Definitions and interpretation
- In this Agreement, unless the context otherwise requires capitalised words shall have the meaning as defined below or elsewhere in the Agreement: Agreement means (i) these Terms and Conditions including the schedules, and (ii) the relevant Statement of Work. WildPress Materials means templates and other generic material, which pre-existed the date of the relevant Statement of Work, and which (i) were not produced specifically for the Client; and (ii) are used by WildPress to produce deliverables for more than one client. Data means any data created, produced or collected (i) by the Client; (ii) by WildPress in the course of providing Deliverables or Services; or (iii) by use or means of a Deliverable, but excluding any Client Personal Data as defined in Schedule 2 and any Usage Data. * Defect* means an error or defect in a Deliverable, including a defect or error as a result of which the Deliverable fails to meet the applicable requirements set out in the relevant Statement of Work. Deliverable means any deliverable item to be produced or supplied by WildPress as part of, or in the course of, provision of any Services, including reports or other documents; designs (including logos and brand designs); software; databases; websites; apps; and any other material. Effective Date is the earlier of (i) last signature, or (ii) Commencement Date. * Intellectual Property Rights* means all copyright, patent rights, trade or service marks, design right, rights in or relating to databases, rights in or relating to confidential information, and any other intellectual property rights (registered or unregistered) throughout the world including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements. * Material Defect* means any defect other than a Minor Defect. Minor Defect means a defect which is trivial or cosmetic or which does not have any material adverse effect on the use or operation of the relevant Deliverable in accordance with the relevant Statement of Work. Open Source Software means any software that is distributed as open source software or similar licensing or distribution models (whether under licences approved by the Open Source Initiative or not) including software licensed or distributed under any of the following licenses or distribution models: (1) GNU’s General Public License (GPL) or Lesser/Library (LLGPL); (2) the Artistic License (e.g. PERL); (3) the Mozilla Public License; (4) the Netscape Public License; (5) the Sun Community Source License (SCSL); (6) the Sun Industry Standards License (SISL); (7) the BSD License; (8) the Apache License; (9) the Microsoft Public License ( Ms-PL); (10) the Creative Commons License; and (11) the MIT License (MIT), which is incorporated by WildPress into the Deliverable. Restricted Person is any person who was known to or worked with either party in connection with the provision of the Services and who (i) is employed by the party concerned or engaged as a consultant to the party concerned at the Termination Date; or (ii) has at any time in the period of six months prior to the Termination Date been employed by the party concerned or engaged as a consultant to the party concerned; in either case otherwise than in a junior administrative or secretarial capacity. Software Deliverable means a Deliverable comprising or incorporating any software, including a software application; a website; a database; and an app. Usage Data means any user account and usage data relating the use of Service functionalities. Working Day means any day other than Saturday, Sunday and English bank and public holiday.
- Any reference in this Agreement to any provision of a statute will be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
- The words “include” and “including” will not limit the generality of any words preceding them.
- Any singular will include the plural and vice versa.
Overview of Agreement
- Subject to these terms and conditions the Client may, from time to time, order various services and Deliverables from WildPress (together, the “Services”).
- The details in relation to the Services and Deliverables to be supplied by WildPress under each order shall be agreed by the Client and WildPress in a statement of work (each a “Statement of Work”).
- Each valid Statement of Work will form a separate Agreement between the parties, on the terms set out in the Statement of Work and these Terms and Conditions.
Supply and testing of Deliverables
- WildPress will deliver the Deliverables to the Client for testing by the agreed applicable date(s) or within the relevant period set out in the relevant Statement of Work. The testing process in clause 3.2 shall apply to the Deliverables unless and to the extent that an alternative testing process has been specified in the relevant Statement of Work, in which case such alternative testing process shall apply to the Deliverables concerned.
- Once a Deliverable has been supplied to the Client, the Client shall have a period of time to review or test it, as
set out in this clause 3 and
in Schedule 1.
Some Deliverables (such as Software Deliverables and other more complex Deliverables which the Client wishes to
subject to a full test process) will be subject to a formal technical acceptance testing process as set out in clause
of Schedule 1 (
the “Technical Acceptance Process”). Other Deliverables, such as reports, will not need to be subject to formal
acceptance testing but will be subject to a less complex review procedure as set out in clause 1
of Schedule 1 (
the “Review Process”). Unless agreed otherwise by the parties:
- Software Deliverables will be subject to the Technical Acceptance Process;
- all other Deliverables to be subject to the Technical Acceptance Process will be identified as such in the relevant Statement of Work; and
- all other Deliverables will be subject to the Review Process (and not the Technical Acceptance Process).
