemed by Internet Creation to be Unsuitable Content or a reputational risk.

19.4     The Customer shall indemnify Internet Creation against all Losses arising as a result of any action or claim that the Customer Materials constitute Unsuitable Content.

19.5     Internet Creation may include the words ‘Designed by Internet Creation Limited’ or a similar statement on the home page of the Customer Site, but shall immediately remove such words on Internet Creation’s demand.

 

20.       DATA PROTECTION

20.1     In this clause 20, Personal Data has the meaning given in the Data Protection Act 1998.

20.2     The Customer warrants in relation to any Personal Data transferred to Internet Creation for the purposes of the Products:

(a)        it is legally able to do so and has obtained sufficient full and valid consent in relation to the Personal Data and any processing required; and

(b)        it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

20.3     The Customer agrees that if any Personal Data is transferred to Internet Creation, Internet Creation will be acting as a data processor, rather than a data controller (within the respective meanings given them in the Data Protection Act 1998), in respect of any/all such data processing activities which Internet Creation carries out under the Contract.

21.       USE OF INFORMATION

21.1     Information about the Customer which the Customer provides or is obtained by Internet Creation in its dealings with the Customer or from any other person may be held on Internet Creation’s Server, computer database and in any other way. This may be passed to Internet Creation’s Affiliates, used for credit risk assessment and for market and product analysis to enable Internet Creation to review, develop and improve the products and services it offers.

21.2     Internet Creation may inform the Customer (by mail, telephone, e-mail, SMS text or otherwise) about related products and services (including those available from other suppliers) which may be of interest to the Customer.

21.3     Internet Creation may make media releases, public announcements, public disclosures and advertise any Product and/or Service created by it for the Customer which relates to the Contract, and accordingly the Customer grants an irrevocable, non-exclusive, world-wide licence for Internet Creation to use all IPRs and visual graphics (including but not limited to logos, images, text copy and other data) created for the Customer in relation to the Contract.

 

22.       TERM AND TERMINATION

22.1     This Contract shall begin on the Start Date, and shall continue, unless terminated earlier in accordance with the remaining subjections of this clause 22, until the Products have been completed.

22.2     Either party may terminate the Contract immediately at any time by written notice to the other party if:

(a)        that other party commits any material breach of its obligations under the Contract which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or

(b)        that other party:

(i)         ceases to trade (either in whole, or as to any part or division involved in the performance of the Contract); or

(ii)        becomes insolvent or unable to pay its debts within the meaning of the relevant insolvency legislation applicable to that party.

22.3     On termination of the Contract by Internet Creation pursuant to clause 22.2, all licences granted by Internet Creation under the Contract shall terminate immediately.

22.4     Internet Creation may terminate the Contract on giving 30 days notice to the Customer. Termination by Internet Creation shall not affect any rights or remedies of Internet Creation that have accrued up to the date of termination, including Internet Creation’s right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

22.5     The Customer may terminate the Contract on giving 30 days notice to Internet Creation, provided any payment due in terms of clause 22.6 has been received by Internet Creation in cleared funds. Termination by the Customer shall not affect any obligations or liabilities of the Customer that have accrued up to the date of termination, including Internet Creation’s right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

22.6     All payments to Internet Creation shall become due immediately on termination of the Contract despite any other provision. On termination of this Contract for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to Internet Creation. Internet Creation shall submit invoices for any Products that it has supplied or would be due to supply in relation to the Contract and/or Order, but for which no invoice has yet been submitted, and the Customer shall pay these invoices immediately on receipt.

22.7     On expiry or termination of the Contract, all provisions of the Contract shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

22.8     The Deposit shall be forfeit and non-refundable unless Internet Creation terminates the contract in accordance with clause 22.4, in which case after considering whether or not payment of any monies are due from the Customer in terms of clause 22.6 or under any other clause in these Conditions, Internet Creation may, in its sole discretion, decide either:

(a)        not to return the Deposit;

(b)        to return all of the Deposit; or

(c)        to return part of the Deposit,

to the Customer and to endeavour to do so within a reasonable period of time of said termination.

 

23.       ADDITIONAL REQUESTS AND REQUESTS FOR CHANGE

23.1     If either party wishes to change the scope of the Products, it shall submit details of the requested change to the other in writing.

23.2     If either party requests a change to the scope or execution of the Products, Internet Creation shall endeavour to, within a reasonable time, provide a written estimate to the Customer of some or any of the following:

(a)        the likely time required to implement the change;

(b)        any variations to Internet Creation’s charges arising from the change;

(c)        the likely effect of the change to the Products (including whether or not it is possible to carry out the proposed change); and

(d)        any other impact of the change on the terms of the Contract (including whether or not the Contract will be terminated due to the proposed change).

23.3     If Internet Creation requests a change to the scope of the Products, the Customer shall not unreasonably withhold or delay consent to it.

23.4     If the Customer wishes Internet Creation to proceed with the change, Internet Creation has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Products and any other relevant terms of the Contract to take account of the change.

 

24.       FORCE MAJEURE

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including but not limited to: the failure of a utility service, breakdown of Server or Third Party Product, or the default of either party’s suppliers or subcontractors) ‘a Force Majeure Event’. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 6 months, the party not affected may terminate this agreement by giving 14 days written notice to the affected party.

 

25.       GENERAL

25.1     Construction. In these Conditions (unless the context otherwise requires), the following rules apply:

(a)        a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b)        headings shall not affect the interpretation of these Conditions;

(c)        unless the context otherwise so requires, words in the singular shall include the plural and in the plural shall include the singular;

(d)        a reference to a party includes its successors or permitted assigns;

(e)        a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(f)         any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(g)        a reference to writing or written includes faxes and e-mails.

25.2     Entire Agreement

(a)        The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty (Representation) made or given by or on behalf of Internet Creation which is not set out in the Contract.

(b)        The Customer agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract or as expressly provided for in these Conditions.

(c)        Nothing in this clause 25.2 shall limit or exclude any liability for fraud.

25.3     Assignment and other dealings.

(a)        Internet Creation may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b)        The Customer shall not, without the prior written consent of Internet Creation, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

25.4     Notices.

(a)        Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is incorporated) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

(b)        A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 25.4(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

(c)        The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

25.5     Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

25.6     Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

25.7     No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

25.8     Publicity. The Customer agrees to refer all enquires from the media and other third parties received by the Customer concerning the Products or the engagement of Internet Creation under these Conditions to Internet Creation, and to refrain from making any public statement about the Products or the engagement of Internet Creation (without the advance written consent of Internet Creation, except in accordance with clause 19.5).

25.9     Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

25.10  Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Internet Creation.

25.11  Governing law and jurisdiction This Contract and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with Scots law, and the parties submit to the exclusive jurisdiction of the Scots courts.