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1. DEFINITIONS

Additional Costs means any additional costs to be incurred by the Buyer beyond the Estimate including additional costs arising from changes to the Specification in accordance with clause 5 and any unforeseen expenses arising in connection with the provision of the Services as agreed between the parties in accordance with clause 5. Unless specified in the Agreement, the Additional Costs do not include VAT at the applicable rate from time to time.

Agreement means any contract between the Company and the Buyer for the supply of Services incorporating these Terms and Conditions, the Specification and any special terms and conditions agreed between the parties.

Buyer means any person, firm or corporation or agent thereof who has agreed to buy the Services from the Company.

Commencement Date means the date for the commencement of the provision of the Services to the Buyer by the Company specified in the Agreement.

Company means Red Hot Penny (RHP) which is the trading identity for both RHP2 Ltd (Company Registration Number 8897329) and RHPDM Ltd (Company Registration Number 09605163) whose registered offices are at Rubra 1, Mulberry Business Park, Wokingham, Berkshire RG41 2GY.

Deliverables: any deliverables specified in the Agreement to be delivered by the Company to the Buyer.

Design: means any website design, website code, website application in connection with the Website or any other software applications arising in connection with the performance of the Services by the Company under the terms of the Agreement in connection with the Website.

Estimate means the estimate of the Company’s labour costs to be incurred, together with a breakdown of the anticipated incidental costs to be incurred in connection with the provision of the Services specified in the Agreement. Unless specified in the Agreement, the price does not include VAT at the applicable rate from time to time.

In-put Material means the in-put material specified in the Agreement to be provided by the Buyer.

Intellectual Property Rights: all copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Invoice means any invoice submitted to the Buyer by the Company from time to time.

Purpose:  the operation of the Website in accordance with the Specification or such other Purpose as may be specified in the Agreement.

Services means any goods and/or services specified in the Agreement to be supplied by the Company to the Buyer.

Specification means any specification agreed between the Company and the Buyer setting out the Buyer’s requirements as to the nature, description and format of the Services to be provided including details of any In-put Material.

Website means the Buyer’s website specified in the Agreement.

2. GENERAL

2.1 Any order for Services placed by the Buyer with the Company shall be deemed to be an offer by the Buyer to purchase the Services subject to these Terms and Conditions.

2.2 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.

2.3 The Agreement will be on these Terms and Conditions to the exclusion of all other terms and condition (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.4 No variation of the Agreement shall have any effect unless expressly agreed in writing and signed on behalf of the Company and the Buyer.

3. ESTIMATES

3.1 Estimates remain valid for a period of 30 days from their date of issue unless otherwise specified in writing by the Company.

3.2 Estimates are an indication of likely charges to be incurred by the Buyer for the Services requested, based upon the information made available to the Company at the time.

3.3 All descriptions, illustrations, technical specifications, drawings, sketches, and other documents which may be given in or referred to in Estimates and/or performance figures are approximate only and the Company may vary any of the same at any time.  No warranty or representation which is not confirmed in writing by the Company will be binding.

4. BUYER’S OBLIGATIONS

4.1 The Buyer shall:

(a) assist the Company in all matters as  the Company may request relating to the Services; and

(b) provide, in a timely manner, any In-put Material and other information as the Company may request and ensure that the Specification and the In-Put Material are accurate in all material respects.

4.2 The Buyer hereby acknowledges that the Services shall be performed in accordance with the Specification.

4.3 If the performance of the Company’s obligations under the Agreement is prevented or delayed by any act or omission by the Buyer, the Buyer’s agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay.

5. VARIATIONS

5.1 The Company reserves the right by giving notice to the Buyer at any time before completion of the performance of the Services to adjust any Estimate given following commencement of the Services to reflect any increase in the costs to the Company which is due to any change in delivery date or the Specification which is requested by the Buyer or any delay caused by the Buyer’s failure under clause

5.2 The Buyer may request by giving not less than 10 days’ prior written notice a change to the Specification.

5.3 If the Buyer requests a change to the Specification:

(a) the Company shall, within a reasonable time (and in any event within a reasonable period of time after receipt of the Buyer’s request), provide a written estimate to the Buyer of:

i)  the likely time required to implement the requested change;

ii) any necessary variations to the Company’s charges arising from the change; and

iii) any other impact of the change on the terms of the Agreement

(b) if the Buyer does not wish to proceed, there shall be no change to the Specification; and

(c) if the Buyer wishes the Company funds to proceed with the change, the Company shall do so after agreement on the necessary variations to its charge, and any other relevant terms of the Agreement to take account of the change to the Agreement.

6. TERMS OF PAYMENT

6.1 The Buyer shall pay any Deposit due to the Company in cleared funds at least three business days prior to the Commencement Date. The Company shall not be under any obligation to commence the provision of the Services unless it has received any agreed Deposit in accordance with this clause 6.1.

6.2 Payment is to be made in the currency specified in the Invoice. If no such currency is specified then United Kingdom sterling is to be assumed as the agreed currency.

6.3 The balance of the price shall be paid by the Buyer to the Company within 30 days of the date of the Invoice.

6.4 Where payment is not received within the specified period the Buyer shall be liable to pay interest accruing daily on the amount outstanding at the rate of 8 per cent per annum above the UK Bank of England base rate prevailing at the time. The Company understands and will exercise its statutory right to interest under the Late Payment Of Commercial Debts (Interest) Act 1998 if it is not paid according to the terms set out in the Agreement.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights and all other rights in any Deliverables and the Design shall be owned or licensed by the Company. Upon full payment of all Invoices the Company hereby licenses all such rights (to the extent it is permitted to do so under any applicable licences) to the Buyer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Buyer to use the Deliverables, the Services and the Design. If the Agreement is terminated under clause 14, the licence granted by this clause 7 will automatically terminate.