Assistance from the Client
- The Client shall without delay provide WildPress such materials, information and access as WildPress may from time to
time reasonably request in order to perform its obligations under this Agreement, including:
- reasonable access to, and procure reasonable co-operation by, the Client’s staff;
- access to any information and materials; and
- access to the Client’s premises and the Client’s internal systems.
- Where the Client has asked WildPress to provide certain Services to it, which require WildPress to access third party accounts, environments or services on behalf of the Client (for which the Client has a paid-for or subscription-based account to), the Client will ensure that it has all necessary permissions and consents from the relevant third party concerned, required for the Client to allow WildPress to use the Client’s relevant log-in credentials and access the relevant service on its behalf.
- Subject to clauses 8 and 9, the Client is responsible for ensuring that it complies with all security and data authentication requirements relating to any aspect of the Services.
- Subject to any express provision in this Agreement to the contrary and except to the extent permitted by applicable
Law, the Client shall not:
- use, copy, modify, translate or create any derivative work of all or any portion of the Deliverables;
- un-bundle any components of the Deliverables;
- reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Deliverables except as otherwise expressly permitted by WildPress; or
- sell, transfer, licence, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Deliverables to any third party.
- The Client shall pay such charges for particular Services:
- as set out in the Statement of Work; or
- if no charges are specified for particular Services in the Statement of Work, then unless otherwise agreed in writing, the Services will be provided on a time and materials basis and the Client shall pay charges calculated in accordance with WildPress’ standard rates set out in Schedule 3.
- WildPress may invoice the Client for the charges as soon as they become due. The Client must pay all invoices within 7 days from invoice date or such other period as may be specified in the Statement of Work (“Payment Term”).
- Unless expressly agreed otherwise by WildPress as part of a relevant Statement of Work, charges will not include reasonable out-of-pocket expenses, which (subject to provision of copies of relevant receipts) will be chargeable in addition by WildPress and billable monthly in arrears. For the purposes of this clause 5, reasonable out-of-pocket expenses includes, but is not limited to, software or third party services purchased by WildPress on behalf of the Client.
- If the Client is late in paying any invoices, then WildPress may charge interest on all unpaid amounts. Interest will be payable from the date of the invoice until the date of payment and will continue to be payable even if WildPress obtains a judgment from a court in relation to any claim for payment of the invoice. The rate of interest per annum will be 5% above the Bank of England base rate.
- The amounts specified in this Agreement do not include VAT or any other taxes on supplies unless expressly stated otherwise, and the Client must pay these to WildPress as well as the amounts concerned.
- WildPress warrants that the Services will be provided:
- with reasonable care and skill and by means of appropriately qualified and skilled personnel; and
- so as to comply in all material respects with any relevant Statement of Work.
- WildPress warrants that:
- in relation to Deliverables other than Software Deliverables, each Deliverable will be free from any material defect, error or inaccuracy of which WildPress should reasonably have been aware at the time the relevant Deliverable was supplied to the Client; or
- in relation to Software Deliverables, each Software Deliverable will:
- conform in all material respects with any specification agreed in relation to it as part of the relevant Statement of Work; and
- be free from any Material Defect for a period of 30 days from acceptance in accordance with this Agreement, unless specified otherwise in the relevant Statement of Work.
- If either of the warranties in clauses 6.1 or 6.2 is breached, the Client will tell WildPress as soon as is reasonably possible. The Client must give WildPress a reasonable time to fix the problem and (if necessary) to re-perform any relevant Services. This will be done without any additional charge to the Client.
- Except as expressly set out in this Agreement, no conditions, warranties or other terms apply to the Services, the Deliverables or to anything else supplied under this Agreement. In particular, no implied conditions, warranties or other terms relating to satisfactory quality or fitness for any particular purpose will apply to anything supplied under this Agreement. Also, it is not a term of this Agreement that the Services or access to or use of any Deliverable will be entirely uninterrupted or entirely error-free.
