1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 6.
Commencement Date: has the meaning given in clause 2.1.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.4.
Contract: the contract between Silverless and the Client for the supply of Services in accordance with these Conditions.
Client: the person or firm who purchases Services from Silverless.
Client Default: has the meaning set out in clause 4.2.
Domain Name: the URL root address of the Website.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Services: the services, including the Works, supplied by Silverless to the Client as set out in the Specification.
Source Code: the code behind any Website.
Specification: the written description or specification of the Services to be provided by Silverless to the Client, and any Charges, contained either in one or more emails between Silverless and the Client or in a document prepared by Silverless and sent to the Client.
Silverless: Silverless Limited registered in England and Wales with company number 08437159.
Website: means a website developed or maintained by Silverless for the Client.
Works: the work set out in the Specification.
1.2 Interpretation:
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written does not include fax or email.
2. Basis of contract
2.1 This Contract shall come into existence on the client’s acceptance of the Specification (Commencement Date).
2.2 Any samples, drawings, descriptive matter or advertising issued by Silverless, and any descriptions or illustrations contained in Silverless’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Supply of Services
3.1 Silverless shall supply the Services to the Client in accordance with the Specification.
3.2 Silverless shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Silverless reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Silverless shall notify the Client in any such event.
4. Client’s obligations
4.1 The Client shall:
(a) co-operate with Silverless in all matters relating to the Services;
(b) provide Silverless with such information and materials as Silverless may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(c) comply with any additional obligations as set out in the Specification.
4.2 If Silverless’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, Silverless shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Silverless’ performance of any of its obligations;
(b) Silverless shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Silverless’ failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse Silverless on written demand for any costs or losses sustained or incurred by Silverless arising directly or indirectly from the Client Default.
5. Approval of Works
Silverless shall adopt a collaborative approach with regards to any design work and proposed designs shall be presented to the Client before being finalised. In respect of Website designs, no such designs shall be launched by Silverless without prior Client approval.
6. Charges and payment
6.1 The Charges for the Services shall be stated in the Specification.
6.2 Except for the circumstance described in clause 6.4, Silverless shall invoice the Client in accordance with the payment schedule described in the Specification.
6.3 Invoices shall be sent to the Client by email unless the Client otherwise requests in writing.
6.4 If Silverless sends Works (whether completed in part or in full) to the Client for feedback, and Silverless fails to receive any such feedback within 30 days of the date on which the Silverless sent the Works to the Client, Silverless may:
(a) issue an interim invoice to the Client for any Charges incurred to date; and
(b) charge the Client a re-engagement fee which shall be calculated at the hourly rate specified in the Specification to cover time spent by Silverless staff in re-familiarising themselves with the project.
6.5 The due date for all invoices will be the date stated on the invoice and the Client shall pay each invoice in full and in cleared funds to a bank account nominated in writing by Silverless. Time for payment shall be of the essence of the Contract.
6.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Silverless to the Client, the Client shall, on receipt of a valid VAT invoice from Silverless, pay to Silverless such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7 If the Client fails to make a payment due to Silverless under the Contract within 30 days after the due date, then, without limiting Silverless’ remedies under clause 12:
(a) the Client shall pay interest on the overdue sum from the date falling 30 days after the due date and until the date of payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) if the payment due is more than 60 days overdue, Silverless may terminate the licence of any Works granted pursuant to clause 9.2 and may take any Website that it has launched for the Client offline, until payment is received in full.
6.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Website services
The terms in this clause 7 apply to Website development services (if any) that are provided to the Client by Silverless.
Website development
7.1 Unless otherwise specified, any fee quote provided in the Specification does not include the costs of domain name registration, hosting fees or email services.
7.2 The scope of the Website development service to be provided is described in the Specification.
7.3 Should the Client require Silverless to arrange for the hosting of the Website within the Silverless hosting environment Silverless shall charge the Client an annual hosting fee. Should the Client wish to host the Website elsewhere, the responsibility for facilitating this rests with the Client and not Silverless.
7.4 If Silverless sends Works (whether completed in part or in full) to the Client for feedback, and Silverless fails to receive any such feedback within 30 days of the date on which the Silverless sent the Works to the Client, Silverless may:
(a) issue an interim invoice to the Client for any Charges incurred to date; and
(b) charge the Client a re-engagement fee which shall be calculated at the hourly rate specified in the Specification to cover time spent by Silverless staff in re-familiarising themselves with the project.
7.5 Websites developed by Silverless’ will be tested on the latest released versions of the following browsers:
(a) Desktop: Google Chrome, Microsoft Edge, Safari, and Mozilla Firefox; and
(b) Mobile: Google Chrome, Safari, and Samsung Internet.
Should the client require Websites to be tested, re-designed, and developed for use on any browsers other than those listed in this clause 7.5, any such work performed by Silverless’ shall be chargeable to the Client on a time-spent basis, at the hourly rate specified in the Specification.
Third-party involvement in Website development
7.6 Depending on the complexity of the Website development, Silverless may (with the prior consent of the Client):
(a) sub-contract some of the Website development services to a third party; and/or
(b) obtain plug-ins from third parties for use on the Website.
7.7 Silverless reserves the right to charge the Client for any fees charged by the third party in connection with providing the sub-contracted services or licence fees in respect of any plug-ins, subject to Silverless first notifying the Client of such additional charges, unless such charges are stated in the Specification.
