In these Terms of Business, the following words and phrases have the following meanings: -
‘the Company’ – HotLizard Ltd, registered office being Mercantile House, 18 London Road, Newbury, Berkshire, RG14 1JX.
‘the Client’ – XXX
‘Confidential Information’ shall mean the Software, the Website, the services provided by HotLizard pursuant to this agreement and all information of a proprietary and/or confidential nature regarding the Client’s business and or/ the Client’s employees whether such information be oral, written, computerised or otherwise.
‘Contract’ – this agreement between the Client and the Company, comprising this proposal and these Terms of Business whereby the Company agrees to supply products and/or services to the Client.
‘Date of Development Completion’ shall mean the date upon which the Software and Website development work is completed in accordance with the Functional Specification document and the Software and Website is released to the Client for testing.
‘Date of Going Live’ shall mean the date upon which the Software and Website are fully operational in accordance with the Product Specification or Functional Specification document.
‘Date of Purchase’ shall mean the date upon which the Client requested the Company to supply products and/or services from the Company through verbal, electronic and/or written arrangements.
‘Standard Product’ – the standard software as defined within the Product Specification Document / Quotation.
‘Project’ – means the design and installation of the Website and the development and installation of the Software as envisaged in these Terms of Business and as more fully detailed in the Functional Specification document and/or Product Specification document.
‘Service’ - the Service requested of the Company by the Client and set out in the accompanying proposal and Functional Specification and including hosting and support.
‘the Product Specification Document’ means the document detailing the parameters of the Standard Product.
‘the Quotation’ means the document detailing the price of the products or services supplied to the Client by the Company and attached as schedule 2 to the Web Hosting and Support Proposal agreement of even date.
‘the Functional Specification Document’ means the document detailing the parameters of the Project and the functional specifications for the Website and Software.
‘the Software’ means the computer software to be supplied to the Client by the Company for the performance of the functions set out in the Product Specification document and consisting of the totality of the processes, routines, logic using in processing information expressed in the form of machine executable codes and including the source codes, object codes and all Upgrades to the Software and any accompanying documents (whether electronic or otherwise)
‘the Website’ means the website created and designed pursuant to this agreement, the Functional Specification document and/or the Product Specification document, including but not limited to any logo, service names, source codes, object codes, programming, text, graphics, icons, designs, colours, layouts, images, photographs, animations, video, audio, music, text and applets incorporated therein, all Upgrades to the Website and any accompanying documents (electronic or otherwise).
‘Upgrades’ means all alterations, patches and amendments as the case may be, which are required to enable the Software and the Website to comply with the terms of the Functional Specification document or the product to comply with the terms of the Product Specification but which are not enhancements nor material deviations from the Functional Specification document or Product Specification document.
These terms apply to this Contract between the Company and the Client and are deemed to be acceptable by the Client and the Company on their signature of this Contract.
The Client requests the Company to supply standard products and/or bespoke development services and/or web design services and/or web hosting services and/or support services. Dependent upon the combination of products and/or services supplied the following terms will apply.
In consideration of the product and or services supplied by the Company, the Client shall pay to HotLizard the amount as detailed on the Quotation.
In respect of development and design services the Quotation will only be considered an estimate until the Functional Specification has been completed and agreed. The final project price, should this differ from the quotation price will be provided to the Client by the Company at that point.
Payment Terms are detailed below:
20% of Total Project Cost outlined in the proposal will be due for payment upon confirmation of order. This payment will commission the project and include the production of first stage designs and the functional specification for the project.
50% of remaining re-quoted project cost, based on the agreed specification, will become payable upon acceptance of the specification
40% of Final Agreed Project Cost upon completion of development and the remaining
10% and the first quarter’s services will be due for payment prior to go live or 30 days after completion of development and site provided for testing, whichever is the sooner.
The dates that these payments will be required will be detailed in the Functional Specification. If the payment dates are delayed due to the Client delaying the Project, the Company will require payment of the total project cost due upon demand. Under these circumstances, the Company also reserves the right to charge for idle resource that could not be re-deployed as a result of the Client delay.