Exclusions and limitations
- Neither party’s liability:
- for death or personal injury caused by its negligence or the negligence of its employees or agents;
- under clause 12.12 of this Agreement;
- for fraudulent misrepresentation;
- that cannot be excluded at law; or
- for payment of any sums properly due in the normal course of performance of this Agreement or any Statement of Work; is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
- Other than as set out in clause 7.1, neither party shall be liable (whether for breach of contract, negligence,
misrepresentation or for any other reason) for any:
- loss of profits;
- loss of sales;
- loss of revenue;
- loss of any software or data;
- loss of use of hardware, software or data; or
- indirect, consequential or special loss.
- Subject to clauses 7.1 and 7.2, the maximum liability of each party under the Agreement (and whether the liability
arises because of breach of contract, negligence, misrepresentation or for any other reason) shall be limited as
- in relation to each claim, to an amount equal to 100% of the total amount paid and payable to WildPress under the Agreement in the period of 12 months immediately preceding the month in which the claim arose (provided that all claims arising from the same or substantially the same circumstances will be treated as one, and will be treated as arising on the date on which the first such claim arose); and
- in the aggregate to £50,000 (so that, subject to clause 7.1, under no circumstances will either party’s total aggregate liability under or in relation to this Agreement exceed £50,000).
- WildPress shall take out and maintain, throughout the period of the Agreement, and for at least 12 months thereafter, professional indemnity insurance with a reputable UK-based insurance company to a limit of not less than £50,000 per claim. On request from the Client, WildPress shall produce to the Client written confirmation from the relevant insurance company that the relevant insurance is in force.
- WildPress shall keep confidential any confidential information which the Client supplies to WildPress in connection
with this Agreement and the Client shall do the same in relation to any confidential information which WildPress
supplies to the Client. Confidential information will include all information marked as being confidential and any
other information which ought reasonably to be assumed to be confidential. The obligations as to confidentiality in
this Agreement will not apply to any information which:
- is available to the public other than because of any breach of this Agreement;
- is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
- is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
- is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure.
- The parties will comply with their respective obligations under Schedule 2 in relation to Client Personal Data.
- WildPress is controller in relation to Usage Data.
Term and termination
- The Agreement will commence on the commencement date specified in the relevant Statement of Work (or if a commencement date is not specified, on the date of signature of the Statement of Work) (the “Commencement Date”) and, unless terminated earlier in accordance with its terms, will continue:
- for the applicable initial term specified in the Statement of Work (“Initial Term”), and thereafter until either party terminates the Agreement by giving at least three (3) months’ notice to the other party (on the basis that such notice shall not expire before the end of the Initial Term);
- if no Initial Term is specified in the Statement of Work and if the Statement of Work relates solely to the development of a Deliverable, until the parties’ obligations under the Agreement have been fulfilled in accordance with its terms; or
- if no Initial Term is specified in the Statement of Work and the Statement of Work relates to on-going Services, for an Initial Term of 12 months and thereafter until either party terminates the Agreement by giving at least three (3) months’ notice to the other party (on the basis that such notice shall not expire before end of the Initial Term). 2. Either party may terminate the Agreement immediately by notice to the other party if in respect of the other party any of the following events occur:
- it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due for payment;
- a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law save where such resolution is made in the context of an internal solvent restructure or reorganisation of its group;
- any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets;
- any event analogous to the events listed in (a) to (c) above takes place in respect of it in any jurisdiction. 3. Either party may terminate this Agreement immediately by notice to the other party if:
- the other materially breaches any term of the Agreement and it is not possible to remedy that breach; or
- the other materially breaches any term of the Agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being asked to do so. This clause 10.3 shall not apply to any non-payment by the Client, which shall be governed by clause 10.4 (so that WildPress may only terminate the Agreement due to non-payment by the Client in accordance with clause 10.4). 4. WildPress may terminate the Agreement immediately by notice to the Client if:
- the Client has failed to pay any sums due under the Agreement by the date on which it is supposed to have paid in accordance with the Agreement;
- WildPress has notified the Client that the sums are overdue and that, if they remain unpaid for a further 30 days, WildPress intends to terminate the Agreement; and
- the sums have remained unpaid for a further period of 30 days following the date of the notice from WildPress under clause 10.4(b) above.
Consequences of termination
- Termination of the Agreement will not affect any accrued rights or liabilities which either party may have by the time termination takes effect. Termination of the Agreement will not affect any other agreements in existence at the time, which will continue in force until individually terminated in accordance with their terms.
