Agreement

This section comprises an agreement between the parties. To confirm your desire to commission the work, please print 2 copies of this document, sign this section and return both copies to us for signing.

a. General Terms

The Parties
This agreement is between:
N8tive Limited,  (Registered Office) 109-111 High Street, Hornchurch, Essex, RM11 3XT
and
(the client).  

This Agreement

1. This entire document, together with any attachments, shall be the sole and whole agreement between the parties
   1. The scope of the Services to be provided by N8tive shall encompass all the activities described in deliverables and fees section of this document.
   2. Where N8tive is contracted to provide advice, research or to train the Client or to facilitate workshops, the terms of these shall be governed by “Advice Terms”.
   3. Where N8tive is contracted to produce software deliverables the terms of these shall be governed by “Software Terms”.
   4. Where N8tive is contracted to support a web site the terms of these shall be governed by “Support Terms”.

Definitions

1. ‘Client’ means the company which has requested the services from N8tive Limited and which is referred to in ‘The Parties’.
2. ‘Services’ means the activities; advice and software defined in Deliverables and Fees section of this document and any other services as agreed between the parties in writing.
3. ‘Schedule’ refers to the Services, fees, deadlines and payment terms as defined in this document.
4. ‘Deliverables’ means the Software items delivered to the Client under the terms of this Agreement.
5. “Completion” means the date by which the N8tive has completed the development of the Website, the Client has accepted it and made full payment to the N8tive. Alternatively, Completion will occur early where the Project is cancelled or terminated provided that the Client has paid all sums owing to the N8tive under the cancellation or termination provisions below and has accepted the N8tive’s work on the Project up to the date of cancellation or termination;
6. “Front End” means the visual appearance of the Website, page layout, content, photographs, videos, music and text, branding, corporate image and look-and-feel together with any Bespoke Software;
7. “Rights” means all intellectual property, copyright, design right, registered designs, trade marks, patents, confidential information and ideas and moral rights and all other rights whatsoever of a like nature world-wide whether those rights are registered or not;
8. “Software” means all coding and programming (programme, executable, script, database, picture, cookie, parameter and data files and source code ) required for the development and use of the Website including any content management system for updating the Website or similar programming tools such as are not specifically included within the definition of Front End;
9. “Bespoke Software” means all software specifically developed by the N8tive for the Website which the Parties have agreed and specified in the Project Specification will be included in the definition of Front End.
10. “Third Party Material” means all content, materials and software to be incorporated in or used in conjunction with the Website which belongs to third parties.

Dates

1. This agreement shall come into force on the date of the signing of the document by both parties and fulfillment of any advance payments specified in the Deliverables and Fees section, which should be preceded by the submission of an invoice from N8tive.
2. The period this agreement is effective is from the date of signature until 6 calendar months after that. Prices, rates and any terms within the agreement may be subject to change after the period has expired. During the term of this agreement, should any disbursements or increases in work due to reasonable unforeseen circumstances arise such as (but not limited to) third party price changes, failure of third party services or changes in Client requirements, then N8tive reserves the right to increase its prices accordingly and reasonably subject to the written agreement of the Client.
3. N8tive reserves the right to defer agreed task deadlines by up to three weeks, provided it gives one week’s written notice before the original task deadline.
4. Should any essential N8tive project staff become unavailable for work due to illness, death or reasonable unforeseen circumstances, the written notice period in clause 12 above shall be shortened reasonably.
5. Both parties agree to make best endeavours to meet agreed deadlines.

Fees

1. The Client agrees to pay the fees at the rates specified in the Deliverables and Fees section of this document. The Client agrees to the Financial Terms as set out in Deliverables and Fees.
2. After the project has commenced, if N8tive believes the costs are likely to be above the Client’s budget, N8tive will notify the Client immediately in writing and ask the Client to approve before further work is done.

Alteration

1. Should circumstances arise which call for modifications of the Agreement, these will be made by mutual consent given in writing. Proposals in this respect from one party shall be given due consideration by the other party but under no circumstance shall it nullify obligations each contracting party assumed. The Client is entitled to make amendments to the brief without, by doing so, changing the nature and purpose of the services. If, as a consequence hereof, the scope of the Services is widened or narrowed, the total fee shall be adjusted accordingly and the contract period revised.

Documentation and Confidentiality

1. All non-software and non-media documents provided by N8tive shall be the property of the N8tive and may be used by the Client only for the purpose intended.
2. N8tive shall not at any time communicate to any unauthorized person or entity any confidential information disclosed to it for the purpose of the Services or discovered by it in the course of the Services, nor shall it make public any conclusions or recommendations formulated in the course of result of the Services.