Standard Products are available to be purchased or on rental terms and are classified as Gecko Websites and Job Boards and NetResourcer.
Payment for the purchase of Standard products is required upon Date of Purchase.
Rental for Standard Products is paid for quarterly by bank standing order. Payment is quarterly in advance.
The minimum term for rental of a Standard Product is 12 months. Thereinafter 3 months notice is required to discontinue the rental of the Standard Product; this includes the discontinuation of individual NetResourcer or Gecko accounts.
50% of Total Project Cost outlined in the proposal will be due for payment upon confirmation of order.
50% of Final Agreed Project Cost upon completion of development and site provided for testing
The first quarter’s services will be due for payment prior to go live.
Standard Gecko and Chameleon Job Boards are available on a Pay Per Application basis as detailed below:
100% of Administration Training will be payable on commissioning the project
The first monthly payment will be invoiced immediately on Go Live and is due for payment within 7 days
Further monthly invoices will be based on number of applications received in the previous month and will be due for payment within 7 days (a minimum charge of £750 per month will apply).
Quotations for additional work are subject to a minimum charge and payable as follows:
100% will be invoiced on order confirmation for immediate payment, only once payment has been received will the work be scheduled for development.
Payment for Support Services and Hosting Services (including statistics) is required prior to the Date of Going Live. Support Services and Hosting Services are charged monthly and are payable in full quarterly in advance by standing order. Website hosting charges are in line with our hosting matrix. The minimum term for Support and Hosting Services is 12 months. Thereinafter 3 months notice is required to discontinue the service; this includes the discontinuation of individual NetResourcer accounts.
The Company reserves the right to charge reasonable Project expenses to the client in respect of the Client carrying out its obligations under the Contract. Expenses shall include but not be limited to travelling expenses, accommodation expenses and subsistence.
The Company reserves the right to charge for consultancy time and expenses if required to participate in meetings with the Client and/or third parties outside the contract between the two parties.
All payments are calculated exclusive of VAT and will bear VAT at the applicable rate. Invoices are payable by the invoice due date. Without prejudice to any other rights or remedies available to the Company, the Company reserves the right to charge interest on invoices unpaid within 14 days of the invoice date and suspend our hosting and support services where necessary. A rate of 4% above Barclays base lending rate (or such other rate as may substitute the same) will apply calculated on a day-to-day basis on the outstanding amount (both before and after any judgement) as from the time of the invoice until the outstanding amount is paid in full.
All rights within the Software and Website for bespoke development and design vest solely in the Client
All rights for Standard Products vest solely in The Company and through the Contract to purchase and supply a Standard Product, the Company grants the Client a license to use the Standard Product. The license is granted in perpetuity where the Client purchases the Standard Product and for the duration of the rental period, where the Client rents the Standard Product on a monthly basis.
As soon as practicable after the Company reaches the Date of Development Completion, the Company shall deliver to the Client, the Software and Website cut to compact disk together with any programming documents that accompany same, including all source codes and object codes for the bespoke development and design and the underlying programming thereof.
All HotLizard website and job board solutions will contain a page that briefly describes the project undertaken and links through to the HotLizard website. This will be "hidden" to users and will only appear in the HTML sitemap of the site. In addition to this all Gecko and Chameleon solutions will have a ‘Powered by HotLizard’ presence in the footer of the site, which will also act as a link through the HotLizard website.
The Company warrants in favour of the Client that it has developed and created the Software and Website without infringing any of the intellectual property rights, proprietary rights, title, trademark, copyright, patent or design rights of any third party in so doing.
The Client warrants in favour of the Company that materials including but not limited to logos, test, graphics, icons, image, photos, animations, video, audio music and text supplied to the Company by the client do not infringe any of the intellectual property rights, proprietary rights, title, trademark, copyright, patent or design rights of any third party.
The Client warrants that any personal data held on individuals on the Website is held with the individual’s knowledge and is subject to the provisions of the Data Protection Act, with whom the Client holds current registration.
Following the Date of Going Live a Warranty period of 30 days will apply. During this period the Client will verify that the Software and Website are fit for the purpose for which they were designed as set out in the Functional Specification document.