- On termination of the Agreement:
- termination of the Agreement shall not terminate any licences granted by the Agreement of WildPress Materials or Third Party Software (as defined below) that has already been delivered to the Client prior to termination;
- except in relation to the Data (which is dealt with in clause (c)) and Client Personal Data (which are dealt with in Schedule 2), each party shall return to the other any confidential information provided by the other or (at the other’s option) destroy it and confirm in writing that this has been done;
- WildPress shall either:
- return the Data to the Client, provided that (except where the Client has terminated the Agreement under clause 10.3 or Schedule 1; or at the Client’s option, destroy the Data and confirm in writing that this has been done; and
- in relation to Client Personal Data, at the choice and expense of the Client, delete or return the same to the Client, and delete existing copies of all Client Personal Data, provided that in each case (i) ) the Client pays all of WildPress’ charges and expenses reasonably and necessarily incurred in connection with the return or export of Data or Client Personal Data (such costs and expenses to be agreed between the parties or, if not agreed, to be chargeable in accordance with clauses 5.1 and 5.3) and (ii) WildPress shall be entitled to retain a back-up copy of the Data for a period of one year from the termination or expiry of the Agreement or such other period as may be required in order to comply with any applicable legislation;
- WildPress may immediately cease provision of the Services provided under the Agreement and shall invoice the Client for any charges relating to the Services incurred up to the termination or expiry of the Agreement; and
- if requested to do so by the Client, WildPress shall use its reasonable efforts to provide to the Client assistance in relation to the transfer of the provision of the Services provided under the Agreement to the Client or to a third party provided that (except where the Client terminates the Agreement in accordance with clause 10.3 or Schedule 1) the Client pays WildPress its charges and expenses incurred in connection with the provision of such assistance ( such costs and expenses to be agreed between the parties or, if not agreed, to be chargeable in accordance with clause 5.1 and 5.3).
Intellectual Property Rights
- Subject to clauses 12.2 and 12.4, all Intellectual Property Rights in:
- Deliverables excluding any WildPress Materials and Third Party Software; and
- any materials that the Client may provide to WildPress; (together the “Client Materials”) shall belong to the Client on payment of all charges due to WildPress. WildPress hereby assigns all such Intellectual Property Rights to the Client. WildPress is allowed to use the Client Materials in accordance with clause 12.7.
- To the extent that any Deliverables comprise Open Source Software, such Deliverables shall not form part of the assignment of Deliverables in clause 12.1 above provided that WildPress shall ensure that the Client has a licence to use such Deliverables under the applicable Open Source Software licences.
- Subject to clause 12.4, all Intellectual Property Rights in and relating to WildPress Materials shall be retained by WildPress or its licensors. The Client shall have a non-exclusive, non-transferrable, royalty free licence throughout the world to use WildPress Materials to the extent that this is necessary to enable the Client’s use or exploitation of the relevant Deliverable or Services in any way it wishes, for so long as the Client is entitled to use the Deliverables or Services, subject to any restrictions expressly set out in the relevant Statement of Work.
- The Intellectual Property Rights in any third party software or material used by WildPress in the delivery of a
Deliverable and the Services (together, “Third Party Software”) shall belong to the relevant third parties.
WildPress shall ensure that the Client and other persons authorised by the Client shall have a non-exclusive,
non-terminable, royalty free licence throughout the world to use and allow others to use the Third Party Software
to the extent that this is necessary to enable the Client’s use or exploitation of the relevant Deliverable or
Services in any way it wishes, subject to:
- the terms of any relevant third party licence that WildPress may have notified to the Client prior to the Agreement being entered into; and
- any restrictions expressly set out in the Statement of Work.
- The Intellectual Property Rights in any trade marks, trade names or other brand-specific material relating to the Client that are included in the Deliverables (“Client Trade Marks”) will belong to the Client. Any goodwill arising from use of any of the Client Trade Marks will belong to the Client.
- Subject to clauses 12.1, 12.2 and 12.4, the Client will own the Intellectual Property Rights in any Data, and WildPress hereby assigns all such Intellectual Property Rights to the Client.
- The Client grants to WildPress a licence to copy, adapt and use the Client Materials and Data for the purposes of providing the Services and as otherwise reasonably necessary in order to perform any of WildPress’ other obligations or to exercise any of its rights under this agreement.
- All rights and licences granted by either party to the other under this Agreement:
- are non-exclusive and the party granting the licence is allowed to grant similar rights to anyone else; and
- will continue for the Term of this Agreement, after which they will terminate immediately (except to the extent expressly provided otherwise in clause 11.2).