Force Majeure

1. [ ]

Dispute

1. If any dispute or difference arises out of or in connection with this agreement, the parties shall seek to resolve the dispute or difference amicably by using an alternative dispute resolution procedure acceptable to both parties, such as (but not limited to) arbitration or mediation:
   1. All disputes shall be conducted in accordance with the relevant laws of England and Wales.
   2. The Awards of the Arbitration or Mediation Tribunal shall be final and binding on both parties.
   3. Any dispute not resolved under this clause shall be determined by the Courts within the jurisdiction of England and Wales.

Late Payment

1. Both parties agree to abide by the terms of the Late Payment of Commercial Debts (Interest) Act 1998. The Act provides a statutory right to claim interest on late payment of commercial debts, recompensing creditors for the cost of payment delay. Both parties agree that a payment is late when it is received after the expiry of the stated credit period in Deliverables and Fees of this document. If payment is not received by this time, then both parties agree that statutory interest will be charged and paid at Base Rate + 2%, effective from the date of invoice.
2. Please note – the preceding clause will automatically be enforced. There are no conditions under which late payment will be tolerated. Non-payment of invoices or interest due from late payment may result in project cancellation and the withdrawal of services and/or code. We make every effort to deliver on time as our clients demand; we expect our clients to make every effort to pay on time as we demand.

Termination

1. Either party may terminate this agreement prior to the commencement date in writing to the offices defined above.
2. Once the project has begun, the Client may terminate this agreement upon written notice to N8tive. Cancellation by the Client will result in fees being charged for services rendered up to the date of cancellation, and for any reasonable costs incurred by N8tive on behalf of the Client up to the date of cancellation. These may include (but are not limited to) project management work, disbursements made on behalf of the client, Software and other deliverables not yet completed. These reasonable costs are not penalty charges, but will merely represent fair settlement for incomplete or complete work, not yet charged to the Client. In circumstances where the project is terminated due to illness or death of the Client’s project members, these reasonable costs shall also be paid by the client.
3. N8tive may, by written notice to the Client terminate this Agreement:
   1. if N8tive has not received the payment due or that part of any invoice which is not contested within fifteen days of submission, or
   2. if the services have been postponed by the client in writing for a period exceeding one month.
   3. In the event that N8tive is not discharging its obligations under the Agreement, the Client shall in writing, notify it to comply with the terms of the Agreement. If N8tive fails to respond to such notice within fourteen days, the Client may terminate the Agreement.
      1. Either party may terminate this Agreement by written notice to the other:-
      2. if there is a material breach by the other party which, if it could be remedied, is not remedied by the other within fourteen days of it being given notice in writing to do so;
      3. if the other party is repeatedly in material breach and, having being given notice that any further such breach may result in termination, is again in breach;
      4. if steps are taken under the Laws of England and Wales in respect of the insolvency of the other party or such other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
   4. If either party is, or anticipates being, prevented from complying with its obligations by circumstances beyond its control, it shall immediately notify the other in writing, and do everything reasonably possible to comply. This Agreement will be suspended immediately on the giving of that notice or on the occurrence of those circumstances (whichever is later) and if performance is not resumed within 14 calendar days, the other party may in writing terminate this Agreement.
   5. To the extent permitted by law, the total liability of the Client to N8tive arising during each year of this agreement shall not exceed the aggregate charges paid during such year (as determined at the date when the liability arose). To the extent permitted by law, the Client shall not be liable to N8tive for any loss of profits or any indirect or consequential losses or damages.

b. Advice Terms

Consultancy and Other Services

1. N8tive shall assume the full cost of employing its personnel and any sub-contractors it deems necessary for the performance of this Agreement.
2. N8tive shall exercise full diligence for the timely delivery of the services and they are of high professional standard to the satisfaction of the Client.
3. N8tive shall always act, in respect of any matter relating to this Agreement or to the Services, as faithful advisor to the Client, and shall at all times support and safeguard the Client’s legitimate interests in any dealings with third parties.
4. The Client shall furnish, without charge and within a reasonable time, all pertinent data and information available to N8tive and shall give such assistance as shall reasonably be required by N8tive for carrying out its duties under this Agreement.
5. In the event that N8tive is delayed in obtaining the pertinent data and information, it shall notify the Client in writing of such a delay and shall be entitled to appropriate extra time extension and payment if appropriate.