Website maintenance
7.8 Should the Client instruct Silverless to perform Website maintenance services, the service level, cost and scope of work to be undertaken by Silverless shall be agreed between Silverless and the Client in a separate maintenance specification. For the avoidance of doubt, a search engine re-submission is considered a maintenance activity, and so too is any work performed in resolving any issues which arose because of changes to browser software (for example, following an update) or Domain Name or host setups. Any such maintenance work performed by Silverless shall (unless otherwise stated in the maintenance specification) be charged to the client on a time-spent basis at the hourly rate specified in the Specification.
Website errors
7.9 Silverless cannot guarantee that the display or functionality of the Website will be uninterrupted or error free, but Silverless shall use its reasonable endeavours to ensure the Website is functional on all of the browsers described in clause 7.5 before the Website is handed over to the Client.
7.10 Silverless reserves the right to charge a reasonable fee (on a time-spent basis at the hourly rate specified in the Specification) for the correction of errors for which Silverless is not responsible. For the avoidance of doubt, this includes errors resulting from modification of the Website by a third party and/or typographical errors contained in the materials provided to Silverless by the Client.
7.11 Unless otherwise agreed between Silverless and the Client, Silverless is not responsible for ensuring the data (including core, content and databases) relating to the Website are regularly backed-up and neither is Silverless responsible for any contingency plans covering potential losses as a result of Website software or hardware failure.
Permissions
7.12 The Client shall be responsible for obtaining any permissions or licences required in respect of any content or hyperlinks to be included on the Website.
Domain Name
7.13 If Silverless obtains a Domain Name on behalf of a Client:
(a) it shall be registered in the name of the Client; and
(b) Silverless shall charge the Client a fee for the annual or bi-annual renewal of the Domain Name registration.
Indemnity
7.14 The Client indemnifies Silverless against any costs, expenses, damages and losses suffered or incurred by Silverless arising out of or in connection with any claims or legal action relating to the Client’s Website or Domain Name.
Website Content
7.15 Unless otherwise agreed with Silverless, the Client shall be responsible for uploading all content to the Website.
7.16 Notwithstanding clause 7.15, Silverless may upload dummy content to the website for the purpose of developing a functional Website.
7.17 Should the Client instruct Silverless to upload content to the Website, Silverless shall charge the client for doing so on a time-spent basis at the hourly rate specified in the Specification, unless a fee is otherwise agreed.
8. Intellectual property rights
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Silverless.
8.2 In accordance with UK Intellectual Copyright Right Law, Silverless retains intellectual copyright to any material, including any source code, created for the client unless expressly agreed otherwise. This contract affords the Client the licence to use the website in perpetuity.
8.3 The Client grants Silverless a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to Silverless for the term of the Contract for the purpose of providing the Services to the Client.
9. Data protection
Silverless shall comply with its data protection obligations as described in its Privacy Policy, which is available either on request or online at https://silverless.co.uk/privacy-policy/
10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Subject to clause 11.3 (No limitation in respect of deliberate default), and clause 11.5 (Liabilities which cannot legally be limited), Silverless’ total liability to the Client for all loss or damage shall not exceed £1,000,000. The limits and exclusions in this clause reflect the insurance cover Silverless has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
10.2 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
10.4 Nothing in this clause 11 shall limit the Client’s payment obligations under the Contract.
10.5 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.6 Subject clause 11.3 (No limitation in respect of deliberate default), clause 11.4 (No limitation of customer’s payment obligations) and clause 11.5 (Liabilities which cannot legally be limited), this clause 11.6 sets out the types of loss that are wholly excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
10.7 Silverless shall not be liable for:
(a) services provided to the Client by a third party in respect of any Work (whether the third party provided the service through Silverless or not), which includes hosting services relating to any Websites developed by Silverless for the Client; or
(b) any losses arising from the actions of any third party in respect of the Website or Domain Name;
(c) any losses arising from a malicious software breach, virus, spyware or hack of the Website, once any such Website is no longer being developed by Silverless; and
(d) any costs or fees arising out of claims made by a third party in respect of the content of the Website where that content is provided to Silverless by the Client.
10.8 This clause 11 shall survive termination of the Contract.
11. Termination
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days’ written notice.
11.2 Without affecting any other right or remedy available to it, Silverless may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so;
(b) the Client fails to pay any amount due under the Contract on the due date for payment;
(c) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
11.3 Without affecting any other right or remedy available to it, Silverless may suspend the supply of Services under the Contract or any other contract between the Client and Silverless if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment;
(b) the Client becomes subject to any of the events listed in clause 12.2(d), or Silverless reasonably believes that the Client is about to become subject to any of them; and
(c) Silverless reasonably believes that the Client is about to become subject to any of the events listed in clause 12.2(c).
12. Consequences of termination
12.1 On termination of the Contract:
(a) the Client shall immediately pay to Silverless all of Silverless’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Silverless shall submit an invoice, which shall be payable by the Client immediately on receipt; and
(b) the Client shall return to Silverless any Works which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for there safe keeping and will not use them for any purpose not connected with the Contract.
12.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13. General
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings.
(a) Silverless may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Silverless.
13.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
13.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract is deleted under this clause 14.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.7 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; or
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
(c) This clause 14.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.8 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
13.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.