- Subject to the obligations of confidentiality in clause 8, nothing in this clause 12 will prevent WildPress from using or re-using in the course of its business any know-how, techniques, methods of general business, technical knowledge or extracts of the Deliverables used or developed in the course of providing the Services, provided that WildPress will not attempt to memorise or make any specific written records of the Client’s confidential information for these purposes.
- Subject to clause 12.11, WildPress will indemnify the Client against any loss or damage suffered or incurred by the Client as a result of any claim that the use of or possession by the Client in accordance with this Agreement of any of the WildPress Materials infringes the Intellectual Property Rights of any third party.
- The indemnity in clause 12.10 will not apply to the extent that the relevant infringement results from:
- any of the Client Materials forming part of the Deliverables (whether requested, specified or otherwise included at the recommendation of the Client) or the authorised use by WildPress of information, documents, materials, facilities or items supplied by the Client;
- the combination, operation or use of a Deliverable in combination with any software not supplied by WildPress hereunder, where the Deliverable would not itself be infringing;
- compliance with designs, specification or instructions provided by the Client;
- use of a Deliverable in an environment or application for which it was not designed or not contemplated under the Services; or
- the Client modifying any relevant material or Deliverables without the consent of WildPress where the unmodified version of the Deliverables would not be infringing.
- The Client will indemnify WildPress against any loss or damage suffered or incurred by WildPress as a result of any claim that the use or possession by WildPress in accordance with this Agreement of the Client Materials infringes the Intellectual Property Rights of any third party.
- In relation to any third party claim to which any of the indemnities in this clause 12 relate, the party
claiming the benefit of the indemnity shall:
- allow the other party on request to conduct the defence of the claim (including settlement);
- make no admission to the claim without the prior consent of the other party;
- notify the other party as soon as is reasonably practicable of the claim; and
- at the expense of the other party, co-operate and assist to a reasonable extent with the other party’s defence of the claim.
Open source software
- WildPress has only included Open Source Software within the Deliverables to the extent that WildPress has:
- obtained the consent of the Client to use the Open Source Software;
- notified the Client of the exact Open Source Software which has been incorporated within the Deliverables; and
- provided the Client with details of the Open Source Software licences applicable to the Open Source Software used within the Deliverables.
Dispute resolution procedure
- In the event of any dispute between the parties, then:
- the parties will attend a meeting to attempt to resolve the dispute;
- if the parties are unable to resolve the matter in accordance with clause 14.1(a), then the parties will try and resolve the claim through mediation under the auspices of the Centre for Dispute Resolution (“CEDR”) in London, by reference to the CEDR Model Mediation Procedure, on the basis that the language of the mediation shall be English; and
- if after 20 Working Days from the date on which the dispute was referred to mediation the dispute remains unresolved, then the dispute resolution procedure will be treated as having failed and as at an end.
- Nothing in this clause 14 shall prevent the parties from immediately seeking from any court of competent jurisdiction an interim order restraining the other party from doing any act or compelling the other party to do any act.
- Neither party may subcontract its obligations under this Agreement, in whole or in part, without the prior written consent of the other. Where such consent is given, the subcontracting party remains fully liable for each act or omission of its subcontractor. For the avoidance of doubt, the Client hereby gives consent to WildPress to use: (i) any subcontractor providing a service essential for operating the WildPress’ business, such as Notion.so, Trello, Google Drive, Gmail, Dropbox, Invision and Figma, and (ii) any subcontractor listed in the Statement of Work.
- Neither party will be liable to the other for any breach of this Agreement which arises because of any circumstances which that party cannot reasonably be expected to control.
- Client shall not assign, licence or transfer in any way any of its rights, liabilities and/or obligations under this Agreement on a temporary or permanent basis to any third party without the prior written consent of WildPress, such consent not be to unreasonably withheld.
- Except to the extent that this Agreement expressly says otherwise, nothing in this Agreement shall create a partnership between the parties or give the rights of a partner to either party.
- All notices and consents relating to this Agreement must be in writing. All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
- Subject to clause 7.1(c), this Agreement sets out all of the terms that have been agreed between the parties and supersedes all previous or contemporaneous agreements between the parties in relation to its subject matter. In entering into this Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement.
- No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
- This Agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute concerning this Agreement.