The Company will rectify any anomalies in order to ensure that the Software and Website meet the terms of the Functional Specification document during this period. Any rectifications after this period will either be subject to the terms of contracted Support Services or will be fixed subject to charges at the Company’s prevailing hourly rate for programming and creative services and will be subject to a minimum charge as per the prevailing rate.
The Company, its employees or agents shall not be liable for any consequential damage or loss (including, without limitation, loss of profits or business opportunity) caused to, or suffered by, the client as a result of, or arising out of, any use of, or any fault, defect or error in the services or operation of the Software or Website.
Subject to the above paragraph, the Company, it’s employees’ and agent’ total aggregate liability in respect of any and all claims (whether arising out of one or more incidents and whether in respect of the negligence of the Company), its employees or agents, by the Client arising out of or in respect of the services or the use of either of them (other than in respect of death or personal injury caused by the negligence of the Company, its employees or agents) shall in no circumstances exceed the total charges paid by the client in respect of the original products and/or services provided. This Clause shall survive termination of this agreement for any reason whatsoever.
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The Company shall keep secret and confidential the Confidential Information and not disclose it to any third party. The Company may disclose the Confidential Information only:
with the Client’s prior agreement as to manner, content and degree of disclosure, and
if required by law, with the Client’s prior agreement as to manner, content and degree of disclosure
The client agrees that the Software and Website produced shall only be used for lawful purposes and shall not use the service for the transmission of any material which is in violation of any law or regulation, or which is defamatory, menacing, obscene or in breach of third party intellectual property rights (including copyright) or in breach of trade secrets.
The contract may only be terminated by either party where there is a material breach in the Contract and the party in breach fails to remedy the same within 14 days of written notice demanding such remedy. In such cases the contract will be terminated immediately.
If a Client decides to terminate the Project or to cease work on the Project, all payments signed for in the quotation and/or agreed to in the Functional Specification will become immediately due. No refund or part payment will apply in the result of a project terminated or cancelled by the Client.
A party to the Terms of Business shall not be liable for any delay in or failure of performance if:
that delay or failure arises from circumstances or events beyond that party’s reasonable control or foresight (‘a Force Majeure Event’); and
it has taken all reasonable measures with the object of avoiding or minimising the delay or impact of the Force Majeure Event; and
the party claiming the benefit of a Force Majeure Event has promptly given notice to the other party of the nature of the Force Majeure Event, an estimate of the duration of Force Majeure Event and the probable extent to which that party shall be unable to observe or perform its obligations under these Terms of Business.
All notices, requests, demands, consents, approvals or other communications (each a ‘Notice’) in relation to either party or otherwise shall be in writing and shall be delivered by electronic mail or prepaid registered post or in person or transmitted by facsimile to the addresses or facsimile numbers set out in the party’s details or such other address or facsimile number as the addressee may specify.
Any provision of these Terms of Business which is prohibited or unenforceable in any applicable jurisdiction shall be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. Such prohibition or unenforceability shall not invalidate the remaining provisions of these Terms of Business nor affect the validity or enforceability of that provision in any other jurisdiction.
These Terms of Business shall constitute the entire agreement between the parties in relation to the contract to purchase and/or rent and supply products and/or services and shall supersede all prior agreements and understandings between them with reference to the subject matter of this agreement.
No amendment of any provision of these Terms of Business, nor any extension hereof, shall be valid or binding on a party unless made in writing duly executed by the parties hereto.
Except as otherwise expressly provided in these Terms of Business, no waiver in whole or in part of any of the provisions of this Agreement shall be valid or binding on a party unless in writing and duly executed by that party. Any waiver shall apply to the particular occasion in question and shall not be continuing and shall not constitute a waiver of any other provision.
Other than such failure or delay in respect of time limits specified in these Terms of Business, no failure to exercise and no delay in exercising any right, power or remedy under these Terms of Business shall operate as a waiver. No single or partial exercise of any right, power or remedy shall preclude any other or further exercise of that or any other right, power or remedy.
This agreement, its interpretation, breach and enforcement shall be governed and construed in accordance with the laws of England.