N8tive Consultancy Liability

1. To the extent permitted by law, the total liability of N8tive to the client arising during each year of this agreement shall not exceed the aggregate charges paid during such year (as determined at the date when the liability arose). To the extent permitted by law, the N8tive shall not be liable to the Client for any loss of profits or any indirect or consequential losses or damages.
2. To the extent permitted by law, the total liability of the Client to N8tive arising during each year of this agreement shall not exceed the aggregate charges paid during such year (as determined at the date when the liability arose). To the extent permitted by law, the Client shall not be liable to N8tive for any loss of profits or any indirect or consequential losses or damages.

c. Software Terms

Introduction

1. These terms and conditions are for software development provided by N8tive and operate in conjunction with the Schedule.
2. By commissioning the Software, the Client accepts these terms and conditions. If the Client does not accept these terms and conditions then they should immediately notify N8tive in writing by email or otherwise in advance of project commencement so that the agreement can be cancelled.
3. At its discretion, N8tive may vary the Agreement to better suit a Client’s specific requirements. These terms prevail unless a variation is agreed between the Client and N8tive in writing.
4. Applicable Law; Third Parties
   1. This agreement shall be governed, construed and shall take effect in accordance with the laws of England and Wales and be subject to the exclusive jurisdiction of the English courts.
   2. The Client agrees to using their best endeavour to resolve all disputes amicably and in the spirit of the agreement without recourse to legal action.
   3. Except where expressly provided to the contrary, this agreement is not intended to be for the benefit of, and shall not be enforceable by, any person who is not named at the date of this agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party.

Deliverables

1. The Schedule describes the Software.
2. Invoices will be payable after acceptance of the deliverables and before the Payment Period specified in deliverables and fees, save that the Client shall not be entitled to withhold or delay its acceptance unreasonably.
3. Estimated costs for each deliverable or service is provided in the Schedule.
4. After project commencement, if N8tive believes the costs are likely to be above or below the Client’s budget, N8tive will notify the Client immediately in writing and ask the Client to approve before further work is done. If during the course of the project, the client requests extra deliverables not specified in the document, N8tive will notify the client in writing of the extra cost before proceeding.

Intellectual Property Rights

1. On Completion N8tive shall grant to the Client an irrevocable non-exclusive royalty-free worldwide licence to use all Rights in the Front End for the purposes of operating the Website and for any other purposes connected with the Client’s business. For the avoidance of doubt, such licence shall extend to the Client’s successors and assigns; any third party for whose benefit the Website was built; the Client’s internet service provider (“ISP”) for the purposes of hosting the Website; and to users of the Website.
2. N8tive hereby warrants that it will procure an assignment or appropriate non-exclusive licence of all Rights in Third Party Material incorporated in the Front End to the Client to give effect to the above paragraph unless agreed otherwise with the Client in writing.
3. On Completion N8tive will grant to the Client a non-exclusive world-wide irrevocable royalty-free licence to use all Rights in the Software for the purposes of operating the Website. For the avoidance of doubt, such licence shall extend to the Client’s successors and assigns; any third party for whose benefit the Website was built; the Client’s ISP for the purposes of hosting the Website; and to users of the Website for normal use contemplated in the Project Specification. Where any element of the Software comprises Third Party Material, N8tive will assist the Client to obtain a licence directly from such third party.
4. Each party will indemnify the other and hold them immune from any claims for materials they have supplied including (but not limited to) libel, copyright, or trademark infringement brought against them with respect to the use of those materials.
5. The Client agrees that it will not deconstruct the software code or lend, sell, give or copy the code to any individual or organisation, except where N8tive expressly approves.

d. SUPPORT TERMS

1. These terms and conditions are for standard software support provided by N8tive and operate in conjunction with the other terms of this agreement.
2. By submitting a request for support, the Customer accepts these terms and conditions
3. If the Customer does not accept these terms and conditions then they should immediately notify N8tive in writing and by email so that their support agreement can be terminated.
4. These terms should suit the vast majority of Customers by providing a cost-effective support service. However in exceptional circumstances, and at our discretion, we may vary the support agreement schedule and financial arrangements to suit a Customer’s specific requirements. The Customer should contact us if this is the case but these terms apply until an amendment is agreed between the Customer and N8tive.
5. Notification of request for support
   1. Clients must adhere to the standard procedure for notification to enable support to be provided promptly and effectively
   2. All notifications must be made in writing by email or letter