7.2 No replication of any part of the Deliverables or any Design work carried out is allowed without the prior written consent of the Company.

7.3 The Buyer shall be responsible for obtaining any permissions necessary to place the In-Put Materials onto the Website and the Buyer accepts full and complete responsibility for obtaining any rights, licences, clearances, releases or other permissions regarding the In-Put Material.

8. DISPATCH AND DELIVERY

8.1 Delivery of any Deliverables shall be deemed to occur and the risk of loss or damage of any kind in such Deliverables shall pass to the Buyer on the earlier of (a) collection on behalf of the Buyer or by the carrier for dispatch to the address for delivery specified in the Agreement, or (b) 7 days from the date of notice given by the Company to the Buyer that the Deliverables are ready for collection by the Buyer, or (c) the Buyer sends written confirmation via email or in postal letter form acknowledging its acceptance of any Services supplied directly by the Company.

8.2 Upon completion of the Deliverables and Design the Company shall place the Deliverables and Design on a staging server to enable the Buyer to preview them and the Company shall notify the Buyer that the Design and Deliverables are ready for preview.  The Buyer shall then have a period of five working days during which to review the Design and Deliverables for conformity with the Specification and shall notify the Company of any non-conformity. Upon receipt of such notice the Company shall rectify such non-conformity as soon as reasonably practicable.  In the absence of any notification from the Buyer within such period, the Company shall be deemed to have performed the Services in accordance with the terms of this Agreement.  Any subsequent fault corrections shall be remedied at the discretion of the Company.

9. TIME AND FORM OF DELIVERY

9.1 The Company will use reasonable commercial endeavours to perform the Services and deliver any Deliverables in accordance with any time estimate given by the Company in the Agreement but in no event shall time be of the essence. The Company shall be entitled to deliver any of the Deliverables by single delivery or by instalments at its option.

10. LIMITATION OF LIABILITY

The Buyer’s attention is particularly drawn to the provisions of this clause

10.1 This clause 10 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its respective employees, agents and sub-contractors) to the Buyer in respect of:

10.1.1 any breach of the Agreement;

10.1.2 any use made by the Buyer of the Design, the Deliverables or any part of them; and

10.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement,

but do not affect the statutory rights of the Buyer who is acting as a consumer.

10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

10.3 Nothing in these Terms and Conditions limits or excludes the Company’s liability to the Buyer:

10.3.1 for death or personal injury resulting from negligence; or

10.3.2 for any damage or liability incurred by the Buyer as a result of fraud or fraudulent misrepresentation by the Company.

10.4 Subject to condition 10.2 and condition 10.3

10.4.1 The Company shall not be liable for:

10.4.1.1 loss of profits; or

10.4.1.2 loss of business; or

10.4.1.3 depletion of goodwill and/or similar losses; or

10.4.1.4 loss of anticipated savings; or

10.4.1.5 loss of goods; or

10.4.1.6 loss of contract; or

10.4.1.7 loss of use; or

10.4.1.8 loss of corruption of data or information; or

10.4.1.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

10.4.2 the total liability of the Company to the Buyer in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall be limited to the price of the Services.

10.5 The charges are determined on the basis of the exclusions from and limitations of liability contained in the Agreement.  The parties expressly agree that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that otherwise the amount of damages awardable for a breach of the Agreement may be disproportionately greater than the price of the Services.

11. INDEMNITY

11.1 The Buyer agrees to fully indemnify and keep the Company, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by it or them and arising from any of the following: (i) the Buyer’s breach of this Agreement or its negligence or other act, omission or default; (ii) the operation or break down of any equipment or software owned or used by the Buyer; (iii) the Buyer use or misuse of the Deliverables and the Design; (iv) the Buyer infringing (whether innocently or knowingly) third party rights (including without limit Intellectual Property Rights).

12. FORCE MAJEURE

12.1 The Company will not be liable for any delay or failure in carrying out its obligations which is caused or partly caused by strikes or other labour disputes, Government action, fire, flood or other Acts of God or any other cause beyond its control. Neither Party will be obliged to carry out any obligation under the Agreement where performance of such obligation is prevented by the occurrence of a Force Majeure Event. No commitment from the Company applies in case of Force Majeure.

13. WAIVER AND SEVERABILITY

13.1 If any provision of the Agreement is found by any court or administration body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in force and effect unless the severance of the invalid or unenforceable provision would unreasonably frustrate the commercial purpose of the Agreement. The Company and the Buyer in such event agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision that achieves to the greatest extent possible the economic objectives of the invalid or unenforceable provision. No time or indulgence granted by one party to the other and the exercise of its rights shall be deemed to constitute a waiver of such rights.

14. TERMINATION

14.1 If the Buyer fails to make a payment due under the Agreement, or commits any breach of the Agreement, or becomes bankrupt or insolvent or compounds or makes any other arrangement with creditors or being a company goes into liquidation or has a receiver appointed over its assets, the Company may (without prejudice to any other remedies) terminate the Agreement immediately without notice and suspend the performance of the Services and the Buyer shall be liable to indemnify the Company against all loss (including loss of profit) and costs incurred by the Company and all other expenses and damages connected with the order and it’s cancellation.

15. LAW

15.1 This agreement shall in all respects be governed by and constructed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts in any legal proceedings and as regards claim or matter relating to this agreement.

16. PROMOTION

16.1 Subject to the Buyer consenting to such use under the Agreement, the Company shall have the right to use the Buyer’s name to promote the Company to future clients. This may include publicity, sales literature and other marketing activities. The Company will include a ‘Credits: Red Hot Penny.‘ line on the home page of any Website created. Contact information will also be included within the source code.