• Clients must immediately notify N8tive of any issues they believe are due to faults in N8tive coded software by sending an email or letter
• Any communications not made in writing (e.g. on phone or in person) in relation to support requests cannot be guaranteed to be acted upon.
• It is the responsibility of the Clients to provide sufficient detail regarding the nature of the problem to enable N8tive to replicate the fault and specifically how to re-create the fault that they are experiencing. This includes the precise sequence of events that induces the fault. If N8tive are unable to replicate the fault the Client will be asked to provide further information and the request will be put on hold. We advise that the Clients checks this by using at least one other computer to recreate the fault themselves.
• The detail required in the request includes:-

1. operating system being used
2. internet browser and version being used (usually available by clicking About from the browser drop down menu)
3. the date and time the problem occurred
4. the exact sequence of events that causes the problem
5. relevant web page addresses/urls (cut and paste from the address bar where possible)
6. the username which is being used with the software (if applicable)

• N8tive will provide a guideline of first response times for support. These are the times that we will make a response to you to acknowledge and accept the request. We will also try to provide a guide as to the likely resolution time however, given the nature of software problems; this may not be possible without further investigation. Resolution times are not guaranteed.
• If N8tive believes the fault is outside its area of responsibility the Client will be informed as to the reason and the request will be closed.
• The Client must advise if they need to approve the fix in advance, subject to there being a live and up to date development server otherwise N8tive will assume the fix should be made an implemented as soon as possible. The Client must also advise if there are any times when the fix cannot be made due to important activities happening on the site. N8tive accepts no responsibility for non-availability of web pages or the site whilst a repair has been requested unless we have received specific instructions from the Client limiting how and when the repair can be done

1. If the client requests that N8tive load content to the site it is the responsibility of the Client to immediately check that the newly loaded content is correct and accurate and, if not, advise N8tive of any required amendments (or amend it themselves using the admin system). The client is at all times responsible for their own content and N8tive will only make amendments to content under written instruction from the client.
2. The software produced for fixes is subject to the same terms as detailed in Software Terms and is subject to the same warranties as outline below
3. The support arrangement may be terminated by either party provided at least 28 days notice is given and the notification is in writing (email or letter with written non-automatic acknowledgement of receipt).

Warranty

These warranty clauses are almost universal practice within the software industry – if you are unfamiliar with purchasing software, please consult an industry specialist.

1. N8tive will use its best endeavours to ensure that deliverables shall be free from defects and comply with the specification.
2. In no event will N8tive be liable to the Client or any third party for any incidental, consequential or special damages (including any lost profits or lost savings) arising out of the operation of or inability to operate the deliverables to the extent applicable under the Laws of England and Wales, even if N8tive has been advised of the possibility of such damages.
3. N8tive shall promptly and at no cost to the Client correct any faults identified within 30 days of the acceptance of the code. At the end of this period, the Client may agree to pay for support services by way of a separate support agreement or may make such other appropriate arrangements based on further discussions.
4. If the Client requires a custom warranty then, at N8tive’ discretion, an extra document may be agreed upon and paid for by the Client.
5. Faults caused by the web host or other sources outside the control of N8tive shall not be the liability of N8tive.
6. In the event of a fault in the software is found by either party, N8tive will use its best endeavours to correct it swiftly and accurately, to the Client’s reasonable satisfaction. N8tive’s liability for faults shall be limited to supplying corrected software.

Fees and payment

1. The Client shall be responsible for paying all taxes of any nature which become due with regard to the Software described in the Schedule except for taxes of N8tive’ income, irrespective of which party may be responsible for the reporting or collecting of such taxes.

Dates and notice

1. N8tive reserves the right to update these Standard Terms and Conditions at any time subject to written agreement by both parties. N8tive will notify the Client in writing of any variation of these Standard Terms and Conditions. This agreement will not automatically be invalidated if N8tive should choose to alter the standard terms; the Client may respond with queries within 14 days of the issuance of new Standard Terms and Conditions, after which the Client may choose to terminate the Agreement according to the Termination terms in this section, or to continue with the adjusted Agreement.

Partial Invalidity

1. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

Non-Assignability

1. Each party’s rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other except to an associated or subsidiary company which will be advised in writing).

Review

1. At the end of the project, N8tive will invite the Client to review the quality of N8tive’ work.

Data Protection

1. n8tive will use its best endeavours to keep personal data confidential and agree to abide by the terms of the Data Protection Registrar

Please print 2 copies of this document, sign this section and return both copies to us for signing.

Signed on behalf of N8tive Limited:

Andy Kinloch                              

Date of signature:

We the Client accept and agree to the above.

Name: . . . . . . . . . . . . .

Signature. . . . . . . . . . . . .

Date of signature: . . . . . . . . . . . .